PropertyProf Blog

Advice to Law Journals, Part 25

25 Keep up with work or it will overwhelm you. 

Actually, this is great advice for academic life in general.  And the image I use for this is from the book where I first learned this years ago--the Little Prince, who had to weed the baobabs on a daily basis or they'd overwhelm him.  Make sure you weed your garden (or in his case planet) on a daily basis or it will simply overwhelm you.  Get your cite-checking done on time, read the article submissions, deal with authors, write your note ... whatever it is that needs to be done, do it now.

I had another lesson in this when I began serving as book reviews editor of Law and History Review.  It's a great job, by the way, because it lets you keep up with the latest in the field.  And as service goes, it's pretty great because there's a high intellectual component to the job: matching up reviewers with books--trying to figure out who has a good vantage to review a book. Sometimes I try to use reviewers who have worked in similar records but for a different time period or in a different location or people who work in the same period but ask different questions. And a lot of times, of course, you want a review who's working in exactly the time and record and questions under review.  It's pretty cool.  However, it was immediately apparent to me that it would require tending on a daily basis.  Send the books out, edit the reviews when they come in, get them packaged for the press, read the page proofs....

And so this is the end of my series on advice to law journals.  I started out with 18 or so ideas and added a few along the way, some in response to readers--so that it grew to 25 pieces of advice.  I hope it's been of some use.  Though I do wonder, because some anonymous "top twenty law review editor" recently asked Eugene Volokh for some advice.  The editor wondered if it would be a good idea to require all submissions electronically.  I continue to think that law reviews should do everything they can to get scholarship in the door.  It's a bad idea to limit the ways articles will come in.  That puts the convenience of the editors above the good of the journal.  Alas, it's hard to tell law review editors this.  After all, they're in training for hierarchy and right now they're on the top of the pyramid.  (This ought to be the subject of another piece at some point.)

This is an ending of another sort as well, for I shall be giving up my position as faculty adviser of the Alabama Law Review at the end of this academic year.  It's been a huge pleasure and honor to work with the students for six years--and for six years at the Oklahoma City University Law Review before that.  I shall miss the law reviewers.  It's a great pleasure to work with people who're so smart and dedicated and are excited about writing their first piece of serious scholarship.  I think one of the reasons that faculty members often appear so youthful is that they have the good fortune to spend so much time around enthusiastic students; the students keep us young.

I'm also going to be posting here less frequently than I have for a while (I know, I know--how will the world survive?!)  For one thing, now that I've started reposting stuff I've done before. That's a sure sign that I've reached the end of my usefulness here.  You know it's time to find a new friend when you start telling the same stories and I think the same is true for blogging.

I am also committed to finishing University, Court, and Slave.  So, having said my piece for the time being, I'm only going to be posting intermittently for a while, as I work on my manuscript of University, Court, and Slave.  That's a book about moral philosophy in the old South; I'm interested in the role of slavery and property in the thought of intellectuals in the old South and how those ideas related to what happened in the judiciary.  It's a project that's consumed my life off and on since I entered graduate school in 1992 (with several multi-year detours through colonial legal thought, violence and law in the Jim Cow era, reparations, and contemporary property law) and it's something that I'm thoroughly enjoying working on.  It is relevant right now, because a bunch of schools are going back to revisit their histories with slavery.  A lot of this was inspired, I think, by Brown University's Steering Committee on Slavery and Justice.  That committee was a success and other schools are starting that process of self-investigation.  Moves are afoot at William and Mary, the University of Maryland, and Harvard for similar investigations.  We'll see where they go....

Alfred L. Brophy
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Advice to Law Journals, Part 24

We're nearing the end of advice to law journals....

24 Have some fun. 

Publishing a journal is a ton of work; try to have the experience itself be enjoyable. 

Al Brophy

Advice to Law Journals, Part 23

23  subsidize the journal (with academic credit).

One of my colleagues uses the wise phrase "if you subsidize something you'll get more of it."  I think applies well to lots of situations, including law reviews.  Want students to spend more time running the journal and producing an excellent work product?  Give them more academic credit for it.  This has received some attention of late over at Leiter Reports.  A few years ago at Alabama we increased the credit hours that the editor-in-chief and managing editors received for running the law review here, to a total of six hours.  My strong preference is for even more credit; I think the time they spend working on the journal justifies that.  It also gives a great incentive to students to take the review seriously.  My sense at the time that it was in line with the credit that the leaders of a lot of other flagship journals received.

ALB
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Propertyprof's Lunch with James Krier

I'm experimenting with some new "voices" for blogging.  This one's going to be written in Wall Street Journal Law Blog style.  We'll see how it goes.

