February 26, 2013
The VAP Debate
Posted by Christine Hurt

I was catching up on blog reading yesterday and noticed a post by Eric Muller at The Faculty Lounge entitled " Are We Sustaining a VAP Trap?."  Catchy, I thought, but the thought of VAPs as traps didn't quite resonate with me.  Then I looked at the comments.  As of today, there were 141 comments.  Wow!  I had flashbacks to 2005 when we used to blog about anonymous grading and other "hot topix."

The comment thread is full of criticisms of VAP programs from posters who refer to themselves as "sad VAP' and "another VAP out in the cold" and other handles reflecting a disappointing hiring season.  Some analogize to the "law school scam" narrative of law school applicants being duped somehow into borrowing money to finance what is a much riskier venture into the shrinking law job market.  Hmm.  I am always sympathetic to folks on the job market, but here are some points to ponder before we label programs "traps" or "scams."

The hiring market is tough.  Definitely the market for law faculty is shrinking and is probably only in the beginnings of that contraction.  The last few hiring seasons have definitely seemed tougher for candidates from my obviously limited point of view.  I've seen a lot of candidates end up a little lower in the law school chain of being than I would have suspected or even go through the process twice, but the hiring market has never been perfectly efficient.  But, we can determine if schools are hiring fewer candidates.  The AALS keeps statistics on how many candidates are in the FAR register.  (Unfortunately, the last year that is posted on the website is for 2008-09, but any enterprising person could get the number from a colleague on the appointments committee with access to the register.)  Then, one could cross-reference that against the various blog postings with (admittedly incomplete) lists of the lucky hires (earlier ones from Larry Solum and recent ones from Sarah Lawsky).  When I went on the market over a decade ago, the general rule of thumb was that 10% of the FAR candidates landed in a t-track job (a little less than 1000 registrants; a little more than 100 hires).  This may be less now, but we would need to look at the numbers.

Evaluating a VAP program is not tough.  Back in the stone age, there were a handful of formal, yearly "fellowship" programs, mainly at very prestigious law schools, and in many of those, fellows taught legal writing.  Other schools had informal, occasional programs, mostly for their own alumni.  (I am, of course, thinking of the nicknamed "Lawless VAP'" at Illinois, whose nickname referred to my colleague, friend and neighbor, Bob.)  Then, in the past decade, a thousand flowers have bloomed.  Many law schools have VAPs or fellowship programs, and some have multiple ones.  The route to t-track law teaching seemed to not be the "clerkship, fancy law firm, article" track of yore but either the Ph.D. track or the "clerkship, fancy law firm [optional], VAP, multiple articles" track of the future.  So, how is one to choose between so many?  Lots of good tools here.  First, one can look at those Entry Hiring Reports referenced above, which list all the self-reporting new hires and their various VAP/fellowship programs.  And, many VAP programs list their placement records on their websites (e.g., here and here).  If that data is not listed, ask.  These are not hard statistics to find or recount in a telephone conversation.  Placement statistics for a law school's graduating class are fuzzy, hard to find, hard to analyze and easy to fudge.  But, ask me where my law school's VAPs have placed in the past few years, and I will be able to tell you off the top of my head, as would any member of the faculty.  Alos, ask the school you are considering what they would do if a VAP didn't place during his/her second year.  And, ask the school what sorts of efforts they make to mentor and place their VAPs.  Any faculty member who has been associated with appointments knows which VAP programs help their candidates and which basically give VAPs an office.

Lastly to this topic, candidates should choose a VAP program as carefully as they would a graduating institution.  Don't pick one merely because it's where you live, so it doesn't require you to move.  And, don't pick one merely because you think that's where you want to end up teaching.  Sometimes this works for people; sometimes it doesn't.  Some schools have rules or norms against it; some schools may give you misguided optimism.  As Orin Kerr put it in the comments to Eric's post, VAP candidates should be sophisticated consumers, and the information they need is cheap to acquire.

Law schools generally benefit from placing VAPs, not from the VAP labor.  The trap/scam analogy seems to break down over the element of intent.  Yes, law schools generate income by admitting law students.  But, the law schools I'm familiar with get VAPs who teach 2/3 load and no service for about 1/2 pay.  (Get it, VAPs don't pay tuition; they get paid.  And, yes, I do know there are opportunity costs.)  That's not a huge bargain for schools.  Adjuncts are much cheaper if schools just want a cheap labor source, and experienced, practicing adjuncts have other benefits.  But, if a school has a successful program, it will attract bright, energetic faculty who will go on to wave the school's flag for years.

