Tagged: Legal Education

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The Tragedy & Lost Legacy of James M. Landis — Book Review by Duncan Farthing-Nichol

The current issue of the Journal of Legal Education has a fascinating book review by Duncan Farthing-Nichol of Justin O’Brien’s The Triumph, Tragedy and Lost Legacy of James M Landis: A Life on Fire (Oxford: Hart Publishing, 2014, pp. 187, $52.00 (cloth). Here is how the review opens:

Dean James Landis (1889-1964)

Dean James Landis (1889-1964)

In The Triumph, Tragedy and Lost Legacy of James M Landis, Justin O’Brien asks why Harvard Law School has so far neglected to hang its portrait of James M. Landis (11). The library’s walls bow under the weight of history; Harvard’s twentieth-century deans gaze down en masse from the south end. But Landis, dean from 1937 to 1946, is not among them.1 Professor O’Brien traces the omission to Landis’ 1963 conviction for tax avoidance, a crime for which Landis was sentenced to thirty days in jail. The school, according to O’Brien, has let the conviction overshadow Landis’ vital role in shaping law and government. O’Brien reminds readers that Landis wrote and administered the Securities Act of 1933 and the Securities Exchange Act of 1934—the first serious efforts at federal securities regulation—and, in 1938, developed the most persuasive contemporary theory of government by administrative agency. The University of New South Wales professor also contends that Landis introduced social responsibility to legal education, an achievement that elevated law from a mere technical discipline to a means of seeking justice. Harvard, O’Brien concludes, should hang its Landis portrait.

I agree, but on somewhat different grounds. O’Brien lays a compelling case for Landis’ impact on administrative thought and practice. He moves too quickly, however, in naming Landis a transformative figure in legal education. Landis spoke in ambitious terms: He aimed for a legal education that transcended technique, reflected the rise of public law, and respected the new experts (economists, sociologists, and other specialists). He sought to instill a desire for justice in his students. Yet Landis did relatively little to institutionalize that vision, acting more as a caretaker than a reformer. If Harvard should hang Landis’ portrait, it is for his ideas and his story, rather than his deeds. . . . [read more here]

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Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education

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The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

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Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews

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Journal of Legal Education — Call for Papers: Symposium on “Policies on Campus Violence & Academic Freedom”

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The Journal of Legal Education seeks submissions for a symposium issue on “Policies on Campus Violence and Academic Freedom.” Universities occupy a hallowed position in American culture. But recently reported incidents of sexual assaults and guns on college campuses have spurred new and more rigorous policies in universities across the country. In May 2013, the Departments of Education and Justice issued a “blueprint” for campus sexual harassment policies. To some that “blueprint” unconstitutionally expanded the definition of sexual harassment while to others, restrictions on “weapons” run up against the right to carry. While the importance of protecting students from violence is unquestioned, these new policies call for consideration of issues such as the appropriate role of administrative decision-making, the role of governmental regulations, the need for academic freedom, and the rule of law generally.

imagesHow can we best ensure an educational environment free from sexual and other violence but, at the same time, provide for academic freedom and the “marketplace of ideas”? And how might this be done given that constitutionally protected speech is sometimes offensive and disagreeable? How might we best maintain academic freedom without making it a defensive shield against enforcing equal opportunity requirements within academic life? These and related questions will inform the symposium. Diverse viewpoints are welcome.

Papers should be between 30 to 50 double-spaced pages in length and will be considered for publication in 2016.

The deadline for abstract submission is January 31, 2016, and abstracts should be sent to http://jlesubmission@aals.org.

The suggested deadline for manuscript submission is July 15, 2016.

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Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky

We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. Erwin Chemerinsky (2014)

I am very pleased to interview Dean Erwin Chemerinsky in connection with his eighth book, The Case Against the Supreme Court (Viking, 2014) – this in addition to the 200-plus scholarly articles he has published. One of those articles was the foreword to the Harvard Law Review’s 1988 Supreme Court Term issue. His first scholarly article was published 36 years ago, this when he was associated with the D.C. firm of Dobrovir, Oakes, & Gebhardt. Today, Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Unlike most academics, he also has a practitioner’s flare for the law, having argued five cases in the Supreme Court, among other courts. Last year, National Jurist magazine named Dean Chemerinsky as the most influential persons in legal education while the Anti Defamation League honored him for his commitment and contributions to freedom and education. And in 2007, Douglas Kmiec labeled him as “one of the finest constitutional scholars in the country.”

