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Archive for the ‘Law’ Category

The Challenge Facing Law Schools

In Academia, Law, Law School, Legal Education & Pedagogy on May 10, 2017 at 6:45 am

This piece originally appeared in the February issue of The Addendum, a publication of the Alabama State Bar.

Many law school administrators have begun the new year anxious about the future. Since the financial crisis of 2008, the number of law-school applications and LSAT takers has plummeted, while tuition costs have continued to rise. Faced with the probability of heavy student-loan debt, a saturated legal market, and stagnant starting salaries for attorneys, some aspiring attorneys have decided that law school is simply too risky an investment and are looking elsewhere to begin their careers.

The decrease in applications for admission and low matriculation rates have hit lower-ranked law schools particularly hard. These schools have struggled to compete for applicants and have decreased the size of their classes to maintain competitive admissions data. Even Ivy League schools have been forced to find creative solutions to contracting enrollment. Harvard Law School, for instance, has accepted more transfer students—whose entering LSAT scores do not have to be reported to publications that rank law schools—presumably to make up for shrinking tuition revenues.

Law schools face a dual threat: the American Bar Association (ABA) and the Department of Education (DOE).  The DOE is cracking down on law schools for allegedly deceptive enrollment practices just years after a string of lawsuits across the country claimed that certain law schools misrepresented employment statistics for their recent graduates.

Last year, the DOE recommended that the ABA lose its accreditation powers for one year. Under pressure from the DOE, the ABA has grown more aggressive, demanding that law schools come into compliance with ABA admission standards or suffer potential reprimands, sanctions, probation, or worse. The ABA imposed a remedial plan on Ave Maria School of Law to improve the school’s admissions practices and bar-passage rates. Then, in November of 2016, the ABA publically censured Valparaiso University School of Law and placed Charlotte School of Law on probation.

Despite the fact that Charlotte School of Law remains accredited by the ABA, the DOE announced in December 2016 that it was terminating that school’s access to federal student aid. In response, students there have filed a federal class-action lawsuit alleging, among other things, that the school and InfiLaw—its parent company—misled them and misrepresented the scope and degree of the school’s problems.

The blogosphere abounds with rumors about law-school closings. Indiana Tech Law School is, in fact, shutting down this June, and in 2015 the William Mitchell College of Law merged with Hamline University School of Law to offset costs and avoid shutting their doors.

In light of the foregoing, law schools should be transparent about the condition they are in and the difficulties they face, lest they find themselves the target of lawsuits like the one filed against Charlotte School of Law. The future of law schools and the legal profession remains uncertain. We are in a transitional—and perhaps unprecedented—moment. How legal administrators deal with it may test not only their patience, courage, and leadership, but also the long-term viability of legal education as we know it today.

 

Civics Education and the Blackstone & Burke Center for Law & Liberty

In Academia, Civics, Conservatism, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Libertarianism, News and Current Events, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 26, 2017 at 10:49 am

A version of this piece will appear in Faulkner Magazine. 

Our country has suffered a decline in civic literacy.  From 2006 until 2011, the Intercollegiate Studies Institute (ISI) conducted annual studies that evaluated the civic literacy of students and citizens.

The results were discouraging. Most Americans were unable to pass a basic test consisting of straightforward, multiple-choice questions about American heritage, government, and law. One of the ISI studies suggested that students knew more about civics before they began college than they did after they graduated college.

It’s not just students and ordinary citizens displaying civic ignorance. Our political leaders have demonstrated that they lack the understanding of law and government befitting their high office.

Judge Arenda Wright Allen of the U.S. District Court for the Eastern District of Virginia recently began an opinion by stating that the Constitution declared that “‘all men’ are created equal.” This line appears in the Declaration of Independence, not the Constitution.

Senator Chuck Schumer told CNN that the three branches of government were the House, the Senate, and the President. He not only failed to mention the judicial branch, but also treated the bicameral legislature in which he serves as if it were bifurcated into separate branches of government.

Congressman Sheila Jackson Lee, while criticizing the alleged unconstitutionality of proposed legislation, claimed that the Constitution was 400 years old.

These anecdotes suffice to show the extent to which Americans no longer respect their founding principles or the framework of government established in our Constitution.

