Majoring in Not Teaching

Commenting on Jeff Harrison's April 27 MoneyLaw post,"Majoring in Not Law," Anonymous Yale Grad Turned Law Professor writes:

You assume that law professors should teach the law -- as declared by the courts. But as every Yalie knows, what courts do is often wrong; judges' words are not "the law." And just because a higher court reversed opinions we worked on below, doesn't mean that the higher court was right.

Last time I checked, "the law" was not synonymous with "right" or "wrong;" whether a court's words are right or wrong have nothing to do with whether they are law. Some can and will debate the answer to "What does one call the "5" in a 5-4 Supreme Court decision?" until the end of time, all the while ignoring the obvious (although perhaps not the only) answer: "It's the law of the land." (Those who disagree must necessarily begin the next sentence with, "But . . .")

Whether one likes it or not, and no matter how much one wishes it weren't so or praises it to high heaven, at the end of the day the judges' words in Bush v. Gore and Roe v. Wade remain the law not because they are right or wrong but because the real highest court in the land has so declared. Plessy v. Ferguson was shamefully wrong, but make no mistake: it was nonetheless the law until Brown v. Board of Education said otherwise. Just ask those who were "separate but equal" from 1896 until 1954, or are still considered so 54 years later.

AYGTLP continues:

In the highest court of the land -- the classroom -- we finally have the opportunity to expose the errors of the appellate courts throughout the land. We can, in fact, teach students the actual "law," set, of course, in proper theoretical context. . . . Sure, what the students learn in such a course bears little resemblance to what the Rehnquist Court has held in its so-called cases, but my students at least get a coherent theoretical picture of what con law ought to be.

Hold your breath -- (insert the sound of a lightning bolt striking me dead) -- the classroom is not "the highest court of the land." It's not a court at all. No evidence is presented; no disputes are resolved. What happens in a classroom only truly matters when someone takes what he or she learns there and applies it to benefit others, and not a moment sooner. Exposing "the errors of appellate courts throughout the land" is an academic parlor game some may find fascinating, I suppose, but it should not be confused with teaching unless and until it is preceded by a solid foundation of how and why those errors came to be, so a student can learn to no longer simply be amused at others' shortcomings and instead help her client avoid their consequences.

David Goldberger (J.D. Chicago) taught me more than I could ever hope to learn about "what con law ought to be," not through a theoretical context, but by skillfully fostering a classroom discussion on the Fourteenth Amendment so civil and open that when one student commented that racism was not really much of a problem any more, another shared that the previous year she saw an effigy hung outside a dorm window with a cardboard sign that read, "Niggers, go home" and explained its effect on her and other African-American students. (This was in 1994, not 1954.)

Jim Brudney (J.D. Yale) taught me far more about labor law and workers' rights than any theoretical context possibly could by showing me how corporations spend years letting their manufacturing equipment grow obsolete while using subsidiaries to build new factories with new equipment overseas, and spend months trimming their raw materials inventory, only to "suddenly" lay off hundreds or thousands of workers with absolutely no notice, claim they had no other choice, blame the economy, and tell everyone how sorry they were. Hence, the WARN Act.

For me, the same is true for Kathy Northern and John Quigley (Harvard), Louis Jacobs (NYU), Allan Samansky (Penn), Nancy Rapoport (Stanford), and Douglas Whaley (Texas). But I won't bore you with more stories; you either get it by now, or you don't. They are great law professors not just because they went to great law schools, but also because they are passionate about the subjects they teach and the students to whom they teach them. They work hard, and above all know that their jobs are not so much about showing how smart they are and how much they know (so stipulated), but about how smart they can help their students become and how much more they can help them learn.

(As an aside, is it any wonder why the public doesn't respect the judiciary when some law professors apparently don't? The Rehnquist court did not decide "so-called" cases, while, say, the Warren court heard real ones. If the Rehnquist court decided "so-called" cases, then did Sandra Day O'Connor write "so-called" opinions or make "so-called" deciding votes? Please.)

So, dear Anonymous Yale Grad Turned Law Professor, if you truly aspire to greatness in your chosen profession, go to Columbus, Ohio and look up "Yalie" Nancy Hardin Rogers at the Ohio State University. You won't need an appointment; she makes time for everyone even though she's the dean, active in the classroom, current in her publications, and on the side was on the Board of the Legal Services Corporation and the president of the AALS. Follow her around for half-a-day; she'd be glad to have you.

To learn about her accomplishments, though, you'll have to read her vitae. You see, she will be too busy asking you about what you want to do and how she can help you do it to spend any time talking about herself. For all she's done and continues to do, it's never about her; it's always about those she serves. Hopefully, you'll leave her with a new appreciation for what you do, open to all kinds of possibilities you never imagined -- even if you already have tenure.

As Emerson wrote, "The secret of education is in respecting the pupil." Robert Frost wrote that he was "not a teacher, but an awakener." He also wrote, "There are two kinds of teachers: the kind that fills you with so much quail shot that you can't move, and the kind that just gives you a little prod behind and you jump to the skies." Choose wisely. And good luck to you.

Graduation Day

All good things must come to an end, and so it goes for law school.

The big day is almost upon us for the Class of 2008. Mom and Dad are beaming, particularly at the thought of not having to pay any more tuition bills. Law students are exercising their right arm, ready to flip that tassel to the side of worldliness. Finally, two and a half years of abject boardom over. Off to the exciting world of real life lawyering, changing the world, and perhaps earning a living.

Todd Zywicki at the Volokh Conspircy notes some curious choices for commencement speakers, Jerry Springer at Northwestern Law School and Justice Clarence Thomas at the University of Georgia. Big names make for a memorable commencement, and draw attention to the importance of the law school. Why Northwestern didn't snag Judge Judy is beyond me.

But I wonder if we wouldn't do better by giving law students one final warning about what they are getting into. I know, it's a little late, having spent three years of their life and over $100,000 buying into a job, but it isn't too late to cut one's losses.

Discontent amongst young lawyers remains a problem. Sure, there will always be a few who find themselves in the wrong place, but anecdotal evidence suggests that the problem runs deeper. Tuition is already paid, and there aren't any refunds, so why not come clean?

Commencement is a day of grandeur and glory. Caps and gowns, plus a cool looking hood, are quite alluring. A procession led by festooned faculty, sometimes accompanied by a sceptre, are more than any mere mortal can stand. Swept up in the moment, what law student could question his choice?

Then comes the commencement speech, words designed to make one's chest swell with pride for the accomplishment and hope for the future. There's no fine print at commencement. It's platitudes galore. Cliches at their best. From the mouths of people with bold-faced names, if the school has any juice at all.

It would be interesting to see a school select a commencement speaker who challenged the lawyer-buds to make certain that they are not about to fall off the precipice. Someone who will tell them that they don't have a friend at the BMW dealer. A person who will explain why judges speak rudely to lawyers, and why clients show them no respect. What about a speaker who will inform them that at the end of the day, there may be nothing to show that they existed except a sheaf of papers with random letters on it.

Or are they better off learning about their future from Jerry Springer? They just may be.

More Thoughts on Art

In Thoughts on Art, on Red Lion Reports Kelly Bozanic asked: What is art? Kelly offered an answer to her own question partly in response to a story in the Yale Daily News. The story reported that a Yale art student inseminated herself "as often as possible" and used an abortifacient drug to abort multiple pregancies. The story provoked 320 on-line comments.