Propertyprof blog had the pleasure of lunching with James Krier recently.  (He's visiting at Alabama this semester. Roll Tide!)  Yes, there's reason to be jealous; he's just as interesting (perhaps even more so) as you'd suspect from his casebook.  Like many other property professors, much of what propertyprof knows about property is influenced by his book.  Our students are most fortunate to have him and he's helping all three propertyprofs here to get better.  Our students are blogging about him, too! 

Propertyprof asked about the inclusion of cases.  Why, for instance, doesn't Dukeminier and Krier include The Antelope?  And when the conversation turned to cases that are in the book, why does the book include our less favorite cases, like Schwartzbaugh v. Sampson?  Well, propertyprof knows that some people find Schwartzbaugh a good teaching device.  But Krier's answer?  "Don't teach it, if you don't find it useful."  Ah, what great advice.  Where propertyprof tends to treat the casebook as our students treat cases more generally (as some form of deity), Krier says make your own way.  How Emersonian!

And then on a recent morning, Krier's advice: teach what you think is important.  Very sage advice.  We'd say that whether or not we thought Krier, like his book, some form of diety.

ALB
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Advice to Law Journals: Part 22

Haven't posted anything on law reviews of late (partly because I've been distracted by talk of a lawsuit based on nuisance by Cleveland against subprime lenders).  Congratulations, by the way, to Ben Barros for predicting this back in fall of 2005.  I wish more people had listened to you, Ben.  Perhaps it's time to put up some more advice.  This piece is aimed at faculty: 

22  give the students some autonomy.  This is their journal, after all--so let the students have the final say in how to run the journal.

Alfred L. Brophy
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Gary Rosin on ABA's Proposal Regarding Bar Pass Rates and Accreditation

We've been following South Texas Law Professor Gary Rosin's important work on bar pass rates for a while and its implications for the ABA's consideration of modifications to its law school accreditation standards. 

Here is Professor Rosin's latest report, which discusses the ABA's December 2007 draft of interpretation 301-6.  (You'll also want to read Rosin's Unpacking the Bar Exam: Of Cut Score, Competence, and Crucibles, available on ssrn.)  There current proposal is as follows (I've put it in green to make it distinguish it from the rest of the text):

    Proposed Interpretation 301-6  (Approved for Notice & Comment 12-1-07)

A.  A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:
   
1)  That for students who graduated from the law school within the five most recently completed calendar years:

    (a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
    (b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.

In demonstrating compliance under sections (1)(a) and (b), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. 

2)  That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.

In demonstrating compliance under section (2), the school must  report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.  When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.

B.  A school shall be out of compliance with the bar passage portion of Standard 301(a) if it is unable to demonstrate that it meets the requirements of paragraph A (1) or (2).

C.  A school found out of compliance under paragraph B, and that has not been able to come into compliance within the two year period specified in Rule 13(b) of the Rules of Procedure for Approval of Law Schools, may seek to demonstrate good cause for extending the period the school has to demonstrate compliance by submitting evidence of:

(i)  The school’s trend in bar passage rates for both first-time and subsequent takers: a clear trend of improvement will be considered in the school’s favor, a declining or flat trend against it.

(ii) The length of time the school’s bar passage rates have been below the first-time and ultimate rates established in paragraph A: a shorter time period will be considered in the school’s favor, a longer period against it.

(iii) Actions by the school to address bar passage, particularly the school’s academic rigor and the demonstrated value and effectiveness of the school’s academic support and bar preparation programs: value-added, effective, sustained and pervasive actions to address bar passage problems will be considered in the school’s favor; ineffective or only marginally effective programs or limited action by the school against it.

(iv) Efforts by the school to facilitate bar passage for its graduates who did not pass the bar on prior attempts: effective and sustained efforts by the school will be considered in the school’s favor; ineffective or limited efforts by the school against it.

(v) Efforts by the school to provide broader access to legal education while maintaining academic rigor: sustained meaningful efforts will be viewed in the school’s favor; intermittent or limited efforts against it.

(vi) The demonstrated likelihood that the school’s students who transfer to other ABA-approved schools will pass the bar examination:  transfers by students with a strong likelihood of passing the bar will be considered in the school’s favor, providing the school has undertaken counseling and other appropriate efforts to retain its well-performing students.

(vii) Temporary circumstances beyond the control of the school, but which the school is addressing: for example, a natural disaster that disrupts the school’s operations or a significant increase in the standard for passing the relevant bar examination(s).

(viii) Other factors, consistent with a school’s demonstrated and sustained mission, which the school considers relevant in explaining its deficient bar passage results and in explaining the school’s efforts to improve them.

Rosin finds the most recent proposal for 301-6(A)(1) "is a major step forward in at least two respects. First, to a certain extent, it takes into account cumulative Bar passage rates, including subsequent Bar passage by those who failed on the first attempt. Second, for purposes of calculating a school’s cumulative Bar passage rate, its graduates from the relevant years are considered as a group."  He identifies other problems with the proposal and concludes, "An empirical analysis of projected difference scores shows that the minus 15% difference score standard will disproportionately affect both historically black law schools, as well as law schools with part-time programs."