VAPs should keep their options open.  One of the first comments to Eric's post was from Michael Risch, who posited that most VAPs could go back to practice if they did not land a t-track post.  Many commenters cried foul and argued that "failed VAPs" were stigmatized and shut out from future legal employment.  Unfortunately, VAPs who are finishing this year left practice at a bad time and are re-entering at an only slightly-better bad time.  I am aware of three past VAPs at Illinois (two from our informal program and one from our formal program started a few years ago) who returned to their successful practices.  Each case was different, but each one decided that practice was more appealing than teaching.  None went on the market, but I don't think that would have mattered.  I think each of these individuals kept doors open when they entered the VAP program, rather than leaving with the air of an escapee, and kept close contact during their time here.  So, if someone is considering leaving a successful associate position for a VAP, he/she should be nice and even talk to someone about whether returning to that position would be an option.  If someone entered a VAP because their firm was laying off or otherwise failing, then yes, re-entering at a new firm will be a challenge, just as finding new employment from your firm two years ago would have been a challenge.  Finally, some VAPs are coming from clerkships or Ph.D programs and don't have a practice to go back to but merely good relations with summer employers, perhaps.  Then yes, entering the market for the first time will be challenging.  I don't think post-VAP practice opportunities hinge on whether you are a "failed" VAP or not, but what your law firm connections were when you entered the VAP (and whether you kept them).

Eric wonders whether it's ethical to maintain VAP programs.  Orin says yes, as long as schools are honest about the prospects.  I agree.  I don't think programs have to have a 100% success rate in order to be ethically continued.  However, schools don't seem to have an incentive (to me) to continue programs that continue to fail for a number of years.

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February 25, 2013
The Problem with Law Schools (and a Proposed Solution)
Posted by Gordon Smith

According to my friend and former dean, Jim Huffman, the problem with law schools is excessive regulation by the ABA. The solution:

The ABA should free law schools from most of the existing standards and encourage them to draw on the enormous intellectual power of their faculties to design and test innovative approaches—and let a thousand flowers bloom. The ABA's role should be limited to assuring that prospective students and legal employers get full and honest information about what could become a bonanza of legal education alternatives.

Yes.

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February 07, 2013
Pildes on the Legal Academy and the Temptations of Power
Posted by Erik Gerding

Richard Pildes (NYU) recently posted on ssrn a thoughtful book chapter that confronts law professors with a series of tough questions about the trade-offs of becoming engaged in the policy process, which ranges from co-authoring an amicus brief to serving in a President’s Administration or even running for office. (The abstract is at the end of this post).

Pildes intentionally seeks to raise more questions than answers. Although much of his essay may not strike the reader as new, it renders an invaluable service nonetheless by renewing the call for legal academics to reflect on the inherent conflicts between critiquing the law and helping interpret, apply, or construct it. This is itself a variation of the ancient tension between describing how the law is and how it ought to be.

Pildes sees a generational divide among legal scholars. On one side, he places the generation of scholars like Bruce Ackerman, with a legendary disdain for engaging the political process. On the other side, Pildes claims younger scholars are more likely to write to shape policy and to be active in litigation, consulting, and government service.

I’m not so sure this is factually correct. (I can think of numerous older and mid-career professors on the Harvard faculty when I was a student who served in Presidential Administrations, worked on law reform, or argued before the Supreme Court). Perhaps the trend is cyclical. Pildes surmises that the generational shift he sees may stem from two Democratic Administrations in the past two decades. The existence of this generational shift seems like an area ripe for empirical study.

Pildes follows a provocative essay by Richard Fallon (Harvard) two years ago critiquing the standards for law professors co-signing or authoring amicus briefs (here are both a draft and final version). Fallon’s essay generated both NY Times coverage as well as equally incisive replies (e.g., Amanda Frost’s (American) essay).

The Fallon debate yielded a particularly useful harvest. It prompted many academics to articulate their standards for writing or co-signing amicus briefs. The academy needs a similar debate to offer guidance to professors (particularly, but not exclusively, junior professors) on other aspects of policy engagement. What should professors consider in testifying before Congress or an agency? When to take on consulting or litigation work?

