Friday, September 7, 2012
The Petrie-Flom Center is excited to announce our latest venture – the launch of a new blog, titled Bill of Health, edited by Petrie-Flom faculty co-director, I. Glenn Cohen, and Petrie-Flom executive director, Holly Fernandez Lynch. The blog will go live Wednesday, September 5, 2012, and can be accessed at http://blogs.law.harvard.edu/billofhealth/.
Our goal is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics. You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings. We also hope to cultivate a strong community of commenters, so that the blog becomes an interactive discussion forum.
A widely collaborative effort, Bill of Health features content from Petrie-Flom affiliates, as well as leading experts from Harvard and beyond. Institutional collaborators include HealthLawProfs Blog, the Yale Interdisciplinary Center for Bioethics, and the Robert Wood Johnson Foundation’s Public Health Law Research program at Temple. We’ve also lined up a stellar cast of bloggers so far, including:
Katharine Van Tassel
In addition, we’ll be joined by some great guest bloggers, including Mark Hall, Allison Hoffman, Adam Kolber, Jon Kolstad, Kristin Madison, Anup Malani, Arti Rai, Annette Rid, Chris Robertson, Nadia Sawicki, Seema Shah, Talha Syed, Dan Wikler, and Susan Wolf, as well as a several Petrie-Flom graduate student affiliates. Read more about our team here.
Please take a moment to stop by and check out Bill of Health
For more information, contact:
Holly Fernandez Lynch, email@example.com, 617.384.5475
Thursday, September 6, 2012
The National Jurist reports on the soon-to-be-established Indiana Tech Law School's "unique early decision application process." The start-up law school will accept early applications from September 15th October 31st. Those who apply early will pay a reduced application fee, and the school pledges to get back to them with an answer within three weeks. According to Dean Peter Alexander, accepted students will have one week to withdraw their applications from other law schools and will pay a $300 deposit to Indiana Tech. "Any applicant who accepts his or her seat through the early decision program is also representing that they will not submit a later application to any other law school.”
My guess is that a student who applies to the early decision process is actually doing nothing more than locking in a safe school at a savings of $25, because of the reduced application fee. A student could apply early, get accepted, and make no deposit. She could apply to ten other schools and then come crawling back to Indiana Tech in April or really any time before classes start in August. My guess is there will still be a seat for her. Or she could make the deposit and still apply to other schools notwithstanding her representation that she was not doing so. And if she gets admitted at an accredited school, she will go there and lose the $325 she invested at Indiana Tech.
Indiana Tech might think that such conduct reflects poorly on the character and fitness of the student, but that would be a misreading of the nature of a contractual obligation (assuming that this is a contractual obligation), at least according to Justice Holmes. As this is not a relational contract but a one-off transaction, the deal here is nothing more than a promise to perform or to pay damages. Indiana Tech is better off to the tune of $325 for the student's fleeting interest in the Indiana Tech enterprise (less the administrative costs of processing the application, but those costs are mostly already built in). The student has made her Holmsian choice and has learned her first lesson in contracts law before even cracking a casebook.
Thursday, August 9, 2012
On August 6, 2012, the Sixth Circuit decided Branham v. Thomas M. Cooley Law School, a case involving the termination of a tenured law professor, Lynn Branham. Professor Branham, currently visiting at the St. Louis University School of Law, is an expert in criminal law and had been teaching at Cooley Law School since 1983. For some reason, the Cooley Law School asked her to teach constitutional law and torts in Spring 2006. She complained but complied and then went on leave for a semester. When she returned, she was again asked to teach constitutional law. When she refused, she was terminated.
A District Court found that Professor Branham had not been properly terminated, because the dismissal process had not been in accord with those provided for in her employment contract. Cooley then followed the proper procedures -- Cooley's faculty voted to dismiss Branham and the Cooley's Board of Directors upheld that decision. The District Court was thereby satisfied, and it entered judgment for Cooley.
The Sixth Circuit affirmed the District Court's ruling on the breach of contract issue. Professor Barnham had entered into a one-year contract with Cooley, and the fact that she had tenure did not create rights beyond those provided in the employment agreement. She was entitled to a faculty vote and then the vote of the Board of Directors. Both of those occurred, and the Sixth Circuit was not overly concerned with the fact that they occurred tardily.
Under Michigan law, an employer's process must comply with five elements of "elementary fairness": notice, opportunity to be heard, formulation of issues and fact, a rule of finality and other procedural elements appropriate to the nature of the proceeding. The Sixth Circuit was satisfied that the elements of elementary fairness were met in this case.