Of particular interest to law professors is a table, which lists 17 schools at "high risk" and another 11 schools at "moderate risk" for problems under the proposed standards.

Update:  If you'd like to see all of Professor Rosin's reports collected in one place, they're available here.  Over at concurringopinions.com, Dave Hoffman's been following this story and some time ago Bill Henderson at elsblog.org discussed bar pass scores as well.  Also, I had a little on this over at money-law some time ago and here.

Alfred L. Brophy
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Advice to Law Journals, Part 21

21  publish cartoons

This idea I got from the Journal of Legal Education.  Seems a little strange at first, but I think there're some possibilities in doing innovative things.  I think of publishing cartoons as a metaphor for innovative things.  And, hey, you might have something as entertaining as The Road to Serfdom in cartoons!  You'll recall that we've spoken a little bit about this before in this series (way back in August).

Remember, thought, that doing funky things--like publishing cartoons--can easily be overdone.  A little bit of innovation goes a long way.

Alfred L. Brophy
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Advice to Law Journals: Part 20

now a suggestion from Danny Sokol over at antitrust and competition policy blog:

20 in evaluating an interdisciplinary work, check to see if any literature is cited from outside law reviews.  Does a law and economics piece cite work from economics journals?  Does a legal history work cite what you would expect would be the relevant literature from history?  I think this is a decent (and relatively easy) way of making a rough assessment of the quality of interdisciplinary work.  Of course, this test will likely yield more false positives (that is, more articles will be found good under this test than articles that are actually good) than false negatives.

Alfred Brophy
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Advice to Law Journals, Part 19

O.K., so the year's almost out; that means, it's really past time to finish up this series on advice to law journals.  Back in June I announced it would be about 18 parts (more or less)--and I've added a few, but I'm now just a few of posts away from finishing.  And I intend on finishing sometime in January.

19 listen to faculty, but don't necessarily do everything they tell you.

Actually, this is good advice on a whole range of issues.  Remember James D. Gordon III's advice in his essay "How Not to Succeed in Law School," back in April 1991 in the Yale Law Journal?  It's one of the funniest articles I've ever read.  I talked about it in my Halloween post.  He said

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Gordon then goes on to warn students about taking the faculty's advice:

If you want to know what kind of people law professors are, ask yourself this question: 'what kind of person would give up a jillion dollar salary to drive a rusted-out Ford Pinto and wear suits made of old horse blankets?'  Think about this very carefully before asking your professor's opinion on any subject.

(100 YLJ 1679, 1668 (1991)).  I've invoked this sage advice before.

Faculty, obviously, have a lot more experience in publishing than the students who run the law journal and they ought to have more expertise in the subjects under discussion, though faculty--like students--bring their biases and limitations to the review.  They may have irrational predispositions in favor (or against) a particular article.  Faculty have a lot of good ideas; they also may have some really bad ideas.  As far back as when I was a student (which is a long time ago now), I remember one professor telling us to take an article--which we did.  Upon closer inspection (that is, during the editing process), a bunch of us thought the article had, well, some serious problems.  Perhaps we would have taken the article without that professor's urging, though I suspect not.  We allowed someone else to substitute his judgment for ours.  I've seen this sort of thing happen a couple of times over the years--including more than once when students thought that pieces I was supporting were not worthy.  Of course, I think my judgment was right and theirs wrong--but it's always more than possible that I've made a mistake.

Endnote: The image, of a few soldiers from Company A listening to a guitar player, on January 18, 1968, during operation Yellowstone, is from the National Archives.  I went searching first for an image of someone talking and people not listening, then stumbled across this powerful photograph and thought a picture of people listening might be even better.  Our policy of only posting public domain images (or images of books that we're talking about) certainly limits us, but in some ways it causes me to find more interesting pictures.

Alfred L. Brophy
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Advice to Law Journals, Part 18

18   publish your journal with open access on the web as well as in print. 

Just as journals should do everything possible to get content, they should do everything possible to facilitate distribution of that content.  This includes encouraging authors to post their articles on ssrn and bepress before publication.  I've heard some journals don't want to let authors post their articles on the web before the articles are published--or even after they're published.  To use a colloquial term, that's nuts.  Journals need to get scholarship into the hands (or before the eyes) of readers.

Endnote: The image of the Free Library of Philadelphia, from our friends at wikipedia, is supposed to illustrate making knowledge available in lots of ways at no cost.  Spent a lot of hours there when I was an undergraduate and some hours in more recent years when I was working in Philadelphia.  Not sure it's the best image for that--I wanted to use a picture of the new Alexandria Library, but couldn't find a decent one in the public domain.

