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Archive for the ‘Legal Education & Pedagogy’ 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.

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.

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.

Richard Posner is a Monster

In Academia, Arts & Letters, Book Reviews, Books, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Oliver Wendell Holmes Jr., Pragmatism, Scholarship, Writing on January 11, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.

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One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?

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Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.

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Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

Remedies for Breach of Contract

In Advocacy, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, Philosophy on November 5, 2014 at 8:45 am

Allen 2

A breach of contract occasions potential damages traditionally measured in the form of three remedies: “expectation,” “restitution,” or “reliance.” The goal of the expectation remedy, which is the most common measure of damages for a breach of contract and is popularly said to confer the “benefit of the bargain,” is to put the non-breaching party in as good of a position as he or she would have been in had the breaching party performed the contract.

When a breaching party has defectively performed a contract, for instance, the non-breaching party can recover the cost of remedying the defective performance, i.e., the cost of completion. In a breach of contract lawsuit for the delivery of personal property at a fixed time and place, the proper measure of damages is the contract price subtracted by the market price at the place and time of delivery. By comparison, the proper measure of damages for the failure to complete a construction contract is the cost of completion subtracted by the amount that remains unpaid under the contract.

Restitution remedies are designed to prevent “unjust enrichment.” They represent the interest of a non-breaching party in recovering the value that was conferred upon the breaching party through the effort to perform a contract. In other words, restitution seeks to restore what was lost to the non-breaching party or to make the non-breaching party whole again.

Reliance remedies, finally, aim to put the non-breaching party in as good a position as he or she was in before the promise or agreement was made. Whereas expectation damages are “forward-looking” and consider what position the non-breaching party would have been in had the contract been performed, reliance damages are “backward-looking” and consider what position the non-breaching party would have been in had the contract never been contemplated.

These are not the only remedies available when a breach of contract occurs, but they are the most widely recognized and commonly implemented of such remedies.

The Lawyers’ Guild

In America, American History, History, Law, Legal Education & Pedagogy, Nineteenth-Century America on August 27, 2014 at 8:45 am

Allen 2

This piece originally appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

Last month, thousands of recent law school graduates sat for a bar examination in their chosen state of practice. They were not undertaking a harmless rite of passage but overcoming a malicious obstacle: an artificial barrier to entry in the form of occupational licensure.

Barriers to entry are restrictions on access to, or participation in, markets or vocations. Occupational licensure is a type of barrier to entry that regulates professions by requiring certification and licensing in the manner of medieval guilds. Medicine and law are perhaps the most recognizable professions to require their practitioners to obtain and maintain licenses.

The purpose of occupational licensure is to reduce competition by using government power to restrict membership eligibility in a profession. The criteria for membership are often prohibitively expensive for low-income earners. To be admitted to the law in nearly every state in the United States, you must not only pass a bar examination but also earn a law degree from an accredited law school, admission to which requires a bachelor’s degree from an accredited university.

The average student-loan debt for graduates of American colleges is around $29,400. The average student-loan debt for graduates of American law schools is between $75,700 and $125,000, depending on whether the school is public or private. The American Bar Association imposes heavy burdens on law schools such as accreditation standards that are inefficient and that drive up costs so that over time the high price of legal education is passed on to the public in the form of attorneys’ fees and costs. Having already saddled themselves with student-loan debts, recent law-school graduates pay thousands of dollars for bar-preparation courses to study for an examination that, if passed, will open the door to a job market that is the worst in recent memory. Nobody struggling financially should attempt to leap over each of these expensive hurdles.

Before the rise of bar examinations and professional licensure during the Progressive Era in the United States, aspiring attorneys simply “read law” as apprentices for practicing attorneys or as clerks for local law firms. Once they achieved a certain level of competence, apprentices were released from their tutelage and eligible to accept clients. Those jurisdictions that did require examinations allowed judges to conduct informal interviews with candidates to determine the candidates’ moral and intellectual fitness for practice. Such examinations were typically mere formalities: few candidates failed; few careers were at stake as the interview took place. Newly admitted attorneys had to demonstrate their excellence in order to gain clients. They launched their careers by charging low fees that even the poorest in society could pay. Attorneys who did not prove fit for practice never gained enough clients to sustain their business and were forced to embark on other professions.