That is why the Blackstone & Burke Center for Law & Liberty was founded at Thomas Goode Jones School of Law. We seek to promote the principles of the common-law tradition and American constitutionalism so that the next generation of civic leaders will make informed, thoughtful decisions about the future of our country.

Ordered liberty in the United States has rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and ancient liberties grounded in the conviction that all humans are created equal and endowed by their Creator with certain inalienable rights. These values characterize the American experiment. Our society is built upon them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Therefore, the Blackstone & Burke Center will educate students, teachers, judges, and political leaders in the areas of religious freedom, freedom of association, freedom of speech, and economic freedom. We will coordinate educational programs, research initiatives, and judicial conferences that examine the norms and nurture the institutions of ordered liberty.

We believe that the principles and ideas of the American Founding are worth conserving and celebrating. Our vision is to help renew an America where freedom, opportunity, prosperity, and civil society flourish.

The Blackstone & Burke Center has recruited of board of advisers consisting of internationally recognized thought-leaders such as Judge Andrew Napolitano, Senior Legal Analyst for Fox News; Dr. Robert P. George, McCormick Chair in Jurisprudence at Princeton University; Dr. James R. Stoner, Hermann Moyse Jr. Professor and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University; Professor F. H. Buckley, George Mason University Foundation Professor at Antonin Scalia Law School; Dr. Don Devine, former Director of the U.S. Office of Personnel Management in the Reagan Administration and Senior Scholar at the Fund for American Studies; Dr. Ingrid Gregg, past president of the Earhart Foundation; and Dr. Daniel Mark, Vice Chairman of the U.S. Commission on International Religious Freedom and Professor at Villanova University.

In our first few months of operation, we organized and hosted a reception featuring a Library of Congress traveling Magna Cart exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks.  Judges, business and university leaders, lawyers, students, teachers, and the general public attended the reception to commemorate and learn about Magna Carta, and Acting Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta.

The Blackstone & Burke Center received a grant from Liberty Fund, Inc., to gift the entire Liberty Fund book and media catalog to the law library, as well as a grant from the Association for the Study of Free Institutions to bring a prominent speaker to our campus next fall.

The Blackstone & Burke Center also established a formal affiliation with Atlas Network and, through Atlas Network, partnerships with such organizations as the Acton Institute, American Enterprise Institute, American Legislative Exchange Council, Becket Fund for Religious Liberty, Cato Institute, Center for Competitive Politics, Claremont Institute, the Federalist Society, the Foundation for Economic Education, the Foundation for Individual Rights in Education, Freedom Foundation, the Goldwater Institute, the Heritage Foundation, the Hoover Institution, the Hudson Institute, the Independent Institute, Institute for Justice, Intercollegiate Studies Institute, the Law & Economics Center at George Mason University, Liberty Fund, Mackinac Center for Public Policy, Mont Pelerin Society, National Review Institute, Pacific Legal Foundation, the Philadelphia Society, the Pope Center for Higher Education Policy, Reason Foundation, State Policy Network, Students for Liberty, the Fund for American Studies, Young Americans for Liberty, and more.

Finally, the Blackstone & Burke Center received a grant from the Charles Koch Foundation under the auspices of the Philadelphia Society to direct a professional development conference on academic freedom at a meeting of the Philadelphia Society in Pennsylvania. Attendees included graduate students and university administrators from across the country who shared an abiding interest in the meaning, purpose, and characteristics of intellectual exchange in university settings.

We at the Blackstone & Burke Center look forward to a promising future as we inspire and educate new leaders in the principles and foundations of ordered liberty. To learn more about the Blackstone & Burke Center, visit our website at www.blackstone&burke.com.