Alfred L. Brophy
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Advice to Law Journals: Part 17

17    edit outside authors sparingly

We're now turning to advice to journals once they have accepted a piece.  I thought you might like a picture of Benjamin Franklin's printing press from our friends at project Gutenberg to illustrate this point: it's a mistake to edit heavily the non-student authors.

Alfred Brophy

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Advice to Law Journals, Part 16

16    use an outside board of reviewers

One of the ways of improving quality control is to ask experts in the field.  I understand that both the Harvard Law Review and the Yale Law Journal are already asking for experts outside of their schools for opinions.  Lo those many years ago when I was an editor we asked our faculty for advice on articles we were thinking about.  And at the Alabama Law Review we never accept an article without having at least one faculty member read it--though I am often the person doing the reading and since my expertise is limited to a few areas, that sometimes means that I'm reviewing articles in areas in which I have no particular knowledge of the literature or even the key questions.

I hope that in addition to using the experts to judge the quality of a piece, the journals will also communicate the evaluations to the authors.  That gives the authors one of the key benefits of peer review: feedback.

I'm not sure how that practice is working out and I'd be most interested in hearing.  The journals rely on the generosity of faculty at other schools.  I suppose that journals at Harvard and Yale can rely pretty heavily on other faculty, because those faculty may want to curry favor with the editors.  Whether the Alabama Law Review--to take one journal near my heart--could get away with asking for quick turnarounds from faculty elsewhere is an important question.  And how often you could go to the well is another one.  But at least for our nation's most elite journals, I think that asking for outsiders' opinions is an improvement.

Endnote:  While looking for a public domain image of a board of experts, scientists, whatever, to illustrate this post, I came across the lovely image of nineteenth century Haverford College faculty in their library--and that led to this cool link, to Haverford College's 1836 library catalog.

Alfred L. Brophy
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Advice to Law Journals, Part 15

Been absurdly busy of late--was at the University of Miami's lovely campus a few weeks ago for a panel on reparations and then in Chapel Hill for an awesome conference on Thomas Ruffin.  Meanwhile, I had to finish up my Thomas Dew paper.  On top of which, the hiring season is in full swing at Alabama and classes are coming to a close, as well.  November's almost over and there hasn't been a single piece of advice to law journals this whole month.  So this suggestion will be short.

15    give a short time frame for expedites

I'm not sure there's a lot more to add to this; my experience (as faculty advisor) is that when we give long time frames, we rarely land pieces.  Now, we might not have gotten them in the first place, but long time frames also make it harder to plan, because you have offers out that may be accepted.  Authors, obviously, would prefer longer time frames and you may lose some authors if you give an offer with a short period for accepting.

Alfred L. Brophy
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Advice to Law Journals, Part 14

This is one I feel really strongly about.

14    allow authors to submit pieces in any way they’d like; don’t limit to expresso or snail mail or email.

Law journals need to get good pieces into their offices in whatever way possible.  It is self-defeating to be limiting the routes they might arrive.  Articles editors--and the deans who provide the financial support for their pieces--ought to accept submissions any way possible, from courier to overnight mail, snail mail, email, and in any format--wordperfect, pdf, word, whatever.  I'm astonished that reviews won't accept submissions via wordperfect through bepress.

Endnote: The Theodore Horydczak image of a row of mailboxes is from our friends at the Library of Congress.

Alfred L. Brophy
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Advice to Law Journals, Part 13

13    search authors on google before accepting a piece

In this world that respects (with good reason) double blind peer review, we're often led to think we should not investigate an author's background.  There are great, great reasons for double blind peer review.  But as long as we've dropped the pretense of double blind review, there's some good reason to investigate authors before making an offer.  You may be quite surprised by what you find; at least, the students I've worked with have been on one or two occasions.  And, along those lines, it probably makes sense to run some kind of pre-emption check; don't just look up the author, look up the subject matter of the article you're about to accept and live with in one way or another for a while.

Alfred L. Brophy
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Advice to Law Journals: Part 12

12    select articles based on the quality of ideas in them

Sometimes articles may not be a thorough exploration of a topic, but instead have some really creative (cr maybe just simply sound) ideas at their center.  Look favorably on those kinds of articles.  As you read an article, ask yourself: does this make sense?  If so, that's a good sign.

The image needs a little explanation.  I was searching for a picture that would convey "good idea"--thought about a light bulb or a paper clip, but I settled on a book of cool science projects you can build at home.

Alfred L. Brophy

Advice to Law Journals: Part 11

11 look favorably on articles that thoroughly explore their topic.

