A few links to tide you over during your tryptophan-induced torpor:
- Many law faculty dream (or so I’ve heard) of splitting their school in two and separating themselves from various colleagues (mimicking the good bank/bad bank model). Well Penn State is doing just that with its two campuses. (See the Dan Filler’s short post at the Faculty Lounge and the comments thereto);
- In the NY Review of Books, Elaine Blair reviews Every Love Story is a Ghost Story, D.T. Max’s bio of David Foster Wallace. It’s fascinating discussion of how Wallace drew on his own experience in addiction recovery, to create not only characters but a map out of the intellectual wilderness of “self-consciousness and hip fatigue” in American culture high and low;
- David Nasaw has slices of his new book, The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy at Slate;
- In the New Yorker, Nick Paumgarten explores the eternal musical afterlife in the Grateful Dead tape archives;
- Steve Bainbridge on vino for Thanksgiving (what about post-Thanksgiving?) and shareholder empowerment and banks.
- Track grandma’s flight home at FlightRadar24.
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.
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:
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.
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?
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.
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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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%.
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.
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).
My friend and former colleague, John Kidwell, passed away recently. The story on the University of Wisconsin Law School webpage is here. John struggled with his health for the entire time that I knew him, but he was always gracious in the face of pain and discomfort, even when serving as an associate dean. He was a great storyteller, and I loved to hear him talk about his growing up years in South Dakota. He had a well-organized mind, and I learned a great deal from him in our weekly lunch of Contracts teachers. I last saw him at the conference honoring Stewart Macaulay last fall, and seeing him there was like coming home. I miss you, John.
The latest U.S. News law school rankings are out. I received them yesterday morning -- somehow I got on the advance notice list -- but I restrained myself from blogging until today. Some observations:
- The employment numbers look bleak across the board (only 92% of Yale grads employed 9 months after graduation?), but especially as you descend in the rankings.
- One of the most important factors in the rankings is expenditures per student, but US News doesn't show that number.
- I expected more slippage in the student quality numbers among the Top 50 law schools, but with the huge nationwide decline in applications this year, I think it will be hard for many schools to hold their numbers in next year's rankings.
- Stanford and Harvard switched spots, but no one is going to catch Yale, unless the formula changes.
- The T-14 was restored this year, with Cornell replacing Georgetown as the last of the bunch and Texas falling back to #16 (tied with Vandy).
- Two schools in the Top 50 (ASU and Washington) made giant leaps up the rankings.
- Illinois fell, as expected, after the issue relating to the reporting of admissions numbers.
- The most intriguing regional pairing (besides BYU-Utah, of course) is ASU and Arizona, which have not only switched places over the past few years, but are now separated by 17 spots! Looking at the reported numbers, it looks like employment numbers are ASU's big advantage.
- Another regional pairing that I noticed because of my own employment history is Lewis & Clark (58) and Oregon (82) ... 24 spots! Those schools used to be much closer, with Oregon ranked ahead of L&C for many years, but employment is also a separator in this instance.
- If you think the Peer Assessment Score is an important measure of quality, North Carolina stands out as underranked, and the big climbers (ASU and Washington) look overranked. No school outside the Top 50 had a score of 3.0 or above.
Those are just a few casual observations. What did you notice?
Tulane Law School is currently accepting applications for a two-year position of visiting assistant professor. The position is being supported by the Murphy Institute at Tulane (http://murphy.tulane.edu/home/), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the economics, philosophy, history, and political science departments. The position is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodical or analytical focus relevant to scholars of regulation). It is also designed for individuals who plan to apply for tenure-track law school positions during the second year of the professorship. The law school will provide significant informal support for such. The person selected for the position will be expected to participate in scholarly activities at the law school and at the Murphy Institute, including faculty workshops, and will be expected to teach a law school course or seminar in three of the four semesters of the professorship (presumably the last three semesters). The annual salary for the position is $65,000 plus eligibility for benefits. To apply, please send a CV identifying at least three references, a law school transcript, electronic copies of any scholarship completed or in-progress, and a letter explaining your teaching interests and your research agenda to [email protected] If you have any questions, please contact Adam Feibelman at that same email address. The law school aims to fill this position by the end of April 2012. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.
The original was about melanoma ...
The derivative work is about law school ...
Law school bashing works. Applications to law schools were down almost 10% last year, and we look to be headed for a 15%+ decline this year. When I speak with prospective law students, they express real concerns about what they have read on the internet. So it's no surprise that this video is getting lots of attention, but I wonder if we will look back someday and finger this as the moment when law school bashing jumped the shark.