Category: Law School


The AALS in New Orleans

For all of you law professors out there, please let me know if you will be in New Orleans next week, as I’d like to chat with as many people as I can.


Recalling Cardozo Law Review’s “Bork Book”

I never knew Robert H. Bork (1927-2012) but as a rising 3L and law review editor at Cardozo in the summer of 1987, my classmates and I met his intellectual heft and political salience. Just after President Ronald Reagan announced his nomination of Bork to be Associate Justice of the Supreme Court in late July, it was obvious that the country was headed for a passionate debate on justice writ large (e.g., abortion, antitrust, civil rights, free speech, you name it).

Sensing an opportunity to discipline the discourse, we decided to collect and publish a dozen essays and four reports assessing Judge Bork’s jurisprudence from every angle. Well-advised throughout by our professors, David Rudenstine and Monroe Price, we solicited extant or original pieces by such luminaries as Ronald Dworkin, Steve Gillers, Mary Ann Glendon and Michael McConnell, as well as reports of the White House, Public Citizen, a research group commissioned by the Senate Judiciary Committee (led by Christopher Schroeder and approved by Floyd Abrams, Clark Clifford, Walter Dellinger and Laurence Tribe) and a DOJ response thereto.

Fifty of us, new 2L staff and 3L editors, spent an intense two weeks collating and editing the contributions. Then four of us (Jim Nobile, Allen Applbaum, Jeff Stamler and me) flew to Lincoln, Nebraska, site of the leading printer of law reviews, Joe Christensen Inc.  We spent several more days and sleepless nights scrutinizing the page proofs before giving the print order. After 10,000 copies were printed, Jeff and I flew back to New York while Jim and Allen drove a rented U-Haul to Washington D.C. where the town was abuzz with debate and Senate hearings would shortly begin.

Meanwhile, back in the nation’s capital, another classmate, Barbara Braucher (who later married U.S. Attorney General Ted Olson and still later perished aboard one of the hijacked airplanes on 9/11) had been making her rounds in the Senate, where Barbara had many connections. She alerted members of the Senate Judiciary Committee, including its chairman Joe Biden, that our law review issue, addressing every important topic and viewpoint in a compact 530 pages under a single two-inch spine, was on its way.

Upon their arrival in Washington, Jim and Allen toted several boxes directly to the awaiting Senators. Standing on the steps of the Capitol when delivering the books, the New York Times interviewed our classmates about this effort.  The story (here) ran the next day, along with a cute quote from Allen and a photo of the group.

The special issue, released in early October ahead of the hearings, sold briskly at many book shops around Washington and New York that fall.  It was clear during the hearings that many Senators had read our product.  In the years after, it was even clearer that Judge Bork had, as he cited to our “Bork book” often.  The issue was volume 9, no. 1 and was a great start to our third year of law school and one of many innovative academic undertakings for which the Cardozo Law Review became known over ensuing decades.


Dave Brubeck – A great has died

Dave Brubeck has died at age 91. I grew up on jazz from Miles Davis to John Coltrane to the Marsalis family and more. I was fortunate to have seen Brubeck in concert. In the odd coincidence world, yesterday I was listening to one of my favorite albums, We’re All Together Again for the First Time, as I got into a groove for an article I am writing. I thought I should post one the great tracks to encourage students and professors to dive into the song and their work. Perhaps I felt a tremor in the force. Anyway enjoy.


Incorrect Citations

Wonderful as it is to be cited, being cited incorrectly poses a dilemma.  If your article is referenced for a proposition it does not support, what should you do?  Should you alert the author of the piece or the editor of the journal?   Should you ignore it?  Should you correct the reference the next time you publish on the topic?

Perhaps the ideal response varies with the degree of error.   Scholars delight to participate in the discourse, after all, and sometimes a citation that seems incorrect to an author is really  a way to advance the conversation.  A reference in ensuing scholarship explaining that contribution would be apt.   Sometimes a piece is cited for a general point that an author rather than a reader would recognize as a bit afield. No response at all is okay.

But what about a statement that is clearly wrong? Suppose someone makes an assertion that European accounting law is principles based and cites my Vanderbilt Law Review article challenging the whole notion of principles based accounting.   It infuriates me.  I want to write to the author and editor to object.  But should I? Should  I care?

The problem is even worse than appears, because while I am particularly sensitive to incorrect citations to my own work, I also see incorrect citations to the work of others with which I’m familiar.  It appears that many writers and editors today cite things without really reading them.  It seems as though someone should say something.  But who?  And to whom?