One might think that Professor Barnham should be entitled, at the very least, to damages for breach of contract for the period during which she had been dismissed without appropriate procedures, but the Sixth Circuit found that because Cooley eventually followed the appropriate procedures, Professor Barnham had no claim for damages. She was only entitled to equitable relief, which she apparently recieved when Cooley complied with the District Court's order to give her appropriate process.
The Sixth Circuit opinion focuses on the contractual issues and on the question of whether Cooley followed the appropriate procedures for the termination of a faculty member. The Court defers to the faculty members who determined that Cooley had "good cause " for termination of Professor Barnham. We can only hope that, at some point, some body with authority to make such a determination de novo will recognize that a tenured faculty member's refusal to teach courses removed from her area of expertise does not constitute "good cause" for her termination.
Tuesday, July 24, 2012
The newly formed LSU Journal of Energy Law and Resources (JELR) at the Louisiana Sate University Paul M. Hebert Law Center invites submissions of articles for the Journal’s companion blog, The LSU Law Energy Blog. The blog will launch in August 2012 and will continue to publish pieces on a rolling basis. JELR is a student-edited journal devoted to the promotion of legal scholarship in energy law. The Journal is committed to publishing a variety of topics within the purview of energy law, including interdisciplinary pieces. The LSU Law Energy Blog will supplement the Journal by providing shorter articles on recent developments in energy law and the surrounding fields published by students, practitioners, and professionals in these fields.
Submissions: To be considered for publication on The LSU Law Energy Blog, please submit an entry on a current, relevant energy law topic or a case note on a major energy law case. Topical entries should be around 500 words and case notes may be longer. The deadline for submissions is quickly approaching—July 31. Please email these entries or requests for deadline extensions to firstname.lastname@example.org.
Friday, June 29, 2012
I have returned from an enriching 5 weeks in Southeast Asia, mostly in frenetic Ho Chi Minh City, where I taught a class titled "Workplace Law in Global Context." I blogged about my travels at Saigoner, which would be of interest only to those readers with curiosity about what I ate (e.g., spider).
I'll be back in the contracts blogging saddle next week. In the meantime, I wanted to share some thoughts and pictures that might be of interest to ContractsProf readers.
We stayed in a government owned hotel in Ho Chi Minh City. I was amazed by its efficiency - in the U.S., a hotel run by the government would operate like the post office.
I've shared a few pictures of a floating market in Can Tho on the Mekong Delta. The floating markets are the main tourist attraction in Can Tho and they start up early in the morning. A guide took us to see the boats; from the boats, people were all selling fruit wholesale. To the masts of their boats, the sellers tie the fruit they have for sale. Pineapples, watermellons and bananas were the main offering that day. There was a little boat that went around like a convenience store for the sellers, in it a lady offered the sellers coffee and hot bowls of pho.
Along the banks of the Mekong, people live in clapboard houses made of whatever they can find – mostly pieces of shipping containers and plastic tarps. The houses are on log stilts. One of the houses was partly constructed with a plastic advertisement for Kaplan University.
processing factory were wooden and dusty and it seemed improbable that they still functioned the way they did. We were told that Vietnam is second to Thailand as the world's largest rice producer.
The Vietnamese have a refreshing lack of anxiety about heavy machinery. In the U.S., we would not have been able to get that close to those rickety rice machines, and certainly not without a helmet and a waiver form. Same goes for firing automatic weapons (I fired an AK-47 and an M-16 at the Cu Chi tunnels) and renting or hitching a ride on a moto-bike.
Another eye-opening field trip was a garment factory
tour I arranged for my class. After a presentation on the company, we were toured around the factory. It had over 1000 workers in the Ho Chi Minh outpost. You really cannot picture a room of 600 people making jackets for Columbia and Izod in assembly lines until you see it. After the tour, we asked a million questions through an interpreter. Most of the factory's buyers are U.S. and European companies. I found it interesting that (at least thelast time I checked), Vietnam is not a signatory to the CISG. This is especially so given that their garment exports apparrently rose 14% in the first 4 months of 2012 (and their claim as the world's second largest rice producer).
Finally, I thought readers would appreciate this picture from outside the Ho Chi Minh Stock Exchange (oh, the irony). Their statue (as compared to this) is arguably a more honest depiction of markets.
