Legal Profession Blog

Tenured Professor Dismissal Upheld

The Indiana Supreme Court has affirmed the grant of summary judgment to the defendant in a suit brought by a tenured faculty member of the University of Evansville, who sought review of a determination to dismiss him from the faculty.

The action involved an incident between the tenured faculty member and his department head. While the department head was interviewing a prospective student and her parents, the professor walked into the lounge with a female student, said "Hi, Sweetie" to the department head and "walked up to her - standing with his belt buckle at her eye-level, about a foot from her face - and stroked his fingers under her chin and along her neck."

The incident resulted in a formal complaint, a disciplinary process, the professor's dismissal, and two lawsuits. (Mike Frisch)

Duhl on Dealing with Mental Illness in Law School and Practice

In a revealing and candid essay, and review of the sparse literature on mental illness among law professors, Gregory Duhl (Law, Wm. Mitchell) includes a narrative from the "outsider" experience of his own issues with borderline personality disorder. Among many interesting aspects is his contention that his success is in some senses because of his illness and not despite it--and in that way criticizes some aspects of the pathbreaking book by Louiville's James Jones, A Hidden Madness. Duhl's article is new on SSRN and is entitled "Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life." His abstract:

This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.

[Alan Childress]

More summer reading before law school begins

Posted by Alan Childress

We've written before on good books to read before starting law school. Or good activities, including travel or Doing Nothing (but biking W.I. is illegal in North Dakota). To update that: our senior admissions dean at Tulane, Susan Krinsky, gave me permission to link her own collected list of good reads before law school. Here it is (and thank you, Susan): Download Suggested Reading List 2012_Final.

 

New edition of Llewellyn's The Bramble Bush to read before law school; mystery novel by Lawrence Friedman

As Jeff will be pleased to know (since he is aware I have worked on this for two years), I worked with Stewart Macaulay (Wisc., Law) to produce a new edition of Karl Llewellyn's classic The Bramble Bush, with Macaulay's intro and notes. It is a great read the summer before law school, if one wants summer reading then. Here is the paperback and Kindle link; it is also on Apple and Nook. Llewellyn had very idealistic views of the legal profession--the last chapter is a rejoinder to a Carl Sandburg poem that wonders why the hearse-horse snickers when carrying a lawyer's bones? But most of the book is a how-to for 1Ls that is, surprisingly (or sadly) still on-the-nose for course prep and exams. I hope people are happy we brought it back--and especially that we fixed the errors in other reprints of it. There are no "cannons of jurisprudence," Oxford.

More on summer reading before law school in my previous post collecting lists on that.

Less relevant to the blog topic, Lawrence Friedman and I released his second mystery novel, about the adventures of trusts and estates lawyer Frank May. Amazon is here.

And new Harvard Law Review issue 6 is in Kindle here. [Alan Childress]

New book 'Hot Topics in the Legal Profession - 2012' and old classic 'The Bramble Bush'

As promised last weekend, I announce a book truly on-topic for LPB. This is a collection of essays, on ethics and broader issues of the U.S. profession, from students in my Advanced Professional Responsibility Seminar last year. I added an intro but really the substance is in their 14 chapters. Their topics include:

...false guilty pleas and candor to the court, ethical considerations in keeping the client's files as a digital record, legal outsourcing and competition, the dilemma of student debt in a slowed legal economy, the practice of law by legal websites like LegalZoom, the capital defense of Jared Lee Loughner, Justice Scalia's constitutional seminar for conservative congressmembers, sensitivity to "cultural competence" in legal education and practice, prosecutorial relationships with key witnesses, bar discipline for behavior outside the practice of law, negotiation ethics, hybridized MDL settlements, and the advocate-witness rule.

It is available now in paperback at Amazon or the QP page; plus such eBooks as Kindle and Nook, and at Apple iBooks and iTunes bookstores. Proceeds benefit Tulane's Public Interest Law Foundation, so even if it is not a book you'd buy or download for yourself, please consider asking the law library to acquire a paperback.

