Althouse | category: law school



a blog by Ann Althouse

"U.S. News & World Report will continue to rank all fully accredited law schools, regardless of whether schools agree to submit their data...."

"A few law schools recently announced that they will no longer participate in the data collection process.... However, U.S. News has a responsibility to prospective students to provide comparative information that allows them to assess these institutions.... We will continue to pursue our journalistic mission...."

Says U.S. News, quoted at Taxprof.

"I would hate to give up on my dream of becoming a family lawyer, just due to not being able to successfully handle this test."

Wrote Fariha Amin, "a full-time worker and mother to a 6-year-old son," quoted in "Law School Accrediting Panel Votes to Make LSAT Optional/Legal-education community has been divided over testing requirement and its impact on diversity in admissions" (Wall Street Journal). 

And here's a quote from John White, chair of LSAC’s board of trustees: "This proposal will be highly disruptive. The change won’t be worth it, and we won’t get the diversity we are looking for."

I wonder how he knows... how he thinks he knows.

There's also council member Craig Boise, dean of Syracuse University College of Law: "I find the argument that the test is necessary to save diversity in legal education is bizarre." 

How is it "bizarre"? It's something I've heard for more than 30 years. (I was a lawprof for more than 30 years, and I often served on the admissions committee. I've read many real applications and seen the relationship between LSAT scores and other aspects of an applicant's qualifications.)

The LSAT produces a hard number, and it feels secure to rely on such things. But you can rely too much, and the U.S. News ranking has for decades rewarded schools that rely heavily on this number. The question is who will contribute to the class in law school and go on to do good work, not who did best on one structured, high-pressure test.

"... Professor Dan Epps... hypothesized that Yale plans to make major changes to admissions in the wake of the expected Supreme Court affirmative action rulings, 'and they are doing this proactively'..."

"'... rather than dealing with any rankings implications later.' [Some] students [agreed and] speculated... that not having to worry about LSAT and GPA data dragging down its U.S. News rank will allow YLS to either (a) continue to use racial preferences in admissions or (b) water down its academic credentials. Furthermore... some sources suggested that Dean Gerken withdrew from the rankings because she feared that YLS was about to lose the #1 spot it has held for more than three decades—and she didn’t want that to happen on her watch.... One professor told me that... there was no sense within the faculty that YLS’s #1 ranking was at imminent risk. Instead... 'This is clearly part of a larger and deeper commitment on her part toward leadership in the law school industry when it comes to fairness, welfare, and equity.'"

From "Yale And Harvard Law To U.S. News: Drop Dead/Two leading law schools have withdrawn from the influential law school rankings; will others follow?" by David Lat (Substack).

I remember when U.S. News first started this ranking. It was 1987, and I was 3 years into teaching at the University of Wisconsin Law School. From day one, the professors at my school were hostile to the rankings. We had our values, and how dare U.S. News attempt to influence our choices. 

Here's how the rankings looked in 1987. We were #20 at that point — the point when the game began. A decade later we were struggling for position in the 30s and we currently stand at #43.

"[A]fter the flurry of hard-right rulings this June, many professors had their 'own personal grieving period.'"

"But they quickly turned toward 'grappling with how we teach our students' to understand the Supreme Court’s reactionary turn.... A professor must say what the court claims it’s doing, then explain what it is actually doing, which is often something completely different. This technique can disillusion students, leading them to ask why they’re bothering to learn rules that can change at any moment.... Students confront a legal system in a crisis of legitimacy led by an extreme and arrogant court. Still, they must slog on, most gathering substantial debt as they go, pretending that 'law' is something different from politics, a higher realm of reason and rationality where the best arguments prevail.... My father, Nat Stern, retired from a 41-year career at Florida State University College of Law in May.... When I asked him why he decided to retire, he told me that he had no desire to explain the Supreme Court’s conservative revolution as the product of law and reason rather than politics and power.... 'For the bulk of my career,' he said, 'I’ve felt I could fairly explain rulings and opinions that I don’t endorse because they rested on coherent and plausible—if to me unconvincing—grounds. In recent years, though, I’ve increasingly struggled to present new holdings as the product of dispassionate legal reasoning rather than personal agendas.'"

Writes Mark Joseph Stern in "The Supreme Court Is Blowing Up Law School, Too/Inside the growing furor among professors who have had enough" (Slate). 

I got there via David Bernstein at Instapundit, who says: "We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article."

I remember just before the 2016 election, when I was making my decision to retire.

I believed Hillary Clinton would be the next President and would fill the seat vacated by Scalia and give the Court a 5-person liberal majority. As I was teaching Constitutional Law for the last time, I noticed so many details about federalism and separation of powers that I'd been struggling to understand and explain for the last 30+ years that were about to be flattened into pat, ideological answers.

Ironically, that was a vision of a return to what I had learned in law school. (I graduated in 1981.) I taught law school from 1984 to 2016, and the entire time, there was a fascinating dynamic on the Court — with a left and a right side and swing voters to keep things mysterious. A balance like that could happen again and give lawprofs something more to chew on, but as Bernstein notes, what most lawprofs want, I believe, is the Court I imagined before the 2016 election. I wasn't a typical law professor. I wanted the material to be challenging and interesting. But for most lawprofs, that's second-best. A solidly, predictably liberal Court is preferable. They'd still have something to talk about: how to go even more imaginatively far to the left.

Well, you can teach a law school class in just about anything — for years, at my law school we jokingly called idiosyncratic seminars "Law and My Ego" — so...

... I shrugged when I saw the New York Magazine article, "Elon Musk Has So Many Lawsuits They’re Teaching a Class in Law School."