The questions Pildes raises assume a greater urgency because of institutional pressures he does not address in the essay. Budgetary pressures will undoubtedly pressure law schools and professors to seek more soft money grants and big hard money donations to fund programs and professorships. To what extent will this put pressure on the valuable role of academic dissent that Pildes rightly cherishes? This institutuional economic pressure may present more of a challenge to dissent than revived questions about academic tenure.

It is, however, by no means a new challenge. Bruce Ackerman, for example, holds the Sterling Professorship at Yale, which was funded by John William Sterling, founder of Shearman & Sterling and counsel to Standard Oil, Henry Ford, and Jay Gould. But institutional pressures on law schools and professors merit re-examining again and again with fresh eyes.  

Here is the abstract for Pildes' chapter (after the jump):

This essay is meant to prompt professional self-reflection for academics, particularly legal academics, on the appropriate relationship between the pursuit of knowledge and the pursuit of power. 

Academic institutions, in theory, should be among the most robust sites in which dissent against conventional or widely-shared views of policy and law ought to find easy expression. That has long been part of the justification for the general principle of institutional academic freedom, as well as for specific organizational features of the academy, such as tenure. 

Yet the legal academy risks being more compromised, and increasingly so, in its ability to play this role than is often recognized. The reason is the paradox of the relationship of legal academics to actual political power. Legal academics are not just independent scholars of public policy, law, legal or political institutions. They are also often direct participants in the systems of public and private power they study. Unlike academics in most other disciplines (except, perhaps, economics), legal academics have greater opportunity for effective influence over policy, law, and politics. The various forms of practical engagement which legal scholars undertake -- consulting, litigating, testifying to Congress or courts, service in government -- have significant benefits, both in the classroom and in scholarship. But they also come with significant risks, including risk to the ability to play an essential role that justifies academic institutions, the role of being able to stand apart from existing constellations of power or interest or conventional wisdom on issues of moment.

This essay identifies the various ways in which the paradoxical position of the legal academic and the temptations of access to political and legal power threaten the ability of the legal academy to be a source of dissent. The essay then explores how legal academics ought to think about the benefits and risks of the unique position of academics closely connected to the institutions and actors who wield actual political and legal power. I emphasize that the foundation for considering the role of legal academics as potentially important sources of dissent must be a belief in the existence and importance to collective decision making of expert knowledge about the kinds of questions legal academics teach, research, and write about. This premise needs emphasis because many forces press against it. American democracy since the Jacksonian era has always contained a strong strand of anti-elitism capable of being mobilized by political actors against various claims to specialized knowledge and expertise. 

In my view, Intellectual independence, and the capacity to dissent from various orthodoxies and structures of power is more difficult to attain and maintain than academics often recognize. That is so even though academics are institutionally and structurally situated to be in most able to resist the political or ideological conventions of the moment. As one example, I discuss the political scientist Arthur Schlesinger Jr.’s distortion of history in his public attempt to legitimate President Truman’s unilateral decision, without congressional authorization, to commit massive military force to defend South Korea against North Korea’s attack in the 1950s. The unauthorized Korean War was a turning point in American political practice regarding unilateral presidential commitments of military force. Twenty years later, during the Vietnam War, Schlesinger publicly recanted and acknowledged that he had distorted the history to support Truman’s war. 

This necessarily brief essay is meant mainly to raise and provoke further discussion of these issues, rather than to offer a comprehensive analysis. It is not offered as a moralistic exercise, and I have engaged in many of the practical activities I describe. But power -- political, financial, and other -- is seductive, and the tensions between it and intellectual independence are central to the modern legal academy and warrant fuller discussion.

 

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January 29, 2013
Is W&L The Biggest Legal Education Story Of 2013?
Posted by David Zaring

Bill Henderson has an enthusiastic post about the successes of the remodelled practice/clinics-style third year curriculum at Washington & Lee, my old employer.  Basically, the story is that students like it, partly in a way that I credit - W&L seems to have received more applications and gotten more yield after announcing the change - and partly in a way that I treat with caution - students self-report greater satisfaction with the third year with law school there today than they did in 2008 and 2004.

Here's the yield story (which also suggests that W&L is increasing enrollment - without cost to its overall numbers, apparently):

... after their experiential 3L year was up and running and the overall legal job market continued to stagnate, W&L yields spiked. Ordinarily they would enroll 135 students. But for the fall of 2012, they received enrollment commitments from well over 260 students. Indeed, at the ETL conference Jim Moliterno said the school had to offer financially attractive deferments to get the class to approximately 185 incoming students -- a 50 student bulge.