Book Review: “Historic Alabama Courthouses,” by Delos Hughes

In American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, Southern History on April 12, 2017 at 6:45 am

Julia Jordan Weller, a native of Montgomery, Alabama, attended Hollins University and obtained her undergraduate degree from the University of Alabama in 1985. She obtained her Juris Doctorate from Cumberland School of Law in 1988. Since that time, she has served as a law clerk to the Honorable Joel F. Dubina on both the United States District Court and the United States Eleventh Circuit Court of Appeals. Mrs. Weller practiced law with firms in both Montgomery and Birmingham where, in addition to handling litigation throughout the State, she also served as an Administrative Law Judge for the State Health Planning and Development Agency. In 1998, Mrs. Weller became an Assistant United States Attorney, eventually becoming the First Assistant United States Attorney (Chief of Staff) in the Middle District of Alabama. She later worked as the Chief Administrative Law Judge for the State Personnel Board and thereafter as the Chief Administrative Law Judge for the Office of Attorney General. She became the Clerk of the Supreme Court of Alabama on July 16, 2013. Mrs. Weller is married to Christopher W. Weller, Sr., a shareholder with the law firm of Capell and Howard in Montgomery, Alabama. The Wellers have two children, Christopher Weller, Jr. and Florence Weller, and attend St. Peter Catholic Church.

If the walls of courthouses could talk, they would whisper the experiences of those who worked, litigated, and governed over the last 150 years or more.  Some courtrooms have evolved from open air forums, such as those held in Wedowee until 1836, to some of the grand domed buildings that seem to radiate the authority of the court.

Author Delos Hughes escorts the reader through a journey stopping in each Alabama County, beginning from the outset of Alabama’s judicial history.  Hughes explores Alabama’s earliest architectural expressions of justice, ranging from log cabins to Neoclassical Revival.  He notes that courthouses often reflect through their architecture a sense of presence and the ideals of the communities which built them. These elements not only demonstrate the artistic preferences of the county, but also tell stories about the county’s politics, economies, class structures, and ethnic backgrounds.

Hughes writes, for instance, that the courthouse built in Baldwin County in Daphne, Alabama, and designed by the famous architects Frank Lockwood and Benjamin Bosworth Smith, “conveyed permanence, stability, seriousness—just the message that Bay Minette wanted to convey.”  Of the Bibb County 1902 Courthouse, Hughes states, “the building conveys an impression for ecclesiastical rather than governmental or administrative or political.”

Interestingly, in Centre, Alabama, in Cherokee County, fire consumed two courthouses: one in 1882 and, later, the successor that was built in 1895.  Thus, “befitting a facility so prone to burning, the commanding architectural feature” of the 1896 Cherokee County Courthouse included a bell tower to alert citizens of any further fire dangers.

A photograph of the Wilcox County Courthouse of 1859 depicts a grand Greek Revival building with fluted Doric columns and exterior iron stairs to the second floor courtroom.  In contrast, a simple white board fence surrounds the majestic building, apparently for the practical purpose of keeping the livestock, which roamed freely through the streets, from wandering into the courthouse.  The image creates an ironic contrast between the community ideals and perceptions against the backdrop of the county’s practical economic realities.

With witty dialogue and interesting insight, this collection of history and photographs is a must for any individual involved in litigation throughout this great state.  Having handled litigation in nearly every county, I can say what a treasure this book would have been in my earlier years of law practice.

Hughes’s book provides a new set of viewing glasses to observe the personality and expressions fused into Alabama’s earliest judicial architecture.  These historical backdrops shed both a serious and whimsical light on the buildings, some of which still exist, as well as on the tales of Alabamians—their roots, experiences and growth. Historic Alabama Courthouses is a delightful necessity for any Alabama lawyer and a guilty pleasure for lovers of the courtroom.

Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

Mens Rea and the Common Law

In Criminal Law, History, Justice, Law, Teaching on March 15, 2017 at 6:45 am

Allen Mendenhall

At common law, a victim had to prove four elements to demonstrate that a crime had occurred: mens rea (the mental element of a crime whereby intent or blameworthiness must be established), actus reus (the physical elements of a crime whereby the actions of a defendant must be established), causation, and damages or harm. This brief post concerns the first element, mens rea.

The concept of means rea involved three kinds of intent at common law: (1) general intent (the wish to do something prohibited by law), (2) specific intent (the wish to do something prohibited by law and to cause a particular result), and (3) transferred intent (which arises when the intention to harm one person results in harm to a different person).

The definition of intent traditionally included not just the results an actor wanted to occur when he contemplated taking some action, but also the results he knew would almost certainly occur from that action even if he did not truly wish to bring them about.

