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Letter to the ABA

[ 19 ] March 8, 2013 |

For the past few weeks I’ve been involved with an effort to submit a letter to the ABA’s Task Force on Legal Education, signed by a broad array of legal academics. Spearheaded originally by former Duke dean Paul Carrington and Deborah Rhode of Stanford, I’m pleased to say we put together a group that includes the incoming president of the Association of American Law Schools, seven former presidents of the AALS, and federal judge Richard Posner. The Wall Street Journal has a story on the letter here (most of the story is behind a pay wall).

The letter, including the complete list of signatories, can be read here.

Brian Leiter’s slow-motion car crash, con’t

[ 216 ] March 7, 2013 |

Updated below

This is the third in a series of posts about the increasingly bizarre and disturbing behavior of Prof. Brian Leiter of the University of Chicago Law School. (Earlier entries can be found here and here.) So if the subject doesn’t interest you I suggest you don’t read the post, and/or ask for a refund of this month’s subscription to LGM. Read more…

RIP Alvin Lee

[ 54 ] March 6, 2013 |

Alvin Lee, the English guitarist best known for fronting the band Ten Years After, has died. Lee’s most famous performances were his frenetic version of “I’m Going Home” at Woodstock, and on Ten Years After’s one major radio hit “I’d Love to Change the World.”

I have a lot of affection for a relatively obscure album he did with erstwhile gospel singer/turned TV evangelist Mylon LeFevre. Here’s a clip from a show they did in London in the early 1970s: (the sound is horrible but the fidelity is there):

What’s going on in the Faculty Lounge?

[ 155 ] March 5, 2013 |

Updated below

This is a cautionary tale about, among other things, what happens when highly privileged people who should know better don’t have the courage to stand up to an out of control internet bully and cyber stalker.

Here’s the series of events: Read more…

Brian Leiter’s slow-motion car crash

[ 207 ] March 4, 2013 |

This is the first in a series of posts. Others in the series can be found here and here.

Updated below

A distinguished lawyer asks:

Brian Leiter, aka the Director of the Center for Law, Philosophy & Human Values, while sheltered behind the security that tenure gives him from any consequences that may flow from his blog, is vigorously seeking to “out” various people in the legal community, for having committed the grave offense of criticizing Leiter’s views. In addition, he is smugly expressing his belief that the destruction of these peoples’ anonymity will have a negative impact on their careers.

The purpose of tenure is not to be a wall from behind which someone can bully and threaten those who do not enjoy the protections of tenure.

Do “philosopy and human values” require that Brian Leiter agree that as a consequence of this conduct, he should voluntarily surrender his tenured status before any further efforts to out people who do not enjoy the protections of tenure? Should the Dean of Chicago law school impose this condition on him lest he bring tenure rights into disrepute?

These intriguing questions were inspired by the following astonishing post:

We Get Mail: Thomas R. Grover, Esq. Edition

For criticizing Mr. Campos last week, I received the following insolent e-mail:

You’re a “Law and ______” Professor, not a lawyer. How would you know how to ‘think like a lawyer’?

Thomas R. Grover, Esq.

Goodsell & Olsen, LLP

10155 W. Twain Ave., Ste. 100

Las Vegas, NV 89147

Tel: (702) 869-6261

Fax: (702 869-8243

Cell: (702) 900-3003

tom@goodsellolsen.com

www.goodsellolsen.com

Mr. Grover is a law graduate of the University of Nebraska, one of those law schools that students should still be considering, even in the current market, and notwithstanding Mr. Grover. But it is odd that he thinks that being a lawyer and a philosopher involves a contraction, rather than an expansion, of knowledge and competence. In any case, I replied to Mr. Grover as follows:

Dear Mr. Grover,

Are you actually an attorney at the firm in question? If so, why do you not appear on the website? Do your supervisors know that you are using the firm’s e-mail to send impertinent and juvenile messages to other professionals?