Dean of Yale College, Peter Salovey, issued a press release last week in which he noted that the student's project "bears no relation to what I consider appropriate for an undergraduate senior project.” The Dean of the Art School, Robert Storr, agreed: “This is not an acceptable project in a community where the consequences go beyond the individual who initiates the project and may even endanger that individual.” Two faculty members made "serious errors in judgment" and are subject to "appropriate action."

Inside Higher Ed interviewed art academics for a story running today about academic freedom in art. Nicola Courtwright, professor of art history at Amherst and president of the College Art Association notes that nixing a student's art project because of content would be "giving up your ethical responsibility to teach." John Carson, head of the School of Art at Carnegie Mellon, explained that art educators' responsibility is to encourage students to take risks. The limit isn't the subject matter: no subject should be taboo for art. Rather, the boundary of legitimate "art" depends on the artist's purpose. "I need justification from the artist," he said. “There are no hard and fast rules. You are looking at each case on an individual basis. You are looking at the sincerity of that artist.”

Apparently, if the artist's justification satisfies his or her professor, then the work is art, shielded from censorship as an act of legally-protected academic and expressive freedom. If the artist's justification fails, then no freedom. What kind of standard is that? How do art academics evaluate the artists' justification? How is this evaluation distinguishable from evaluating the social value of the content of the expression?

Randy Martin, chair of art and public policy and director of the graduate program at NYU's Tisch School of the Arts adds this: “The question of reining [student artistic expression] in…cuts more deeply in an arts environment than it may in other situations because of how potent the cultural norms of freedom are, as they’re applied to artists.” Martin is right in one sense. We think of art as the ultimate venue for free expression. But for student art projects, the stakes are relatively low compared to the political and economic contexts in which we lawyers struggle to balance collectively held values against individual freedom. What should be the limit of individual freedom? So far, art academics have dropped back to punt.

Der amerikanischen Bevölkerung

Hans Haacke, Der Bevölkerung (1999/2000)
Hans Haacke's bold transformation of an interior courtyard dedicates the German Reichstag to Der Bevölkerung. A play on the Reichstag's original dedication, Dem Deutschen Völke (To the German People), Der Bevölkerung pledges the symbol of new German democracy "To the Population." It is literally a monument to demography, a science known to German-speaking people as Bevölkerungsstatistik.

New York Times columnist David Brooks has identified a demographic monument befitting Dem Amerikanischen Völke: the 2008 Democratic presidential campaign. The rise of "a mass educated class" has separated "[t]he college educated and non-college educated" into "different towns." The two classes have "radically different divorce rates and starkly different ways of raising their children." Far beyond "the ideological divide between Red and Blue America," we now behold a "a deep cultural gap within the Democratic Party, separating what Stuart Rothenberg calls the two Democratic parties":

In state after state (Wisconsin being the outlier), Barack Obama has won densely populated, well-educated areas. Hillary Clinton has won less-populated, less-educated areas. For example, Obama has won roughly 70 percent of the most-educated counties in the primary states. Clinton has won 90 percent of the least-educated counties. In state after state, Obama has won a few urban and inner-ring suburban counties. Clinton has won nearly everywhere else.

The different segments of the American Volk — what I would call (in the nominative case) die amerikanische Bevölkerung — divide themselves less according to political ideology and more according to education and class. Brooks asserts that "people in different niches have developed different unconscious maps of reality" and "different communal understandings of what constitutes a good leader, of what sort of world they live in." Their "different communal definitions, which they can’t even articulate, of what they mean by liberty, security and virtue" have functionally separated demographic groups in America into distinct "tribes or cultures.

Brooks finds a certain "poignancy" in this phenomenon. There's even a MoneyLaw dimension to it:

[E]ven if you take away the ideological differences between the parties, you are still left with profound social gulfs within the parties. There’s poignancy to that. The upscale liberals who revere Obama have spent their lives championing equality and opposing privilege. But they’ve smashed the old WASP social hierarchy only to create a new educational one.

Meet the new boss. Same as the old boss. Let's not get fooled again.

Destroying the Polygamist Village to Save It

I, like Robert Ambrogi at Legal Blog Watch, have been amazed to see such silence in the legal blogging community after the Texas raid on the polygamist sect in Eldorado, in which hundreds of children were taken away from their parents, in what has been appropriately called the biggest custody case in Texas, if not national, history. Despite claims that this is simply a case of the government's stepping in to protect children from abuse, this case strikes me to be just as much An Unusual Prosecution of a Way of Life, to use the precise words of the headline from the Washington Post article of a few days ago.

There are many obvious problems, constitutional and otherwise, with the Texas government's abrupt dismantling of hundreds of families, but I have seen precious little protest in the legal blogosphere, or elsewhere even. In fact, I've only found the posts of David Bernstein and Eugene Volokh at The Volokh Conspiracy to be seriously critical of this troubling state action, even though they seem, to me at least, just to be stating the obvious.

And so basically, like Katie Granju, in Knoxville, Tennessee, I wonder Where is the ACLU? Although the Texas ACLU initially expressed some concerns, we have lately heard nothing further from them, and, to my knowledge, nary a peep from the national headquarters of the ACLU. Perhaps this silence is somewhat understandable, as we may certainly find the idea of state intervention justifiable in order to protect children from abusive cultures.

But we should not be so quick to judge and condemn, and jump to conclusions about issues of freedom and abuse, at the expense of the Constitution, as the very good posts from the Texas blog Grits for Breakfast have indicated. Interestingly, as Ambrogi pointed out in his Legal Blog Watch post, there is more of substance to be found from this Texas journalist at Grits for Breakfast, and from the Salt Lake City reporter at The Polygamy Files than from either the major media sources or the legal blogosphere.

Well, it certainly doesn't take a lawyer to figure out that there are problems with the law having been interpreted and applied in such a way as to permit the round up of a whole group of individuals, based on the fraudulent word of one alleged informant, followed by the forced separation of a multitude of children from their parents, without a showing of any particularized threats of harm to those individual children. As a result, hundreds of small children will most surely be harmed in a very real way (and indeed that is already happening right now!) on account of the abrupt separation, at the hands of the state, of these children from their parents. Until recently, the judge even had ordered the separation of babies from mothers who were nursing them.

The state says: "Gee, we got a report of abuse, and it looks like the whole sect has children who may have been, or may be, subject to abuse by their parents, i.e. the girls as teenagers might be brainwashed or forced into sexual relations and marriage with older men." But is it really that simple, though? Are all of these children truly at risk? Will all of them be involuntarily forced into unions with older men? Are all of them in immediate risk of abuse? Can the government legitimately step in? So far the evidence provided by the state, for such a broad, sweeping action, has been pretty lame.

There appear to have been Fourth Amendment problems, and there probably will be Fifth Amendment problems as well, depending on how this sweeping DNA testing order is used. There was likely no probable cause for the warrant to issue, and both the arrest and resulting detentions were and are seriously constitutionally suspect. Of course, if individual crimes were committed, then individuals should be apprehended and charged. If children were abused, and crimes committed, the parents or others responsible should be charged. But how can the state round up a whole religious community, take all the children from their parents, take every one's DNA, and then try to make their case or cases after the fact?

I guess what I am trying to say is: What the hell?!

The "answer" to that question is just as lame as one might expect in response to such a question that is hardly ever asked: Oh, well. What's done is done. Now, we will just have to try to make everything right, now that we've broken up these families in order to protect them. Just trust our government to make the right choices in placing these traumatized children with appropriate foster parents, while we try to figure out what to do next.