The landmark case of People v. Conley (1989) demonstrated that it was not always necessary, when establishing the elements of a crime, to show that an actor consciously desired the result of a particular harm as long as he knew that his conduct was virtually certain to cause general harm. A prosecutor may accordingly establish the element of intent by showing that a person consciously desired to occasion a particular harm or that he knew that his conduct was practically certain to cause harm.

Under the doctrine of transferred intent, a prosecutor may demonstrate that the defendant committed a crime if he intended to cause harm to one person but accidentally harmed a different person. This principle is also revealed in People v. Conley, in which an individual named William Conley attempted to strike Marty Carroll with a wine bottle but mistakenly struck Sean O’Connell instead. Because Conley attempted to commit a battery and did in fact strike someone as he intended, he was guilty of the crime of battery. The fact that his victim was not his intended victim was immaterial to his case.

Allen Mendenhall Interviews Paul Goldstein About His Latest Novel, “Legal Asylum”

In Academia, Arts & Letters, Books, Creative Writing, Fiction, Humanities, Law, Law School, Law-and-Literature, Literature, Novels, Teaching, The Academy, Writing on March 1, 2017 at 6:45 am

Paul Goldstein is an expert on intellectual property law and the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School. He is the author of an influential four-volume treatise on U.S. copyright law and a one-volume treatise on international property. He has also authored ten books including five novels. Some of his other works include Copyright’s Highway: From Gutenberg to the Celestial Jukebox, a widely acclaimed book on the history and future of copyright, and Intellectual Property: The Tough New Realities That Could Make or Break Your Business. Havana Requiem, his third novel, won the 2013 Harper Lee Prize for Legal Fiction.

Paul Goldstein

Paul Goldstein

AM:  Thanks for taking the time to do this interview. What has been your colleagues’ reaction to this satire? 

PG:  My colleagues are, by and large, a sturdy and good-natured lot, and most of the reactions I’ve received have been very positive. Several have told me that they actually found themselves laughing out loud while reading the book. Still, there are a couple of colleagues who I know have read the book, but who seem curiously silent, and avoid my glance in the hallways. Who knows what they’re thinking!

AM:  Were you afraid your colleagues might push back against the novel, seeing themselves in the characters?  

PG:  I decided at the outset not to make Legal Asylum a roman a clef—a genre that I find cowardly and mean-spirited, and that I put in the same category as practical jokes. At the same time, there are certainly recognizable types of legal academics in the book, and it’s been a good deal of fun talking with colleagues about which group they put themselves in—Poets, Quants or Bog Dwellers.

AM:  In an interview with Jon Malysiak, the director of Ankerwycke Books, you stated that you’d spent 50 years thinking about the absurd and eccentric features of legal education. What are some of these?

PG:  One absurdity of course is the grim-faced crusade of law school deans to secure for their institutions a higher and still higher slot in the US News law school rankings, or at least not to slip from their present perch. That’s the question that drives the story: Can a law school make it into the US News Top Five and lose its ABA accreditation, all in the same year? Another absurdity highlighted in Legal Asylum is that, where in other university departments academic advancement, including tenure, turns on publication in peer-reviewed journals, American law schools commit the credentialing function to second-year law students who run the law reviews.

AM:  Your book is funny.  Why is humor a powerful mode of critique?

PG:  I’m glad you found the book funny! As to why humor is such a powerful mode of critique, it is because, for humor to work, it has to surprise the reader. Wait…she said that! He did what! And it’s that surprise, that unexpected twist, that turns the reader’s angle of view a fraction of a degree—or if it’s a belly laugh, maybe a full degree—so that the subject of the lampoon suddenly appears in a different light. To discover, for example, that the emperor is wearing no clothes, is not only funny, but it’s also a powerful critique of a certain kind of political leader.

AM:  You’ve called your protagonist, Dean Elspeth Flowers, a hero.  Why?

PG:  For a literary hero to be at all interesting, she or he needs to be flawed—the deeper the flaw the better—because it is only character defects like pride, willfulness and grandiosity that will get the hero in trouble, and without trouble, what kind of story do you have? Several readers of Legal Asylum have told me how shocked they were to discover that, by the end of the book, they were truly rooting for Elspeth.