Also out is the eBook of an old but amazingly relevant book of advice for prelaw and 1L law students, Karl Llewellyn's The Bramble Bush (e.g., in Kindle). I was pretty amazed he discussed active learning, visualizing case facts, better note-taking, and a script for case-briefing and the uses of precedent. Still is a perennial recommended read for the summer before law school, on lots of lists. This classic had not been released in eBooks before today. Sort of odd how little 1L classes and reading have changed.

[Alan Childress]

Welcome To Jim Jones

Georgetown Law has announced a significant addition to its Center for the Study of the Legal Profession:

Georgetown University Law Center Dean William M. Treanor is pleased to announce that James Jones, former chair of the Hildebrandt Institute and managing partner of Arnold & Porter, will assume the role of senior fellow with Georgetown Law’s Center for the Study of the Legal Profession, beginning in January 2012.

"Jim Jones is one of the world’s leading thinkers about trends in law practice and the legal profession," said Dean Treanor. "His affiliation with Georgetown will enhance our ability to anticipate changes in the legal profession, strengthen our efforts to prepare students to meet the challenges they will face and enrich the research that we do on a profession undergoing profound changes."

Jones has served over the years in a variety of leadership positions in the legal industry. He spent more than 20 years at Arnold & Porter, serving as managing partner of the firm from 1986 to 1995. From 1995 to 2000, he was vice chairman and general counsel of APCO Worldwide. Since 2001, he has been at Hildebrandt International (later Hildebrandt Baker Robbins), a leading consultant to law firms and legal departments around the globe. For the past four years, he served as Hildebrandt's managing director. Since 2000, Jones also served as chair of the Hildebrandt Institute, the division responsible for executive education and research activities. Jones received his J.D. from New York University in 1970.

Jones has served since 1993 as chair of the Pro Bono Institute. He was also instrumental in the creation of TrustLaw, a project of the Thomson Reuters Foundation designed to promote pro bono collaboration between leading law firms and major NGOs throughout the world. He is an author and frequent speaker on topics relating to the "business of law" and has been a regular speaker to student audiences at Georgetown on trends in the legal profession.

On his new relationship with Georgetown Law, Jones said, "I am delighted to be affiliated with the Georgetown Center for the Study of the Legal Profession. Under the able direction of Mitt Regan and Jeff Bauman, the Center and its talented members have already made a positive impact on the legal profession through insightful research and publications, as well as well-focused educational programs. I look forward to contributing to the Center's success in the future, particularly in the area of executive education."

The Center for the Study of the Legal Profession was created in 2007 to promote interdisciplinary scholarship on the legal profession informed by the dynamics of modern practice; provide students and faculty with an understanding of the opportunities and challenges of a 21st century legal career; and furnish members of the bar, particularly those in public and private decision-making positions, broad perspectives on trends and developments in law practice.

(Mike Frisch)

Law Student Prosecutor Immune From Civil Suit

A third-year law student intern who prosecuted an assault case under a student practice rule is entitled to immunity from a civil suit filed by the defendant, according to a recent decision of the Montana Supreme Court. The attorney who authorized the representation also was absolved of liability.

The court affirmed a lower court dismissal of the suit:

Spreadbury asserts on appeal that summary judgment was inappropriate because (1) an unlicensed law student may not act as a lawyer in a criminal proceeding; (2) prosecutorial immunity is not available to the law student and her supervisor; (3) the District Court erred in ignoring his claim of criminal contempt based on Wetzsteon’s violation of the Student Practice Rule; and (4) Corn, as Wetzsteon’s supervisor, was personally liable under the Student Practice Rule in the event Wetzsteon is found to be in violation of the Rule.

In granting Wetzsteon and Corn’s motion for summary judgment, the District Court, without analysis, concluded Wetzsteon and Corn had prosecutorial immunity from all of the claims raised by Spreadbury. The court further concluded that Spreadbury presented no facts creating a material question; rather, he merely set forth speculative and conclusory statements. As such, the District Court ruled Wetzsteon and Corn were entitled to summary judgment as a matter of law. The court dismissed Spreadbury’s complaint with prejudice.

Reviewing the record in this case and the relevant provisions of the Student Practice Rule, we conclude neither Wetzsteon nor Corn violated the Rule. Additionally, had Wetzsteon or Corn failed to strictly comply with the Rule, Spreadbury has presented no legal authority to support his argument that such lack of compliance deprives a student prosecutor or the supervising prosecutor of prosecutorial immunity.

