Archive | Legal Professor

Eliminating the “C” in Law School Grading?

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant […]

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Brian Tamanaha’s “Failing Law Schools”

Last week I had the pleasure of reading a pre-publication draft of Brian Tamanaha’s new book, Failing Law Schools, which has not yet been released but can be pre-ordered now. I found the book engrossing and its argument powerful. I read it in 2 days after receiving a copy, and I think it should be required reading for all legal academics.

Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20. […]

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Responding to Online Outlines

Many law professors are distressed by the proliferation of online course outlines and case briefs. Commercial outlines have been available for years. Now those students inclined to rely on such study tools have access to lower-cost alternatives. That’s not the problem. Rather it’s the existence of outlines that purport to represent how specific professors teach specific classes and (worse) that such outlines are often riddled with errors. I’ve looked at a few outlines from my classes on various websites and was astounded at the number of mistakes. If these outlines are representative of what’s out there, students rely on them at their own risk (and some have — which could explain how every year I find a set of exams making the same set of off-the-wall mistakes).

Some professors have sought to squelch the distribution of notes and outlines from their courses. Professor Bainbridge has come up with a better idea — one I may have to emulate.

I’m going to buy some of these note sets and outlines being sold for my classes. I’ll go through them and find all the mistakes. And then I’ll write exam questions testing on those very same mistakes. If we all did that, the market would dry up pretty quick.

UPDATE: Some of the comments below reflect an odd view of legal education.  A law school exam should test the extent to which a student has mastered the assigned materials.  A student who has mastered the assigned materials will not reflexively regurgitate mistakes found in an outline, whether purchased in a book store or downloaded from the web.  Indeed, uncritically copying or repeating what one finds in an outline is no way to learn the law.  Fortunately, in my classes, this problem appears to be confined to a handful of students each year. […]

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Richard Fallon on Law Professor Amicus Briefs

An interesting essay, via Prawfs. If I were a law clerk, I would ignore the names of professors who are signatories but not authors of amicus briefs. In my experience, some of the professors who sign on to amicus briefs don’t even bother to skim the briefs filed in their name. Those who read the briefs sometimes have serious reservations about their content, and others simply don’t know enough about the area of law to determine if the brief is accurate. Caveat scriba, you might say. More from Ward Farnsworth here. […]

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Anis Shivani on University Presses

My Washington College of Law colleague Robert Tsai points me to an interesting Huffington Post article  by Anis Shivani on new directions for university presses.  I have a somewhat more critical take on this, in the sense of an interest in the economic and business models driving the presses as they move in different directions.

For example, I wonder how falling costs of producing books and different and cheaper distribution models via Amazon interacts with a relative decline, at least among senior law professors, in the prestige of law review articles in favor of books.  I wonder about shifts in the hiring, promotion, tenure, and lateral process and ways in which that drives a cycle of academic production – at least among law professors – of crank out articles, repackage as book, start cycle again – but without it being clear to me, at least, that there is great value added in putting the articles between hard or soft covers.  We tell ourselves that we are pulling together a handful of articles into a unified book-y whole, but, well, I wonder how much it is simply driven by a combined shift in the prestige markers within our academic world and shifts downward in the cost of production, along with dissatisfaction with the student law review publishing model.

Is that a bad thing?  The sometimes assumed frivolity and waste of publishing in humanities, social science, and law – the purely critical story is not all there is to it, by any means.  I, for one, do look forward to a revival of the humanities as a source of meaning.  The availability of an increasing number of scholarly books at a much cheaper price than, well, Cambridge UP’s sticker-shocker numbers is a terrific thing.  It takes into account lower productions costs, the […]

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Query re University Administrative Bloat

CoConspirator Todd’s post on the growth of administrative staff at universities raises a further question for me.  Considered as a public choice/incentives question, what are the rational incentives of university administrators regarding faculty tenure?  We have had some interesting discussions here at VC on the policy considerations on tenure – I’ll weigh in on them at some point, but not today – but in this post I have another kind of question.

If the study to which Todd links is correct, and administrative staff is growing in this way, along with an accumulation of administrative power within universities, what are the incentives of university administrators with respect to the institution of faculty tenure?  Would they tend to disfavor tenure because it empowers faculty potentially vis a vis administrators?  Because administrators would prefer to see faculty as employees or, perhaps, simply independent contractors?  Rather than a potentially competing source of university governance on the traditional (and somewhat mythical, at least in the past few decades) “collegial” model?  Or are their incentives something else altogether?