True to his reputation, Dean Chemerinsky’s new book invites us to think – and think hard – about some of our gospel “givens” about the Court, its members, its procedures, and its future.

Thank you Dean Chemerinsky for taking the time to answer my questions, and congratulations on the publication of your latest book.

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Question: For someone who argues cases before the Supreme Court and who writes on and teaches about the Court, yours is a rather provocative title. Why did you choose it?

Chemerinsky: The title captures the thesis of the book. As I reflect on it, I realize that the Supreme Court has often failed, often at the most important times and at its most important tasks. I think that this is a conclusion that both conservatives and liberals can agree to and need to realize. The Supreme Court’s decisions on race, its rulings in times of crisis, its decisions during the Lochner era are powerful examples where I think liberals and conservatives would agree that the Court did great harm to society. That is the foundation of the case against the Supreme Court. I want to see the Court made better and the impetus for thus must be recognizing that there is a need for reform.

Go here for Dean Chemerinsky’s oral argument in the Supreme Court in Tory v. Cochran (2005).

Question: You write: “I discovered in my own mind I have been making excuses for the Court. The Supreme Court is not the institution that I once revered.” What brought about this change of heart for you?

Carrie Buck

Carrie Buck

Chemerinsky: One semester I was teaching Buck v. Bell (1927), the Supreme Court decision that upheld Virginia’s eugenics law and where Justice Oliver Wendell Holmes infamously declared “three generations of imbeciles are enough.” After class, I realized that I had been making excuses for the Court in class. I did some research and realized that 60,000 people were involuntarily surgically sterilized as a result of the Court’s decision and the eugenics movement. As I thought about it, I realized that I often was making excuses for the Court in my teaching and writing.

Question: Like many others (both conservative and liberal), you fault Justice Holmes for his “offensive and insensitive” opinion in Buck v. Bell. Fair enough. What is often overlooked, however, is that Justice Louis Brandeis (one of the most humane defenders of civil rights and liberties) joined that opinion. Why? Does that give you any reflective pause? How do you explain that?

Chemerinsky: As always, the explanation must be complex rather than simple. It was at a time when progressives were defining themselves, in part, by urging deference to government as a way of criticizing the Lochner era decisions. It was at a time when the eugenics movement had great support in society. It was at a time when the Court had begun to protect non-textual rights concerning autonomy (e.g., Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)), but had not gone far in this direction.

Does this give me reflective pause? Buck v. Bell was tragically wrong when it was decided and it is inexcusable that the Court allowed states to surgically sterilize people who had done nothing wrong.

[Re Brandeis: For a critical take on his civil rights/civil liberties record, consider David Bernstein, “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” Notre Dame Law Review (2014)]

Question: You maintain “the Supreme Court’s legitimacy is not fragile.” That cuts against the conventional wisdom, certainly the prudential wisdom. Please explain to us why you think this so.

UnknownChemerinsky: The Court’s legitimacy is the product of all that it has done over 200 years.   Over this time, it has firmly established its role.  I agree with what John Hart Ely wrote in Democracy and Distrust (1980) that the Court’s legitimacy is robust. Some such as Felix Frankfurter and Alexander Bickel argued that the Court must be restrained to preserve its fragile legitimacy. Brown v. Board of Education (1954) shows the fallacy of that position. Nothing the Court has done has been more controversial or done more to enhance its institutional legitimacy. There are virtually no instances in American history of people disobeying the Court and those that occurred, such as in defiance of desegregation orders, only enhanced the Court’s legitimacy.

No single decision (or group of decisions) will seriously affect the Court’s legitimacy. I remember after Bush v. Gore hearing people say that the decision would damage the Court’s legitimacy. I was skeptical of such claims and I was right. The Court’s approval rating was the same in June 2001, six months after the decision, as it had been in September 2000, three months before the ruling. It had gone down among Democrats and up among Republicans. It is why I strongly disagree with those who believe that Chief Justice John Roberts changed his vote to uphold the individual mandate in the Affordable Care Act case so as to preserve the Court’s credibility. He knew that whatever the Court did would please about half the country and disappoint about half the country.