I thought about leaving my entry at that.  But I think this deserves a little explanation.  Certainly we're all familiar with articles that open up an entirely new area for discussion and, thus, may not be thorough explorations of a topic.  But many successful pieces get to the bottom of their topic.  A piece that's thoroughly researched and the definitive word on a topic--even a narrow one--has a good chance of being successful.

Alfred Brophy
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Advice to Law Journals: Part 10

Continuing in our series on advice to law journals:

10    approach skeptically pieces that reject wholesale accepted wisdom

I read a lot of pieces that seek to remake the world.  And, while that is a noble goal, those pieces are hard to carry off well.  So, approach them skeptically, but realize that sometimes people succeed in remaking the world.  So you may be reading the next Transformation of American Law, Death of the Irreparable Injury Rule, Commodity & Propriety: Competing Visions of Property in American Legal Thought, "Two Views of the Cathedral," or "Property, Utility and Fairness: Comments on the Foundations of Just Compensation Law" (works that rejected in whole or part conventional wisdom).  And even pieces that reject wholesale wisdom and are not very successful at it may get a lot of attention.

Endnote:  The illustration needs a little explanation.  I had a hard time finding a public domain image of a skeptic, so I thought that I'd use Rembrandt's sketch of Abraham Entertaining the Angels.  Sarah, you may recall, was a skeptic.  Thanks to our friends at the National Gallery for the image.

Alfred L. Brophy

Advice to Law Journals: Part 9

9    do not reject out of hand pieces that are on esoteric subjects or that employ social science methodology

I've seen a lot of students over the years reject pieces because they are on topics that they (the editors) are not interested in--or perhaps do not understand.  In fact, a propos of this I was having lunch on Friday with a student who's working on a terrific empirical study of probate in antebellum Tuscaloosa.  (We've praised Lawrence Friedman et alia's recent empirical work on probate here.)  When talk turned to placing the article, he looked at me and said--rather pessimistically--"I guess a lot of editors will look at this and say 'I don't want to deal with cite-checking this.'"  I'm sure he's right; but that would be a mistake for an editor to say that.  They'll miss an opportunity in this case--and in lots of other ones, too--to publish something that's original and makes a significant contribution.

Alfred L. Brophy
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Advice to Law Journals: Part 8

8    think seriously about articles on“hot” topics–-they are both good and deserve caution.

There is a lot to be said for articles on "hot topics"--they'll get attention; people are interested in reading them.  Then again, it's also often difficult to say something new about such topics.  It's hard to have something new to say in a thickly populated field.  And fads are notoriously unstable--what's "on fire" today may go out of fashion. 

Then again, where are some areas--empirical legal studies is one of them--where there's a lot of great work to be done and that are sure to stay hot for a long time.  We're finally turning to data to help solve some questions.

So look closely at "hot" topics--they may be great or perhaps not.

Endnote: The image of the sun is from our friends at NASA.

Alfred L. Brophy
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At last some honesty (and perspective) about rankings

In the wake of Appalachian State's defeat of Michigan, there has been interminable discussion around my college town about rankings of college football teams.  Almost rivals the feeding frenzy around the US News rankings of law schools--almost, but not quite.  At last this morning's Newsday brings some honesty about rankings, a quotation from the man who started the AP rankings of college teams back in 1936:

The idea of a national poll, Alan Gould said when he introduced it for AP in 1936, was "to develop interest and controversy between football Saturdays. Newspapers wanted material to fill space between games. That's all I had in mind, something to keep the pot boiling. Sports was living off controversy, opinion, whatever. This was just another exercise in hoopla."

Isn't what this law school rankings business is all about--some more hoopla?  It sells some copies of US News, gives deans and students some bragging rights, and gives us in the academy something to shoot for and something to talk about.  But Mr. Gould helps us keep these sorts of things in perspective.

Now, back to work on my essay on Thomas Roderick Dew's Digest of the Laws, Customs, Manners, and Institutions of Ancient and Modern Nations.

Advice to Law Journals: Part 7

Another installment in our continuing series on advice to law journals.

7    Think seriously about younger authors.  These pieces may be quite good and well-thought-through.  They may represent the best of the new thinking on a topic, they may be particularly well-researched and honed, because younger scholars are putting their very best efforts into the piece.  Other journals looking to land pieces by more established scholars may overlook pieces that are quite good by less-established authors.   

Then again, rookies also make some pretty common mistakes.  At some point I'd like to talk a little bit about those mistakes, including taking on too much, trying to rethink a field without a sufficient understanding of the field, and focusing on issues that aren't important.

Alfred L.Brophy
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Advice to Law Journals: Part 6

Up until now, my advice to law journals has largely been suggestions of ways to get more and better pieces.  Now I'm going to turn to some things to avoid--or at least be wary about.