Classroom Minutes and Syllabus Design

I am dividing my Corporations casebook to fit the fourth different classroom schedule I’ve had this decade.  It is a taxing but valuable exercise, from a pedagogical standpoint.

At Boston College from 2002 to 2005, my 3-credit class met twice weekly for 90 minutes and I tailored my syllabus accordingly.  From 2007 to 2010, at George Washington, my 4-credit class met thrice weekly for 75 minutes, and I re-sliced, and slightly expanded, my course.

Visiting at Fordham this term, my 4-credit class is meeting twice weekly for 100 minutes; the syllabus I’m designing this week is for my visit at Cardozo in the Spring, where my 4-credit class will meet once per week for 110 minutes and twice per week for 50 minutes.  And at Cardozo, the Corporations course includes a mandatory separate sequence on Accounting, so the syllabus design is a bit more complex yet, as I incorporate material from another book.

In each exercise, the task entails assigning a set of materials, each defined as a teaching unit.  The pros and cons of the various combinations emerge, revealing how a given topic can be either expanded or contracted or linked in new ways with other units.   The exercise adds perspective on the materials for the teacher which should enrich the student experience.

Particularly interesting is how, at least as the book is designed, some topics are best suited for 50 or 75 minute units while others are better suited for the longer 90 to 110 minute slots.  That  knowledge will help me as I revise the book for its 8th edition next summer, trying to provide materials that can be readily sliced into separate series of 50 versus 75 versus 100 minute blocks.

As you can guess from the fact that I just diverted 20 minutes to writing this post, syllabus redesign to accommodate teaching minutes is not the most stimulating of activities. It is less interesting and less valuable than switching books, and is hardly as taxing.  Still, the exercise shows the value of variety.  Time to get back to it.


Why don’t law schools offer bar review courses?

I don’t know the answer. Since Bar/Bri uses law professors to teach classes and often uses law school classrooms, why don’t law schools just do this themselves?

There are some advantages to this idea. First, law schools might raise their bar passage rates (and rankings) if they put together a good bar review program. Second, schools could raise some revenue from these programs (especially if they are good). Third, some schools could tailor their program to the particulars of their state bar exam in a way that Bar/Bri can’t.

I suppose the reason this doesn’t happen (aside from neglect) is that it looks like a concession that the school did not do a good job of training its students for 3 years. But this is wrong. Teaching to a test is different from teaching.


Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.


Quote Approval

Our platonic media guardians worry about the increasingly common practice of giving sources “quote approval”.  At the NYT’s public editor explains,

“Some parts of the practice, I believe, do fall into a black-and-white realm. The idea that a reporter must send a written version of a quotation to a source or his press representation for approval or tweaking is the extreme version of the “quote approval” practice and it ought to be banned in a written rule.”

This is nonsense.  There’s a simple reason that most sources (including me) ask for quote approval: we don’t trust reporters to avoid making a hash out of our comments, pulling quotes selectively to fit a pre-existing narrative, and consequently turning the source into the reporter’s sock puppet.  It’s a no brainer that anyone who has to regularly deal with the press should try to get quote approval. You’ll succeed with some reporters – generally the better ones, in my experience. If you fail to get quote approval, you should remember to think three times before saying anything, including your name.

Why?  Well, most reporters who call me have a particular thing they’d like me to say.  Sometimes they’ve told me what that thing is: I can then proceed to either say it or not.  Other times they ask a ton of questions, but it’s quite obvious that it’s all just filler time until I can manage to produce the right words in response to the right stimuli. (Foolishly, when I began my career, I foolishly thought that these conversations were a preface to the real question that they were going to ask!)  Often reporters will pastiche quotes from different parts of the interview to create a comment which bears no relationship to what you think.  Basically: reporters aren’t writing the first draft of an objective narrative (“history”): they have already written that narrative, and your role is to be the footnotes locking it all down.  Don’t be a sucker.  Ensure that your name is attached to things you actually think.


Excerpts from My Upcoming Book, The Law Student’s Guide to Being on Call (Part I of II)

Chapter One: A Field Guide to the American Law Professor

Success while “on call” requires, as a threshold matter, an understanding of the different types of American law professors you may encounter in the field. . . .  There exist five principal species.  Each can be identified by the distinctive manner in which it calls on students, if at all.  The first three species fall within the Socratus genus; the last two occupy genera of their own . . .