Go here for a 2014 video interview with Dean Chemerinsky discussing his new book.

Question: You are critical of the Court’s unanimous ruling in Hui v. Castaneda (2010). There the Court, per Justice Sonia Sotomayor, held that public health service officers and employees could not be sued for Bivens actions for violating citizens’ constitutional rights if the violation was committed in the course of their government duties. The plaintiff can only sue the federal government, not the employees. There were no separate opinions in the case. Given the vote, how do you explain your claim that the Court got it wrong? Bias? Poorly argued? The law clerks’ fault? Or what?

Francisco Castaneda testifying before Congress

Francisco Castaneda testifying before Congress, 2007

Chemerinsky: In Hui v. Castañeda, a prisoner had a lesion on his penis. Francisco Castañeda was suffering enormously and the symptoms got worse and worse. But still the public health service workers refused to let him see a doctor. By the time they let him see a doctor the cancer had spread all over his body. His penis was amputated, but he died a short time later. It was egregious deliberate indifference. But the Court unanimously ruled that the existence of a statute protecting public health workers from suit barred a constitutional claim. This seems wrong: a statute should not bar a constitutional claim.

Why did the Court come to this conclusion? I think this case reflects a much larger trend of the Supreme Court favoring the immunity of government and government officers over remedies for injured individuals. It is reflected in the expansion of sovereign immunity, the growth of absolute and qualified immunity, and the evisceration of Bivens suits.

Go here to read Francisco Castañeda’s testimony before Congress, Oct. 4, 2007; see also Gabriel Eber, “Remembering Francisco Castañeda,” ACLU website, May 5, 2010

Question: You write of the need for scholars to look “cumulatively at the Court’s decisions” re race, civil liberties, economic regulations, school desegregation, effective counsel, labor law, consumer protection, and governmental immunity. Is it really possible to look at the Court through such a broad lens? And if so, what might it tell us that we already do not know?

Chemerinsky: My concern is that the narrower the focus, the easier it is to make excuses for the Court. Any institution will make decisions that we later regard as mistakes. Virtually everyone today believes that Dred Scott (1856) and Plessy v. Ferguson (1896) and Korematsu v. United States (1944) were tragically wrong. But focusing on each creates the view that they are isolated errors. If they are seen as part of a larger pattern, it becomes clearer that there is a strong case against the Supreme Court. It then becomes clear that there is a need for reforms.

Absent extraordinary circumstances, the docket for October Term 2014 is now complete, and it has the potential to be one of the most momentous in history. – Erwin Chemerinsky (Jan. 27, 2015)

Question: You find merit in Texas Governor Rick Perry’s idea for a proposed constitutional amendment limiting each Justice to an 18-year term. Think of it, had such a rule been in place, Holmes could not have written his is dissent in Gitlow v. New York (1925), Brennan would not have authored his majority opinion in Texas v. Johnson (1989), and we would never have read Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014). Two questions: (1) Does that concern you? And (2) Isn’t it always an iffy matter to push for constitutional amendments concerning the Court? Read More

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More on the Law Clerk Hiring Process – An Interview with Federal Judge Robert Lasnik

This is the second installment of a series of interviews I am doing on judicial clerkships. The first interview was with Third Circuit Judge Thomas Ambro; that interview can be found here. In this interview the focus is on clerkships at the federal district court level.  

Judge Robert Lasnik with Justice Sandra Day O'Connor at the University of Washington Law School

Justice Sandra Day O’Connor with Judge Robert Lasnik at the U.S. Courthouse in Seattle

Robert S. Lasnik is a United States federal judge who sits on the District Court for the Western District of Washington State.

Born in 1951 in Staten Island, New York, Judge Lasnik attended Brandeis University (B.A., 1972) and then Northwestern University (M.S., journalism, 1973 & M.A. in education, 1974). Following that, he went on to the University of Washington School of Law where he received his J.D. in 1978.

Prior to his service on the Court, he was a deputy prosecutor in the King County Prosecuting Attorney’s Office (1978-1981) and then a senior deputy prosecutor (1981-1983), and later chief of staff in that office (1983-1990). Thereafter, he served as a Superior Court judge in King County (1990-1998).