This Texas case reminds me of our federal government's move in claiming there were weapons of mass destruction in Iraq, followed by its invasion and occupation of that country, against the will of the UN Security Council, after which it was then revealed that the justification for the invasion had been flawed and dishonest, but our government then shrugged its shoulders and claimed that "we can't get out now - we have to finish the job."

The federal government used fear to promote its aims, and the Texas state officials have done the same. In both cases the public was swept up in fear - in the first place, by fear of "terrorism" and in the second, by fear of "abuse." But in both cases, it seems these fears were and are overblown, and that such fears have been accompanied by, and intimately related to, quite a huge dose of government ignorance and incompetence. And it is quite certain that these fears projected upon the public - of "terrorism" and "abuse" - are also very tightly bound up in a distasteful, prejudicial fear of The Other.

All of this further reminds me of that famous line of the American officer who was quoted as saying, of the town of Ben Tre, Vietnam, that "it became necessary to destroy the town to save it." But did we need to destroy Iraq in order to save it? And must we now destroy the families in this polygamist sect in order to save them? Call me crazy, but I think the answer to both questions is no. I think we have already been tragically trigger-happy and foolish in both cases.

Now, don't get me wrong. I'm no fan of polygamy, or of the pressuring of 16-year-old teenage girls into marriage with older men; heck, I'm no fan of organized religion of any kind. What I have heard about this, and other, cults is none too attractive to me. Nor was I a fan of Saddam Hussein.

But I'm no more a fan of ignorant, incompetent government action that violates individual rights to life or liberty and that leads to certain harm, in the name of protection against uncertain harm.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Majoring in Not Law

I guess by now most have seen or read the empirical study by
Royce de Rohan Barondes showing that the higher the percentage of Yale grad clerks a judge has the higher the likelihood that a decision by the judge will run into trouble on appeal. The correlation between other elite clerks and appellate problems is equivocal. In fact, the expected negative relationship between other elites and appellate difficulty only occurs if some classes of cases are omitted. (I guess for the Yale grads you can get there by excluding all cases.)

What does this mean for the law firms that hire Yale grads, more importantly their clients and even more more importantly the law students who are taught by these graduates. I mean do they go straight from giving bad advice to their judges to teaching “not law” to their students. Do they give As based on how wrong the students are? Maybe they are just above the law – although the actual explanation may be an overdose on theory.

And, finally, what is up with the judges and appointments committees that continue to hire them. Talk about market failure!

The Foolish Decision Safety Commission

(Cross-posted at Legal Profession Blog)

Just to prove, I guess, that even Harvard law professors, and distinguished ones at that, can get carried away with analogical reasoning, Elizabeth Warren has proposed a Financial Product Safety Commission, on the theory that, if government regulation can protect you from an unsafe toaster, it ought to be able to protect you from an unsafe mortgage.*

I thought about this yesterday morning driving out Massachusetts Avenue, and looking at the significant number of small law offices in North Cambridge and East Arlington, and the number of law students who seem to be saying that they were misled (or something more benign but no less significant financially) into running up $100,000 or so in debt to go to law school, but now cannot find jobs paying sufficient incomes to repay the loans.  And I thought, what this country needs is a Career Decision Safety Commission.  After all, if the government can protect people from bad toasters and bad loans, it ought to be able to regulate career decisions so that people don't end up bitching and moaning about their inability to pay their student loans.**

There's no end to the possibilities (not to mention the job creation for young lawyers who can't pay back their loans).  I would have appreciated it, back in the 80's, if there had been a Videotape Format Safety Commission that would have kept me from buying Betamax (see above left).  Or a Personal Computer Operating System Safety Commission that would have mandated disclosures that kept me from buying that Apple IIGS computer (right) whose primary value was its ability to run the "Dinowalk" and CarmenSandiego programs.  Or some agency that would have kept me from buying the worst car ever made:  the 1984 Chrysler Laser.  (Why did I need to be protected?  Because in 1984 I was turning thirty, about to become a father for the first time, and experiencing my first of several mid-life crises.  I was the poster child for somebody about to make a really bad decision about buying a quasi-sports car that had room in the back for a baby seat.  If I had known that it was a decent looking body clamped on top of a K car chassis, I never would have bought it.)

Here's the problem with Professor Warren's analogy.  A bad toaster or a bad baby stroller is dangerous without exception, and the problem is latent.  The problem with a variable rate loan is not that the dangers are hidden, or that it is always unsafe, but that it's sometimes unsuitable.  I'm not a huge fan of litigation, but it strikes me that the unsuitability doctrine that gives a cause of action to a securities purchaser against a broker (e.g. if Gordon Slicko talks Grandma on a fixed income into short selling troubled companies on margin) makes more sense than a team of government bureaucrats writing incomprehensible disclosures about financial instruments that may make a hell of a lot of sense for some people.

But that's just my opinion.  I could be wrong.

*By the way, it occurred to me that the federal government indeed did impose regulation on this process about thirty years ago:  the Real Estate Settlement Practices Act, or "RESPA."  When you close on a house, and spend about 45 minutes signing a whole raft of forms you never read, including the disclosures and disclaimers on your adjustable rate mortgages, and including the Truth-in-Lending disclosure on the actual annual percentage rate, and including the amount you will actually pay for your house in absolute dollars over the life of the loan (usually three or four times the amount of the purchase price), that's RESPA regulation at work.

**On the very serious subject of law school student loans, Alan Childress makes the very good point that the lesson of the recent Henderson and Morriss study is that entering students need to be thoughtful about slavish adherence to USNWR rankings in law school choice when considering attractive financial packages offered by "lower ranked" schools.

Massachusetts and New England Tops for Children

More evidence that Massachusetts, and its sister New England states, are great places for children has just been released by the Every Child Matters Education Fund. Susan Scully Petroni, editor of the Bay State Parent magazine, reports on the good news at the Bay State Parent Blog here. The full report itself: Geography Matters: Child Well-Being in the States.

Excerpt from the Bay State Parent Blog:

"Massachusetts is the second best state in the nation for U.S. children, based on a diverse set of 10 child well-being standards, including lack of access to prenatal care, premature deaths, malnutrition, poverty, child abuse and teen incarceration, according to a major new report released by the non-profit and non-partisan Every Child Matters Education Fund.

In revealing a nation that is starkly divided with what are often 'deadly differences' in how it treats its youths, the report shows 'geography matters' greatly when it comes to the ability of U.S. children to be healthy and survive to adulthood.

For example, children in the bottom of all the states are three times more likely to die before the age of 14; five times more likely to be uninsured; and eight times more likely to be incarcerated as teens.

The states with the best performance for children are (in order) Vermont, Massachusetts, Connecticut, Rhode Island, New Hampshire, Hawaii, Iowa, Minnesota, Washington, & Maine. In fact, all 6 New England states made the top 10, making it the best region in America for children....."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Let Me Count the Ways

As I have noted before sometime in the mid to late eighties or early 90s legal scholarship took a shift to a race for lines on resumes. In think it roughly coincides with the ratings chase and the full development of symposia issues. I think it was June 17, 1991 but that could be off a day or two.

It was around then that scholarship stopped being counted as a feather in a law professor’s hat and numbers did. It was something akin to a mathematical breakthrough counter to the idea of not creating matter The question is how many different ways can a certain unit of actual scholarship be represented. One unit of scholarship is a amount of actual searching, reading, writing, and thinking. For the more fashion oriented the analogy may be to having one nice scarf and the question being how many ways you can wear the scarf. Or if you like squirting things out of aerosol cans (and what sane person does not), its like filling a substance with air to make the volume increase.

