Thursday, March 22, 2018

I Just Got Tenured: sing along & poem

If you are newly tenured - meaning last 30 years or so as they say in the song - sing along:

I Just Got Tenured!

and some Dr Seuss parody (or satire ? good IP hypo right there):

Oh the Shit You'dd Do After You're Tenured 

Posted by Orly Lobel on March 22, 2018 at 11:10 AM | Permalink | Comments (3)

Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

A 17-year-old high schooler in Reno was suspended last week for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the school walk-out (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected).

The ACLU of Nevada sent letters to the school and to Amodei. The letter to the school laid-out the First Amendment argument the ACLU would make in a lawsuit. This could not have been in-school speech because it was made during a non-school-sanctioned event for which Noah was marked as being impermissibly out of school; if at school, it was non-disruptive because no one in school heard what he said; and the punishment was more severe because of Noah's viewpoint and his past expressive activities (during a school debate, Noah criticized Donald Trump, rather than talking about the assigned topic). I find the first point especially important--if speech made while a student is impermissibly outside of school is school speech, then the school can reach everything a student does. The letter demands rescission of the punishments imposed, which also presumably would be the remedy sought in the lawsuit, along with nominal damages.*

[*] This case illustrates a unique remedial and framing problem. Noah is presumably in 11th Grade, so he likely will have graduated by the time litigation is complete, allowing the school to vacate any remedy and avoid attorney's fees when the case becomes moot. The claim for nominal damages avoids the mootness problem. But a claim for nominal damages is subject to qualified immunity and there is almost certainly no robust consensus of authority arising from factually similar cases. Noah could sue the school, which does not enjoy immunity, but then the problem is whether the principal who imposed the suspension is the policymaker for the entire school board or school district. I will have to keep this in mind for class.

The letter to Amodei called for a public apology for retaliating against the student by enlisting the school to sanction him, ending with the rhetorical flourish that "[w]hat actions you take next will determine you and your office’s commitment to the First Amendment and the Constitution you swore to uphold and defend." The idea of a Bivens action against the congressman (which the letter did not threaten) raises two interesting problems: 1) causation and 2) Speech or Debate immunity (constituent interactions are viewed as political rather than legislative), but it would be fun to see the argument play out.

Posted by Howard Wasserman on March 21, 2018 at 04:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Tuesday, March 20, 2018

Calling Chicago - Come tomorrow Wednesday 6PM for a book talk at Seminary Coop Bookstore

Hey Chicago readers - would love to see you tomorrow March 21 at 6pm at the Seminary Co-op. Come and bring your friends and family - and make sure to say hi and maybe we can get drinks after! Free and open to the public. The next day at noon I am speaking at this fabulous BookIt series.

I’ve been thrilled to see the rave reviews of my new book You Don’t Own Me in The New Yorker, the Wall Street Journal, the Financial Times, Times Literary Supplement, Times Higher Education, NPR, Modern Law, National Law Journal, TechDirt, SF Chronicle, Washington Blade, LA Review of Books, Above the Law, Kirkus, Publisher’s Weekly, Booklist and many more. It seems there is something in the book for everyone – whether you think about innovation, IP, work relations, creative industries, antitrust, litigation and juries, entrepreneurship, feminist and race critique, consumer psychology, or mostly interested in a thrilling market battle over our icons, with colorful personalities and rollercoaster twist and turns. Here's a blog post on the Seminary Coop site about books that inspired You Don't Own Me.

Image result for you dont own me lobel


You are cordially invited to a book signing and speaking event for Orly Lobel's new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side

Wednesday, March 21, 2018 
6 - 7:30 pm
Seminary Co-op Bookstore
5751 S Woodlawn
Chicago, IL 60637

You Don’t Own Me reveals the cutthroat competition and innovation in the toy industry, with the twists and turns of a thriller, including colorful personalities, egos and keen questions about law and ethics, innovation and creativity, consumerism and market competition, trade secrets and economic espionage, parenting, childhood, feminism and race.   

In this free and open Chicago event, USD Don Weckstein Professor of Law Orly Lobel discusses her new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side. The book is received rave reviews from numerous journals including the Wall Street Journal, the Financial Times, Times Literary, NPR and the New Yorker.