The 3rd year satisfaction survey data is interesting too.  W&L has always had a reputation as a happy place to be.  It is cosy, it has a friendly culture, good teachers too.  Now, students are reporting that they are working harder and being asked to do a wider range of things compared both to peer schools and earlier graduates.  And they appear to like it, though grumble, grumble self-reporting, where's the experiment, &c.

What we don't yet know from Bill's posts is whether employers are also buying what W&L is selling.  And what kind of employers, too.  That seems like the other proof in the pudding to me.  And that is the thing that could sustain something that looks like it might be a one-time bump.  But still, happy students is certainly one thing that it's nice to be able to argue that you've delivered, if you're going to go through the drama of curricular reform.

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December 18, 2012
Lowell Milken Institute Law Teaching Fellowship
Posted by Gordon Smith
If you are looking for a teaching fellowship in corporate law, it would be hard to beat the Lowell Milken Institute Law Teaching Fellowship at UCLA. Now accepting applications.

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November 23, 2012
Thought for Food
Posted by Erik Gerding

A few links to tide you over during your tryptophan-induced torpor:

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October 30, 2012
Sorkin's Right About The Facebook - Ceglia Mystery
Posted by David Zaring
It's hard to believe that DLA Piper, and, briefly, Kasowitz Benson, were willing to take up Paul Ceglia's claim that he owned as much as 84% of Facebook.  Especially now that he has been charged with fraud for it by the USAO for the SDNY.  Moreover, as Andrew Sorkin observed, their participation was crucial in establishing his credibility.  It is why it is a good thing that Sorkin is following up - law firms can be unaccountable for the misdeeds of their clients, and maybe that's often as it should be.  But not necessarily when the client's case basically requires the firm's imprimatur.

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August 29, 2012
Law School Textbooks: The Price of the Penultimate Edition?
Posted by Christine Hurt

Probably two years ago, I began fielding a question or two every August that went something like this:  "Professor, I noticed on the syllabus that you require the [X]th edition of the textbook.  Will the [X-1]th edition suffice?"  My first (and second) reaction to these email questions was fairly snarky:  What does the word "require" mean to you?  I was also puzzled that the questions seemed merely to be asking permission to deviate from instructions, not seeking information as to whether the deviation had any risks or drawbacks.

But this year, the Torts book I use is in a new edition, and I have been asked the question repeatedly.  So, I sent an email telling students that they were free to buy an old edition or no edition, as long as they understood the consequences.  I was not going to check page by page to see how the new and old page numbers aligned or point out every new case, hypo and note, but if they wanted to wing it, that was up to them.  I assumed, and told them so, that buying the old edition would require them to make friends with someone with a new edition to get names of new cases, figure out what the readings were, etc.  I thought my tone reflected my opinion that the first year was already so hard (and so expensive), that setting up a new challenge for themselves to save a small fraction of its cost was unwise.

Is my opinion wrong?  (I have seen several students carrying obviously used textbooks, so my tone was obviously off.)  Is my cost-benefit calculus incorrect?  Could/should law professors do anything to make the cost-benefit less penalizing of the penultimate edition purchase?

So, according to Amazon, the brand-new edition of the Torts book is $198.  (This in itself blew me away.)  The last edition (new) is $150.  I would assume a used edition would be even less.  But let's start with a $50 savings.  Of course, law school is very expensive -- you may have heard about that.  So, to me the $50 savings seemed a little "penny wise, pound foolish."  But, if you could save $150-200 a semester or maybe $1000 or so total with used books, that's real money.  But would it decrease any of your grades?  The only way it could would be if you were missing something (a topic, a new rule given in a new case, a new statute) that ended up on the test.  This would be much more likely to happen in Securities Regulation than in Torts.  Other classes, I'm not sure.  Even then, a certain kind of student could pick up on the change in class and gather the case/statute from Westlaw.  Would the time required be worth the $50?  To me, if this extra work would take more than 4-5 hours or just stress me out, then the $50 wouldn't be worth it.

But, professors (or research assistants, or enterprising students) could create "cheatsheets" with page numbers, new case names, new statute numbers, etc.  Then students could purchase old editions with relative impunity.  A few years ago, it would have seemed fairly far-fetched to me that schools or faculty should entertain the thought.  But now, with the high cost of law school a topic of everyday conversation, I'm not so sure.

Of course, I'm sure textbook publishers, who have to make their own ends meet, would have different thoughts.