Thursday, March 15, 2012
The University of Mississippi is seeking applicants for a one-year visit during the 2012-13 academic year. Our primary curricular need is a full-year contracts course. Other subjects are negotiable. Interested applicants must apply on line at jobs.olemiss.edu. Please include a CV and a cover letter (including courses he or she is best prepared to teach). For more information please contact Donna Davis, Chair, Faculty Appointments Committee at email@example.com. Please put "visiting position" in the subject line. The University of Mississippi is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA employer.
Tuesday, March 13, 2012
The newly formed LSU Journal of Energy Law and Resources at the Louisiana State University Paul M. Hebert Law Center invites submissions of scholarly articles and proposals for articles for publication in its inaugural issues, slated for publication in the Fall of 2012 and the Spring of 2013. The LSU Journal of Energy Law and Resources is a student-edited journal devoted to the promotion of legal scholarship in energy law. The Journal is committed to publishing a variety of energy law topics, including articles focusing on energy law contracts and transactions.
Submissions: For publication in our Fall 2012 issue, please submit a completed paper, along with a cover letter and CV, to firstname.lastname@example.org by April 15, 2012. All completed papers submitted after April 15th will be considered for the Spring 2013 issue and should be submitted no later than October 15, 2012. If you wish to submit a proposal for a paper, please submit your proposal of no more than 500 words briefly describing the issue along with a CV by attachment to email@example.com. Proposals for papers will be considered on a rolling basis, but will not be considered for the Fall 2012 issue.
Monday, March 5, 2012
The Spring Contracts Conference was a huge success, thanks largely to the hard work of our co-blogger Eniola Akindemowo. She was so busy dealing with logistics during the conference that she did not have enough time to hang out with many of the conferees, and we were remiss in failing to thank her properly. But it was a great event, and it ran very smoothly, despite the fact that, through no fault of Professor Akindemowo, we got a late start on planning the conference this year. As is always the case, the conference featured the usual heady mix of familiar faces, up-and-coming scholars, and practitioners with a scholarly bent. We delighted in the opportunity to recognize Mel Eisenberg with a lifetime achievement award and Omri Ben-Shahar for his award-winning article, Fixing Unfair Contracts.
San Diego was a great location for the conference, and the Thomas Jefferson School of Law did a great job of hosting. They have a truly magnificent new building, and rooms and tech support could not have been better for a conference such as ours. The conference ran on time from start to finish, we all received well-organied binder with short versions of the conference papers, and I don't think I've ever attended a conference at which all of the PowerPoint presentations came off without a hitch.
So thanks to Professor Akindemowo for all of her hard work in setting up and hosting the conference. Until next year.
Wednesday, November 23, 2011
In a characteristically insightful blog post, Dave Hoffman uses Vokes v. Arthur Murray as a nice launching point to discuss some aspects of the scam-critiques aimed at law schools. Vokes is such a great teaching case, and Dave's post leaves me feeling like I could have done a better job teaching it this year.
There's not much to add to the mix in the scamosphere, as many bloggers, including some of our own here at ContractsProf, have already commented very thoughtfully. In my humble opinion, the law school scam coverage is old news often sloppily reported with the vitriol amps turned up higher. And the coverage of these law school scam stories, at the New York Times in particular, seems completely disproportionate to the coverage of the number of other significant things happening in the world. (You really want cynicism? These stories get linked all over and end up on the most read and emailed list on the newspaper's website, driving page views. Page views drive advertising revenue. So, why not write another law-school-is-a-scam article?).
Anyhow, perhaps ironically in light of the recent spate of "scam" coverage about law schools, it seems that the vast majority of my students had very little sympathy for Ms. Vokes.