“Like Condoleezza Rice, Ivanka Trump and Michelle Obama, Orly Lobel played with Barbie dolls when she was growing up. “Fortunately,” writes the San Diego law professor in her new book, “I was also encouraged to challenge the distorted realities of Barbie’s world. No toy has been deconstructed so thoroughly as Mattel Inc.’s iconic plastic doll. But Ms. Lobel’s “You Don’t Own Me” is something different. The world that she explores is not a dollhouse but a courthouse. Her brisk and engaging book chronicles the decadelong copyright clash between Mattel and MGA Entertainment Inc., an upstart rival that had a mega-hit with its “Bratz” doll line but that was nearly obliterated by Mattel’s scorched-earth legal offensive. Journalists tend to overuse words like “war” when writing about lawsuits. But if ever there were an example of a civil dispute meriting military metaphors, it is Mattel vs. MGA. According to Ms. Lobel, the combined legal expenses of the battle went north of $600 million….” - The Wall Street Journal

You Don’t Own Me has been getting advanced praise from Publisher’s Weekly (“impressive”, “thoroughly researched”, “entertaining”), Kirkus Reviews (“crisp narrative”, “aggressively researched”, “dizzying” drama) Booklist (“outstanding”), Yahoo!Lifestyle (“book not to miss!”) and more (“gripping”, “sparkling prose”, “thrill ride”, “brilliantly and meticulously” “amazing story and great read”, “all the ingredients of a great story”, “Colorful and dramatic. ...Orly Lobel masterfully draws us in”; “A thrilling page-turner. Orly Lobel delivers the impossible. A fast-moving, fun book about marketing, litigation and the culture we create,” “Elle Woods would eat this story up”...). 


Posted by Orly Lobel on March 20, 2018 at 03:37 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 30 (guest post, Harold Krent)

Michael Madison’s thoughtful posts have kicked off this symposium.  Most of us would agree that economic and technological developments are forcing law schools to reassess their role.  Fewer traditional jobs in law; fewer high paying jobs for graduates; fewer students willing to shell out sticker prices for a legal education, and even some uncertainty over Congress’s willingness to continue student loans spell trouble for the legal academy.  Megan Carpenter, as have others, has talked about the need for stratification in legal education, both with respect to what type of education law schools provide, and also with respect to the training needed to perform legal-related jobs such as real estate closings or incorporation of an LLC. 

Continue reading "Legal Ed's Futures: No. 30 (guest post, Harold Krent)"

Posted by Dan Rodriguez on March 20, 2018 at 08:24 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 29 (Luke Bierman)

My approach in this virtual symposium has been to lay out the experiences of Elon Law in changing our curriculum and should not be read as ignoring the postings of others.  Indeed, I have kept abreast with each posting and have the filled binder, laden with handwritten notes, to prove it.  I am especially interested in the postings about adapting for and teaching of technology, offering undergraduate degrees, reducing cost and debt, and providing cautionary tales for the future.  Upon reflection, I will keep to my original design of describing the think and do approach of changing the curriculum at Elon Law and then turn to other thoughts, random and responsive, to complete my posts in this virtual symposium.  I appreciate your indulgence in allowing me this opportunity to present, which concomitantly has provided some personal perspective on Elon Law’s recent endeavors to adjust to the changing environment of legal education.

Continue reading "Legal Ed's Futures: No. 29 (Luke Bierman)"

Posted by Dan Rodriguez on March 20, 2018 at 07:29 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 28 (Frank Pasquale)

Institutional Pluralism, Metrics, and Diversity

Mike Madison’s “Invitation” has sparked much insightful commentary here, and I wanted to continue the conversation by engaging with an important point from Mark Tushnet’s intervention. Mark observed that “there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).” Having started my career at a religiously affiliated law school (Seton Hall), and having published research based on Catholic Social Thought, I agree. So I worry about the tensions between humanistic, religious, and civic aims, and the type of neoliberal managerialism all too common in the discourse of higher education reform.

As Sameer M. Ashar has observed, when it comes to legal education, “Leading reformers accept the accelerated disaggregation and commodification of legal practice without attention to aspects of the profession that privilege the public good over market norms and rationales.” This is part of a larger ideological bent to mainstream education reform---the type now celebrated in Congressional committees and the pages of the New York Times. The disruptionist mantra is to deliver more, for less, faster. What is the “more” we are to maximize? In the dominant legal education reform discourse, it is almost always some combination of workforce preparedness, starting pay for graduates, and JD-required jobs.