So let's say you have completed 1 unit of scholarship. How can you make it 10?

1. You publish an article.
2. You write a condensed version for a symposium.
3. Slice it up into at least three stand alone pieces.
4. You give it as a presentation – may 3 or 4 times.
5. Looking for a job? Use it as your job talk a but list it as a “workshop”
6. Include in as a chapter in a book to which you contribute a chapter.
7. Write your own book composed mostly of this unit of scholarship and some others.
8. Edit a book of readings and include it.

So when your dean asks for things you did to put under the scholarship column in the decanal glossy, list all of these. And, there is a good chance your dean will give full credit for all of them. You are a star. You are also jerk but that is not a problem in legal education.

Incarceration Nation

The New York Times yesterday published a good basic primer on a most embarrassing type of American Exceptionalism, i.e., America as Incarceration Nation: Inmate Count in U.S. Dwarfs Other Nations’ - New York Times. The first part of the article, written by Adam Liptak, is excerpted below:

"The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison....

...."

For information about Massachusetts criminal law, see the criminal law page of my law firm website.

The Divorce Generation

Now here's an interesting read, the cover story from the April 21 edition of Newsweek: The Divorce Generation Grows Up ("The Divorce Generation Grows Up - Grant High School's class of '82 were raised on 'The Brady Bunch'—while their own families were falling apart. These are their stories—in their words").

As I was born in 1965, right on the line between the Baby Boom Generation and Generation X, I sometimes don't know to what generation I should say I belong. I have characteristics of both Boomers and Xers.

The author, David J. Jefferson, just a few years older than I, has described us 40-something-year-olds, who grew up watching the Brady Bunch, as the "divorce generation." Maybe that will do, although I don't particularly like the term, and I sincerely hope that this author has exaggerated the impact of divorce on my "generation."

But I can certainly relate to the stories told by the author's classmates, as I graduated from high school just one year later than they did, in the early 80s, when the divorce rate in this country was at its highest point. Many of these stories sound all too familiar to me, as they resemble so many stories of others my age.

Since the early 80s, the divorce rate has fallen. And as this article indicates, as we now-40-something-year-olds of the "divorce generation" have grown up, the national divorce rate has fallen, though not back down to the very low level of the 50s and 60s. The relatively lower rate of today may have a lot to do with the fact that we of the "divorce generation" have been more reluctant to make commitments, and more hesitant to marry, and as a group have been waiting until later to do so.

The author of this article indeed suggests that our hesitancy may be partly a consequence of having grown up in the period, from the late 60s through the early 80s, when marriages were becoming so much more vulnerable to termination by divorce. More than just an interesting footnote to The Unexpected Legacy of Divorce, this feature story should be but one of many studies and musings on this topic that I suspect, and hope, will follow in the years to come.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Beware the dreaded Gopher Jacket!

François Sainfort is the head of the University of Minnesota's Division of Health Policy and Management. Julie Jacko, his wife, serves as director of Minnesota's Institute for Health Informatics and holds double appointments in that university's schools of nursing and public health. Though they pull down annual salaries in the neighborhood of $500,000, Sainfort and Jacko are accused of continuing to pull only slightly lower pay from their former employer, the Georgia Institute of Technology. In other words, they allegedly took jobs at Minnesota without actually leaving Georgia Tech. According to Georgia Tech, Sainfort and Jacko have also billed travel expenses — quite improperly, in Tech's view — to Tech and even placed Dr. Jacko's brother on the Tech payroll.

Bill Gleason has provided extensive coverage, including links to newspapers in Minnesota and Georgia, of this power couple and the financial mess that now entangles two research universities. He says more about Sainfort, Jacko, and this heavily recruited and highly paid couple's contribution to the University of Minnesota's declared plan to become one of the three top public research universities in the galaxy — by 2010, no less. See The Periodic Table (stories 1, 2, and 3) and The Periodic Table, Too (stories 1, 2, 3, 4, 5, and 6).

A Hard Day's Night

The Beatles, A Hard Day's Night

Digging into the MoneyLaw mailbag, I'm pleased to share this note from Jessica Silbey:

I am writing to recommend a new article by my colleage Michael Rustad and his co-author Thomas Koenig. It’s in a Syracuse Law Review symposium devoted to lawyering in the 21st century (volume 58, number 2, 2008). Mike’s article is entitled A Hard Day’s Night: Hierarchy, History and Happiness in Law School and Legal Practice, 58 Syracuse L. Rev. 263 (2008). It’s a critique of Delgado and Stefancic’s article in the same volume about disaffection among contemporary lawyers. Mike and Tom suggest the disaffection is largely among the elite lawyers and that Delgado and Stefancic’s history omits the issue of class mobility. I agree that lawyer disaffection today is much more likely in the elite circles because of the jaded nature of that population that has easy access to prestige, money and opportunity. I will also say, however, that I think all law students would emotionally benefit from an interdisciplinary approach to law study and practice (as opposed to the contrasting practices of the Langdell approach with the Archer approach). I think that solos and small firm practitioners (the primary employment model of the less elite law school graduates) engage, by necessity, in interdisciplinary practicing and thinking, whereas the increased compartmentalization of law practice in the big firms leads people to think with blinders on about the work they’re doing — very alienating.

I endorse Jessica's assessment of the "alienating" nature of much of contemporary BigLaw practice. It reminds me that I might want soon to fulfill an implied promise, now a whopping 18 months old, to complete this inchoate but inspired thought: Foxes rule, hedgehogs drool.

Evaluations

A recent experience and thoughts of a departed colleague led me down the path of thinking about how to evaluate teaching. The event was a conversation with a student who noted that a certain teacher left him in stitches everyday as though this meant it was good teaching. The thoughts were about a colleague who was happy with his student evaluations because they were "right where he wanted them." He meant not too high and not too low. Somewhere in all of this I also thought about a colleague who worries about whether the students were tiring of her schtick as she dissects the numbers.

I saw a study somewhere in which graduates were asked what turned out to be their most important law school courses. Wouldn't it make sense to do the same thing with teaching evaluations? Students can know who make the hour pass quickly, who "gave good notes" (as I have heard it called) but can they know who was the most effective in preparing them for life after law school. I doubt it. Plus there are those studies from other fields that show all kinds of relationships, including inverse, between evaluations and learning. Has any school attempted to corrolate the numbers on the evaluations with test performance.

So, here is a survey. "Verified" means some independent effort to determine whether the student know what they are talking about.

How does your School evaluate teaching?
	It does not.
	Hunch
	Unverified Student evaluations
	Verified Student evaluations
	Surveys of graduates
pollcode.com free polls

Is Moneyball Passé?

Dan Drezner suggests that the Moneyball phenomenon may be a victim of its own success -- Winning Strategy Loses Its Edge (Marketplace):

Dan Drezner, Team's winning strategy loses its edge  (April 18, 2008)

Some baseball traditionalists are delighted by the A's woes. To them, this represents a clear rebuke to Michael Lewis' 2003 book, "Moneyball." That book chronicled how Billy Beane allegedly out-drafted, out-traded, and out-thought other baseball GMs by relying on sophisticated baseball statistics known as sabermetrics.

This innovative strategy helped the A's outperform their payroll, because Beane signed and drafted players that performed better than baseball scouts expected. He applied a simple economic principle to the practice of building a baseball team: When a business sector is run by an insular old-boy network, an outsider can exploit market inefficiencies and reap significant arbitrage opportunities. For some of those traditionalists, the apparent decline and fall of the A's symbolizes the failures of the "Moneyball" philosophy.