The Alphabetical-Order Professor (Socratus Abcdelis): As its Latin name connotes, this species of law professor calls on students in alphabetical order.  (There also have been unconfirmed sightings of a subspecies of Socratus Abcdelis that calls on students in reverse alphabetical order.) Members of this species are relatively harmless, since their call order is simple to predict. Furthermore, once a member of this species has interacted with a student, it rarely initiates a repeat contact. WARNING: These creatures tend to grow dangerous when they encounter unprepared students. Also, if a member of this species forgets to bring its enrollment roster to class, it may mutate into the far more unpredictable Socratus Chaotis, discussed below.

The Panel Professor (Socratus Panelis): This species of professor prefers to divide its classes into several “panels,” of which only one will be on call at a given time. Like Socratus Abcdelis, there exist few reports of fatal injuries due to contacts with this species, since students can anticipate these encounters and prepare accordingly.  As with Socratus Abcdelis, the greatest danger associated with this species involves the efforts of other students to avoid them. Cases have been reported where seemingly “safe” students have been placed on call due to the sudden, unanticipated absences of several peers situated alphabetically ahead of them, or the entire remainder of a large on-call panel. For advice on how to handle an emergency situation of this type, see Chapter Eight, “Threading the Needle: Reconciling ‘Passing’ with Getting a Recommendation,” and Chapter Eleven, “How to Exit a Classroom Silently.”

The Random-Order Professor (Socratus Chaotis): Whereas Socratus Abcdelis and Socratus Panelis tend to seek out and cultivate orderly habitats, Socratus Chaotis thrives on the uncertainty created by a random calling scheme. The unpredictable behavior of this species forces students to choose among three unpalatable options: (1) full preparation for each and every class; (2) skipping all classes until the semester is at an end (a.k.a. “playing dead”); or (3) initiating preemptive contacts with Socratus Chaotis at instances of the student’s choosing, with the hope that the professor will tire of these encounters and move on to other students. Unfortunately, this last strategy fails to recognize that members of Socratus Chaotis often possess poor memories, and have been known to call on the same student at several different junctures across a semester, even as they seem to entirely forget about other students in a class.  This last point also represents this species’ saving grace; it is far more likely that a student will not be called on at all in a class taught by a Socratus Chaotis, than in a class taught by either a Socratus Abcdelis or a Socratus Panelis.

The Occasional-Question Professor (Semisocratus Spontaneosis): This species of professor does not fit neatly into either the Socratus genus discussed above, or the Verbosis genus related below. Members of Semisocratus Spontaneosis gravitate toward pure lecturing (the defining characteristic of Verbosis Oxfordis), but, in rare instances, also initiate contact with students. Typically, this interaction takes the form of spontaneous, open-ended questions that invite the careful evaluation of a complex hypothesis that the specimen has painstakingly laid out over the preceding half-hour. While these questions appear daunting, recently, scientists have developed a number of potential responses capable of application to virtually any such inquiry. Among them, “I agree with what you said earlier,” and “I agree with what you wrote on this topic” show special promise for even the most unprepared student.

The Lecturing Professor (Verbosis Oxfordis): Members of this genus fall outside of the scope of this Guide. For those of you who nevertheless wish to contribute to lectures given by this species of professor, we suggest that you check out our companion volumes, The Law Student’s Guide To Brownnosing and The Law Student’s Guide To Unpopularity.

Next: Excerpts from Chapter Four, “Stalling.”


Old Harvard Law School Course Catalogs (1835-1869; 1878-2006)

Harvard Law School has posted online its Course Catalogs for the academic years (or, as the older catalogs put it, “academical years”) 1835-1836 to 1868-69, and 1878-79 to 2005-06.

These bulletins are quite interesting.  The 1835-36 catalog, for example, relates facts such as the law school’s tuition at the time, $100 per annum (Yup, that’s right. $100. Law students: don’t depress yourself by entering this figure into an inflation calculator like this one. Seriously. Don’t do it.), the names and hometowns of its students, and the books that students would be expected to read in each course.  The 1842-43 bulletin advertises that law students can attend all of the University’s public lectures, including the well-regarded chemistry, mineralogy, and geology lectures given by Professor (and, later, convicted [but possibly innocent] murderer) John White Webster.

By reviewing the catalogs, one also can compare the courses that have been offered at the institution at different junctures. Reprinted, without comment (but with a little selective bolding to indicate some new additions to the curriculum), are the course offerings at 25-year (more or less) intervals between 1850-51 and 1950-51:

1850-1851: Agency; Corporations; Equity Jurisprudence; Blackstone; Evidence; Insurance; Law of Real Property; Roman Civil Law; Pleading; Wills and Administration; Equity Pleading; Kent’s Commentaries; Contracts; Arbitration; Bailments; Domestic Relations; Practice; Bills and Notes; Shipping and Admiralty; Criminal Law; Constitutional Law and Jurisprudence of the United States; Equity Jurisprudence Evidence and Practice; Sales; Partnership; Conflict of Laws.