Continue reading "Legal Ed's Futures: No. 28 (Frank Pasquale)"

Posted by Dan Rodriguez on March 20, 2018 at 07:24 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 19, 2018

The Challenge of Teaching "Internal Administrative Law": Bureaucratic Secrecy

I agree 100% with Gillian Metzger's and Kevin Stack's excellent recent article on "internal administrative law" that the major action in administrative law is within agencies, before any bureaucratic decision is subject to judicial review. As Metzger and Stack note, an elaborate web of rules, guidance documents, MOUs, EOs, and statutory provisions govern the process, substance, and jurisdiction of agencies, and agencies' lawyers, bureau chiefs, and ALJs enforce these internal rules against themselves and each other. The natural conclusion is that we ought to spend more time teaching internal administrative law in our classes.

The big challenge is finding publicly available materials: Bureaucrats tend to hold their internal legal arguments close to their chest. (That's what makes them "internal"). Sure, I can give my students the guidance documents and other rules: These are generally published on the agency's website. But I cannot show them how the bureaucracy implements or argues about or ignores these general rules. Those interpretative arguments take place behind closed doors. Unless one was in the room where it happens, one really does not know how much influence internal law had on the some agency GC's decision regarding one division's jurisdiction or another division's procedures: that's what makes both "internal." By contrast, the briefs and oral arguments presented to courts are available to the public: Outsiders can observe, applaud, criticize, the lawyers' arguments and the judges' responses.

Is there any easy way to overcome bureaucratic secrecy and obtain genuinely "internal" legal reasoning? One could work for an agency -- but then one's internal deliberations are privileged. One can assign excerpts from NPRMs and Final Rules "Bases and Purposes" that focus on agencies' statutory interpretation before a rule reaches the courts. (A great way to find fun leg-reg problems is to do searches on using Latinate canons as search terms. When an agency says "expressio unius" or "noscitur a sociis" in a rule's Basis and Purpose, you know that there is an exam question buried in the rule). But note that the Basis and Purpose is a document drafted in anticipation of judicial review: It really is not "internal" in any meaningful sense. The same goes, of course, for the reasons in ALJs' opinions. (To the extent that Chevron induces ALJs to pay attention exclusively to higher agency tribunals within the agency, I guess that those opinions should approach the status of being genuinely "internal" -- but Chevron is a murky enough line that it is hard to be confident that an ALJ is making a decision on purely internal grounds).

All of this leads me to a request: If any readers out there have syllabi containing genuinely "internal" materials or, better yet, tips on finding such materials (teach a man to fish...), I would be grateful for your sharing them with me (and sharing offline is fine).

Posted by Rick Hills on March 19, 2018 at 08:02 PM | Permalink | Comments (6)

Lega Ed's Futures: No. 27 (Jackie Gardina, guest post)

I want to thank Michael Madison and Dan Rodriguez for inviting me to join this conversation about the future of legal education. I have enjoyed the posts and the insights offered by so many of my colleagues.

I hope I can add a different perspective, one that challenges an explicit or implicit assumption in almost every post – that ABA accreditation is a necessary part of the future of legal education. It’s not. Indeed, in some states graduating from an ABA- accredited law school is not necessary to obtain a license to practice law. If we are willing to look beyond an exclusive ABA model and work with state bars, we may discover that we can address some of the issues raised and engage in the innovation necessary to respond to a changing legal market.

I come to this conversation with some experience. Almost two years ago I left a tenured faculty position at an ABA-accredited law school to become the dean of a small California Accredited Law School (CALS). California is one of a handful of states to allow aspiring lawyers to take the bar exam without going to an ABA- accredited law school. My school, the Santa Barbara and Ventura Colleges of Law (COL), is accredited by the state bar as well as the Western Association of Schools and Colleges.