[Meredith R. Miller]
Monday, November 21, 2011
The legal blogs are afire (see our very own Jeremy Telman's post here, and others here , here and here ) about this article about the impracticability of the law school curriculum. The article takes aim at “chin-stroking scholarship” that supposedly “nobody” reads. I'm puzzled about labeling scholarship as worthless because it's not more widely read - that doesn't necessarily reflect the potential value of the article. The article grossly over generalizes the nature of legal scholarship. Maybe it’s my chosen areas (contracts and cyberlaw), but most of what I read --and yes, I do read a lot of law review articles-- tackles real world, sticky social and legal issues caused by technological developments and contemplates possible solutions based on (surprise!) legal doctrine. Theoretical articles, as we contracts profs know, shed light on the “why” questions and thus help in the application of doctrinal rules to novel situations. The bad rap that scholarship receives seems to come from a handful of articles which are published by a handful of journals that push the envelope and get all the attention of (some) journalists and (some) judges. (I’m not commenting about the articles cited in the NYT piece because, unlike the journalist, I try not to judge an article I haven’t read by its title). I don’t think that’s a problem in and of itself – not all of legal scholarship should be about real world solutions and what might seem like an outrageous, pie-in-the-sky idea now may not seem so outrageous in a few years. (The anti-intellectual criticisms in the article remind me of equally inane arguments about the irrelevance of a humanities curriculum, literary novels, classical music and art). What is problematic is when journalists or judges use a handful of articles as examples of what all law review articles are like. These folks just don’t know the good stuff that’s out there -- many articles do in fact explain doctrine, have at least the potential for practical application or contribute in some way to our understanding of the law. The fact that more articles don't get cited by courts is a shame and may reflect more about the elitist bent of (some) judges than it does about the nature of legal scholarship generally. The real problem with legal scholarship is that it's not more widely read. I think that more judges should read more legal scholarship, and in a wider variety of journals. Maybe then we wouldn’t have short-sighted, doctrinally confused cases like ProCD v. Zeidenberg – a case about which many of us contracts profs have written. Unfortunately, not enough courts seemed to have read those articles. Maybe the state of contract law would be better if they had.
Sunday, November 20, 2011
For those in the academia with low blood pressure, I recommend reading David Segal's reportage on the current state of law schools (the latest can be found on the front page of Sunday's New York Times) because he can raise your blood pressure in a hurry. And I'm not certain if anybody will really be happy to read what he has to say, because the message is that law schools are running a scam and that anyone who depends on law schools -- students, law firms that have to hire law school graduates, clients -- is a chump. In the end, Segal's angle is great at generating rage but terrible at generating solutions.
The heart of his argument in the most recent article is that law students pay outrageous tuition but get no practical training. His solution, to the extent that he offers one, is that there ought to be stronger skills programs, including clinics, but of course the tremendous growth of clinics, with their small student-to-faculty ratios, is one of the most important reasons for rising tuition. Teaching students the law, legal ethics and practical skills turns out to be an expensive proposition. Law schools in the United States have chosen to try to do all three. If Mr. Segal wants to see legal education that ignores the development of practical skills, he should have a look at legal education in other parts of the world. Nonetheless, given the fluidity of laws and regulations, law schools in the United States have chosen quite sensibly to give students sufficient training in legal reasoning so that they can figure out the rest on their own.
It may well be that students thus emerge from law school ignorant of practical matters, like (taking Mr. Segal's opening anecdote) the steps one has to take to accomplish a merger. I teach business organizations, and I confess that I do not cover the steps necessary to accomplish that goal. However, I am pretty certain that even if I did, my students would forget those humdrum details until reminded of them in practice and that, once reminded by a partner in that practice area, they would have the tools they need to master the process. In Mr. Segal's anecdote, a first year associate confuses a merger with a stock purchase, but that distinction is covered in the law school curriculum. It turns out that it is just very difficult for students to retain all such information through three years of law school, bar preparation and entry into the work force.
In this blog post, I want to focus on one of Mr. Segal's side points, which goes to something like a contractual issue. Mr. Segal argues that law reviews churn up a lot of resources at law schools -- including a big chunk of student tuition -- and result only in wildly impractical navel-gazing. The implication is that not only students but also taxpayers who stand behind student loans are thus paying for something for which they did not bargain. There's a lot to be said about this.
Mr. Segal presents some statistics suggesting that about 40% of law review articles are never cited either by other law review articles or by courts. That suggests that there is quite a bit of useless scholarship out there, but I think the numbers would be quite different if he focused only on scholarship published in the top flagship law reviews and the top specialized journals. Those publications get cited to a lot and they very rarely have subject matters as esoteric as (to take Chief Justice Roberts's example) "the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria." Mr. Segal also ignores the fact that a lot of faculty scholarship involves writing casebooks and treatises and engaging in law reform, the impact of which immeasurably larger (not to say more important) than that of legal scholarship published in law reviews.