It's not a question of how many lawsuits you've got going, but whether any given law professor gets inspired to build a course around your lawsuits — or lawsuit. Even a single lawsuit could form the basis of a course.

What makes it interesting enough to blog — any given article can inspire a blogger to write a post — is that the lawprof is Stephen M. Bainbridge. His course is “Law of Elon Musk.” He explains:
Tesla’s acquisition of SolarCity is an excellent case to teach students. And then there is a pending case on his Tesla CEO-compensation package, which is a great case because it’s what will strike the students as an egregious amount of money — billions of dollars in CEO compensation — in excess of anything we’ve ever seen. It’s a great case to talk about: Is this a situation in which it would be rational for a company to put together that sort of a compensation package?...
One of the things students often have a hard time grasping is that a conflict of interest is not necessarily a crime, a bad thing, unethical. A conflict of interest is simply a state of being. It’s a status that you have, and the question is, Have you allowed your conflict of interest to influence your thinking on how you conduct whatever the transaction is?... 
The story that I see is the story of an incredibly smart and adventurous guy who’s capable of generating ideas that produce enormous amounts of value but who would be a pain in the butt as a client because he often leaps before he looks.... 
One of the things that I think is very difficult for both students and for nonlawyers to understand is how process oriented the law is.... Obviously I’ve never met the guy, but just observing him, he’s not a process guy. He’s also not a guy that you can control. Think about when he tweeted out he was gonna take Tesla private at $420 a share, which I gather is some sort of marijuana reference. The SEC says this is securities fraud....  

"After a year of high-profile scandals, Yale Law School is retiring an all-student listserv that became a breeding ground for progressive activism and online pile-ons..."

"If students want to 'debate important questions,' the dean of Yale Law School Heather Gerken announced in an email on Wednesday, they can post on a physical bulletin board in the law school’s hallway. 'Debate and dialogue are the touchstones of an academic institution,' Gerken said. The new forum will force students to 'take time to reflect before posting, a habit that lawyers and members of a scholarly community must practice.'"

It's mind-boggling that Yale law students can't be left to their own devices writing on an email list. 
In the days before email, students and faculty would post their views on a bulletin board, nicknamed the "Wall," in the law school’s main hallway. That system, which Yale Law School is bringing back, "provided a healthy reminder that human beings are on the receiving end of the messages people send," Gerken said. "Indeed, sometimes students would run into the very people with whom they were debating and speak face-to-face."

Yale law students can't keep track of the humanity of the people on the receiving end of the email they write? What a concession! 

"If SCOTUS rules on regulation without a hearing or argument, the administration should simply ignore it and state that, in the absence of a normal process judicial review, it sees the court’s judgments as advisory but not binding."

"The court famously has no enforcement authority. It’s authority is based in acceptance of the court’s legitimacy. But it can’t do whatever the hell it wants however it wants and expect deference. [E]xecutive ought to brush off the court’s junta-like attempts to rule by edict." 

Wrote Will Wilkinson, quoted in "Reporters call for White House to 'simply ignore' Supreme Court decisions/SCOTUS ruled 5-4 on Wednesday to reinstate Trump-era rule" (Fox News).

The typical Constitutional Law casebook addresses this topic within the first 25 pages. I bantered about this subject with law students for decades. We always considered the apocryphal Andrew Jackson line — "John Marshall has made his decision; now let him enforce it!" — and why didn't Richard Nixon react to the Watergate tapes case by destroying the tapes?

So what's the answer, Professor Althouse? Oh, that's not how we do it.

"Could those who concocted this sentence ever recognize their kinship with the moral purifiers of Cambodia’s Khmer Rouge? Or of Mao’s Cultural Revolution?"

"Or the Stalinist interrogator Gletkin in Arthur Koestler’s 1940 novel 'Darkness at Noon'? If so, would UIC’s unconscious emulators be discomfited by the resemblance? Unlikely. Today, bureaucrats parasitic off academia’s scholarly mission outnumber actual scholars. These threat-discerners, diversity-planners, bias-detectors, sensitivity-promoters, sustainability-guarantors and other beneficiaries of today’s multibillion-dollar social justice industry are doing well during the nation’s supposed apocalypse."

George Will condemns the authorities at the University of Illinois at Chicago for their treatment of lawprof Jason Kilborn after he gave a civil procedure exam with a fact pattern about a lawsuit brought by a black woman against an employer whose managers had called her — and this is how it was written on the exam — a “n_____” and a “b_____.” 

Here's Will's column: "Even by today’s standard of campus cowardice and conformity, this repulsive episode is noteworthy" (WaPo).

For details about the what UI did to Kilborn, here's the complaint in his lawsuit against the university. You can see all the measures the university took and also the serious difficulty over Kilborn's statement that the dean might have thought that Kilborn would "become homicidal" if he saw the student petition criticizing him about the exam.

"Two programs at Harvard Law show close ties between the school, the Democratic Party, and liberal activist groups with an interest in fighting elections through the judicial system."

"Reporting the launch of the Election Law Clinic in April, Harvard Law Today said participating students will get course credit for working on political campaigns, as well as 'hands-on litigation and advocacy work across a range of election law areas, with an initial focus on redistricting and voter suppression cases. Clinic offerings include federal and state litigation projects, as well as some advocacy opportunities.'... Glenn Reynolds, the libertarian University of Tennessee law professor known for his Instapundit blog, tells RealClearInvestigations that if institutions such as Harvard start turning out significantly more students with expertise in election law, those lawyers will create a demand for their expertise and election litigation. 'That's just how the law works,' he says. The backgrounds of those staffing the putatively nonpartisan Election Law Clinic show a distinct progressive tilt...."

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