Uncategorized

By Jackie Gardina Professional athletes need to get some perspective. The rest of society has been working with openly gay and lesbian colleagues for a while now. Even the military has managed to transition to open service without significant issues. Yet some professional athletes continue…

By Marjorie Cohn Bradley Manning has pleaded guilty to 10 charges including possessing and willfully communicating to an unauthorized person all the main elements of the WikiLeaks disclosure. The charges carry a total of 20 years in prison. For the first time, Bradley spoke publicly…

By Eric Miller Recent critiques of legal education have, quite rightly and quite importantly, focused all of us on the costs of legal education.  However, the central paradox facing proponents of an egalitarian and primarily skills-based legal education is that the most obviously skills-based components of a legal education are the most costly.  Law schools have, over the past quarter century, embraced a massively increased emphasis on clinical offerings.  Other components include—as described in an earlier post—making classrooms more like law firms. But each of those innovations requires a higher teacher-to-student ratio than the traditional, large classrooms, and so is more expensive.  So the true scope of the cost-of-law-schools debate is not just how much scholarship we can afford (and how to value it) but how much skills. Two solutions to the egalitarian skills-based dilemma are currently popular: (1) reduce the number of years required to graduate law school from three to two, cutting the cost of tuition by 1/3; or (2) reduce the cost of skills-based classes by turning from a clinical model to an externship model.  The idea behind each is that students can be more quickly and cost-effectively directed into apprenticeships.  However, there is relatively little discussion of what an apprenticeship costs and who is to bear the costs of an apprenticeship. I tend to think that one of the most radical changes in the law market is in the nature and availability of apprenticeships.  My hypothesis is that there has been both public and private disinvestment in apprenticeships, due to a variety of factors.  On the public side, states have disinvested from the law, period.  In particular, states are cutting the provision of the sorts of government jobs and public legal services on which entry-level lawyers tend to cut their teeth. On the private side, one sort of apprenticeship—two years of document production for those interested in litigation—has been outsourced and mechanized.  For many apprentices, the range of tasks were legally light but firm-politics heavy.  The goal was to impress partners through willingness to engage in hard drudge work writing memos and doing document review.  Those apprenticeships have disappeared.  Furthermore, corporate law firms are disinclined to engage in the early stages of apprenticeships in an attempt to shift some of the cost from the firm to others.  This is what they mean by "practice ready." The issue then becomes: who is to bear the cost, and how much does it cost?

Written by Kaimipono D. Wenger In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why. The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented, “This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.” The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context? Well, maybe. It seems quite likely that blind review would reduce the effects of some problematic existing biases. For instance, blind review could greatly reduce or even eliminate the effects of letterhead bias and CV bias, as discussed in my earlier post. That would likely have very positive results for women and people of color. There still might be some concerns. Let’s go over them.

Written by Kaimipono D. Wenger As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway. But is it really the case that law review affirmative action would be a bad thing? Some commenters have been quite harsh. One anonymous commenter at Prawfs writes that I’ve heard that several top journals, most notably NYU, have begun weighing author “diversity” more heavily than ever before in making their publication decisions. At NYU, the gossip is that straight white male authors pretty much can’t get their articles accepted this year, and that the pieces NYU has recently taken have been of patchier quality than usual. Discussion of the author’s identity apparently overshadows discussion of the article’s substantive merits at final NYU committee meetings. Is it really the case that journal norms have changed, shutting out deserving white and male authors, while presumably allowing undeserving women and nonwhite authors to misappropriate law review slots?

By Eric J. Miller Yesterday, I rejected the argument that academics are incapable of teaching practically useful subjects.  Today, I’ll reject the argument that teaching some laundry list of academic subjects is somehow impractical. Before getting into the argument, I want to emphasize that my issue…

By Eric J. Miller One thing I learned from my last post on the false dichotomy between practice and academia, and from Michael Mannheimer’s great follow up post and ensuing discussion, is that lots of people see “practice” as a straw man, and that when we start to cash out what practice-readiness really means, it turns out we mean a bunch of different things, depending upon who’s doing the training.  So unless “practice-ready” is handled with care, not only is it a straw man, but a Trojan straw man at that: one that likely to capture you unawares. One version of the claim is that academics who have not practiced are ill-equipped to teach lawyers about law. For example: “It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.” Brian Z. Tamanaha, Failing Law Schools (2012). I cite Professor Tamanaha merely to provide one, pretty powerful, source for the argument.  Because it has a wider public circulation, I’ll consider some permutations that are not attributable to him.  Treat them as straw men or not, at your leisure. Here’s what I take to be the steps of the argument: (1) Academics have not practiced: (2) Practice experience is required to train lawyers how to practice; (3) Therefore academics lack the experience required to train practice-ready lawyers. Note that this argument goes through even if academics teach practice-relevant subjects.