But what of the other 40%? Are those resources simply being dumped down the toilet? My answer is no for a lot of reasons, but here I just want to focus on the one reason most relevant to Mr. Segal's critique of law schools. Some of the best training that happens at law schools happens at law reviews. I came to law school with ten years of scholarly experience under my belt, because I had written a doctoral dissertation, published historical scholarship and taught before making the jump to law school. Still, my skills as a researcher skyrocketed in my third year as a law student when I was responsible for overseeing a team of cite and substance editors on a number of review essays that we published in our Review of Law and Social Change. The evidentiary standards for legal scholarship are far more exacting than they are in the humanities and the non-quantitative social sciences. No claim can be made without authority. As a result, I became a far more intrepid researcher, and I unlearned intellectual habits acceptable to my former field of study and adopted intellectual habits essential to successful lawyering.
I know that others have had very different experiences at their law reviews, but my experience is an important reason why every law school has a law review. In fact, when law reviews proliferate so that there may be half a dozen or more at prestigious schools, the impetus for such proliferation comes from the students who recognize, among other things, that the experience of working on a law review will help them develop important, practical lawyering skills as well as a greater appreciation of the theoretical underpinnings of legal doctrine.
Thursday, November 10, 2011
As announced in this GW Press Release and this White House (OMB) Press Release, parts of which are pasted below, Daniel Gordon (pictured) has been named Associate Dean for Government Procurement Law Studies :
From George Washington Univesrity:
GW Law is pleased to announce the appointment of Daniel I. Gordon, Administrator for Federal Procurement Policy in the Office of Management and Budget, as its new Associate Dean for Government Procurement Law Studies. He will assume the newly created position on January 1, 2012.
“Dan Gordon has long been one of the worldwide leaders in this important field, and he is that rare person who can translate his experience and knowledge into learning and action,” said Paul Schiff Berman, Dean and Robert Kramer Research Professor of Law. “Our students will greatly benefit from his ‘insider’ perspective and his practical know-how. I am confident that the creation of this position signals to Washington and the world that now more than ever, GW Law is the premier place to study government procurement law and policy.”
Mr. Gordon says he is looking forward to his new position, and shares Dean Berman’s enthusiasm for the groundbreaking role.
“While GW Law has a long history of excellence in the area of government contracts, adding the position of associate dean should provide opportunities for building on that history to take the Law School even further,” said Mr. Gordon. “Ultimately, we will want to find new ways to reach students, including potentially nontraditional frameworks, and new ways to explore connections between government contracts law and other disciplines, such as corporate, public international, and anti-trust law.”
Mr. Gordon added that his recent career experience will shape his approach to knowledge-sharing and program development at GW Law.
“Procurement policy is intertwined with procurement law, but seeing things from the policy side has enriched my understanding of the importance and the impact of procurement law,” said Mr. Gordon.
Mr. Gordon was confirmed as the Administrator for Federal Procurement Policy in November 2009. In that role, he developed and implemented acquisition policies supporting more than $500 billion of annual federal spending. Previously, he spent 17 years at the Government Accountability Office in various roles including managing associate general counsel in the Procurement Law Division, deputy general counsel and acting general counsel.
Today, Dan Gordon, the Administrator for Federal Procurement Policy, announced that later this year he will be leaving the post to serve as Associate Dean for Government Contracts Law at the George Washington University Law School.
President Obama appointed Dan Gordon as the Administrator for Federal Procurement Policy in 2009 in order to turn around the explosive contracting growth of the last decade and re-instill accountability, drive fiscal responsibility, strengthen the acquisition workforce, cut out waste and rebalance the relationship between the federal government and the contractors that support our agencies. In Dan, he selected someone with decades of experience working with the federal procurement system, in private practice and at the U.S. Government Accountability Office. When Dan began at the White House, he brought with him a commitment to openness and integrity, combined with a strong sense of what we needed to do to improve the federal acquisition system, after too many years of neglect.
[JT h/t Steven Schooner]
Wednesday, October 5, 2011
This observation is law school related, so I will take the liberties of posting it to our humble blog about contract law. And, since I have used the word "porn" in my post, we'll probably generate some traffic and maybe even get a few unexpected people interested in contract law....
So, is it me, or has "law porn" finally found my email inbox? This year, it appears that there is a particularly high volume of junk email from law schools about how great they are... more than ever before and certainly a higher volume in proportion to the ordinary print brochures (though, I've received plenty of those too, they just don't interrupt me the same way as an email when it pops up).
[Meredith R. Miller]
Monday, September 19, 2011
Two weeks ago, Meredith Miller shared news of the fate of the Community Shared Agriculture (CSA) organization of which she is a member. CSA's are in the news again. Today's New York Times carried this story describing the demise of "Farm to Fordham," an enterprise started early last year by a Fordham law student that brought fresh produce to the urban university.