AM:  Is there anything good about the obsession with law-school rankings and the so-called “arms race” between law schools?

PG:  I’m sure there are some beneficiaries of the law school rankings game. The companies that publish all those glossy brochures touting law school achievements to prospective respondents in the US News polls certainly come out ahead. So do the airlines that fly admitted students to the law schools that are recruiting them like prized football prospects. And of course there’s US News itself, for which rankings must be a rare profit center in a bleak economic landscape for news media.

AM:  It’s interesting that the American Bar Association doesn’t dodge satire in the book, yet the ABA—or a division of it—published the book.

PG:  I have a wonderful and brave editor at Ankerwycke, and he didn’t once bat an eye at the parts of the story that poke fun at the A.B.A accreditation process.

AM:  Did you ever consider writing about lower-ranked law schools, or did you, a Stanford law professor, write from the perspective you knew—from a top-ranked law school?  I’m thinking now of Charlotte Law School and the troubles it’s been facing in light of the Department of Education’s decision to revoke federal funding there. It seems to me that law professors and administrators at these schools, who are in crisis mode, may not be in the mood for humor about legal education. 

PG:  My first law teaching job was at a state law school and, although this was long before the rankings game got underway, I can say that, like countless other schools today—state and private—that haven’t made it into the top tiers, it was preparing its students for the practice of law as effectively as any law school in the country. Are there law schools that shouldn’t be in business today? I expect that there are, and that has nothing to do with the US News hierarchy. But other schools have a legitimate grievance against rankings that pretend that their fine-grained hierarchical distinctions convey any useful information.

AM:  Why the noun “asylum” in the title of the book?  It’s provocative and suggestive.

PG:  I like book titles that are at once evocative and descriptive. It’s hard to beat Anthony Doerr’s All the Light We Cannot See, for example.  There is of course an asylum for the criminally insane that figures in the plot of Legal Asylum, but the book’s title also aims to evoke the sheltered craziness that passes for legal education at the state law school where the story takes place.

AM:  Thanks again for the interview.  Any closing comments about how readers can find your work?

PG:  It was a pleasure. Readers can buy the book at Amazon.com, Barnes & Noble, IndieBound, and Shop ABA.

Why law schools should be transparent about their problems and prospective law students should exercise due diligence before they matriculate at law schools

In Academia, Law, Law School, Legal Education & Pedagogy on February 22, 2017 at 6:45 am

Allen Mendenhall

When I was in college, the common assumption was that students who couldn’t decide what to do after graduation enrolled in law school. The law was a fallback profession, the legal academy a repository for good but dithering students looking to find their way.

Things have changed. The blogosphere abounds with news about the crisis in legal education. The global financial recession brought about a decrease in law-school applications and LSAT takers while tuition rates continued rising. Undergraduates increasingly determined that law school was not worth the time or student-loan debt, in part because starting salaries for lawyers remained stagnant while the job market for legal positions remained saturated.

Law schools with struggling reputations (say, those which fall into the fourth tier of the U.S. News and World Report rankings) have experienced a decrease in applications and reduced matriculation rates. Forced to shrink the size of their classes to remain statistically competitive and satisfy American Bar Association (ABA) admissions standards, these schools have taken creative measures such as accepting more transfer students and developing non-J.D. courses and programming to counteract reduced tuition revenue.

Elite institutions are not immune from trouble. One study has shown that applications to Harvard Law School are down 18%. Applications to the University of Minnesota Law School are down 50%, forcing that school to scramble to save money. It reportedly has not only bought out faculty but also cut coffee in the faculty lounge. Dorothy Brown, a professor of tax law at Emory University School of Law, predicts the imminent closure of a top law school. Meanwhile, as these financial woes grow and spread, LSAT scores and bar passage rates continue to worsen at lower-ranked institutions.