The defendant was charged with assault. He was convicted in absentia when he failed to appear for trial after the case had been continued over his objection. The conviction was overturned on appeal based on a speedy trial violation (Mike Frisch)

How Not to Retire and Teach at Tennessee: Visiting Professorship in Business Law

Posted by Jeff Lipshaw

There's an interesting opportunity to dip one's toes in academic waters (see Memo to Lawyers: How Not to "Retire and Teach" for an appetizer and Becoming a Law Professor: A Candidate's Guide for the whole meal).  Note the preference specified in the ad (my emphasis).  Tennessee (under the leadership of Joan Heminway and George Kuney) has a first-rate business law program, and it would be a tremendous experience for the aspiring academician:

The University of Tennessee College of Law invites applications for a one-semester visiting faculty position, to commence in the spring semester of 2012 to teach Business Associations or Secured Transactions and another business law related course of their own choosing through the Clayton Center for Entrepreneurial Law.

JOB QUALIFICATIONS: Successful applicants must have a strong academic and practice background. Preference may be given to those applicants who are seeking to enter the academy from private practice. In furtherance of the University's and the College's fundamental commitment to a diverse faculty, minority group members and women are strongly encouraged to apply.

APPLICATION PROCEDURE: Applications, including a letter of intent, resume, and the names and addresses of three references, should be sent to:

CONTACT: George W. Kuney W.P. Toms Distinguished Professor of Law and Director of the Clayton Center for Entrepreneurial Law The University of Tennessee College of Law 1505 W. Cumberland Avenue Knoxville, TN 37996-1810

The University of Tennessee is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA institution in the provision of its education and employment programs and services. All qualified applicants will receive equal consideration for employment without regard to race, color, national origin, religion, sex, pregnancy, marital status, sexual orientation, gender identity, age, physical or mental disability, or covered veteran status.

The Writing On The Wall

The New Appellate Division for the Second Judicial Department affirmed an order dismissing claims by a legal writing professor at Hofstra:

Beginning in July 2000, the petitioner was employed as a legal writing teacher at the Hofstra University School of Law (hereinafter the law school). In the fall of 2008, he submitted an application for reappointment and for a five-year contract as a member of the legal writing faculty. The petitioner's application was subsequently denied on the ground that there was a significant decline in his teaching performance since the execution of his last contract.

The petitioner commenced this proceeding to review the denial of his application for reappointment and for a five-year contract. The petition alleged, among other things, that the decision not to offer him a five-year contract was arbitrary and capricious and was made in violation of the rules of the law school, which set forth the procedure to be followed when considering applications for reappointment. The Supreme Court denied the petition and dismissed the proceeding. We affirm.

"One of the most sensitive functions of the university administration is the appointment, promotion and retention of the faculty" (New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 322). Courts will "only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning" (Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28, 38).

Accordingly, "judicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited" (Matter of Perinpanayagam v University at Buffalo, 39 AD3d 1220, 1221). "In reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious" (Matter of Lipsky v New York Inst. of Tech., 69 AD3d 725, 725-726; see Gertler v Goodgold, 107 AD2d 481, 487, affd 66 NY2d 946; see also Matter of Gray v Canisius Coll. of Buffalo, 76 AD2d 30, 36-37).

Contrary to the petitioner's contention, the determination that there was a significant decline in his teaching performance since the execution of his last contract was not made without sound basis in reason or regard to the facts, and the petitioner failed to demonstrate that the determination to deny his application was arbitrary or capricious (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231). Moreover, even if the law school's Committee on Appointment, Reappointment, and Promotion of Clinical Skills, Legal Writing, and Academic Support Faculty (hereinafter the Committee) failed to conduct the exact number of classroom and student conference observations outlined in the rules promulgated by the law school, we conclude that the observations undertaken by the Committee constituted substantial compliance under the circumstances (see Gurstein v Bard Coll., 280 AD2d 264; Matter of Loebl v New York Univ., 255 AD2d 257, 258-259; see also Tedeschi v Wagner Coll., 49 NY2d 652, 660-661).