Farm to Fordham operates like most CSAs. Members, which reportedly included Fordham Law's Dean, as well as his predecessor, paid $150/semester for regular delieveries of fresh produce. As Above the Law points out, Farm to Fordham also tried to do good while doing well: with each delivery, nearly 100 pounds of produce were delivered to a local soup kitchen. Then, last April, Fordham security refused to open a gate to permit delivery. The reason for this action is unclear.
Farm to Fordham founder, Michael Zimmerman, had been notified that his organization needed to apply for a caterer's license in order to continue its operations. When Zimmerman attempted to do so, he learned that Farm to Fordham was not eligible for such a license because the organization was not a caterer (duh!).
Soon thereafter received an e-mail from Fordham University's legal counsel stating that the university could not be placed in breach of the law. But Fordham's own spokesperson had difficulty identifying what law could possibly be breached. No catering contracts would be breached, as Zimmerman is not running a catering service (and anyway, breach of a private contract is not really the same as breaking the law). The University also cited concerns about infestations from the produce, but that concern is hardly creditable, given that the produce is distributed outside of any university building. It may well be true that students bing their produce in to the buildings after collecting it, but unless Fordham is going to institute a ban on all importations of produce into its buildings, it really is not doing very much to prevent such infestations.
Above the Law provides the following quotation from Mr. Zimmerman:
The University’s most recent rationale for prohibiting community supported agriculture (CSA), nearby construction, is not credible. They came up with that excuse a week ago – six months after first banning the program. Over the intervening months the University has proposed, and Farm to Fordham has disposed with, at least six other rationalizations.
This strongly indicates that the University made its initial determination without a good reason, and has since dug in its heels. We still do not know why the University has chosen to oppose the CSA.
This pattern is all too familiar. University administrators, like others exercising a form of executive authority, all too often use a shotgun approach, including invocation of sometimes fanciful contractual obligations, in order to shut down an initiative of which they disapprove. The core reasons for the disapproval remain mysterious for reasons that are themselves mysterious due to a resistance to transparency that is not at all mysterious.
We note that all indications are that the Law School itself has supported Zimmerman and his endeavor to the best of its ability.
Tuesday, August 30, 2011
All over the country, tens of thousands of students are starting law school. Law school gets a bad rap in many quarters, and so right here at the start, it's important to remind new recruits why we do it.
What makes a King out of a slave?
What makes the flag on the mast to wave?
What makes the elephant charge his tusk, in the misty mist or the dusky dusk?
What makes the muskrat guard his musk?
What makes the sphinx the seventh wonder?
What makes the dawn come up like thunder?
What makes the Hottentot so hot?
What puts the "ape" in apricot?
Consideration, that's what!
Friday, July 8, 2011
Back in March, Suffolk University Law School hosted a symposium commemorating the 30th Anniversary of Charles Fried's book "Contract as Promise." (You can download the lectures for free from iTunes). The papers will be published in the Suffolk Law Review.
It was an enriching day of panels featuring many prominent contract theorists, so it was no small task for Professor Jeffrey Lipshaw to introduce the volume of the Suffolk Law Review containing the essays. But, as he proves in this intro essay, no feat is too great for Prof. Lipshaw. Here's the abstract:
This is an introductory essay to the volume of the Suffolk Law Review containing the papers from our symposium centered on Charles Fried’s iconic book, 'Contract as Promise' at 30: The Future of Contract Theory. My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived by the practitioner herself, is fundamental to that practitioner making good judgments. Theorizing - imposing coherent and correspondent conceptual order on events in the real world - is not as unrelated to the ordinary work of lawyers (and others) as some critics of legal academy would suggest. I provide a summary of the papers, presentations, and commentary by the distinguished participating scholars, and consider how their work fits within the framework I describe. Finally, I consider the role of meaning in contract theory; in other words, how both descriptive and normative theory, whether directed to the legal institution of contract or to other phenomena, are all ways of making sense of the human condition, and thus an essential part of what practicing “lawyers-theorists” do every day.
[Meredith R. Miller]
Wednesday, June 22, 2011
Trust me when I tell you that it is very difficult to get friends, family, students and acquaintances engaged in a meaningful discussion of "mandatory arbitration." Trust me further that there is now a wonderful documentary that manages to make this and other civil justice topics interesting and engaging for everyone. (Indeed, my viewing companion, proudly not a lawyer, turned to me at one point in the movie and whispered "didn't you write a paper about something like that?")