The ABA and the Department of Education (DOE) are cracking down on law schools, the former in response to pressure from the latter.  The DOE, in 2016, proposed a one-year revocation of the ABA’s accreditation powers. Consequently, the ABA has more aggressively enforced compliance with its admissions standards, threatening law schools with, among other things, reprimands, probation, and sanctions. For example, the ABA instituted a remedial plan to reverse the negative trends of Ave Maria School of Law’s bar-passage rates and admissions data. Around three months ago, the ABA censured Valparaiso University School of Law and placed Charlotte School of Law on probation.

The ABA has not revoked Charlotte School of Law’s accreditation, but the DOE has nevertheless terminated this school’s access to federal student aid. Law students there have filed a federal class-action lawsuit alleging that Charlotte School of Law and its parent company, InfiLaw, misrepresented the extent of the problems they were confronting, thereby misleading students about the health of the institution in which they were enrolled. Speculation now circulates about whether the closure of Charlotte Law School is inevitable.

Indiana Tech Law School, known for its experimental pedagogical approaches, has announced that it is shutting down. Other law schools have turned to institutional consolidation to remain financially viable. The William Mitchell College of Law, for instance, merged with Hamline University School of Law in 2015. Thomas M. Cooley Law School affiliated with Western Michigan University in 2014, changing its name to Western Michigan University Cooley Law School. It closed its Ann Arbor campus that same year.

The good news for worried law school administrators is that the ABA House of Delegates has voted down proposed Resolution 110B, which would have required 75% of graduates from any law school to pass the bar exam within two years, a figure that would have resulted in the non-compliance of several schools with ABA standards.

In this climate of institutional contraction and uncertainty, law school administrators must remain transparent, lest they invite litigation of the kind facing Charlotte School of Law. On the other hand, prospective law students must complete their due diligence before enrolling in law school. Although the doctrine of caveat emptor has faded away, some residual form of it could benefit the wider culture. Absent any evidence of fraudulent misrepresentation or deceptive practices, law schools should not be liable for the poor matriculation decisions of starry-eyed students.

Prospective law students have a personal responsibility to make informed choices about their graduate education. They should examine closely a law school’s admissions data, including GPA and LSAT scores, and stay sober about their own qualifications and preparedness for law school. They should account for a law school’s employment records and bar-passage rates. And they should research the state of the legal job market in the geographical area surrounding different law schools, paying close attention to the hiring patterns of local firms and organizations.

Not everyone goes to law school for the same reason. Some wish to study at an institution with a religious affiliation; others attend schools that consistently secure for their graduates judicial clerkships or opportunities to work at prestigious law firms. It’s important that prospective law students know exactly what they want from law school—and that they refuse to “settle” on a law school that isn’t a good fit for them.

During this transitional period for legal education, law schools with a long history of recognized stability may not satisfy consumer demands as they once did. Law schools need students, and they’re recruiting them vigorously with mixed results. The days when law school was a prudent option for students who waffled about their profession or career are long gone. While law schools should be scrutinized for their marketing strategies and admissions and employment data, students, too, should be responsible for their poor decisions.

Accountability runs both ways. Law schools and prospective law students alike must equip themselves with knowledge of the legal job market—in addition to the costs and demands of legal education—and adjust their plans accordingly. Otherwise their future could be bleak.

The American Nietzsche? Fate and Power in Oliver Wendell Holmes Jr.’s Pragmatism

In America, American History, American Literature, Arts & Letters, Creativity, Emerson, Essays, History, Humanities, Jurisprudence, Law, Law-and-Literature, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, Western Philosophy on February 15, 2017 at 6:45 am

Allen Mendenhall

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr.  The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

Session Two: Richard Bulliet on the History of the World

In Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities, Law, liberal arts, Scholarship, Teaching, Western Civilization on February 8, 2017 at 6:45 am

Here, in the second lecture of his course, The History of the World, Richard Bulliet discusses the origins of agriculture to the first river (Valley Civilizations, 8000-1500 B.C.E. Part I).

 

Session One: Richard Bulliet on the History of the World

In Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities, Law, liberal arts, Pedagogy, Scholarship, Teaching, Western Civilization on February 1, 2017 at 6:45 am

Here, Richard Bulliet of Columbia University delivers the first lecture in his course, The History of the World. Throughout 2017 and 2018, I will post subsequent lectures from this course. Session One is an introduction to World History.

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