Continue reading "Lega Ed's Futures: No. 27 (Jackie Gardina, guest post)"

Posted by Dan Rodriguez on March 19, 2018 at 06:13 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Writing is Architecture First, Interior Design is Secondary: On Trains, Houses & Pyramids

That's a variation on Hemingway, again. I posted a few days ago a fun, though a bit random list of quotes about writing (oh the Internet, where curating quotes has become the soul-less pastime of too many who've never actually read those they quote. May we always quote soulfully is my wish to us prawfs and writers at large...). Hemingway said prose is architecture, not interior design and that the Baroque is over. I think he meant that the substantive of what you want to say needs to guide the writing and that you need to write in a punchy concise way, avoiding fluff for merely decorative purpose. Say what you mean and mean what you say and get rid of all the garnish. I like garnish and I think interior design is important too. I'd even argue for bringing a bit of Baroque back (Bach J), carefully . But I completely agree that the structure is first and foremost in writing a good article or book. The bare bones are the piece of the writing puzzle that needs to be done right.

Today I spoke with my seminar students about their research projects and I thought I'd offer here, as a second installation of posts about writing, the metaphors I use with my students to help us think about structure. One of my favorite teachers in law school, who later became one of my doctoral advisors, was Martha Minow. I remember her telling us in a seminar on law and social justice, similar to the one I teach today, that you can write a house or a train. I think she said houses are what books look like and trains are articles. I don't agree with that division, I think both articles and books can be houses or trains. But the visual I've always found useful in thinking about what I am doing and how to build my project. If you are building a house, you take the reader with you through a pathway into a place where you have a nice entrance, a main hall and some public spaces, and then doors, and windows into rooms, each holding an interesting set of ideas about a related topic. Together the house makes sense but each room also stands on its own. If you are building a train, you think linearly about your project. It could be chronological or it could be a problem in search of a solution and the solution unfolds as your present and analyze layers of evidence, perhaps empirical data, theoretical arguments, policy claims. To the houses and trains I added today in class the visuals of pyramids and reverse pyramids. In every discipline, a good portion of research involves the qualities of lumping or splitting. In legal scholarship, often insights come from taking a broad issue, a broad base of a pyramid, a classifying and regrouping the issues to show how we actually have separate questions emerging from different subcategories and these should be addressed distinctly. We also often have insights when we look sideways, from a reverse pyramid narrow tip into horizontal fields, related topics that offer new insights. Research is often an import-export business.

I don’t know if these visuals are useful only to me or beyond but I’ve found that sketching my next writing project, including actually drawing stuff, not just outlining gets me into better architectural shape and only then can I begin to think about the décor.  

Posted by Orly Lobel on March 19, 2018 at 05:22 PM in 2018 Symposium: Future of Legal Ed, Blogging, Legal Theory, Life of Law Schools, Odd World, Teaching Law | Permalink | Comments (1)

Tulane Forrester Fellowship

From Tulane Law School:

Tulane Law School invites applicants for the Forrester Fellowship. Forrester Fellows are promising legal academics who teach in the first-year legal writing program. Fellows teach legal writing to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are invited to participate in all aspects of the intellectual life of the law school. Fellows are encouraged to present their work at faculty workshops and “brown bags,” and members of the full-time faculty serve as mentors to fellows. Fellows receive a stipend to support travel and research.

Fellows are appointed to a one-year term with the possibility of a single one-year renewal and are expected to enter the law-teaching market.

Applicants must have an outstanding record of academic and professional achievement, a J.D. from an ABA-accredited law school, and at least three years of law-related practice and/or clerkship experience. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Please apply at this link by April 2 and direct any queries to Erin Donelon, director of Tulane Law School’s legal research and writing program.

Posted by Sarah Lawsky on March 19, 2018 at 05:20 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Legal Ed's Futures: No. 26 (Dan Hunter)

Who needs two law degrees?

(Modest Proposal #2)

I’ve been really gratified at the open-mindedness of the commentary around my first modest proposal, to offer an LLB for US entry. Let me offer an another, equally whacky idea about how US law schools might change their value proposition to students.