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August 21, 2012
Scholastica's Author Communication: Harsh? Or Brilliant?
Posted by Usha Rodrigues

And now for a little law professor inside baseball.  For personal reasons I have found myself enveloped in the August submission cycle, which is a little more mysterious than the spring.  Be that as it may, I have been quite pleased with the offers that have come in, and should reach a final decision soon.

There's been blogosphere buzz about a new entrant to the submissions business, long dominated by ExpressO.  Being old enough to remember the pain of submitting articles via snail mail (mail merge, anyone?), I have found ExpressO a pure delight, offering easy quick electronic service at negligible cost.  The new kid on the block is Scholastica, and it scored a coup by nabbing the California Law Review and the Chicago Law Review as early adopters.  See blog posts from Dan Filler at the Faculty Lounge,Gerard Magliocca at ConOp, and Jesse Hill at Prawfs.  In a comment to the last post, a founder of Scholastica writes:

Scholastica provides powerful software that goes beyond ExpressO's submission/distribution service, all at no additional charge to the journal – so journals of all sizes/rankings can easily have software to make the start-to-finish journal management process easier.

Journals using Scholastica get more than just article submission; they get an entire platform for efficiently running their journal, from submissions to reviews to decisions to copyediting to publishing – again, at no charge to the journal. We also give law reviews flexibility to be part of the standard law review submission pool or they can operate as a standalone single/double blind peer reviewed journal. They can also publish open-access content online with just a few clicks.

Hmm, appealing to the law reviews as a kind of one-stop shop?  It will be interesting to see how this market shake-up plays out.  I offer but one small insight from a new customer. 

Professors who play the game know that myriad rejections are one price of admission.  Even articles that wind up at the likes of Harvard Law Review garner, through the natural course of things, dozens of rejection emails.  The wording of these emails varies, but they share a few points in common:

1. Thank you for your submission.

2. Each year we receive thousands of articles and can only select a few for publication.

3. After careful consideration, we have decided we cannot accept your article.

4. We hope you will consider us for submissions in the future.

Here was the email I received from the Chicago Law Review via Scholastica:

ChicagoRejection

 Think of the roller coaster of emotions.  First, the email's subject line creates a sense of anticipation: oooo, a decision has been reached!  What will it be?  And then, upon opening the email in question, harsh reality, in 2 terse, bolded words.  Decision: Reject.

What do you think?  Admirably to-the-point?  Unduly harsh for the tender of ego, particularly the young assistant prof or prof-wannabe?

The more I look at the email the funnier it gets.

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August 01, 2012
Does Use of UGPAs in Law School Admissions Discriminate Based on Age?
Posted by Christine Hurt

So, there are a lot of stories out there about law school admissions, and even a new Supreme Court case on using race in admissions, but here is one that caught my eye:  Kamps v. Baylor University.  C. Michael Kamps has sued Baylor Law, and many individuals, for refusing him admission to various entering Fall classes (though he was offered admission in several Spring entering classes) because of his "low" UGPA of 3.2 from Texas A & M.  Kamps graduated with a Finance degree in 1979, and he argues that because of (documented) grade inflation at A & M, his 79th percentile UGPA should be assessed at a much higher value.  That adjusted score, combined with his 169 LSAT, would easily admit him into any Baylor Fall class. (Kamps also complains that he was not awarded a full scholarship available only to A & M graduates -- that argument is slightly different because the stated criteria were changed and he believes he would have been awarded the scholarship but for the change, an outcome he believes was intentional.)

Now, of course, you can't sue law schools or other schools for using criteria that puts you at a disadvantage.  If a school values work experience and I don't have any, that's too bad.  If a school values volunteer work and school activities, but I worked my way through college and had to take care of family members instead of being President of a school organization, that's too bad.  The criteria may be a bad idea, and may be "unfair," but it's not actionable.  Likewise, if a student graduated from a rigorous school that has low grades or with a major that has notoriously low grades, that student can't sue law schools for using UGPAs because UGPAs don't adequately reflect undergraduate performance.  In my time in law schools, I've seen a lot of engineering students who had more limited law school choices than they should have because of non-inflated UGPAs.  But "your admissions criteria are not perfect" is not the basis for a lawsuit.

What Kamps is counting on, however, is that the use of UGPAs may have a disparate impact, not on engineers or folks who work their way through college, but on folks that graduated a while ago.  Age is a different kind of category, and Kamps hopes that his disparate impact based on age argument will win the day based on the Age Discrimination Act of 1975.  I will plead ignorance here of precedents under this Act; however, Kamps doesn't cite any cases under the Act, but cites instead cases such as Hopwood (which is no longer good law), Brown v. Board of Education, and Sweatt v. Painter that rely on protections in the U.S. Constitution against race-based discrimination.