6   Approach “big idea” pieces skeptically.

Everyone's always interested in big ideas--rethinking takings doctrine, Johnson v. M'Intosh.  Every once in a blue moon something comes along that warps up out of our ways of thinking.  Richard Epstein's Takings and Frank Michaelman's "Property, Utility and Fairness: Comments on the Ethical Foundations of 'Just Compensation'," are two that come immediately to mind; Lindsay Robertson's Conquest by Law is another.  Sure, you may be reading the next two tiered theory of article III.  And a lot of times those pieces get citations; however, there's also some reason for being suspicious of the new.  We can all think of pieces that aspire to something large and that are a flop. Big think pieces ain't easy to write and it's uncommon for everyone to have been wrong all along about a major theory.  So the big think pieces--fun as they are to write and read--may not be successful.  In fact, I think they're rather unlikely to be successful.

It's time to do some empirical work on how often big think pieces are successful (for example, in terms of citations).  But for the time being I'd wary of them, while recognizing that some are very, very good.  Of course, even if wrong, they may be great "Thought Starters" and for that reason along may be something you want to publish.  So there's good reason to give them a hard look, as we say in administrative law.

Endnote: The public domain version of Rodin's The Thinker is from our friends at wikipedia.

Alfred L. Brophy
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Advice to Law Journals: Part 5

After reading the cartoon (yes, literally, its made up largely of a cartoon) essay on legal scholarship in the most recent Journal of Legal Education, I realize I need to continue with advice to law journals. At some point I'll talk about that interesting piece (William J. Aceves et al., "The Orthodoxy of Format: Some Sketches of Legal Scholarship,"56 JLE 636 (2006)); I expect it'll get some attention.  Most surprising piece of it all?  I didn't realize that there was a cartoon version of Hayek's Road to Serfdom, until I saw it cited in note 6!  Get this--it was published by GM in its "Thought Starter Series."  Now that's something I'd like to know more about; bet that's a great source for intellectual history of the U.S. around the time of the New Deal.  (OK--I know this is far afield from propertyprof, but in 1938 Time had  a riveting discussion of GM's marketing man, Henry Woodfin Grady, who developed the "Thought Starter Series.")

While I'm all in favor of expanding the boundaries of legal scholarship, I have to wonder whether cartoons will enhance the apparently declining fortunes of legal scholarship among judges.  I think there are great reasons for experimenting with new forms of scholarship--great reasons--but I'm not sure this move will reach more judges.  Anyway, here's installment five.  (And, come to think of it, maybe I need to tack on one additional entry at the end on cartoons....)

Publish book reviews.  Based on some data that citations guru John Doyle's been running, it looks like book reviews aren't as useful as articles in getting citations (not surprising here)--though I'll let John blog about these at some point.  But I think book reviews are great ways of getting readership, helping create discussion, and recruit some pieces that will get some attention.  We too infrequently talk to one another in the legal academic business and reviews are great ways of engaging people--of getting thoughtful commentary on an extended argument.  Clash of ideas--now there's something we need in the legal academy and may actually get.  And this, as another piece of advice to younger scholars, write book reviews.  They're a great way of getting involved into a debate without writing something that takes years.

Next installment will have some advice on things to avoid--or at least be cautious of....

Alfred L. Brophy
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Advice to Law Journals Part 4

I spent a part of this morning welcoming the new editors of the Alabama Law Review.  I reminded them of the fun and learning experiences they'll have over the next four semesters.  And while some might liken this speech and student editing of journals more generally to chapter 2 of Tom Sawyer, I think law review will be a really positive intellectual experience for the students.  I also reminded them that the review is our school's ambassador to the rest of legal education and that our school will likely be judged by the quality of work that they produce.  (More thoughts on this here and here.)  As people who write on the history of the book say, if you want to know something about the minds of a people, read their literature.

That reminds me that I need to post some more on my continuing series (in 18 parts more or less) on advice to law journals.  This one is very closely related to the last piece of advice:

4.  Another way to get better work than typically walks itself in the door (or at least work by bigger names is: publish distinguished lectures.  Lots of law reviews in recent years have very successfully recruited essays (and sometimes longer articles) by distinguished senior faculty who have given talks at their law school.  We're all familiar with some of the grand lecture series and the work they've produced.  When I was in school everyone spoke about Herbert Wechsler's Holmes lecture, which resulted in "Toward Neutral Principles of Constitutional Law" in the Harvard Law Review in 1959.  And then there is Robert Bork's "Neutral Principles and Some First Amendment Problems," which appeared in the Indiana Law Journal in 1971--one of the most-cited articles of all-time.  Lots of times these lectures become books, like Grant Gilmore's Storrs' lectures that ended up as Ages of American Law.  (Ages hasn't worn all that well over time, but that's a separate matter and one to be taken up at another time and perhaps on another blog).  But lots of reviews have, I think, done a very nice job with getting thoughtful distinguished scholars (particularly in recent years youngish scholars who have done great work and are on the verge of becoming very distinguished) to give lectures and then publish work in their law journals. 