Furthermore, the petitioner's contention that the reappointment process failed to include a decision by "the Law School Faculty" does not require reversal. The record discloses a rational basis upon which the respondents could have concluded that the petitioner waived his right to this portion of the reappointment process (see Matter of Lipsky v New York Inst. of Tech., 69 AD3d at 725-726), especially given his failure to raise this issue in the context of the administrative appeal which was provided to him at his request (see Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1610).

(Mike Frisch)

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

Georgetown Law Seeks Externship Director

A job posting just announced at Georgetown:

Georgetown University Law Center is seeking to hire a Externship Director.  We are looking for a person with both administrative and teaching skills who can build and grow an excellent program.  The Externship Director will be responsible for all aspects of the program, including: assisting students in finding appropriate placements; ensuring the quality of student placements; designing and teaching "bookend" classes at the beginning and end of the semester in which students define their learning goals and then reflect on whether they have achieved them; and holding individual student reflection sessions throughout the semester.  The Externship Director will be supervised by the Associate Dean for Clinical Programs and Experiential Learning; because this is not a faculty position, there is no scholarship requirement.  Teaching experience and familiarity with public interest, non-profit and/or governmental entities are desirable.   Please send a resume and cover letter to Associate Dean Deborah Epstein, epstein@law.georgetown.edu.  Applications must be received by November 12th, 2010.   

(Mike Frisch)

Rutgers Clinic Subject To Open Records Act

The New Jersey Appellate Division has reversed a trial court decision that the Rutgers Environmental Law Clinic was not subject to the state's Open Public Records Act ("OPRA").

The plaintiffs had sought documents relating to the clinic's finances and its representation of two private citizens' groups that were opposing the proposed development of an outlet mall.

The court here concluded that the trial court erred in exempting the clinic from OPRA and remanded to the trial court for a determination whether specific documents are exempt from disclosure under the definition of "public records." The trial court also must determine if records should be disclosed under a common lasw right to access. (Mike Frisch)

Fall Newsletter by AALS Professional Responsibility Section Is Available for Download, Packed with Info

Through the generosity of the AALS Section on Professional Responsibility and the hard work of many people and especially its editor Margaret Tarkington, a BYU law prof who is visiting at Cinncy right now, comes the fall newsletter: Download Fall_2010_Newsletter.  It contains recent developments, bibliography, a letter from the Chair, and announcements including job postings, conferences, calls for papers, and the like. Margaret's own recent article contributing to this field is The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567 (2009).  [Alan Childress]

Theory and Practice in Contract Law Pedagogy

For those of you interested in how a longtime practitioner tries to dig into the theoretical basis of a legal education in contracts, I'm guest blogging this month over at The Faculty Lounge, and have offered up some thoughts on concepts and metaphors in contract law.   [Jeff Lipshaw]

The Future of the Legal Academy - Redux

Posted by Jeff Lipshaw

There's been a small outbreak in the blogosphere of the practitioner-professoriat wars, and I think we can trace this instance of virulence to a screed by someone named Bruce Newton dispassionately entitled Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.  I suspect our readership tends to the practitioner, so here's a set of links to the academic side of the house, including Paul Caron, Steve Bainbridge, Rick Garnett, Paul Horwitz, Jason Mazzone (HT Solum), Lawrence Solum on Jason Mazzone, Kristen Holmquist, Jonathan Adler, and the Anonymous Law Librarian.

Given as I am, generally, to skepticism about either-or positions, and partial as I am both to practical skills and to impractical scholarship (having done a lot of each), I stick by my dean speech from several weeks ago.  The Mazzone post, which went up today, returns to a theme I'm pretty sure Larry Solum has worked with over the last several years, the idea of a department of legal studies that is part of the university housing sciences and the humanities, requires a Ph.D. for entry, and is separate from the professional training schools.  Nevertheless, as I mentioned to Larry in an e-mail earlier today, the realpolitik of the situation is that the academic reputation of the school is largely the basis for its recruitment of high ability students, high ability students reinforce the academic reputation of the school, and there's a vicious or virtuous circle (depending on your point of view).  What that keeps saying to me is that there really is less "training" than meets the eye, and far more filtering of pure analytical ability, in the same way that college athletics filter pure athletic talent.  Other failure modes, like arrogance, poor judgment, poor social skills, etc., are more difficult to filter in school, and are "later-career" differentiators.  When I was hiring lawyers, both as the member of a committee in a big firm, and as a GC looking for more mature lawyers, the critical thing was talent, not particular skills.  And we (or I) filtered for the other failure modes.