That is, I am asking a very specific question regarding the rational incentives of university administrators.  (Please comment only if you have something that goes to that question, and please, no rants or off-topic disquisitions.) […]

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Financial Regulation Reform – AALS Call for Papers

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions … agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   […]

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Mallaby on Soros and the Pound, and Some Other Summer Reading in Philosophy and Economics

The Atlantic is running an excerpt from Sebastian Mallaby’s new book, More Money Than God: Hedge Funds and the Making of  New Elite, which is out on June 14.  The excerpt covers the famous moment when George Soros broke the pound in 1992.  (It was then that I went to work for him, as general counsel to his charities, but mostly I remember people running in and out of rooms bringing him faxes while he was holding simultaneous meetings on assisting Eastern Europe.)  Mallaby is a terrific writer, and if you have any interest at all in the topic – and Mallaby is outstanding at bringing together the matters of finance and money with politics and power – you are likely to be interested in this book.  It is definitely on my summer reading list, although I am desperately hoping for a Kindle version, as I will be traveling and can’t haul around a lot of stuff.

On hedge funds and private equity in a different direction, I received an examination copy of a new textbook, An Introduction to Investment Banks, Hedge Funds, and Private Equity: The New Paradigm, by David P. Stowell.  It is excellent – clear, informative, well-written.  It is aimed at an undergraduate course audience, perhaps in the upper classes, but would also be perfectly useable in business school as an intro text, as well as in law school as an introductory class in these topics, if the professor were able to supplement it with legal materials.  (In fact, that might make an easy way to create something that does not now seem to exist for law school – a private equity-hedge fund text that covers both the business and legal aspects.  A fix for that might be to use this book, with a detailed […]

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The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida. […]

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Goodwin Liu on the Second Amendment

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.

. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act,  and the Americans with Disabilities Act.

. . .

United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a

[…]

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Joseph Bottum Spots Eugene Volokh Changing the Culture

Instapundit points us in the direction of Joseph Bottum’s First Things blog post yesterday; also Althouse’s comment:

[W]hile I was [at NYU Law School] I saw posters for a lecture this afternoon by Eugene Volokh on the structure of slippery-slope arguments.  … the posters for Volokh’s talk read, as I remember: “Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA.”

I wonder how the Schwartz family feels about that. Indeed, I wonder how UCLA law school feels. For that matter, I wonder how I feel. Since when has even a blog as interesting as the The Volokh Conspiracy trumped, for a law-school audience, a chair at a major law school and all the speaker’s academic publications?  A fascinating change in the culture of things.

Well, heck (and  not speaking for Eugene), I feel pretty darn good as a coat-tails participant at VC! […]

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Information Asymmetries and the Agent Principal Problem, As Found in … The Coca Cola Kid

Is this the ‘Australian Sound’? My class is covering information asymmetries as transaction costs affecting pure Coase Theorem analysis, and we will soon come to classic information asymmetries found in agent – principal relationships.  I am thinking of using this as a pedagogical tool.

Consider Eric Roberts’ soliloquy on agent-principal relations, and the many ironies involved.  (Midway through – the focus here is not on the political discussion at the beginning, but the Australian sound debate midway through.)  Good teaching tool?  (Also, the Coke jingle by Tim Finn is surely one of the best around, and I’m amazed that the real Coke corporation never figured out it had a winner.)

[youtube]http://www.youtube.com/watch?v=ml0TURpHRuw[/youtube] […]

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The Rise of the Uncorporation

Congratulations to Larry Ribstein on his new book from OUP, The Rise of the Uncorporation.  I somehow got a comp copy in the mail, just finished reading it, and it is terrific.  A gracefully written essay on business law!(!!)  It manages to meld together law, history of business and legal forms in business, law and economics, and sociology into an exceptionally readable short book.  The discussion of the rise of the LLC is fascinating – I thought I knew all about it, as someone who teaches private equity and business associations, but boy, was I wrong.  The frame of social history in business form is a real contribution to a field that is oddly neglected by legal academics, the political and social theory of the corporation and the business assocation.

(My only complaint is that at $70 list, and $50 on Amazon, it is still a little pricey at least if, like me, you would want it for students and courses, like my private equity course, where it would be a fantastically useful and readable supplement.  I think OUP has missed on market pricing here.  I would love to require it as a secondary text in my private equity course, but at that price, I don’t think I can justify it.  Maybe when it’s out in paperback?  Or Kindle?) […]

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Kevin Jon Heller on Carl Schmitt and Nuremberg

Over at Opinio Juris, my co-blogger Kevin Jon Heller has a post on the German political theorist Carl Schmitt and the history behind his brush with a Nuremberg prosecution at the end of the Second World War.  It is drawn from research for Kevin’s book on the Nuremberg trials; given the interest that law professors and others have taken in Schmitt’s work over the years, I thought the VC audience would find it interesting.  Kevin has done very interesting research into this whole episode at Nuremberg:

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  …  At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.

Kevin cites to an article in the social/critical theory journal Telos, of which I was long an editorial associate, along […]

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