Particularly for schools that pick people who are about to become famous (or semi-famous), this shows some creativity and may be another sign of the thoughtfulness and intellectual culture of a school.  I'm not sure it shows a whole lot of creativity to invite Cass Sunstein or Richard Epstein or Lawrence Tribe or Richard Posner or any of a whole list of other huge figures to give a distinguished lecture.  But it might show tons of creativity and thoughtfulness to invite a youngish scholar who's already done great work.  But either way, if you secure a thoughtful piece, you're likely to have some really high quality work.  And I suspect that publishing distinguished lectures avoids some of the pitfalls associated with pre-placements of symposium pieces: the distinguished scholars will want to put their best feet forward for a public audience.

Alfred L. Brophy
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Advice to Law Journals: Part 3

Continuing on the series on advice to law journals....

My third piece of advice to law reviews seeking to improve is to publish symposia.  At least for journals outside of the top fifty or so, I think this is very sound advice (and probably pretty good for all reviews).  You can likely solicit people who'll produce better pieces than you're likely to get if you rely on what walks in the door.  And you give good authors a reason to publish in your journal. 

Some journals have been very successful with this in recent years.  The Chicago-Kent Law Review springs to mind and Loyola LA has moved to an all-symposium format as well (though I don't think there's been enough time to know how well that has worked just yet).  The Fordham, DePaul, Albany, and Thomas Jefferson law reviews have used symposia very successfully as well in recent years, to name a few that come to mind quickly.  Fordham Law Review has been spectacularly successful in recent years and at some point I'd like to investigate what led to their success--I bet it's in part due to some excellent symposia.

There is a danger of committing to pieces sight-unseen.  There is little incentive for the authors to then turn in their best work.

Alfred L. Brophy
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Advice to Law Journals: Part 2

It's been a long time since I last wrote about advice to law reviews.  Following up on my promised series, here's installment two, just in time as student editors get back to school.... 

2.  Involve faculty in the selection of note topics and their writing
    One of the great difficulties for students is selecting a topic to write on; a good topic's critical.  In fact, I think a good idea is indispensable--and if you have a good idea, even if the execution leaves something to be desired, you'll at least have something that will attract an audience and maybe promote some further work.  You're going to spend a lot of time working on a note and it's good to have something workable from the start.  Faculty often have an excellent idea of whether a topic's workable and can help from shaping the initial questions through the research and writing.  At the Alabama Law Review, each student is required to work with a faculty member in the development of the note.  It's nice to have someone who has a sense of how manageable a topic is, how to scale down unwieldy projects, and how to weld together questions and research and how to back out of one-way alleys.

Of course, related to this is the idea that students have to actually take the advice they're given.  As a student--and more so as a faculty member--I haven't always taken good advice, though I try to take as much of it as a I can recognize.  So perhaps a corollary piece of advice here is: work with faculty and listen to them.

Alfred Brophy
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Advice to Law Journals: In Eighteen Parts (more or less)

I've been very quiet of late.  Mostly this is due to the crush of work--committee work (heard something like thirty job talks last year, for instance, and that's not the half of committee work); taught a new trusts class in the spring, which had a serious practical component; trying to finish a supplemental casebook that I'm co-authoring with Alberto Lopez and Kali Murray (more on this as we finish that up) on ways to integrate race into the property curriculum--it's tentatively titled "Integrating Spaces," and desperately trying to work on pieces on implied beneficiaries in trust law, monument law, and moral philosophy in between everything else.  Also (as if anyone cares), moving--which spins off an amusing story about some covenants on the new place.  Suffice it to say for the time being, there won't be any signs in my yard or pine trees, for that matter, though there will always be at least two trees in the front yard.  Bet there's an interesting story behind the no pine trees covenant.  Also, there's a creative attempt to make the covenants, essentially, last forever.  That's worth a few chuckles.  More on all this later.

In the interim, lots of other stuff to talk about, including (the almost propertyprof topic of) Gordon Wood's review of Robin Einhorn's American Slavery, American Taxation in the most recent issue of New York Review of Books (it raises some great issues of how legal historians balance concerns over the present, which cause us to ask historical questions, with the “critical control” over ourselves as historians that is necessary to avoid having our histories devolve into argument by (a)historical anecdote or, worse, brainwashing by historical example.)

I'm still thinking about law reviews.  And so I'm going to "workshop" some thoughts: ways to improve a  law journal.  It takes its inspiration from a charming essay some years ago (1999) in the Journal of Legal Education by James Lindgren, "Fifty Ways to Promote Scholarship" (available at Hein-on-line here).  So far, I have only eighteen ways to improve the law journal. But I imagine that as I work through these over the coming weeks, some more will bubble up (I hope from readers, though maybe I'll have a few more thoughts as well).