And, notwithstanding the meltdown of the last couple years, the markets for lawyer talent have pretty much worked in that way, at least in Big Law.  Having said that, the markets (students and firms) now seem to be demanding skills training, although I find that evidence to be anecdotal more than compelling.  More importantly, all of us seem to be recognizing that the base level of legal training necessary to identify talented lawyers doesn't extend much beyond the traditional first year curriculum.  So there's a logical focus on revamping the second and third years.

I'm teaching first year contracts for the first time since the fall 2005 at Wake Forest, when I taught a doctrinal class for the first time (and barely knew what I was doing).  The reasons I'm a "stick to doctrine" skeptic for law school became apparent again to me as I confronted the unreality of most of the traditional contract law syllabus.  I started on an article about frames of reference, no doubt far too impractical to concern those focused merely on practical (or doctrinal competencies), but I've excerpted a motivating anecdote below the fold.

Here's the excerpt:

Friends of ours who lived in the Chicago area owned a small house in a resort area in northern Michigan. He was the CEO of a large corporation. They decided they wanted to knock down the house and rebuild, hired an architect, got zoning approval, and came to an oral understanding with a builder in the area who not only had done many projects with the architects, but had successfully completed a much larger house for one of our friends' cousins. The builder gave our friends his standard four-page contract, which they proceeded to give to their lawyer in Chicago for review. The lawyer not only marked it up, but also added a fifteen-page addendum, including a lengthy "Certificate of Limited Warranty." Our friend called to tell me that the builder had received the markup, called her, and was "freaking out."

There was nothing wrong with the contract our friends' lawyer was proposing; in the right frame (say, between a commercial developer and a large-scale builder), it would have been a typical contract negotiation. The unreality in this context was the very idea that the risk allocation provisions of the proposed draft (including the so-called limited warranty), dependent on resort to adjudication for resolution, had value. Indeed, because they caused a rift in the relationship between the builder and our friends, they may have had negative value. The lawyer did exactly what transactional lawyers applying a legal before-the-fact frame of reference are trained to do. "Thinking like a lawyer" means imagining hypothetical future disputes, and then crafting contract language designed to having the client prevail if the hypothesized facts obtain. Moreover, thinking like a lawyer wholly within the contract frame of reference means viewing the hypothetical future disputes as real, and therefore as cost-laden, as the construction itself.

Stepping back, however, we can see that adopting the contract frame was only one of various approaches to the contingency and uncertainty. The operative frame for the builder, working as he did in a small town, was "trust." My assessment was that anticipating litigation (and therefore constructing complex risk allocation models in the contract) was the wrong frame to have predominated in the discussion; it was unrealistic to expect that post-construction dispute resolution had value. Indeed, most of the remedies, it seemed to me, were non-legal. The contract needed to provide that our friends tightly controlled the disbursement process so that the state of completion roughly matched the funds expended and lien waivers obtained. It meant understanding how small residential builders actually worked and fitting a model of project supervision to the usual frame (at least in northern Michigan) of trust and the minimally necessary legal rights, rather than forcing the situation into an unrealistic frame of contractual rights, duties, and remedies.

The point generally is not to ignore the "thinking like a lawyer" frame, but both to master its techniques and understand its limitations in expressing understandings or achieving results. To propose an analogy, it is well known that Picasso was a masterful representational artist. His pencil drawings were sublime. Nevertheless, even having mastered the technique, he found it insufficient for the meanings he wanted to convey in his art, and he adopted different frames (albeit expressed in modes or styles of painting).

Kvelling*

Posted by Jeff Lipshaw

Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.

One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana.  This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims.  As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."

* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."

Becoming a Law Professor: A Candidate's Guide

Posted by Jeff Lipshaw

Several years ago, I published a little essay about making the leap into tenure-track legal academia well after the time in which most long-standing faculty members would have expected one's theoretical and scholarly synapses to have burned away.  Simultaneously, Brannon Denning (Cumberland, left) and Marcia McCormick (St. Louis, right) were preparing a book manuscript on what it would take to become a law professor "the hard way," i.e., if you didn't have the usual elite law school-law review editor-Court of Appeals clerkship pedigree.  Brannon and Marcia invited me to join their project and it quickly turned into an all-purpose guide for aspiring law professors, accumulating much of the wisdom and lore that you can find in various places on the web.