But as sabermetric methods have become more accepted in the boardrooms of baseball, Beane and other innovators have fewer inefficiencies to exploit. Since the publication of “Moneyball,” almost every team in the major leagues has incorporated sabremetric thinking into their organization.

The Boston Red Sox won two World Series in the past four years while employing Bill James, the godfather of the sabermetrics community. Other franchises around the league have also hired young sabermetrics devotees to run their front offices. The result: The popularization of sabermetrics has left Beane with less of an advantage — it’s harder to find diamonds in the rough when everyone else is mining the same territory. The A’s are not struggling because of “Moneyball”’s failure — they are struggling because of its success.

Hat Tip: Is "Moneyball" Out of Gas? (Voir Dire). For more, see TaxProf Blog.

a seat at the (conference) table

Part of being a good institutional citizen of your school/university is attending paper talks. No, not just those free food ones sponsored by this and that student org or law firm. Go to those too, although you will get sick of pizza. If you are the type that goes just to get food but not from interest, well, that's a little mercenary of you, but who am I to parse and judge motives?

No, I am talking about the true test of intellectual interest and commitment: the brown bag paper talk. Like, you bring your own lunch and listen to people talk about their work, and ask questions.

I like brown bags. I don't go to nearly enough of them, mainly because they're all on Monday, when I don't have class and prefer to camp out at home with my stuff all around me. But again, I advise you (and myself): be a good citizen of your school. If you are not otherwise occupied, take two hours out of your day/week to go to a paper talk. Trust me, I am scolding myself. They are usually scheduled around the lunch hour, and so they don't even violate my annoyance at scheduling things in the late evenings, when people would rather be with their families (if they have them, and yes, they have them, even in "school").

But it's always interesting to me to go to a roundtable brown bag, because I never know where to sit in the room. I feel bad, as a still-student, sitting at the table. I feel like the kid who is sitting with the grownups, although some of these people are not that much older than I am (I am 27; to me, <+15 years = you are not that old). Do I consign myself to my second class citizen status and sit in the back, in the chairs that circle the table? Or do I sit boldly at the table, and feel weird about all the crusty old academics sitting in the chairs in the back? Does it matter where you sit?

What say you, crusty old academics and young academics? Do students belong at the same table as the faculty? Is it first come, first sit? Is it appropriate, nay, encouraged, for students to come to paper talks, sit at the table as "equals" (at least, as an audience to the talk) and ask questions?

Your answers shed light on institutional norms and culture. My Organizations prof last semester was abrasive and weird, but she sat at the table with us and frequently changed her position at the table, so that she was never at the head of the table or in the same position. She said that an easy to think about indicia of org culture was where people sat in the room, and how. In the sociology department, students and faculty shared the table, and everyone participated in the Q&A. In the business school, things were more stratified by implied hierarchy. Interesting, is it not?

Also, do you want comments from students when you present your papers to your colleagues? Who do you consider a colleague? Who is co-equal to you in the intellectual enterprise of workshopping a paper? What you respond will be indicative of your conception of hierarchy and the intellectual life of a school. Do you learn as much from your students as from your colleagues? Do you want to learn anything at all?

Sometimes, students need a little encouragement to feel welcome at the table, and welcome to comment and question. I am more shy than you might suspect in real life, and occasionally intimidated. Only when I am very consciously the student in the faculty/student interactions am I like this. When I myself go on the conference circuit, I think "hell, I have a JD too" and go with my "Aspiring Law Prof" persona. You would think that I could retain this identity in other interactions, but alas, no. Only when I'm presenting a work, or attending a conference as a nearly co-equal member. I should really stop thinking like this. I give tons of comments at colloquiums and conferences that I attend, why not the faculty brown bags?

Probably because these are my professors, from whom I take classes. It is hard to shake myself of that relationship, even though by now I've studied law and organizations enough that I might be able to give actually valuable comments. I have started to attend the same conferences as my former employment discrimination prof, and that was a little weird. We're almost colleagues! But not in my head. My head is stupid. So, props to TM for raising her hand and asking interesting questions, because it inspired me to do the same. Unfortunately, by the time I got the chutzpah, the session was over. Alas. Next time I'll summon up the chutzpah.

Satisfied by simple things, like breathing in and breathing out

As the academic year comes to a close, it is time to take stock and look forward. If, like me, you often walk between the twin shadows of despair and defiance, perhaps a little musical validation is in order. Herewith Natalie Merchant, Not in This Life, on Motherland (2001):

Not in This Life

• Lately I've been walking all alone
• Through the wind and through the rain
• Been walking through the streets
• Finding sweet relief in knowing that it won't be long


• Lately it's occurred to me
• That I've had enough of that
• And lately I've been satisfied by simple things
• Like breathing in and breathing out


• Never again, not in this life
• Will I be taken twice
• Never again, not on your life
• Will I make that same mistake
• I can't make it twice


• Lately it's occurred to me
• Exactly what went wrong
• I realized I compromised, I sacrificed
• Far too much for far too long


• Never again, not in this life
• Will I be taken twice
• Never again, not on your life
• Will I make that same mistake
• I can't make it twice


• Starting out from here today
• Swear I'm gonna change my ways
• Once mistaken in this life
• But never twice


• Never again, not in this life
• Will I be taken twice
• Never again, not on your life
• Will I make that same mistake
• Never again, not on your life
• Will I make that same mistake
• Can't make it twice


• Starting out from here today . . . .

Birthday as (Athletic) Destiny

Growing up in Boston, my goal was to play first base for the Red Sox. After a mediocre high school and college career, I hung up the spikes for good. It turns out the my failing owed more to my July 27 birthday than to my inability to hit a curveball: The Boys of Late Summer: Why Do So Many Pro Baseball Players have August birthdays? (Slate), by Greg Spira:

Since 1950, a baby born in the United States in August has had a 50% to 60% better chance of making the big leagues than a baby born in July. The lesson: If you want your child to be a professional baseball player, you should start planning early. Very early. As in before conception.

The table below lays out the full month-to-month data. ...

The pattern is unmistakable. From August through the following July, there is a steady decline in the likelihood that a child born in the United States will become a major leaguer. Meanwhile, among players born outside the 50 states, there are some hints of a pattern but nothing significant enough to reach any conclusions. ...

The magical date of Aug. 1 gives a strong hint as to the explanation for this phenomenon. For more than 55 years, July 31 has been the age-cutoff date used by virtually all nonschool-affiliated baseball leagues in the United States. ... (There is no such commonly used cutoff date in Latin America.) The result: In almost every American youth league, the oldest players are the ones born in August, and the youngest are those with July birthdays.

The authors of Freakanomics chronicled a similar birthday effect with January-March birthdays in European soccer. Unfortunately, I did not learn of this birthday effect in time to help my kids, who have both managed to become quite good high school athletes despite having non-advantageous May and June birthdays.

Note to Bill Henderson and the Empirical Legal Studies team: what is the optimum birthday for a law professor?

Cross-posted on TaxProf Blog.

Law School Rankings by 1L Attrition Rates

LawSchoolNumbers.com ranks the 195 law schools by 1L attrition rates. (The ABA Section on Legal Education publishes aggregate attrition rates, and each school's attrition rate is available on its official ABA data sheet.) TaxProf Blog lists the 25 law schools with the highest and lowest attrition rates, along with the school's 2009 U.S. News overall ranking.