I gather, however, that under the Act, if an institution has a policy that has a disparate impact on a group based on age, that this may be permissible if it is necessary for the normal operation of the institution.  So, I would guess that Baylor's defense will be that yes, using UGPAs is not a perfect criterion for academic performance, but we get too many applications to not use some sort of rough proxy.  We simply just cannot translate UGPAs from different majors, institutions and time periods into new UGPAs that more accurately reflect academic performance.  I would suppose that the widespread use of UGPAs in graduate admissions could bolster this claim.  Also, Baylor has a "safety valve" in that those whose low UGPAs put them into the "presumptive admit" pile can be admitted if review of the file seems to warrant special treatment.  And in fact, this happens.

Kamps argues in his complaint that the school could index UGPAs to take into account these factors.  For his argument about the A & M scholarship, that may be true because of the limited number of applicants and the fact that necessarily graduated from the same institution.  For general law school admissions, though, I am skeptical this is feasible given the large number of possible undergraduate schools and majors along the time-space continuum.  Kamps uses a federal district case from 1978 to bolster his claim that UGPAs must take into account myriad factors, including grade inflation.  However, this sex-based discrimination case, does not support his assertion.  The judge here, in shutting down a female plaintiff who felt she was passed over for a school principal position based on sex, refused to admit her academic record into evidence, stating that he couldn't possibly adjudge whether her record was better than the male applicant because of numerous factors, including institution, major, other work activities, and grade inflation.  The judge was blowing her off, and the case just doesn't seem analogous.  But, it is a case that uses the phrase "grade inflation."

The other twist is that Kamps was offered admission for the Spring quarter, which I guess has fewer applicants and a slightly less competitive pool.  So, he wasn't deprived of the benefit of going to law school, but going in the Fall.  Kamps argues this is significant and that this is analogous to admitting African-American applicants to a "separate but equal" law school.  I don't think the Spring semester is composed of only other older students, though.  I'm not seeing it.

Nevertheless, the case is an interesting one to watch.  There are many reasons to hate the overuse of UGPAs in law school admissions, though I would put inequality of majors and institutions on the top of that list.  And of course, the elephant in the room is U.S. News, though law schools' use of UGPAs predates the rankings.  Kamps UGPA doesn't hurt the rankings if he takes a slot in the Spring, but would if he takes a slot in the Fall, maybe?

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July 17, 2012
Measuring Faculty Quality By Citations
Posted by David Zaring

The Leiter/Sisk citation study of law school faculty quality (assessed with law review citations over the last five years) is quite addictive.  And, in my view, the surprising outcomes - the too highs and too lows (George Washington and Georgetown must be having different kind of conniptions right now) - are more thought provoking than clearly wrong.  So hooray for all the work, and all of the careful design.

I do wonder, however, how long law review citation studies like this one will capture aspirations that law school faculties actually have.  A lot of the younger JD-PhDs, who do careful work that isn't very accessible to very many law professors, will never do well on law review citation metrics.  As I think a comparison of your own mental list of whom the best quantitative social science business law professors are with a list of the most cited business law professors would reveal.  But at the same time, my sense is that many faculties are pushing hard in a social science direction.  What will happen if these trends continue?  We could see the building of a professional elite whose work can't get arrested in student notes and survey articles.

Maybe, anyway.  But it isn't clear to me how that market will clear.

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May 02, 2012
Lawyers as Transaction Cost Engineers in Medieval Germany
Posted by Erik Gerding

Here is a highly productive way for business law professors to procrastinate from grading exams:

The National Bureau of Economic Research just circulated a new version of a paper that provides a medieval complement to the law & finance literature and to Gilson's lawyer as transaction cost engineer idea.  The paper by Davide Cantoni and Noam Yuchtman presents evidence that the training of commercial lawyers by new universities contributed to the expansion of economic activity in medieval Germany.  Here is the abstract:

We present new data documenting medieval Europe's "Commercial Revolution'' using information on the establishment of markets in Germany. We use these data to test whether medieval universities played a causal role in expanding economic activity, examining the foundation of Germany's first universities after 1386 following the Papal Schism. We find that the trend rate of market establishment breaks upward in 1386 and that this break is greatest where the distance to a university shrank most. There is no differential pre-1386 trend associated with the reduction in distance to a university, and there is no break in trend in 1386 where university proximity did not change. These results are not affected by excluding cities close to universities or cities belonging to territories that included universities. Universities provided training in newly-rediscovered Roman and Canon law; students with legal training served in positions that reduced the uncertainty of trade in medieval Europe. We argue that training in the law, and the consequent development of legal and administrative institutions, was an important channel linking universities and greater economic activity.