But first, some context…

Globalisation has been a fundamental feature of economics and geopolitics for decades now. Everyone knows this, everyone understands the effect of global logistics on international trade, and how the development of the EU and China’s entry into the WTO has changed every part of our lives, and so on.[1] Yet the basic approach of law schools is blind to the possibilities that globalisation offers for grads. Forty or fifty years into the globalization revolution, law schools remain basically parochial. Of course, there are a few bits of legal education that recognize the outside world: International law and/or comparative law are taught pretty much everywhere, many schools offer LLMs for international students, and you occasionally see electives that connect students across national boundaries, such as Michele DeStefano’s Law Without Walls. Each initiative exposes students to other legal systems and foreign law students to some extent; but the main focus of the US law degree is always domestic, assuming that grads will practice US law, probably locally. Maybe if they are very adventurous or go to a “national” school they’ll move interstate to one of the big US cities.

Continue reading "Legal Ed's Futures: No. 26 (Dan Hunter)"

Posted by Dan Rodriguez on March 19, 2018 at 01:25 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Argument preview: U.S. v. Sanchez-Gomez

I have a SCOTUSBlog preview on next Monday's argument in United States v. Sanchez-Gomez, which considers issues of appealability, mandamus, and mootness in a case arising from a district policy of placing all defendants in five-point restraints for non-jury proceedings. (The Court denied cert. on the constitutional merits).

Posted by Howard Wasserman on March 19, 2018 at 12:07 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Hughes v. United States and the Effects of the Marks Rule  

Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.

Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.

One interesting aspect of the briefing has to do with the Marks rule’s effects, particularly whether the rule tends to clarify or confuse the law. At one point, the United States cited my forthcoming paper to argue that Marks has proven workable:

Courts of appeals have issued more than 400 decisions in the past several decades applying Marks to interpret more than 100 divided decisions of this Court. Richard M. Re, Beyond the Marks Rule 11 [cite omitted]. Their ability to apply Marks in this way demonstrates that Marks is not difficult to apply in the mine-run of cases.

While I am flattered that the government cited my work, the reasoning in the above paragraph strikes me as unpersuasive. The fact that the Marks rule is often cited might show that courts view it as binding but has little bearing on whether the rule is “difficult to apply in the mine-run of cases.” And, in fact, my research suggests that Marks tends to generate confusion and disagreement. The petitioner’s reply brief makes essentially that point, citing my amicus brief. Here is the relevant passage (with some cites omitted):

The best alternative to the logical-subset test is not the government’s; it would be returning to true majority rule. Marks has generated uncertainty and confusion. The government responds that Marks is cited a lot. RB32 (citing Richard Re, Beyond the Marks Rule 11 (Jan. 5, 2018) (forthcoming Harv. L. Rev.)). But the scholar who compiled those citations explains that they reflect widespread confusion: “[T]he cases that are most often ‘Marks’d’ have tended to generate intractable circuit splits,” and “[o]ther frequently Marks’d cases ... have yielded little guidance.” Re Br. 16.

The extensive confusion occasioned by Marks could be taken as a reason to abandon it (as I argue) or as a warrant for clarification. Either way, Marks’s effects suggest that the Court should take seriously its opportunity to provide guidance in this important area. 

Posted by Richard M. Re on March 19, 2018 at 08:30 AM | Permalink | Comments (2)

Legal Ed's Futures: No. 25 (guest post, Brian Farkas)

Syllabus Surgery: Integrating Arbitration and Mediation into Modern Curricula

The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.

Arbitration and mediation have traditionally been viewed as elective courses. Sometimes they are lumped together into a single course, called something like Alternative Dispute Resolution or ADR. The “alternative” moniker implies that these methods of conflict resolution stand in contrast to litigation, or somehow involve different types of disputes than the disputes that are litigated. Most curricula view them as optional complements to the “real” litigation courses like Civil Procedure, Evidence, Federal Courts, Conflict of Laws, and Remedies.

Continue reading "Legal Ed's Futures: No. 25 (guest post, Brian Farkas)"

Posted by Dan Rodriguez on March 19, 2018 at 08:23 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 24 (Hari Osofsky)

Moving Forward Together

 I have very much appreciated the rich interchanges in this virtual symposium thus far.  This post builds on that discussion by focusing on the key role that collaboration plays in achieving needed progress.  It argues that establishing cultures and patterns to encourage and celebrate needed innovation – ones in which it’s ok to try things that might not work – is deeply intertwined with effective approaches to collaboration.