1878-79: Real Property; Contracts; Torts; Criminal Law and Criminal Procedure; Civil Procedure at Common Law; Evidence; Property; Trusts, Mortgages, and other Titles in Equity; Sales of Personal Property; Bills of Exchange and Promissory Notes; Jurisdiction and Procedure in Equity; Corporations and Partnership; Constitutional Law and Conflict of Laws; Agency and Carriers; Jurisprudence; Wills and Administration.

1900-01: Contracts; Criminal Law and Procedure; Property; Torts; Civil Procedure at Common Law; Agency; Bills of Exchange and Promissory Notes; Carriers; Contracts and Quasi-Contracts; Evidence; Insurance; Jurisdiction and Procedure in Equity; Property (second year); Sales of Personal Property; Trusts; Admiralty; Bankruptcy; Damages; Law of Persons; Conflict of Laws; Constitutional Law; Corporations; International Law as Administered by the Courts; Jurisdiction and Procedure in Equity; Partnership; Property (third year); Surety and Mortgage; Comparative Jurisprudence; Civil Law of Spain and the Spanish Colonies; Civil Procedure under the New York Code; Administrative LawCourses offered, but not taught in 1900-01: The Interpretation of Statutes; Roman Law; Massachusetts Practice; Patent Law.

1925-26: Civil Procedure at Common Law; Contracts; Criminal Law; Property; Torts; Agency; Bills of Exchange and Promissory Notes; Contracts and Quasi Contracts; Equity; Evidence; Insurance – Marine, Fire, and Life; Persons and Domestic Relations; Property; Sales of Personal Property; Trusts; Conflict of Laws; Constitutional Law; Corporations; Equity; International Law as Administered by the Courts; Partnership; Patent Law; Property (second year); Public Utilities; Suretyship and Mortgage; Taxation; Admiralty; Bankruptcy; Contracts and Combinations in Restraint of Trade; Jurisdiction and Procedure of the Federal Courts; Labor Law; Municipal Corporations; Administrative Law; Constitutional Law – Seminar in Problems in Constitutional Law;  Evidence – Seminar in Problems in Evidence; History of English Law; International Law Problems; Jurisprudence: Theory of Law and Legislation, the Province of the Written and Unwritten Law, Problems of Law Reform in America; Persons and Domestic Relations; Roman Law, and the Principles of the Civil Law and Modern Codes as Developments thereof – an introduction to Comparative Law; Conflict of Laws: Advanced Course; Modern Developments in Procedural Law; Law of Mining and Water Rights. Courses offered, but not taught in 1925-26: Massachusetts Practice, Brief Making and Preparation of Cases; The Practice of Law.

1950-1951: Agency; Civil Procedure; Contracts; Criminal Law; Property I, Torts, Accounting, Administrative Law, Commercial Law, Constitutional Law, Corporations I, Property II, Trusts, American Legal History, Comparative Law – The Civil Law System, Comparison of Soviet and American Law, Jurisprudence, Legislation, World Organization, Admiralty, Conflict of Laws, Corporations II-A, Corporations II-B, Creditors’ Rights A, Creditors’ Rights B, Domestic Relations A, Domestic Relations B, Equitable Remedies, Evidence, Federal Jurisdiction, Government Regulation of Business, Insurance, International Law, Labor Law A, Labor Law B, Municipal Corporations, Restitution, Suretyship, Taxation, Unfair Competition, Administrative Law Seminar, Administrative Law Seminar: Fact Finding; American Legal History Seminar; Antitrust Seminar; Comparative Law: The French, Western German or Swiss Legal System; Comparative Public Law; Conflict of Laws Seminar; Constitutional Litigation; Corporation Finance; Criminology and Administration of Criminal Justice; Government Contracts; Insurance Seminar; International Law Problems; Labor Law-Joint Seminar; Labor Law Seminar; Legal Problems of World Trade; Legislation Seminar; Problems in the Public Control of Atomic Energy; Problems of Contemporary Jurisprudence; Property III, Public Issue of Securities; Public Utilities; Taxation: Corporate Reorganizations and Distributions; Taxation: Special Tax Problems; Taxation: State and Local. Offered, but not for credit: Law and Medicine.

One of these days, if I ever try to prepare a family-tree flowchart that depicts the origins of the “modern” fields of law, I’ll probably perform a deeper dive into these bulletins. But that’s enough for now.