“Thinking like a lawyer” refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions; I assume you must be familiar with both genres. It encompasses, for example, the use of analogical reasoning to distinguish precedents or propose extensions or developments of existing doctrine, but also involves techniques of statutory and constitutional construction, the use of arguments from authority, facility with the law/fact distinctions, and so on. Again, merely looking at the chapter headings of Schauer’s book Thinking Like a Lawyer would illuminate this apparently opaque topic for you. Alternatively, you might read Edward Levi’s classic book An Introduction to Legal Reasoning; Mr. Levi was the former Dean of my Law School, as well as former Attorney General of the United States.

Of course, there are more skills involved in being a lawyer than thinking like a lawyer. There is industry-specific knowledge, know-how with respect to how local courts or regulatory agencies approach statutory language, rhetorical talent, as well as a range of psychological and interpersonal skills that are important. For example, most good lawyers I know, among my family and friends, exhibit maturity and professional judgment, that would prevent them from sending insolent e-mails from their’s firm account to other professionals. I will be sure to send a copy of this entire correspondence to the name partners of your firm.

I do think we law professors, and especially those with blogs, have been far too tolerant of malicious and unprofessional conduct by usually anonymous or pseudonymous lawyers and students. Mr. Grover deserves credit for signing his name to his stupidity, and, of course, his intervention is a relatively mild example of juvenile nonsense emanating from putative lawyers. I’ve generally let most of this garbage pass in silence, but in the coming weeks I’m going to be posting a bit more about some alleged legal professionals whose on-line conduct deserves to be aired in public. I especially welcome more information on a sick individual using the pseudonym “dybbuk,” who is, among other pathetic characteristics, obsessed with the appearance of female law faculty, and who fantasizes on-line about spanking them with wet slippers (though that is only the tip of the iceberg of his malevolent conduct towards and harassment of individuals behind the cloak of pseudonymity). He is a Washington & Lee law graduate from the 1990s, and an appellate public defender, and we will have more to say about him soon. But I welcome any further details from readers.

The offending e-mailer was corresponding with Leiter regarding his response to this post of mine, which asked the following question:

Why is the modal law professor in the contemporary American law school, that is, someone who is now years or decades removed from a very brief encounter, if any, with a very narrow slice of the very diverse world of legal practice(s), well-positioned to train people to think like lawyers, given his or her extremely limited first-hand exposure to that experience?

The truly grotesque level of pomposity displayed in Leiter’s frankly unhinged response to what, after all, seems like a perfectly reasonable question, is difficult to describe. I’m aware from other correspondence that Leiter is indeed frantically striving to identify some of his anonymous critics, so he can expose them to the unspeakable consequences that must surely befall people for having the “insolence” and “impertinence” to criticize Brian Leiter on the internet.

Update: It appears the admins at The Faculty Lounge may have some explaining to do.

. . . TFL has deleted the comment to which I was linking. I didn’t post the comment, which they can confirm via their apparently careful surveillance of the ISP addresses of commenters. I did, however, copy it before they deleted it:

There is a growing and disturbing pattern of evidence that someone with administrative privileges at this blog-site has been passing IP addresses and e-mail addresses of various commentators to Brian Leiter, who in turn has been making veiled threats on his blog and in e-mails to “out” people, write to all the partners in their firm complaining about them and generally damage their careers should they show any further “insolence.”

Evidence can be found at:

http://www.lawyersgunsmoneyblog.com/2013/03/brian-leiters-slow-motion-car-crash

Leiter’s own site:

http://leiterlawschool.typepad.com/leiter/2013/03/we-get-mail-thomas-r-grover-esq-edition.html

and in various e-mails Leiter has sent pseudonymously (which is pretty ironic) and in his own name.

If they did disclose this sort of information the blog administrators have behaved at least unethically, but may also have violated the California Online Privacy Protection Act and perhaps the FTC Code of Fair Information Practices.
Meanwhile the point is well taken that it is highly inappropriate for a professor, protected by tenure, to be outing law students and junior lawyers or threatening to do so as a way to shut them up.