A very interesting read.

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April 05, 2012
Law School Applications
Posted by Gordon Smith

Law schools have been taking a beating over the past few years, and applications are down. Again. You can see the current numbers here. That's a nationwide decline in applicants of 15.6%.

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Having Class Outside: Microfinance on the Ground in Malawi (Culture)
Posted by Christine Hurt

So, I've tried to answer questions about our Malawi Study Tour, and I've told you about some of the microfinance meetings that we had in Malawi. But, our trip and these blog posts wouldn't be complete without some cultural immersion. As I was planning the trip and hoping that all of our scheduled events would pan out (some did, some didn't, new ones came our way), I kept telling myself that if all I did was show the students what a subsistence economy looked like, then the trip was worthwhile. So, some of what we did can only be categorized as "cultural immersion." Not only as understanding the culture essential to understanding and critiquing the mechanics of microfinance, it also translates into professional development. So, here is some of what we experienced.

We arrived in Malawi on Saturday. On Sunday, we walked 4.5 miles from our lodge to an area we call Lisanjala, after the spring that runs through there. Lisanjala is actually made up of 5 contiguous villages. We arrived there in time for a lengthy CCAP (Central Churches of Africa Presbyterian) service. I was nervous about this because as Americans, we are very used to a distinct separation of church and state. However, I knew that the students would not get a true sense of the culture if they did not observe how large a part church plays in the lives of most Malawians. (Malawi is heavily Christian, mostly Presbyterian, but with a sizeable Muslim population). The service provided us with many teachable moments. For one thing, we had talked before about whether Africans had a "culture of savings" and had read sources that argued that in many cultures, saving is akin to hoarding and frowned upon. Also, those with surplus are called upon to use their idle resources for others with current needs. We saw a lot of evidence of this during the service and compared it to the current U.S. church-based financial advice (a la Dave Ramsey) of "Save, Give, Spend." We were lucky enough to enjoy lunch cooked outside by the Women's Guild. The students were wonderful, and heartily ate what was put in front of them, including nsima (maize flour boiled into a gelatinous mound).

On Tuesday, we returned to the village to deliver our school supplies. The students were able to see public school in session, and I think even our most well-traveled students were a little stirred by the poverty they saw there -- tattered clothing, few uniforms, scant writing materials, no classroom furniture or resources. Then, we walked the half mile to the spring, following the oldest primary girls (11? 12?) who were fetching water, which they would then carry on their heads back to the school. These buckets weigh about 40-50 pounds, which you must hoist on your head, not even counting the walking part. Some of the male students were moved to offer to carry the buckets back themselves, and though they all made it, they were using every ounce of strength and stamina they had! The non-water carriers, who had more time to wander on the way back, visited with villagers and saw their kitchen gardens, a pilot project from the Mulanje Mission Hospital. One student was very moved by seeing a villager's family member outside his home who was obviously in the last stages of HIV/AIDS. Malawi has a very high rate of HIV/AIDS, and this brought it home.

Tuesday afternoon we toured the Mulanje Mission Hospital, which allowed the students to receive information about the delivery of health care in Malawi and also to see it in action. Another afternoon we toured a weaving factory staffed by and for the benefit of disabled individuals in Blantyre. Friday's microfinance meetings were cancelled, so we spent the day in Zomba, the "University town" of Malawi. We were treated to the company of one of my friends, who was a former ambassador to Germany and is now at the Theological Seminary there. While in Zomba, we got newspapers and read about the current political climate there. We also went shopping at various markets and took our time getting back to Blantyre, to prepare for our Saturday journey home. While driving around Malawi, the students learned a lot "on the way." We saw how scarce fuel (diesel and petrol) was and watched the three block queues for fuel that hadn't even arrived at the station yet. We were stopped at police stops many times a day, and had to pay for various documents that sped up these stops. We saw firsthand the importance of both hierarchy and community in daily life. Malawi is at a crossroads today. If you googled "Malawi" yesterday you would have found various articles about the abrupt turn the economy has taken in the past year, with foreign aid being witheld for political reasons, foreign exchange drying up, and economic problems causing shortages of fuel and other commodities such as sugar. (And of course, articles about Madonna and football.) Today, President Bingu Mutharika has been hospitalized following cardiac arrest, and accounts are uncertain as to his current condition and location. For my friends there and my own selfish desire to continue visiting Malawi, I hope that the rule of law prevails should there be a transition of power. Just one of many everyday fears that we are blissfully protected from here in the U.S.