Divorce By YouTube

Wow! Recently we had a disgruntled husband in Vermont airing dirty divorce laundry on his blog (see my posts here and there). Now a disgruntled wife in New York has broadcast her grievances on YouTube (see below). This YouTube video has been widely viewed, and has been widely reported and blogged about already. See Family Lore and New York Divorce Report for some good posts on this.



This YouTube woman, named Tricia, reminds me of Heather Mills in many ways. Tricia is the much younger wife of a wealthy man in a bitter divorce battle, and she happens to be English; furthermore, she appears to be somewhat unhinged, and judging from this video, she would probably make a very bad witness in court, just like Heather Mills apparently did.

But one difference is Heather Mills started out with lawyers, then bumbled about in an apparent, misguided attempt to try her case in the media, and finally ended up handling her case herself, while still running to the media to whine. But this YouTube woman appears first to have started out by trying her case on YouTube, but then now apparently has the good sense to have hired high-profile New York divorce attorney, Raoul Felder, who represents her now but not until after she made this video.

Now that's a better ordered approach, I'd say. Maybe Heather should have gotten it all out of her system with her crazy antics in public, if she had to, and then hired a good army of lawyers in London, and not the other way around.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Britney to Pay $400K to Various Lawyers

People Magazine reports that Britney Spears was just ordered to pay $400,000 to several lawyers working in various ways to manage the never-ending Britney Disaster.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Vega: Star power and earthly reality

Vega, also known as α Lyrae, is a zero-magnitude star in the constellation Lyra. The fifth brightest star in the night sky and the second brightest in the northern celestial hemisphere, Vega forms, with Deneb and Altair, the Summer Triangle. Suzanne Vega — well, she's just a star, plain and simple.

I wholeheartedly agree with this breathless blog post by Paul Krugman:

Oh my God. How could I have missed the fact that Suzanne Vega is blogging for the Times?

In my next life I want to be a songwriter — precisely because I can’t imagine how it’s done. I’d give up the whole first page of my Google Scholar listing to have written “The Queen and the Soldier.”

For my part, I might substitute Gillian Welch for Suzanne Vega and either Annabelle or Wrecking Ball (alternative post) for The Queen and the Soldier, but I'd be quibbling at the extreme margin. Like Krugman, I'd trade my scholarly oeuvre for one melodically beautiful, lyrically true, and harmoniously complete song.

Very often, especially at AALS conferences and other large academic gatherings, I hear people declare that law teaching is "the best job in the world." I agree that we are very privileged to hold these jobs and that we legal academics, as a group, could definitely stand to be more grateful. But many people who bellow that statement are either delusional freaks or pathological liars, because there so many things in the literary, visual, musical, and theatrical arts (to say nothing of sports) that most of us would rather be doing, if only we had the talent.

Dangers of Internet Legal Research: Misinformation Aplenty

A client recently was conducted some legal research on the Internet, and came across the following, which he then showed to me and asked me about:

Subject: Re: Closing down a california S-corp
Answered By: taxmama-ga on 31 Jan 2005 14:38 PST
Rated:
Dear Yarbles,

The State of California would like you to believe that you must file each back year and pay the annual $800 fee AND all the penalties and interest related to that fee. They also will want all the fees and penalties for not keeping up with the annual report of officers taht the Secretary of State requires. (That's a $20 fee if you file it on time; $250 penalty if you don't.)

However, under the Ralite case, where the owner of the corporation was permitted to walk away from all these liabilities, by simply doing nothing. Do NOT file the closure paperwork with the State Franchise Tax Board or Secretary of State. Do nothing.

You can read the particulars here. http://www.boe.ca.gov/legal/pdf/90_sbe_004.pdf

You may want to have your tax professional review the case and make sure that you qualify. In fact, they may be happy to see this for their files. It's a very valuable piece of information that most people don't seem to know.

Just be patient. The notices will stop. Someday.

Best wishes,

Your TaxMama-ga

Google Answers: Closing down a california S-corp

My response to the client, who had hoped this answer proved that dormant California corporations would be dissolved automatically and that the corporate veil could never be pierced to provide for personal liablity to the shareholders for California corporate tax obligations:

Dear [Client]:

1 – There is no indication that the answerer is an attorney or accountant. What are their qualifications to be giving legal or tax advice? There are reasons why attorneys and accountants have to meet certain educational, training, and licensing standards.

2 - The annual report fee referred to in the answer is actually $25, not $20.

3 – While not invalidating the law as precedent, it is worth nothing that the case refers to tax year 1980, and to a California code section that no longer even exists (R & T Code Section 25701(a)).

4 – The answerer does not claim the corp. will be dissolved automatically by the state, only that the back taxes won’t have to be paid.

MOST IMPORTANTLY, THOUGH…

5 - Contrary to what the answerer, who apparently did not read or understand the case, the shareholders of the corporation in the cited Ralite case were found personally liable and ordered to pay the franchise taxes. See paragraph 2 of page 29 of the case cited: “the shareholders are liable for Ralite’s [the corporation’s] tax.”

However, this result was because of fraudulent transfers by the shareholders; otherwise, the case does indeed provide that shareholders will not be personally liable for corporation franchise tax non-payment. But (A) without the assistance of an attorney and tax advisor, fraudulent transfers may inadverdently be made by shareholders closing down a corporate business and (B) it is possible California's legislature will change the law on this at some point. Until that time, it is true that many shareholders walk away from their corporations and allow them to become suspended and continue to accrue franchise taxes, penalties, and interest. This is not the proper or legal way to do things, however, and I believe the majority of business attorney or tax advisors would not routinely counsel a client to do this.

6 - Note that the person asking the question comments at the bottom of that they consulted their tax professional, and their tax advisor told them to pay the tax and dissolve the corporation properly.

7 - A tax clearance certificate is no longer required to dissolve a corporation, so there is little reason not to dissolve the corporation, to stop the tax clock from ticking, even if taxes are owed and cannot or will not be paid by the corporate shareholders.

This is a perfect example of the legal misinformation and half-truths that are all over the Internet and a good reason why you should take “advice” like this with a grain of salt and consider its (unknown) source, as well as the the fact that the law may have changed, or the one person's circumstances may not match yours....

Single Parenting Costs Over $112 Billion Per Year in Taxes, Study Claims

As recently reported by the Associated Press, a new study, by Georgia State University economist Ben Scafidi, and sponsored by several "marriage movement" groups, including the New York-based Institute for American Values, purports to show that divorce and unwed childbearing costs Americans over $112 billion a year in extra taxes.

But after my initial, very quick review of the report, I believe this study really does little more than highlight a correlation between single parenthood and poverty. I certainly don't think it proves that the claimed extra billions in tax costs are a direct consequence and result of single parenting itself; in the language of law school torts class, there is no "but for" causation here. Surely, divorce and nonmarital breakups are very costly to splitting families themselves, whether they are in affluent or poor neighborhoods. And yes, some of these costs, not only for the poor but also for the affluent, are passed on to the rest of us through extra taxes.

But the study seems to focus mostly on the most vulnerable of broken families and the supposed extra tax costs of welfare dependency by poor single parents. And for that lower strata of society, this may be like the question about the chicken and the egg. Which comes first, poverty or broken homes? Certainly there is a correlation, but is there causation, and if so what and where is that causation, and which way does it run? I'm not sure. I don't think this study comes close to answering those questions.