I think this forum needs to address the question of leaks to Leiter – did they happen, who did it, will they happen again, or simply find that it dies as a place to discuss topics like the one above.

Update II: Be sure not to miss this hilarious bit of internet sleuthing: http://www.lawyersgunsmoneyblog.com/2013/03/brian-leiters-slow-motion-car-crash/comment-page-1#comment-465618

Or this one: http://www.lawyersgunsmoneyblog.com/2013/03/brian-leiters-slow-motion-car-crash/comment-page-1#comment-465691

What a latnemunom ssakcaj.

I’m considering breaking up with the NFL because of an ongoing affair

[ 157 ] March 1, 2013 |

With the EPL (Or does Swansea make it the BPL?).

I started getting Fox Soccer Channel about a year ago, and I’m getting involved with soccer generally (I’m watching La Liga on BEIN as well, but that’s more of a FWB thing for now).

Amongst the EPL’s charms:

(1) Three different real championships to play for (The league, the Champions League, and the FA Cup. Then there’s the League Cup, which I don’t really understand but I gather is a sort of second-tier FA Cup). I’m trying to figure out the hierarchy among these: My sense is that the FA Cup is definitely third, but still a very big deal, while it’s hard to figure out whether a team’s “supporters” would prefer to win the premiership or the CL.

(2) Relegation. This is an awesome feature of soccer in general. No sitting back with a cheapo roster and enjoying your share of the national TV money: if you finish in the bottom three in any season, it’s off to the second division (due to linguistic inflation now called “The Championship”) for you. If only this sort of market discipline could have been imposed on the Detroit Lions over the past 40 years.

This also makes late-season contests between bottom tier teams in the EPL ferocious battles for temporary financial survival.

(3) The announcer argot. Forwards are “pacy” or “useful.” Midfielders “provide good service.” Bad play is “shambolic.” (This was very confusing at first, as I thought it was another adjectival form of shaman). A player getting lots of scoring chances is “finding joy.” Etc.

(4) No time outs! I watched a college basketball game the other night (Indiana-Minnesota) in which the last 1:33 took 23 minutes of astronomical time.

(5) Pure evil from the 8th dimension (Man U).

(6) A team owned by an insane Russian oligarch, who considers money no object to pursuing success (I think this is Chelsea, though it might be Man City. In any case the other one is owned by a sheik who consider money no object etc.)

(7) Many, many David v. Goliath matchups, especially in the FA Cup, some of which David wins, just like in the Bible, but so rarely in American sport.

(8) The singing.

(9) No replay, plus an officiating structure interacting with rules that guarantee plenty of dodgy calls, thus adding a very un-American flavor of fatalistic arbitrariness and chaos to the proceedings.

A question: At what level of English soccer do teams start to become semi-professional, i.e., the players have paid work besides being soccer players? There are something like 96 teams playing “League” football in England — many of them, from my viewing, at tiny grounds that can’t hold more than a a couple of thousand supporters even at capacity, and which I imagine must feature crowds numbering in the hundreds or dozens for all but the biggest games. How is this financially feasible if you’re paying your players more than nominal sums?

VRA arguments; the end of the affair

[ 9 ] February 27, 2013 |

I have a piece in Salon about the Voting Rights Act case the supremes heard today.

Also, I’m closing down my other place. I’ll still report and comment on the law school mess here from time to time.

Doctors and lawyers

[ 24 ] February 22, 2013 |

Steven Brill of The American Lawyer and CourtTV fame has a very long story in the new issue of Time on some of the more absurd financial dysfunctions of The Best Health Care System in the World(tm). In short, TBHCSITW has managed to do to society at large approximately what law schools have done to their students:

When we debate health care policy, we seem to jump right to the issue of who should pay the bills, blowing past what should be the first question: Why exactly are the bills so high?

This is same question that ought to be asked of the many law school apologists who treat the increase in the cost of legal education as something akin to a law of thermodynamics, as opposed to a fabulously successful exercise in
rent-seeking by people who have captured a regulatory process.