Last night, I was fortunate enough to invite myself via twitter get invited to a screening of Hot Coffee at HBO. Hot Coffee is a must see documentary about the way that business interests, "tort reform," judicial elections and "mandatory arbitration" have systematically worked in concert to deny plaintiffs access to civil justice. It is the work of the energetic and passionate director Susan Saladoff who spent 25 years as a trial lawyer before becoming a filmmaker. The documentary is well-conceived and thought provoking. It takes some very complex topics and organizes them and presents them through compelling personal stories.
The title "Hot Coffee" refers to the iconic case that is ubiquitous in pop culture as a symbol of the frivolous lawsuit: the woman who sued McDonalds because she was served a coffee that was too hot. The film starts very strong by retelling this story through interviews with the plaintiff's family. This challenged me (and from the gasps in the theater, I suspect everyone else viewing the film) to see the case in an entirely different light. With that strong start, the viewer is engaged and ready to hear about damage caps, judicial elections and mandatory arbitration in consumer and employment contracts.
Here's the trailer:
After the film, there was a Q&A session moderated by Jeffrey Toobin. He appeared to receive the movie very favorably, noting that the fine print in a cell phone contract is not one of the sexy topics that CNN hires him to discuss on the evening news segments (which reminded me of this Dahlia Lithwick piece in Slate, which seemed to begrudgingly report on AT&T v Concepcion).
Toobin did mention one frustration, which could be leveled as a critique of the film -- that it only presents one point of view. Notably absent and/or unwilling to participate were voices from the "other side," i.e., those in favor of damage caps and mandatory arbitration. Saladoff's response, I thought, hit the nail on the head: in so many words, she said that she wanted to tell this side of the story, and the voices in favor of these reforms already had a well-financed platform (and, indeed, overtaken the public consciousness). Perhaps I am partial to her response because her film paints a picture in line with my world view, and I am just so thrilled to finally see an engaging and accessible presentation explaining the systematic erosion of civil justice at the behest of corporate interests.
Our students come to law school generally ignorant of or misinformed about tort reform, mandatory arbitration and many of the other topics presented in this film. However, they do at least know of handful of cases -- OJ, Bush v Gore and, of course, the hot coffee case. I have no doubt that this film will be used in the classroom. It is masterfully done and captivates those uninitiated with these topics as well as those who have studied them (and even includes a few clips of interviews with George Lakoff). Please tune in to HBO on Monday night.
[Meredith R. Miller]
Friday, May 13, 2011
The Center for Transnational Litigation and Commercial Law at NYU recently launched a new blog,dedicated to, well, litigation and commercial law around the globe. It's called Transnational Notes and is edited by Franco Ferrari, with assists from other NYU Law faculty and students. It also welcomes outside contributions.
The first month or so has already produced a number of interesting posts on such topics as the CISG, international arbitration, and cross-border mobility of European corporations. It bids fair to be a very popular and useful resource to keep up on new developments from one of the country's top commercial law centers.
FGS (via Clay Gillette)
Monday, May 2, 2011
As if our co-blogger Meredith Miller had not depressed us enough on Friday with her thoughts on job prospects for recent graduates, the New York Times piled on in its Sunday Business section with this article about merit scholarships that may not be all that they seem.
The story is about students who are lured to schools with merit scholarships that will free them from their obligation to pay law school tuition, so long as they maintain a certain grade point average. Most students assume that this will be no problem, because they arrive at law school with gaudy GPAs. As this chart compiled by Stuart Rojstaczer shows, the average undergraduate GPA was 3.11 in 2006-07. In such a Lake Wobegon world where all the students are above average, it seems reasonable for newly admitted law students to think they can make the grade without breaking a sweat.
The Times concludes that schools are luring students in with merit scholarships and then withdrawing those scholarships from a shockingly high number of students. Why? The answer is obvious to anyone inside the legal academy: to pump up their U.S. News numbers, of course. Law schools want high LSATs and undergraduate GPAs in their first year class. So they use fellowships to draw in students whose test scores and GPAs would otherwise take them elsehwere.
But is there injustice involved? The report states that the phrase "bait and switch" comes up a lot and that students are "shocked when their scholarships disappear." Would the injustice not be greater if an underperforming merit scholar got to keep her scholarship while a dark horse student with a 3.5 GPA still had to pay her way? And is it really too much to expect students who are admitted with merit fellowships to ask about grade distributions or use -- I don't know, perhaps the internet -- to find out how likely it is that they will keep their fellowships? Law schools frequently use current students to recruit newly admitted students. Contacts with current students are an ideal way to get just this sort of information.