Thanks primarily to Brannon's perseverance, we got the interest of ABA Book Publishing, and Becoming a Law Professor:  A Candidate's Guide will hit the streets in just a few weeks.  Rick Paszkiet, our editor at the ABA, has graciously allowed us to post the Table of Contents and the introductory chapter on SSRN.

Here's the abstract from SSRN:

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.

We have had a nice response from the pre-publication readers, and Larry Solum has contributed an insightful forward, which he has posted separately on SSRN:  The New Realities of the Legal Academy.  Here's Larry's abstract:

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming.

One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many years ago, entry into the elite legal academy was mostly a function of two things—credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington. Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections—the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules. Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood. In what we now call the “bad old days,” it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.

But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so.

This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.

Take a peek at the SSRN teasers and look for the book!

Mercer Announces New Moot Court Competition in Legal Ethics

Announcing the First Annual Mercer Law School Moot Court Competition in Legal Ethics & Professionalism
 
Mercer University Walter F. George School of Law, home of the Mercer Center for Legal Ethics and Professionalism, will host the only national moot court competition focusing on legal ethics and professionalism.  The competition will take place November 12-13, 2010 at Mercer Law School in Macon, Georgia.
 
The competition will consist of the submission of an appellate brief, as well as several rounds of oral argument.  Rounds will begin on Friday November 12, with a reception Friday night at the Georgia Music Hall of Fame.  The competition will conclude with a final round late Saturday afternoon.
 
The competition rules will be posted by September 1, 2010.  The problem will be released on September 15, 2010, and briefs are due (by e-mail and postmark) by midnight on October 15, 2010. 
Early registration deadline is August 23, 2010.  Early registration is $300 for one team, or two teams may register for $500.  After August 23, registration will be $350 for one team and $600 for two teams.

[Alan Childress, from the AALS Section on PR listserv]

Holmes' The Common Law in Annotated form; summer reading before law school begins

Posted by Alan Childress

A brief follow-up to my post last week on The Common Law, in which I trashed current online and digital versions of the book for being poorly scanned and never proofread, incomplete and unusable. So I published a cheap one that is in fact the words Holmes wrote, mainly for Amazon Kindle and its free apps for iPad, PCs, Mac, BB, and smart phones. 

Now, I also published to Kindle (and also ePub for Nook and Apple, a Sony one, and active PDF and simple rtf formats for just computers without apps, all at Smashwords) a much-expanded version, annotated, which includes some 200 of my notes inserted to explain what Holmes meant and underlying legal terms he uses. There is a need for noted-and-demystified versions of many old but still-great books in law, philosophy, and social sciences, and so I welcome manuscript ideas a reader may have. For example, I know Jeff could take some great work by Kant and insert his decoding notes into it, and Patrick S. O'Donnell could do the same for other works of classic philosophy and religion (yes, P, we'd do it in paperback too and kill trees). Mainly this involved my sharing with a reader what I already knew but would be foreign to college students and 1Ls. In the case of Holmes, sometimes that was just translating his words from older dialect that I recognized from growing up with old Southern people!  You see annotated Shakespeare and Cervantes, so I welcome proposals for the same in law, etc.

This is also a follow-up to the post we had a couple years back , The Summer Before Law School?, on good books to read the summer between college and the start of 1L. Lots of school websites and others have such lists, including a really extensive and insightful one by Tulane's Susan Krinsky to incoming law students, which includes fun fiction: Download ReadingList2008.

To the extent such lists do not include The Common Law, even though it's one of the best law books ever and Holmes surveys the field of basic 1L classes like crim, torts, and contracts (still great on consideration, on versions of crim and tortious intent, and on the reasonable person test), I think it is because the work is considered a tough read. It uses dated language plus some Latin and even Greek, while assuming a familiarity with legal concepts that 1L readers would not yet have (e.g., what's "an action in case"? a law-bound student would wonder).  I hope that I have decoded it and accessibilized it for that use, and for others in college and law school classes, as the book is actually very helpful and understandable to a wide audience if there are just some little insertions and pointers along the way.  The annotated edition is cheap, too, and includes simple PDF and online versions.