Can we really "strengthen marriage" as the sponsors of this study want to do, without first improving economic conditions for people in this segment of our society? I tend to think the critics, who suggest we would do better to focus on education and full employment policies rather than "marriage strengthening" plans, make more sense. You know, it's the economy, stupid. But on the other hand, I am sure there are in fact other, non-economic forces that contribute to the pulling of families apart, and that in turn lead to the duplicate expenses that make life so hard for them, and more costly for all of us.

So it's good that someone is seriously looking at this issue. I hope that further such studies will follow. I have only briefly looked at the study, and I already see some big problems with it, but still, there is a lot of interesting data there and it's well worth a look. You can find the study and related information about it at the Institute for American Values website here, where you can sign up to download the study for free.

EXCERPT FROM AP ARTICLE, APRIL 15, 2008:

NEW YORK - Divorce and out-of-wedlock childbearing cost U.S. taxpayers more than $112 billion a year, according to a study commissioned by four groups advocating more government action to bolster marriages.

Sponsors say the study is the first of its kind and hope it will prompt lawmakers to invest more money in programs aimed at strengthening marriages. Two experts not connected to the study said such programs are of dubious merit and suggested that other investments -- notably job creation -- would be more effective in aiding all types of needy families.

There have been previous attempts to calculate the cost of divorce in America. But the sponsors of the new study, being released Tuesday, said theirs is the first to gauge the broader cost of "family fragmentation" -- both divorce and unwed childbearing.

....

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

MobBlog at Madisonian.net: What Kind of Institution Do We Want a Law School To Be?

(The MobBlog is Over. Updated Links and Descriptions. Apologies for slight editorializing.)


Deven Desai kindly emailed me the following (as if I wasn't reading Madisonian.net religiously, but I appreciate each and every personal email and link tip):

As you have followed and pondered the way in which legal education works, I wanted to let you know that Madisonian.net is holding a mobblog about “What Kind of Institution Do We Want A Law School To Be?” So far Erwin Chemerinsky and Mike Madison have posted. Jim Chen (Dean, Louisville), Nancy Rapoport, (UNLV, former dean at Houston), and Rodney Smolla (Dean, Washington & Lee, former Dean at Richmond) have agreed to participate. In addition, Professors Ann Bartow, Al Brophy, Jack Chin, Dan Filler, Brett Frischmann, Christine Hurt, Rick Garnett, Greg Lastowka, Orly Lobel, Nate Oman, Frank Pasquale, Larry Solum, and Fred Yen will also share their thoughts on the topic.

Well, I do ponder the ways in which legal education works, inasmuch as I am still currently being educated and looking forward to being myself an educator. I am currently a different type of institutional citizen (the student), but at some not-too-distant point I will occupy a different institutional role entirely--that of a professor. It is a role that occupies not only a different place in the hierarchy, but a different physical space (in front of the lectern) and a different institutional space (as member of the faculty).

The life of law schools is embedded in its institutional structure: the administration determines the organizational culture and allocation of resources (and concomitant values), and articulated pedagogical goals determine the discursive space and intellectual life. Both work in confluence to produce a particular kind of scholarly reputation and student body. What kind of law school you want to be is, of course, a normative question, and I am pleased to see that most of the responses are normative in their orientation, and not merely caught up in purely descriptive terms of what courses should be required of first years, or a numbers-driven approach that focuses on how to improve US News rankings, etc. Update: I do not mean to imply that the structure of education does not matter at all--in fact, I am a vociferous proponent of teaching constitutional law in the first year, and for making civil procedure a one-year course at all law schools. But in the end, these smaller pedagogical preferences seem to matter less than a meta-theory of what a law school should be, as well as its very basic structure, as a school with a coherent pedagogical vision will absorb the small variations.

The MobBlog:

1. Deven Desai kicks things off.
2. Dean Erwin Chemerinsky on law schools for the 21st Century--e.g., the new law school at UC Irvine.
3. Mike Madison on law schools and law firms, and what exactly is legal education for?
4. Al Brophy: law schools should be mini-universities: interdisciplinary, drawing on the broad and varied expertise of its community.
5. Nancy Rapoport on resistance to change, having prerequisites, and what law schools can learn from other schools.
6. Nate Oman on putting the burden of experiential training on the students.
7. Mike Madison asks some good questions about legal education, that will no doubt be endlessly debated.
8. Alfred Yen suggests that law schools coordinate with other departments to create a collaborative, experience-based, problem-solving learning environment.
9. Ann Bartow most interestingly suggests that law reviews only publish the work of their own school's faculty, thereby reducing fallacious distinctions and competitions in "placement" and improving the scholarship of each school and the quality of each journal.
   
10. Nancy Rapoport on the ideal faculty for a law school: honest, engaged, mutually supportive (rather than competitive), conflict-resolving, student-developing, supportive of all types of scholarship and teaching, and fun.
11. Deven Desai identifies a trend in all the posts: are lawyers generalists or specialists? Answering this question perhaps answers the question of what type of institutional model a law school should have.
12. Al Brophy follows up on Ann's post, and says that law schools should focus on actual quality of scholarship, and not merely its placement in a journal as a proxy for quality.
13. Christine Hurt resists the idea of a one-size-fits-all "perfect model" for a law school: law schools vary because the landscape of law is so varied.
14. Dean Smolla of Washington & Lee on W&L's experiential-based model of learning.
    
15. Dan Filler on "law school as community"--pay attention to the institutional life and be a good institutional citizen.
16. Orly Lobel's very excellent post on how law schools might want to model themselves on the integrated professional/academic model of business schools, rather than having a two-tiered track of American JD/Foreign LL.M/SJD.
    
17. Frank Pasquale on the learning curve of learning for lawyers in a rapidly changing, globalized, information economy.
18. Mike Madison on the over-abundance of law schools and the changing economies of the legal profession.
19. Frank Pasquale's interesting post on how law practice is not only a market-player, but also a market-shaper, and how legal education should thus take into account the moral ecology of markets.
    
20. Dan Filler asks: is there a place for the single-sex law school, along the lines of Smith College?
21. Frank Pasquale responds to accusations of academic Taylorism and skepticism about educational reform, albeit from a theory-loving, pessimistic academic from outside the legal academy.
    
22. Deven Desai on the vision of law schools servicing a community.
23. Al Brophy on the economics of education: law school is terribly expensive, the market for legal services is changing, and as he puts it for me helpfully, "amidst calls for more law schools, I question whether increased competition by adding schools will significantly decrease the costs of education."
24. Mike Madison on gender and race in legal education: make reporting LSAT scores optional! This builds heterogeneity at the individual, and thus institutional, level.
25. Alfred Yen: remove institutional affliliation from law reviews entirely!
26. Rick Garnett argues for a model of institutional pluralism that finds a space for religion in education.
    
27. Deven Desai stirs the pot with a post on the education gap: is undergraduate education failing to adequately prepare students for future study?
28. Jim Chen's most excellent post on how law is an applied discipline, and thus there should be "fidelity in translation." Translate your legal scholarship into real-world results, and consider your responsibility to train your students with marketable skills and applicable, rather than esoteric, knowledge.
29. Orly Lobel offers a partial, limited (but spirited) defense of law reviews.
    
30. Deven Desai finishes things off with a call for a "renaissance education" model: law schools should always be open to change, resist path-dependency, and always strive for innovation and excellence.
    