Critiquing that exercise highlights how the law school cartel has managed to do something which has completely eluded the bar as a whole. A question well worth investigating is why the licensed members of The Best Legal System in the World(tm) have, in comparison to their medical brethren, been so unsuccessful at using their own cartel to protect the economic position of lawyers, as opposed to that of law schools.

Consider some numbers:

In 1989, legal services accounted for approximately $157 billion, in 2005 dollars, of US GDP. In 2011 that same figure (again in 2005 dollars) was $156 billion. Over this time GDP increased by 68% in constant dollars, which means that, as a share of the economy, the legal sector shrank by approximately 41% over the past two decades.

Meanwhile law schools have increased graduate output by 24% over this same time frame, while the cost of private law school tuition doubled in real terms, and that of resident public law school tuition increased by a factor of nearly five. In other words, we’ve radically increased both the price and the supply of something (a license to practice law) whose relative economic value has been collapsing.

The situation in the medical profession has been the precise opposite. After medical school admissions
rose rapidly from the mid-1960s through the 1970s, the AMA reacted to warnings that there would soon be a “glut” of doctors by essentially freezing medical school graduate totals for three decades (Medical schools graduated around 16,000 to 17,000 people every year between 1980 and 2008. Finally, in reaction to new warnings that the country is facing a severe shortage of doctors, medical school admissions began to rise again about five years ago).

The most striking contrast between the situation in law and medicine is, that while economic demand for legal services has, relatively speaking, been contracting radically (note to law school administrators: economic demand = people having enough money to pay for something they’re willing to use that money to pay for), that for medical services has gone through the roof. Between 1980 and 2008, the proportion of American GDP devoted to the health care sector increased by an astounding 77.8%.

Now of course doctors only captured part, and perhaps a relatively small part, of that increased demand in the form of their direct compensation. But what the AMA has been remarkably good at ensuring is that, with trivial exceptions, everyone who graduates from medical school gets to be a practicing physician for more or less as long as they want to be. That is, in the context of capitalism’s gusts of creative destruction, an extraordinarily valuable benefit — and it’s why comparisons between the “average” compensation of doctors and lawyers, or, more far more accurately, between graduates of medical schools and law schools, are essentially meaningless.

Here’s Brill’s description of the plight of large numbers of patients within the contemporary American health care system: “They are powerless buyers in a seller’s market where the only sure thing is the profit of the sellers.” That would also make for a good description of large numbers of law students within the contemporary system of legal education. Of course law school apologists would respond that buyers of legal education are not powerless in comparison to, say, buyers of health care who are suffering a medical emergency or from a serious illness. And that’s true — which is precisely why, now that the power of better information has been placed into their hands, applications to law school are collapsing even faster than the economic demand for legal services.

The business of the academy

[ 18 ] February 18, 2013 |

baldwin

In an example of what could be called the ongoing Dilbertization of academic life, every year CU law school faculty members are required to do a “self-evaluation,” which is supposed to supplement and enlarge upon the formal report of professional activities which all faculty at the university are asked to submit.

This year’s version of what seems vaguely like a hybrid between the rituals concocted by business consultants and Maoist cadres contains the following question:

For the period since January 2011, please discuss your engagement in the life of the law school, focusing on the following:

Please describe your support for and involvement with the effort to recruit admitted applicants (e.g., making phone calls, meeting with interested students, participating in Admitted Students lunches, etc.).

I suppose it would come as a great surprise to the administrative class that comes up with this stuff to be told that, under current circumstances in particular, this sort of question is extremely inappropriate. For instance, compare it with this hypothetical question:

Please describe your support for and involvement with the effort the convey to the larger community that the American legal system is the best in the world.

Everyone, I imagine, would recognize that evaluating faculty members on the basis of the extent to which they participated in such an effort would be indefensible, given that such an evaluative process would reward and punish faculty on the basis of their willingness to support a controversial intellectual and political position, even though it’s one that law school deans as a pragmatic matter treat as self-evidently true upon certain occasions.