A number of the posts have implied a somewhat atomistic view of innovation in which a limited set of people advance innovation and strategies must work around those who stand in its way. For example, posts have discussed the headwinds created by those who oppose change and called for hiring new types of faculty.

Similarly, posts have highlighted individual innovative initiatives at particular institutions without much focus on those ways those institutions currently do, or should in the future, collaborate. Although I agree with Mark Tushnet that institutional pluralism is needed, I worry that we often reinvent wheels separately without learning from one another.

This post makes the case for moving forward together.  It argues that multiple forms of effective collaboration are needed to help create legal education for a changing society. Although I acknowledge that barriers to change are real and that collaboration can be difficult, we will make more progress through prioritizing interconnection.  The post highlights four areas in which I think fostering collaboration is crucial.

Continue reading "Legal Ed's Futures: No. 24 (Hari Osofsky)"

Posted by Dan Rodriguez on March 19, 2018 at 08:16 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Saturday, March 17, 2018

Legal Ed's Futures: No. 23

Law Schools Teaching Non-Lawyers

I was recently asked to chair the search for a new Dean for the Business School.  It was a fascinating process, and I was struck by the diversity of programming and expansive way in which many business schools think about education.  Executive programs.  Part time programs.  Partnerships with business and industry. 

This experience enriched an important question I had been thinking about and building structures around as a new Dean: should the “futures” of legal education include an expanded focus on legal education for individuals who are not – and will likely never become – US lawyers?  In some circumstances, this move may have the potential to help law schools financially.  But for this post, let’s put that aside – assume that such a change would be at least revenue-neutral, to focus the real discussion on whether it’s a good idea.

Continue reading "Legal Ed's Futures: No. 23"

Posted by Dan Rodriguez on March 17, 2018 at 11:11 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, March 15, 2018

Legal Ed's Futures: No. 22 (guest post)

In Legal Ed’s Futures #14, Dan Hunter makes the “modest proposal” of allowing universities to offer a Bachelor of Laws (LLB) degree leading to the practice of law. My experience with this in a wide variety of other countries and cultures indicates that such reform might be much easier than one might first imagine.

Many proposed law school reforms, such as shortening the JD to 2 years, or replacing the third year with an externship, face considerable headwinds from existing faculty (and law school finances) for whom such reforms would threaten job and financial stability. Such reforms also would face headwinds from existing lawyers who would perceive the reforms as threatening their own status, prestige, and income. However, similar challenges to an LLB program are far from insurmountable.

From an institutional perspective, my experience in countries with LLBs is that the number of students in such programs exceeds by several factors the number of students in traditional J.D. or J.D.-equivalent programs. Many if not most LLB students do not intend to take the bar exam, but see the LLB as preparation for a job in civil service, middle management, or public advocacy. For universities with or without existing law schools, the LLB market is a huge potential untapped revenue stream. For universities with a law school, the LLB is an ideal feeder program -- and it provides advantages of scale because JD and LLB students can sometimes be enrolled in the same course.

From a faculty perspective, the exponential expansion in law student enrollment would commensurately expand teaching opportunities. One possible rub would be stratification – in prestige, teaching load, class size, research expectations/opportunities – between faculty teaching in the LLB program versus faculty teaching in the JD program. However, again, this problem is hardly insurmountable. At universities with both JD and LLB programs, teaching and research responsibilities could be spread equitably, or could be divided based in part on expertise or qualifications (however defined) or seniority.

From the perspective of existing JD graduates, one would expect much short-term wailing and gnashing of teeth as JD-holders complain that the market is about to be flooded with unqualified new entrants. Within a few short years, however, I expect that the market will become self-correcting via job-qualification stratification. Similarly, Career Services offices will need to plan proactively to help facilitate demand for a new degree for which the job market is not currently accustomed.

Megan Carpenter, Kellye Testy, Deborah Merritt, and others writing on this thread of Legal Ed’s Futures all have made the basic (and very accurate) point that legal education has priced itself (in both pecuniary and opportunity costs) out of all but the most lucrative markets, to the detriment of society generally. Permitting an LLB as Dan suggests would go a long way toward righting that ship.