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March 26, 2012
The 20 Most Cited Corporate Law Articles Referencing Delaware
Posted by David Zaring

1. Federalism And Corporate Law: Reflections Upon Delaware, 1974 83 Yale L. J. 663 William L. Cary

2. The Proper Role Of A Target's Management In Responding To A Tender Offer, 1981 94 Harv. L. Rev. 1161 Frank H. Easterbrook , Daniel R. Fischel

3. Do The Merits Matter? A Study Of Settlements In Securities Class Actions, 1991 43 Stan. L. Rev. 497 Janet Cooper Alexander

4. Understanding The Plaintiff's Attorney: The Implications Of Economic Theory For Private Enforcement Of Law Through Class And Derivative Actions, 1986 86 Colum. L. Rev. 669 John C. Coffee, Jr.

5. The Plaintiffs' Attorney's Role In Class Action And Derivative Litigation: Economic Analysis And Recommendations For Reform, 1991 58 U. Chi. L. Rev. 1 Jonathan R. Macey , Geoffrey P. Miller

6. Corporate Control Transactions, 1982 91 Yale L.J. 698 Frank H. Easterbrook , Daniel R. Fischel

7. A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, 1981 33 Stan. L. Rev. 819 Ronald J. Gilson

8. A Team Production Theory Of Corporate Law, 1999 85 Va. L. Rev. 247 Margaret M. Blair , Lynn A. Stout

9. Shareholder Passivity Reexamined, 1990 89 Mich. L. Rev. 520 Bernard S. Black

10. The “Race To The Bottom” Revisited: Reflections On Recent Developments In Delaware's Corporation Law, 1982 76 Nw. U. L. Rev. 913 Daniel R. Fischel

11. Piercing The Corporate Veil: An Empirical Study, 1991 76 Cornell L. Rev. 1036 Robert B. Thompson

12. Toward An Interest-Group Theory Of Delaware Corporate Law, 1987 65 Tex. L. Rev. 469 Jonathan R. Macey , Geoffrey P. Miller

13. Beyond Metaphor: An Analysis Of Fiduciary Obligation, 1988 Duke L.J. 879 Deborah A. Demott

14. Shareholders Versus Managers: The Strain In The Corporate Web, 1986 85 Mich. L. Rev. 1 John C. Coffee, Jr.

15. Empowering Investors: A Market Approach To Securities Regulation, 1998 107 Yale L.J. 2359 Roberta Romano

16. Fair Shares In Corporate Mergers And Takeovers, 1974 88 Harv. L. Rev. 297 Victor Brudney , Marvin A. Chirelstein

17. Federalism And The Corporation: The Desirable Limits On State Competition In Corporate Law, 1992 105 Harv. L. Rev. 1435 Lucian Arye Bebchuk

18. Corporate Governance, Agency Costs, And The Rhetoric Of Contract, 1985 85 Colum. L. Rev. 1403 Victor Brudney

19. The Political Economy Of Takeover Statutes, 1987 73 Va. L. Rev. 111 Roberta Romano

20. Corporations, Corporate Law, And Networks Of Contracts, 1995 81 Va. L. Rev. 757 Michael Klausner

Honorable Mention: Legal Implications Of Network Economic Effects, 1998 86 Cal. L. Rev. 479 Mark A. Lemley , David McGowan (“network theory may help explain Delaware's dominance in the market for corporate charters”)

This was assembled through WestlawNext's Law Reviews and Journals database, with non-corporate articles mentioning Delaware discarded (there were only three of those).  Lemley & McGowan would have been about 10th, and theirs is the second youngest of the articles on the list, which range in publication date from 1974 to 1999.  The oldest, and most-cited, is Cary’s; Ralph Winter’s article responding to Cary's did not make the list, suggesting it is not in Westlaw’s database.  Fischel wrote three of 20, Coffee, Romano, Brudney, and Easterbrook two (both of Easterbrook’s co-written with Fischel).

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