Expecting faculty to uncritically “recruit” admitted applicants could only be a reasonable expectation if, at a minimum, one takes the view that literally everyone the law school’s admissions committee decides to admit would be better off accepting rather than declining that invitation. A significant number of the faculty at my school disagree with that view, although perhaps only one of them would be so tactless as to say so in public. Telling these people that they’re being evaluated on the basis of their willingness to mortify their consciences on this particular point is wrong. Actually doing so is even more indefensible. (This is not a hypothetical: I know of at least one faculty member who was sanctioned in the evaluation process for giving candid advice to an admitted student who solicited it, and who enrolled subsequently at a top ten law school. For those interested my response to the self-evaluation question was: “I believe this question is framed incorrectly, as I don’t believe faculty members should be ‘recruiting’ admitted applicants. I do believe it’s a faculty member’s proper institutional role to give candid and helpful feedback to admitted or prospective applicants when they ask for such feedback, which I have done on numerous occasions.”).

What I find particularly interesting about this is the extent to which university administrators have now internalized the norms of profit-maximizing businesses. In this evaluative context, recruiting admitted students is thought of as moving product, and apparently it would no more occur to an administrator that a faculty member would object to be asked to participate uncritically in this enterprise than it would occur to the manager of a car dealership that members of his sales force might object to being asked to participate uncritically in the enterprise of selling the dealership’s stock.

And of course this is not only a problem at law schools. As academia gets increasingly indistinguishable from any other business, the tension between the demands of profit maximization (in the context of technical non-profits profit maximization means running the institution for the financial benefit of its most powerful internal stakeholders, i.e., administrators, and to a lesser extent tenure-track faculty) and intellectual honesty become ever-more severe.

In the end, if universities are going to be run like businesses, they should be treated as such — from paying taxes, to being laughed at when they ask alumni for donations. After all, Toyota doesn’t call you up five years after you bought a Corolla, to ask you to give them some money out of sheer gratitude for the “quality” of their “product.”

Ronald Dworkin

[ 13 ] February 14, 2013 |

Ronald Dworkin has died.

This incident reminded me of the following story:

A few years ago Dworkin wrote a remembrance of Learned Hand, for whom Dworkin clerked. At the time Dworkin was engaged, and he was keen to know if Hand was going to follow the policy of other judges in Hand’s circuit, which was to use their government-funded administrative budgets to give clerks a bonus in the form of a month’s extra salary at the end of the clerk’s term. So Dworkin inquired anxiously of the judge if he could expect to receive the bonus.

Hand explained to Dworkin that he disapproved of this practice, because he thought it was wasting taxpayer dollars, and that it was especially unjustifiable in his case, since Hand had already taken senior status, and was technically retired.

Shortly afterwards Dworkin sent Hand an invitation to his wedding. Hand’s reply included a personal check, equal to a month of Dworkin’s salary.

I hate when that happens

[ 25 ] February 10, 2013 |

Gerald Henderson

I’m a casual fan of the NBA, while my wife is a fairly hardcore Nuggets supporter. (Oddly she developed her initial affection for the team about seven years ago when she was working in the Denver DA’s office, within the confines of which the then-roster was known collectively as the Thuggets). So we watch most of their games on TV.

Last night the broadcast cuts into the game with highlights from Philly v. Charlotte, which among other things feature Gerald Henderson hitting a jump shot.

Me: Gerald Henderson is still in the league? He must be close to 40!

Spouse: Who’s Gerald Henderson?

Me: You know, the guy who used to be on the Celtics.

A quick check of the internets reveals that Gerald Henderson, formerly of the Boston Celtics, played his last NBA game 21 years ago. The guy hitting the jump shot is his son.

Evaluating health risk factors for presidential candidates

[ 79 ] February 8, 2013 |

I have a piece here on this week’s kerfuffle over the relationship between Chris Christie’s weight and his presidential ambitions.

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