President Bill Clinton nominated him to the Court on May 11, 1998.  He was confirmed unanimously by the United States Senate on October 21, 1998, and received his commission on October 22, 1998. He served as Chief Judge from 2004 to 2011. Chief Justice John Roberts appointed him to serve as a member of the Judicial Conference Executive Committee

 Some of Judge Lasnik’s more notable opinions include Browne v. Avvo, Inc. (2007) (“To the extent that their lawsuit [contesting lawyer rankings on a public website] has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action”), and Video Software Dealers Association v. Maleng, et al (2004) (enjoining Washington State law prohibiting the sale of video games depicting violence against police officers). More recently, he authored Wilbur v. City of Mount Vernon (2013), which the ACLU labeled as a “landmark case on indigent defense.”

Welcome, Judge Lasnik, to our corner of the blogosphere here at Concurring Opinions. It is an honor for us to have you contribute to this blog. 

Question: How many law clerks do you have, and how long are their terms?

Answer: I have one career law clerk who has been with me since my appointment in 1998, and a one-term law clerk whom I hire on a one-year basis. Occasionally, where there is mutual agreement by mid-year, I have extended the clerkship to a second year.

Question: Tell us a little bit about how the clerkship application process and how it works in your chambers. For example, when do you first start accepting applications, and up to what point do you stop considering them?

Answer: I start accepting applications in September, the year prior to the start of the clerkship. Interviews begin in January/February and are on-going until I fill the position.

Question: How much do you rely on OSCAR?

Answer: I post open positions on OSCAR. However, we do request hard copies of materials.

Question: Some district judges are now seeking law clerks with some experience as a practicing attorney. What do you think of that and is it something you either are now doing or plan to do?

Answer: I do require a year of experience either clerking in federal court or for a state’s highest court or practicing law. I find that having some real-world experience makes for better clerks and that the clerks also get more out of the year.

Question: How far in advance do you select your clerks? Some federal judges are now hiring two years in advance? What is your practice?

Answer: I hire the same year of the opening although occasionally, where I have two outstanding candidates, I will extend an offer for the next year to the one who comes in second. This has happened on two occasions and I’m so glad I got both outstanding clerks.

Question: About how many trials do you preside over in a calendar year?

Answer: I do approximately eight trials per year—half civil and half criminal.

Question: Do you have any idea of how many orders you issue in a year?

Answer: 2,039 civil orders, 206 criminal orders, and 194 miscellaneous for a total of 2,439. This covers the period from the June 2013 to June 2014.  Read More

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FAN 19.1 (First Amendment News) — Media Scholar Named Next Dean of GW Law School

It’s now official: Blake D. Morant, dean of the Wake Forest University School of Law and president-elect of the Association of American Law Schools, will be the next Dean of the George Washington Law School. According to a GW press release: Dean Morant “will assume the deanship on Sept. 1 after having served seven years as dean of the Wake Forest University School of Law. ‘Blake Morant is not only a seasoned dean but also a national leader in legal education,’ said GW President Steven Knapp. ‘He brings to this important position a proven record of accomplishments, and his extensive leadership experience will make him an extremely valuable addition to our law school and the entire university.'”

Dean Blake Morant

Dean Blake Morant

“‘I have respected and admired the George Washington Law School throughout my career and consider serving as its next dean to be a distinct privilege,’ Mr. Morant said. “‘I look forward to working with the constituency of this historic institution during this time of both challenge and extraordinary opportunity.'”

Media Law Scholarship

Though his scholarship includes other areas of law (such as contracts, administrative law, and legal education), Dean Morant’s articles on media law include the following:

Advance Greeting: Welcome to Washington, D.C., Dean Morant!

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FAN 15.2 (First Amendment News) — Justice Scalia on the First Amendment & Legal Education

In a recent speech entitled “Reflections on the Future of the Legal Academy,” Justice Antonin Scalia had a few things to say about legal education and the First Amendment. The remarks were made on May 11, 2014 at the William & Mary Law School, this by way of a commencement address. The relevant passage is:

In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the recent First Amendment. Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?

[Hat tip to William Baude]

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Legal education, opportunity, and bottlenecks

Joseph Fishkin’s Bottlenecks offers a new theory of equal opportunity. (See symposium posts here and here.)

What does it mean for legal education?

One of the major contributions of the book is to offer a new social justice perspective from which to evaluate a wide variety of laws and policies, both public and private. The book invites us all to treat opportunity not just as a catch phrase, but really deeply explore its meaning and ramifications.