Thanks to the folks at Madisonian.net for a most interesting, productive discussion. I have been very interested to read this from my position on this side of the lectern, and such discussions will, I hope, shape the future generation of legal scholars. From a student's perspective, it is nice to know that such such issues are being considered so seriously and critically. Accusations of academic Taylorism aside, I think a strength of this discussion is to show that legal academia is opening itself to change: as its student body becomes more diverse, as the economics of the profession changes, as it confronts demands of globalism and an international economy, as it struggles to find its place among the wider university and the greater intellectual discourse, the legal academy stays static and uncompromising at its own peril.

Moreover, it is a mark of our discipline that we concern ourselves not merely with the pneumatic realm of ideas, text, and theory, but with the "real world"--laws impact real people in real ways, and we should feel a sense of responsibility about that. I, for one, am glad that we are finally moving beyond the model of legal education created when law schools were only for white men. To me, it's a good thing we're moving beyond a discussion of the wisdom of the C.C. Langdell casebook method, or a time when the Brandeis brief seemed revolutionary. (For more on the history of legal education, read this two-volume set, or if you have less time, this).

John Yoo and Tenure

I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.

The National Lawyer's Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill's views were "merely" unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo's speech has led to tangible results, results that the NLG claims constitute war crimes.

Brian Leiter, who was a defender of Churchill's right to speak his mind has come to Yoo's defense while making his distaste for Yoo's views clear. I think that I fall into the same camp. As a Boalt alum I am embarrassed to have my alma mater associated with Professor Yoo's legal advice to the Bush administration. Yet I am proud of Dean Edley for coming to his colleague's defense:

"My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses, including a great many of his colleagues at Berkeley," Edley wrote. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless," he added."

$30 Billion of "Fed's Money" Well Spent?

It is nice to hear, from Alice Rivlin, in an op-ed article in the New York Times yesterday, that the Fed's money was well spent on the $30 billion guarantee ("loan") to JP Morgan in the unprecedented bailout of Bear Stearns. Rivlin, as a former vice chairman of the Federal Reserve Board, is just doing what most others in the mainstream press are doing: she's spouting the conventional words of wisdom Wall Street wants us all to believe.

Naturally we're likely to find more wisdom, truth, and honesty - not to mention humor - on this topic elsewhere, and by elsewhere, I mean somewhere closer to Main Street, and definitely not on Wall Street. Indeed I just found all of those virtues in Peter McKay's funny column: Save Me, Federal Reserve!

And for a more serious discussion, see economist Dean Baker's recent article on this. Or better yet, get the big picture by reading Dean Baker's inciteful tome from a few years ago, available for free online and all too relevant today: The Conservative Nanny State - How the Wealthy Use the Government to Stay Rich and Get Richer.

Fidelity in translation

Cross-posted at Madisonian.net

With apologies to Larry Lessig, whose classic law review article title I am snagging and translating quite faithlessly, and with kudos to Al Brophy, who has stated the financial realities as bluntly as anyone in this mobblog has.

An illustration from The Rubaiyat of Omar Khayyam

What kind of institution do we want our law schools to be? Legal educators should strive to translate their knowledge about law into real-world applications and outcomes.

Law is an applied discipline, not a pure science. There are divisions of the ideal university that ponder quantum chromodynamics, universal grammar, and number theory. And then there are divisions that design new devices, teach Spanish to otherwise monolingual Anglophones, and develop new encryption algorithms. Law schools emphatically belong to the latter category.

As in the health sciences, our greatest challenge lies in translating the work of law professors, as teachers and as scholars, into real-world results. Medical schools aspire to perfecting their programs for translational research. Likewise, law schools succeed to the extent that they train skilled social engineers. To me, "social engineering" carries no pejorative connotation. It is the conscious, purposeful, and ultimately noble project of avoiding, resolving, and mitigating disputes and of designing institutions to accomplish goals beyond the reach of individuals. Social engineering is the work of lawyers and allied professionals trained in law.

Read the rest of this post . . . .Let me translate this admittedly florid and abstract thesis into a set of blunt, pragmatic statements about law school management. Law schools have a single mission: we train people to become lawyers or to leverage their legal training into gainful employment in business, government, or education. Our students represent our ultimate product; their accomplishments, our greatest pride.

Students come to us — often with more ambition and raw generalized intelligence than anything resembling a marketable skill — and they have every right to expect a material, measurable return on their investment. As they shoulder tuition in the neighborhood of $40,000 per year and living expenses in communities that are costly precisely because they surround universities, many of those students will graduate with six-figure debt loads. This is to say nothing of debts from undergraduate education, family formation, the ordinary business of life.

For many of those students, legal education as it is priced and delivered today is a disservice. A very significant portion of each year's new crop of law school graduates will be fortunate to find employment, if at all, in the neighborhood of $40,000 per year in salary. The convergence of high tuition rates and low first-year salaries is a sign that law schools need to deliver more on their promises. Mere jobhunting may not pose worries for students at the very best schools or for the very best students at most other schools, and unemployment certainly lies outside the experience of most law professors, but the vast majority of law students pay tuition and forgo at least three years of other opportunities in order to secure jobs that are more rewarding, in intellectual and in financial terms, than those they might otherwise have held.

Employers often report that many law school graduates need three to five years of on-the-job training to become truly effective. In private practice, the turning point is profitability. Law schools must be able to guarantee that their newest graduates will represent leverage, not liabilities.

Today's legal academy often seems to wage war against itself. On one hand, genuine efforts at reform — including this mobblog — stress improvements in teaching that are consciously designed to improve our graduates' skills and marketability. Novel approaches to the first year, experiential learning, interdisciplinary education, and capstone courses represent merely some of the ideas that innovative, entrepreneurially inclined schools have begun to explore and even to implement.

At the same time, law schools are also prone to chasing the latest intellectual fads and pouring enormous amounts of money into collateral projects whose connection to the core mission of training lawyers and other legally sophisticated professionals is apparent, if at all, only to the proponents of those projects. We tout these moves in glossy publications aimed not so much at graduates, donors, and prospective employers of our students, but at other law professors. We can, should, and do blame much of this imprudence on the U.S. News and World Report rankings. I suspect, though, that law professors as a class, divorced from the realities facing our students and from our duty to address those realities on their behalf, need some goading to remember that law schools exist not as playgrounds for their faculties, but as training grounds for their students.

The core mission is hard enough to accomplish as it is. The real cost of solid legal education is very substantial, and there are no obvious places to cut costs. Most law schools depend almost entirely on tuition or on some blend of tuition and precarious public support. It is not at all unusual for unrestricted giving to a law school to hover in the neighborhood of one percent of the overall budget. Donors are readily persuaded (provided that law school administrations have not neglected their graduates or, worse, taken active steps to alienate them) to support a wide variety of causes, ranging from physical facilities and scholarships to programs such as moot courts and clinics. The most questionable expenditures by law schools today are often those that have the greatest difficulty securing philanthropic support. The reason is obvious: donors are almost invariably law school graduates who had to work hard for relatively low pay before achieving the financial security that now enables them to be generous. They will support their alma maters, in some cases with extraordinary passion, precisely to the extent they feel that they were able to translate their law school experiences into real-world success.

My depiction of legal education and academic management may not be the most aesthetically pleasing description of the ideal law school. But an old literary saying about translations seems apt. Translations, so conventional wisdom goes, are like lovers. Though the most faithful translations may be plain, the most beautiful translations tend to be unfaithful. Law schools owe their primary allegiance to those whose tuition dollars, taxes, and donations enable the entire project of legal education. We owe these students, taxpayers, and benefactors some measure of fidelity in translation.