Moreover, what U.S. News-conscious law schools take away, other U.S. News-conscious law schools may give. That is, let's say a student went to a 4th-tier law school in order to get the free ride. After the first year, the student loses her free ride because of a low GPA. She likely can transfer to a 3rd-tier school, perhaps even one that wouldn't have taken her at all as a 1L -- let alone with a scholarship -- because the other side of gaming the U.S. News system is poaching transfer students from lower-ranked schools. The student will still end up paying full tuition for two years of law school, but the alternative is paying full tuition for three years of law school.
Yes, law schools should be up front with information about the likelihood that students will lose their fellowships. My guess is that, because of the optimism bias, providing that information would not hurt law school recruitment. According to the Times, Chicago-Kent offers students the choice between a guaranteed $9000/year fellowship and a $15,000 fellowship contingent on maintaining a 3.25 GPA. Ninety percent of the students assume the risk.
Friday, April 29, 2011
Other than AT&T v. Concepcion (which may or may not really be about contracts), it has been a pretty slow news week for the blog. While most people were focused on a birth certificate and/or a royal wedding, this important article about law student employment rates was published in The New Republic.
Prof. Paul Campos (Colorado) isn't a contractsprof, but he was nevertheless dead-on in exposing the smoke and mirrors that law schools use in reporting inflated employment numbers. I am sure that this is not news to most of us on law school faculties. Though, Prof. Campos summed up nicely something I have been struggling with lately:
If you’re a law professor and you want to get depressed, try to figure out how many of your recent graduates have real legal jobs that pay enough to justify the tuition that funds your salary, and also involve doing the kind of work they wanted to do when they went to law school.
This has given me the blues. It nags at me. Law schools are pumping out too many lawyers. And the ABA keeps approving more law schools. And tuition keeps increasing, entirely out of pace with inflation and stagnant/declining salaries. With law school applications down significantly, it may just be that the law school bubble has burst.
The legal market has changed. It doesn't take any special clairvoyance to predict that law schools will change too. They have to. While I definitely would not decline a raise, law school professor salaries may be too high and this market is an opportunity for correction. And, while I love contract theory as much as the next guy reading this blog, the academy has overvalued lofty, disconnected, highly theoretical scholarship that is of little use to the practice of law (and arguably comes with a very high price tag). This is the currency in academia but a joke to practitioners (which, once they hopefully find a job, our students will become). (And I say this even though I am just weeks away from my tenure vote with a file full of scholarship that just might fit this harsh description).
To serve our students and the bar, the academy needs to be reconnected to the actual practice of law. For so many years, I have heard about applying the medical school model to law schools. I am not an expert on this, but at least anecdotally, I have heard that most medical and dental school professors practice a few days a week. I think this could be the future of law schools. I am not suggesting that law schools should or will staff classrooms entirely with adjuncts (though, this is the trend in academia generally). This is an opportunity for law schools to hire full-time, dedicated teachers who also spend some time "in the field" (whether in law school clinics or outside the school). Law schools could, thus, pay professors less and take some of the tuition burden off of the students. Faculty scholarship would likely decline in quantity but would likely increase in its actual contribution beyond the ivory tower. It would likely be more grounded in practice, and so would the classroom discussion.
In that connection, for example, 3 out of 4 dental school graduates are self-employed in solo practices. There has been a lot of discussion lately about the values (and burdens) of solo and small firm law practice. In this market, I have seen this type of practice regain a dignity that may have been lost because it was too often (incorrectly) seen as a default for those graduates who could not get big law firm, public interest or government jobs.
Law appears to be returning to a "small" model, which gives attorneys more control over their work/workload ("work life balance," which is coincidentally of higher priority to Gen Y) and also makes legal services more affordable for the clients they serve. Like so many business models that looked to get bigger, bigger, bigger..., we have seen that the "big law" firm may not be a sustainable model. (An analogy to industrial farming comes to mind, but I digress). And, even if "big law" is sustainable, it is not a long-term employment situation for most young lawyers who land jobs there.
So, law schools need to ask themselves: how can we graduate students who are in a position to employ themselves (if they so choose) within 3 years of graduation? How can we do this at a lower cost to the students?
Depressing, maybe. But, I had a boss once who would have called it "an action opportunity."
[Meredith R. Miller]