In the late-nineteenth and early-twentieth century, energetic and entrepreneurial members of the middle to lower classes in cities such as New York and Chicago began to threaten the legal establishment that had previously been comprised of a mostly wealthy and elite fraternity. This fraternity simply could not compete with low-cost providers of legal services because, for example, the most elite attorneys considered it unseemly and degrading to advertise for services or to offer contingency fees. Bar associations that were once voluntary organizations of upper class professionals therefore began to use their political clout and government connections to obtain powers conferred by legislatures. They wanted to keep the lower classes out of their profession and to preserve a highbrow reputation for lawyers. They began to exercise a monopolistic control over the practice of law within their respective jurisdictions. Today they constitute authorized arms of the State.

In most jurisdictions’ bar associations determine who may be admitted as members and who must be excluded, whether and to what extent lawyers may advertise their services, what constitutes the “authorized” practice of law, whether a law firm must have a physical office with a non-residential mailing address, and under what conditions contingency fees are permissible. These anti-competitive practices hit communities most in need the hardest by increasing the costs of legal services beyond the ordinary person’s ability to pay.

The bar examination is the most hyped precondition for membership in a state bar association. Like hazing, it is more ritual than training; it does not help one learn to be an attorney or indicate any requisite skills for practice. It tests how well someone can memorize arcane and esoteric rules and their trivial exceptions, many of which have no bearing on actual practice. Few if any lawyers spend their days memorizing rules for courts or clients, and no one who intends to practice, say, corporate law in a big city needs to memorize obscure criminal law rules that were long ago superseded by statute.

Despite reciprocity among some states, the bar examination restricts the free flow of qualified attorneys across state lines, forcing even the best attorneys to limit their services to certain jurisdictions. The bar examination also creates racial disparities among practicing attorneys as minority passage rates tend to be lower, a fact that flies in the face of nearly every bar association’s purported commitment to diversity.

Keeping the number of lawyers low ensures that lawyers may charge higher fees. Keeping the barriers to entry high ensures that the number of lawyers remains low. It’s a popular fallacy to complain that there are too many lawyers. We don’t need fewer lawyers; we need more, so long as we gain them through competitive forces on a free market.

We need to unleash capitalism in the legal system for the benefit of everyone. We could start by eliminating the bar examination. Doing so would have no marked effect on the quality of lawyers. It would drive down the high costs of legal services by injecting the legal system with some much-needed competition. It would make practitioners out of the able and intelligent people who wanted to attend law school but were simply too prudent to waste three years of their lives and to take on tens-of-thousands of dollars of student-loan debt while entry-level legal jobs were scarce and entry-level legal salaries were low. Justifications for the bar examination are invariably predicated on paternalistic assumptions about the ability of ordinary people to choose qualified attorneys; such arguments ignore the number of ordinary people who, today, cannot afford qualified attorneys at all under the current anticompetitive system.

Abolishing the bar examination would benefit the very community it is supposed to protect: the lay public.

Contributory Negligence and Comparative Responsibility

In History, Law, Legal Education & Pedagogy, Teaching, Torts on July 2, 2014 at 8:45 am

Allen 2

Contributory negligence is an affirmative defense and often a mirror image of the claim of negligence against the defendant. To establish contributory negligence, a defendant generally has to meet all four elements of negligence (duty, breach, causation, damages) in the same way the plaintiff does. Until recently, contributory negligence functioned as a total bar on recovery.

In practice, however, the rule may have been less harsh because juries could decide the plaintiff wasn’t at fault if the defendant appeared to be more at fault (this is a form of jury nullification), and because courts developed ameliorative doctrines such as the “last clear chance rule,” which maintains that even though the plaintiff was contributorily negligent, the defendant had the last clear chance to avoid the injury and thus the plaintiff still recovers. Few states have retained contributory negligence as an absolute bar. Most have moved to comparative responsibility. Once states have made that move, doctrines such as the “last clear chance” become unnecessary.

Once the old contributory negligence regime has been thrown out, what fills the void? The answer, in short, is comparative responsibility. To move from contributory negligence to comparative responsibility is to reject the rule that a plaintiff is barred from recovery if he, too, was careless. Under a comparative responsibility system, the responsibility is split evenly among the parties who were at fault.

 

What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

Allen 2

This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

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