By Eric J. Miller I've made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts.  But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*.  That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty.  The idea appears to be that there is a dichotomy between what lawyers need to know and what "academics" teach, and that often rides on the back of an argument that what "academics" teach is fit only for those folks at the top law schools who want to become academics themselves.  I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum. I do *not* propose some simple reorientation in the hierarchy of value between doctrine and “academics” (especially interdiscipinarity), one over the other.  Instead I believe that a legal education that is practice focused must recognize that practice is now, in important ways, interdisciplinary *top to bottom* and that academics and doctrine interpenetrate each other.  Saving “academic” stuff for the top just perpetuates a unitary understanding of legal education phrased in terms of either/or, elite/non-elite, academic/non-academic, to the detriment of both students and practice. My worry is that much of the good done by the recent demands to rethink how law schools deliver education and at what cost is lost by attacks on faculty at non-sweet-14 (or top 20, or top 50) law schools as out of touch, sybaritic free-loaders who belong in other university departments.  The argument that I’m calling elitist suggests that only top law schools—the schools producing academics—can afford academic indulgence.  The rest of us ought to be producing doctrinally oriented lawyers, and work that lawyers can cite.  So only folks at certain locations—in the desks or behind the podium at elite law schools—should be consuming or producing academic work, which will then be reproduced outside the law practice world.  And this kindly advice—focus on your students and on the practice, not on yourself—is given under the guise of telling us what is best in our non-elite world. But “elite” locations for academic production really means that clinicians and non-elite law professors have no right to participate in the academic discussion—they should be doing practice stuff.

Written by Atiba R. Ellis Much has been made of the recent slavery-era western, Django Unchained.  Director Quentin Tarantino’s narrative about a former slave who seeks to free his wife from her owners has captured the popular imagination and generated significant (though not universal) praise from critics.  Yet, while Tarantino can draw attention by virtue of being Tarantino, the fact that he set his epic in America’s slavery epoch has in and of itself stirred a different, yet significant discussion.  Pundits and reviewers have debated the use of the n-word in the film, and the accuracy of the film’s portrayal of slavery.  Indeed, one reviewer said of the film that the movie was “remarkably, very much about the pernicious lunacy of racism and, yes, slavery’s singular horrors.” This “pernicious lunacy of racism” and these “singular horrors” of slavery were on my mind as Django is being shown in theaters.  Indeed, I thought a great deal about these horrors while writing my recently published essay, Polley v. Ratcliff:  A New Way to Address an Original Sin? The essay recites the history of one of those “singular horrors” of slavery

By Dennis Bernstein DB:  We continue our discussion of the revelations around a memo coming out of the Justice Department that the administration plans to keep up these assassinations and expand the program.  Joining us to take a legal look at this is Marjorie Cohn, Professor at Thomas…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law (Update 2/6 – A remarkable interview with Michael Ratner, President Emeritus of the Center for Constitutional Rights. He brings together the FOUR films seeking to…

By Olympia Duhart We have not finished yet. Civil rights, individual liberties and equal treatment under the law still prove elusive for many black Americans. These goals are also beyond the reach of many other people who call America home. Immigrants strive to…

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law (Update 1/27 – have my clearances and am on my way later this morning. Received detailed response from person assigned to me answering my questions below and some additional questions.  If I get to go…

By Marjorie Cohn On January 11, eleven years to the day after George W. Bush sent the first detainees to Guantanamo, the Oscar-nominated film Zero Dark Thirty is making its national debut.  Zero Dark Thirty is disturbing for two reasons. First and foremost, it leaves…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On December 13, 2012, the Senate Intelligence Committee approved a report on the enhanced interrogation techniques program (“the Torture Report”). The Chair of the Senate Intelligence Committee Diane Feinstein stated in her cover letter…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Am at the AALS Conference and woke too early so thought I would put down awoke musings. 1. American Chutzpah at the ICC on positive complementarity State Department types are working with…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Having written so many things about accountability for torture this December, it occurred to me that something hopeful might be in order to keep inspiration strong for those who keep pressing forward for accountability. …

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I. The payback meme (“I am against torture, but…”) “I have always been steadfastly against torture as it felt like nothing less than compromising the American soul…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law As we start the limited release today in some markets of Zero Dark Thirty, the National Religous Coalition Against Torture has called for the…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Responding on Friday to the completion of a highly critical Senate report on the C.I.A.’s former interrogation program, the agency’s acting director…