If we reform legal education not only to attract more students but also to promote social justice, how should we think about legal education’s role in the broader opportunity structure?

Read More

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Diversity on the Supreme Court

While in recent decades the Court has become more diverse in some areas, such as gender and race, presidents have also appointed Justices with increasingly uniform educational and professional backgrounds. This lack of professional and educational diversity may be sub-optimal. Adrian Vermeule, for example, offers a carefully-reasoned argument for having at least one Justice with training in another discipline (he suggests appointing a Justice with a PhD in economics). At its most extreme, Vermeule’s argument insists that the professionally-diverse Justice have no training in law, to correct for correlated biases held by lawyer Justices.

My research suggests, however, that the extreme step of eliminating formal legal training will introduce a particular bias which some will find objectionable. In the past, Justices who did not attend law school were significantly more politically predictable than Justices who shared the benefit of formal legal education. Today, of course, a president choosing a Justice who did not attend law school would likely select a person who also has expertise in another field. But it is not clear a Justice with an advanced degree in economics or another discipline would exhibit the same political restraint as a Justice who went to law school. It seems more likely that Justices who attend law school will be either better-equipped or more inclined than others to vote independently of their personal political views. This may be reflected in greater levels of judicial restraint, incremental decision-making, and application of doctrines such as stare decisis.

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More on legal education

One of the commenters on my opening salvo on legal education raises a point I thought might come up – essentially the much ballyhooed assertion that clients are no longer willing to pay for the training of young associates. The implication being that because clients are less willing to pay for hours billed by ignorant or inefficient legal rookies then law schools must necessarily adjust curricula to provide training no longer available through law firms. Although I’m in favor of doing more to prepare practice-ready graduates, I’m not at all sure the “clients won’t pay for training” story really flies as a rationale for doing it.

First, I don’t think clients were ever consciously “paying for new associate training.” What may have been true is that, in flusher times, big firm clients more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates. The result was that big firm clients “paid for” associate training in the sense that the associates were learning on the job and their firms were able to earn big profits from their time while they did so. Now, it appears that big firm clients are more sensitive to overstaffing and are unwilling to pay high hourly rates for inefficient or low-value-added associate labor. The result cannot be that big firms aren’t training their new associates. That would be suicidal. The associates have to be trained or they will be unable to produce the high-quality work for which clients ARE willing to pay and on which the firm’s reputation and long-term survival depends. Rather, to the extent a client rebellion against expensive associate billing is underway, the real effect will be to reduce the number of associates hired because they are no longer automatic profit centers. Which is pretty consistent with what we see in the marketplace.

Now, reduced big firm associate hiring is bad for our graduates because there are fewer job opportunities and bad for law schools in the sense that, as the market for lawyers shrinks, so too does the market for law training. BUT it is not at all clear that this market perturbation can be remedied, or even much affected, by alterations in law school curriculum. We can and should make our graduates more practice-ready, but no conceivable modification of law school curriculum would provide the highly specialized subject matter and skills training necessary to transform a Big Law rookie into a midlevel associate worth her $400/hour. That sort of refined training will always be performed on the job. The very best law schools can do would be to provide a better foundation that might speed the developmental process by 6 mos or a year.

Second, most of the talk about changed client willingness to “pay for” associate training is Big Law talk. In the less rarified regions where most students from non-top-20 law schools find jobs, clients have never been willing to “pay for” young lawyer training in any sense. So firms bill young associate time at low rates or bill for fewer hours than the new lawyers spend in order to avoid alienating clients. Nonetheless, such employers – like those in Big Law – know that they have to train their new lawyers if they are to become assets. And they do – some better than others – as an investment in future improved productivity and economic return. I don’t think there is anything new about this. The change, if any, in current circumstances is the overall decline in legal business with a concomitant lower demand for investment in new associates to grow practices.

Still, law schools may be able to help our students and their prospective employers (large and small) by shortening the interval during which they are unproductive assets of the firm. More practice-ready graduates can develop faster into lawyers worth their hourly rates. This in turn shortens the payout period on a firm’s investment in a new associate and raises its rate of return. All of which should, in theory,increase lawyer hiring (or at least give a competitive advantage to graduates of schools who produce practice-ready diplomates).

Does this make sense?