UPDATE: Since this site is linking all the front matter and into chapter one as a free sample, have at it. It includes my foreword and the bio of Holmes, his extensive plan for the book, and three of my annotations in ch. 1 so you can see what they do for it. 

Also now out at Smashwords are three great books I have brought back from paperback purgatory to go ebook:  Jerold Auerbach, Jacob's Voices: Reflections of a Wandering American Jew; Joel Handler, Law and the Search for Community; Kitty Calavita, Inside the State: The Bracero Program, Immigration and the INS.  These will be on Amazon by next week. UPDATE 2: They are now on Amazon and links are Auerbach . . . Calavita . . . Handler.  See also Lisa Webley and her Dissertation on legal profession in UK in divorce cases, at Amazon and Smashy.

It Is, Sir, As I Have Said, A Small College...

The New Hampshire Supreme Court affirmed the grant of summary judgment to the trustees of Dartmouth College in a breach of contact dispute brought by a tenured faculty member in the theater department. The department had been placed in "receivership" because of the "contentious atmosphere within the department." A confidential letter suggested that the professor was a "corrosive influence." The professor was offered an early retirement package and a change in teaching assignment. She then filed an EEOC complaint, which was dismissed.

Here, the court agreed with the trial court that the professor's reassignment in duties was not a "major change" in employment and not a disciplinary action that triggered procedural rights. The professor had been neither terminated nor placed on involuntary leave. Rather, she had been assigned to teach writing courses.

The First Circuit affirmed the dismissal of the EEOC claim.

Here's a post on the dispute from the Dartmouth Review. Their take on the situation in January 2006:

Perhaps most stunning, however, is the disdain that both Prof. Sabinson and the administration share for the First-Year Writing Program. Sabinson, who herself is the first to admit that “I am not an expository writer and cannot competently teach the First-Year Writing Seminars,” was forced in 2005 to accept a course-load of three writing seminars for this academic year. Sabinson regards the writing seminars as “harassment” that were designed to “humiliate” her—hardly the way one would expect a member of the faculty to approach one of Dartmouth’s most important tasks, that of teaching undergraduates basic writing skills. Moreover, she is by no means the only one with such an opinion. More grave, though, is the fact that writing seminar assignments are fobbed off on professors who adamantly maintain that they are not capable of teaching them. The administration’s action towards Mara Sabinson shows nothing less than a callous disregard for the writing program, furthering the already-existing impression among many faculty members: that writing classes are a pain to teach and detrimental to professional advancement.

And at the same time that Parkhurst is playing politics with First-Year Writing seminars, the Departmental Editing Program has fallen by the wayside. Created by the always-querulous Joe Asch ’79 in 2002, the DEP provided a common-sense solution to Dartmouth’s writing program: hiring professionals (mainly former high school English teachers) for each department who have knowledge of its unique needs and writing style and are solely dedicated to improving student prose. Asch himself funded the editors as a pilot program for four years, to rave reviews from students and faculty alike. But now the administration has told him thanks, but no thanks—they have no desire to fund the editors themselves; they’ve got the Student Center for Research Writing, and Information Technology (RWiT) already. Never mind that RWiT’s method of student writing tutors suffered a “scathing” outside review by professors from other Ivy League professors in 2002. The administration’s writing program policy thus boils down to forcing professors who don’t know writing to teach it, while turning away talented editors who do want to teach writing. And they wonder why student prose is so tortuous?

The root problem of much of the Sabinson case, as it is for so many other problems at the College (chief among them the recent budget imbroglios), is the administration’s culture of secrecy. A certain amount of secrecy obviously needs to be preserved in the administration’s decisions—tenure decisions, for instance, are best kept under wraps. But simple matters like student complaints about professors, dissatisfaction with teaching styles, and the determination of how writing at the College will be taught can and should be made in the open. If administrators spent a little more time explaining their decision-making processes to the public, they might save themselves a lot of future embarrassment and lawsuits.

(Mike Frisch)