Rick Bales (Ohio Northern)

Posted by Dan Rodriguez on March 15, 2018 at 10:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 21

At the outset, I will confess to two biases that likely color my view of the futures of legal education.  First, I am a former deputy managing director of the ABA Section of Legal Education, and so am prone to see many of the opportunities and challenges facing legal education through a regulatory prism.  Second, I am pessimistic about the futures of legal education, at least in the short and medium terms.  Change will come, but I believe it is likely to entail the demise of many of the existing structures, and so will be resisted fiercely and for as long as possible.  On the bright side, this dire outlook should help to reinforce Mike Madison’s premise that the need for change in legal education is urgent.

Symposium contributions so far have assumed but not explicitly detailed what I think most of us would agree are the two biggest problems facing most of our students: (1) the exorbitant cost of legal education, and the associated debt burdens; and (2) too many graduates chasing too few entry-level law jobs.  (I will not repeat the numbers here, but for those who are interested, I have collected and presented the relevant data in a paper to be published in the Journal of Legal Education, a draft of which is available on SSRN:  Add to this a rankings system that dominates student decisions about where to go to law school, and thus seemingly compels schools to pursue admissions, financial aid, faculty hiring, spending, and curriculum policies that preserve the status quo and make legal education an engine of wealth inequality.  At the same time, there is an appalling access to justice gap for millions and millions of people who cannot afford lawyers or obtain publicly subsidized legal services.

Continue reading "Legal Ed's Futures: No. 21"

Posted by Dan Rodriguez on March 15, 2018 at 09:25 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The President as Fiduciary

Jed Shugerman and I have an op-ed in today’s Washington Post, highlighting why the president’s pardon power and removal authority might be constrained by the fiduciary principles of his oath and his office.  If you have used up your free articles from WaPo this month: Download The Constitution could stop Trump from ..

Posted by Ethan Leib on March 14, 2018 at 03:58 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 20 (guest post)

New Interdisciplinary Horizons

We are in an interdisciplinary moment, and not just the Law & Econ or Berkeley Jurisprudence and Social Policy sense.  So many of the concerns we feel for the future of legal education – and for the future of practice writ large – are directly related to the work our colleagues are doing down the street, in computer sciences, math, engineering, and other departments.  If the old interdisciplinary tool was often critique – how should we understand law  in light of economics, political science or sociology – the new one has great potential to be actionable collaboration.  I’d love to see my colleagues working with those computer scientists producing analytical tools that search web comments for common linguistic strands – the better to identify individuals who present genuine threats to society.  I’d like to see them working with the folks in engineering as they develop cybersecurity interventions that intercept data at an early point before it can do its damage.  I’d like to see my law faculty colleagues working with the AI experts, the driverless car folks, the pharma researchers creating digital pills that send an “I’m here” signal to a smartphone app when they hit the digestive track.  Of course I know that a few legal scholars have made this move – but truly, very few.

There is so much to be gained by growing this part of our research capacity.  Our faculty quite literally could work on the cutting edge of the law.  They’ll have the potential of making a real difference in how we think about, and regulate, the immersion of new tech into society.  They’ll be more relevant for their students.  And that’s only the beginning.

Amazingly enough, there is even scaffolding for this future – in the form of the same grants our colleagues receive for their research.  Many of the granting organizations and institutes have already expressed a keen interest in interdisciplinary teams – and law faculty are a logical fit.  I take Dan Hunter’s concern about lawyers and law students seriously – many lawyers got into the business precisely because we weren’t meant to code.   But on these interdisciplinary teams, law faculty won’t have to do the technical work.  They’ll just have to understand it enough to offer thoughtful interventions.  They can use their cognate PhD if they have one, bringing in insights from economics, sociology or political science.  But this interdisciplinary work is really open to all comers because, in many cases, the skills required here are awfully similar to those of a sophisticated litigator. 

All of which is to offer up my call for a new kind of interdisciplinarity – not to displace the law/social science combinations we know well, but to supplement them.  If we’re looking to build bridges to the future, what better place to turn than to the folks right down the street who are building much of that future this very moment.

Dan Filler (Drexel)

Posted by Dan Rodriguez on March 14, 2018 at 11:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 19

Artificial Intelligence and Platforms

About a thousand years ago I used to do research in artificial intelligence and law. It was kinda cool back in those times, at least for a while, and then, all of a sudden, it was wasn’t. At the time the perception was that AI applications didn’t really live up to their promise, certainly not to the point where they could be called “intelligent.” So, the hype cycle moved on to newer, more interesting computer science areas like agent-based systems, cloud computing, and big data.

