Category: Law School (Scholarship)


Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:


The text of Chief Judge Alex Kozinski’s keynote is forthcoming.


Picking up where we left off…

My heartiest thanks to Dan for letting me stick around for another month.  I would like to renew the request I made here for thoughts on mentoring.  Though I appreciated the responsive post and comments that Paul Horwitz generated over at PrawfsBlawg, it did not create the kind of feedback that would allow me to facilitate more information about mentor/mentee opportunities.  So, please feel free to email me or comment here, and I offer again to aggregate any information I receive.


Adviser? Teacher? Sage? What is a mentor?

I think most of us engage in informal mentoring of our junior colleagues as new hires enter the academy, but I recently have taken on more formalized roles that have me pondering what it means to be an effective mentor.  Is it a matter of providing navigational guideposts for advancement toward tenure?  Advice about publishing strategies?  Providing a friendly eye for early drafts?  Teaching aid and advice?  Support for other decision-making, such as child-bearing, and attempting the elusive ‘work-life balance’?  I think mentoring can be all of these things, depending on the mentee’s personal and institutional needs, but I started to question my own assumptions when asked during a panel at SEALS last summer whether anyone really needs a mentor.  My gut reaction was yes, especially for women, minorities, and those who did not attend the usual professor-generating law schools (which are simply better at facilitating connections in the academy).  But, it seems like not many receive the kind of mentoring they desire.  Of course, some formalized inter-school mentoring opportunities exist, such as the annual SEALS conference, which is terrific for matching new scholars with mentors who provide substantive feedback.  Also, the AALS Women in Legal Education Committee has its own website, which is designed to facilitate mentee cold-calling of mentors who look to be a good match (which may be a unique approach).

All of that said, CoOp readers, what do you think makes a good mentor?  What are junior academicians seeking in this context that they can’t find?  And, what other mentoring opportunities are out there?  I would be most grateful for comments either here or by e-mail.  Finally, I would be happy to aggregate information and post it (if enough flows my way before the end of the month).


The Relationship Between Theory and Practice

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

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The Usefulness of Legal Scholarship

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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“Mentoring” versus “Scamming”

In law school teaching, as in dance competitions, it's important to know when to spin on a dime.

Today in Contracts, I taught Vokes v. Arthur Murray212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.

It’s a good teaching case.  But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.2  But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

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“The first thing we do, let’s [train] all the lawyers.”

David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.


Last Call For Papers — November 15th Deadline

Junior Faculty Interdisciplinary Scholarship Workshop at Indiana University School of Law-Indianapolis

March 22-23, 2012

The workshop will explore “Objectivity in the Law” and is open to non-tenured academics whose research is interdisciplinary in nature.  The normative value of objectivity runs through the purpose for most law, though social practices influence how laws are implemented.  Submitted papers should focus on a chosen area of law and examine that law’s objective purpose and the relationship between its purpose and its actual implementation.

To ensure each presenter receives extensive feedback, only six papers will be selected for the workshop.  Senior scholars from Indiana University School of Law – Indianapolis and other law schools will be paired with presenters and serve as primary or secondary commentators on the papers.  Presenters will receive a small honorarium and will be reimbursed for their travel and hotel expenses.  The Law School will provide lunch and dinner on Friday, as well as breakfast on Saturday.

Interested participants must submit a 500 word abstract to Professor Cynthia Adams at before November 15. Presenters will be notified before December 15. If selected, a participant must submit a full copy of the paper before February 17, 2011.

The program is also open to other scholars wanting to attend, read, and comment on the papers but not present. There is no registration fee.


Associate Dean for Research

I have been appointed as the first Associate Dean for Research at my law school.  I am eager to hear from people with the same position (or the equivalent) at other schools to find out what they do.  Feel free to post comments here or email me, as I would like to learn more about how I can be a useful resource for my colleagues.


NatArtFiMo (National Article Finishing Month)

It’s that time of year again. Your friends on facebook are pledging to participate in National Novel Writing Month (NaNoWriMo) starting tomorrow. The idea is pretty simple:

National Novel Writing Month is a fun, seat-of-your-pants approach to novel writing. Participants begin writing on November 1. The goal is to write a 50,000 word, (approximately 175 page) novel by 11:59:59, November 30. Valuing enthusiasm and perseverance over painstaking craft, NaNoWriMo is a novel-writing program for everyone who has thought fleetingly about writing a novel but has been scared away by the time and effort involved. Because of the limited writing window, the ONLY thing that matters in NaNoWriMo is output. It’s all about quantity, not quality. This approach forces you to lower your expectations, take risks, and write on the fly.

Perhaps the most intriguing part of NaNoWriMo is the community support aspect. Folks post their successes to Twitter and Facebook. There are constant reminders to write. And it works rather well, as tens of thousands of eager amateurs manage to write 50,000 words in a month’s time.

Of course, I’m tempted to join the fun. (NaNoWriMo would be a great time to finish that Twilight fan fiction novel!) But I also know that there is a half-finished article calling my name, occasionally reminding me of its continued existence. What if there were also a National Article Finishing Month?

Now there is. Read More