Having lived through the last twenty years of what is often called the “AI winter”, it’s remarkable how often nowadays that I get asked to talk about the impact of AI on legal education and legal practice. This is almost entirely due to the remarkable advances that have been made in one technology, deep neural networks. Gideon Lewis-Krause gives a nice history of this technology here:

Deep neural networks (aka convolutional neural nets) have made good on the promise that one day machines could actually learn. The areas where we see this most obviously are in machine vision and speech, and the headline applications of this are, of course, self-driving cars, voice recognition systems, speech production, and game playing. Other advances in semantic representation and analysis have tied neural networks to data systems like the web or music databases; giving us the miracle of Pixel2 earphones able to do translations on the fly, or having Alexa play Tom Waits when I say, “Play some music that I like.”

Although it’s impossible to know exactly how these advances will affect law, we can get a decent view of which areas of legal practice will be affected by focusing on how the technology works. By extension, we can get a decent sense of how we should be re-thinking legal education.

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Posted by Dan Rodriguez on March 14, 2018 at 10:09 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 13, 2018

Legal Ed's Futures: No. 18

The Technology Community Needs Legal Expertise as Much as the Legal Community Needs Technology

in his invitation, Mike mentions the possibility of a computer program ultimately being able to compose a legal memo or brief. Mike’s considered reflections on the future development of legal technology are a refreshing break from the usual hype about robot lawyers. I’d like to go a bit further, expressing more skepticism about technological determinism in the legal field.

Three years ago, when I was co-authoring the essay Four Futures of Legal Automation, there was a wave of articles and books predicting that the professions were about to be automated. A fair amount of the hype came from software vendors looking to profit by overclaiming for their own products and denigrating the work of current attorneys. A trade press eager for ad revenue from such vendors quickly hopped on the bandwagon. As Riika Koulu, Lila Kallio, and Jenni Hakkarainen have observed, there has been “a severe lack of unbiased information available on the consequences of digital shift for the practice and study of law.”

At this point, however, the discourse is more reasoned. It’s becoming clearer that lawyers and coders are complements, not substitutes. Two articles in particular have carefully debunked the usual case for rapid automation of law. As Eric L. Talley observes, “the underlying evolutionary process that characterizes legal doctrine and precedent is irreducibly dynamic and complex – traits that are poorly adapted to pure algorithmic decision-making.” Dana Remus and Frank Levy “estimate that automation has an impact on the demand for lawyers’ time that while measurable, is far less significant than popular accounts suggest.”

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Posted by Dan Rodriguez on March 13, 2018 at 04:00 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (27)

Legal Ed's Futures: No. 17 (guest post)


I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?

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Posted by Dan Rodriguez on March 13, 2018 at 09:29 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 16

The viewpoints and suggestions offered in this symposium are wonderful for their breadth and thoughtfulness, not to mention passion and immediacy.  Legal education has stewards from literally all over the globe earnestly interested in protecting if not expanding the rule of law, the delivery of legal services, and the education of new generations of lawyers dedicated to a nation aspiring to equal justice under law.  It is unfortunate then that our collective narrative is not more widely shared and internalized by a new generation who might be lawyers.  

We all know the story well – for a half century interest in attending law school increased, as reflected in more and more applications, culminating in just over 600,000 applications for admission in the fall 2010 … but then KABOOM.  The fall off was rapid and dramatic so that, in this case, a picture truly is worth a thousand words.  Here is a depiction of law school 1L enrollment over the last roughly half century:

Those 600,000 applications yielded over 50,000 1L students and then – BUST.  The enrollment growth of almost a half century disappeared in only five years so that by the fall of 2015, 1L enrollment was back to early 1970’s levels.  Ouch.  The modest bump in applications that we currently see this academic year does not mitigate some generally held impressions that we are not likely to return to 2010 any time soon, especially considering demographic predictions for high school and college graduation rates over the next 25 years. 

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Posted by Dan Rodriguez on March 13, 2018 at 09:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

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Posted by Dan Rodriguez on March 12, 2018 at 03:57 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)