Maybe I'll put it together with another very brief essay I started writing some years ago, "Law review editorship as training for hierarchy."  Derivative of Duncan Kennedy, of course; though I go in a somewhat different direction from him.  I suppose the thesis is pretty obvious from the title.

So, back to the eighteen pieces.  My plan (we'll see how long this lasts) is to post a piece or a few pieces of advice on how to improve a law journal at a time.  My sense is that a lot of journals are already doing some of these things; maybe there won't be anything new, though I have at least one suggestion that I think is highly unusual.  Only one journal that I know of does it; to preserve the suspense, I'll put that towards the end of the series.

So let me start off with my first piece of advice:

1.  Involve faculty in the selection of articles.

One of the great complaints of law reviews is that selections of articles are made by students.  Having the faculty involved in the selection is one pretty simple response.  Perhaps the best balance between student control and faculty consultation involves faculty vetting articles once the student articles editors have done an initial cull.  This was the process that the Columbia Law Review used way back before the flood when I was an editor, though it was driven by the articles editors' seeking about faculty.  Though perhaps here I'm thinking more of a top-down approach: the faculty imposing the requirement on the editors that they get approval before making an offer.

This, of course, raises the question: are the faculty any better at picking articles than the students?  You may just be substituting one groups' prejudices for those of another.  At a minimum, faculty will have read more scholarship than the students and so ought to have more experience with what types of questions and methods will generate a successful piece.  One hopes, moreover, that the law review will match up the subject of the article under review with faculty who have some expertise in the subject.  I worry this may, sometimes, lead to uneven standards, however.  I think I'm probably more positive in my recommendations about anything put in front of me than some of my colleagues (and probably less positive than others).  So students reading a review of an article I write may be more inclined to accept it than if another of my colleagues wrote the review.  Moreover, I think there are problems with asking faculty about articles written by their friends (or, I suppose--though I hope and suspect this is rarer, their enemies).  And the former problem is exacerbated if the students look to faculty to recommend pieces cold--that is, if the students allow faculty to walk the articles of colleagues at other schools into the law review offices.

Next installment after I return from conferencing and get some more work done.

Alfred L. Brophy
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AALS Property Section Listserv

I've recently received a number of questions about signing up for the AALS Property Section's listserv.  To sign-up, just fill out this form.  You must be a member of the AALS Property Section to join.  I highly recommend it -- the discussion on the listserv has been very informative.

On a related note, I should clarify that while I'm chair-elect of the Property Section, and often promote various Section events here, there is no formal connection between the Property Section and this blog.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

More on the 70% Bar Pass Proposal

Last week, Al had a post on an ABA proposal regarding bar passage rates that referenced a letter from Gary Rosin in opposition to the proposal.  Brady Coleman, one of Gary's colleagues at South Texas, has sent along a letter disagreeing with Gary's position and arguing in favor of the ABA proposal.  I disagree with some of Brady's points, but his letter, which is reproduced in its entirety below the fold, raises some arguments that should be considered by anyone interested in this issue.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Dan Freehling, Deputy Consultant
Section of Legal Education and Admission to the Bar
American Bar Association
321 N. Clark St.
Chicago, IL 60610

May 19, 2007

Dear Mr. Freehling,

RE: ABA Accreditation Interpretation 301.6

We all know that bar passage rates have gone down nationally by a significant percentage in recent years.    What to do?  This large reduction in national bar passage rates represents a significant amount of wasted time and money and student humiliation.   The extra unqualified admitted students may bring additional funding to financially strapped law schools, whose opinions on the new ABA interpretation might be treated with some caution.   By firming up the 70 percent rule, the ABA is on the right track.    First, let me state my assumptions:

1. "Cut" scores are set by the state board of bar examiners. Most often this board is an agency of the highest state court in the jurisdiction, but occasionally the board is connected more closely to the state's bar association.   

2. The quality of entering law students (and hence their predicted bar passage rates) are of course set by individual schools (and annually varying demographic and unemployment, etc. elements).

Then, the larger question becomes: who do we want to entrust bar passage rates with, 1) individual law schools through their admission policies, or 2) bar examiners (who have the same flexibility as law schools to lower or raise standards by simply adjusting their cut scores down or up as desired).

The “blunt” 70 percent argument is a red herring; it gives the impression of a hard line where flexibility is actually present; it is indeed "blunt" in appearance but the ability of states to adjust cut scores makes it anything but blunt.  Indeed, a fixed number avoids some state-based algorithm under changing state conditions which would create a nightmare of complexity.

Anyway, the ABA has wisely with the new "70 percent" proposal apparently compared the relative objectivity and motivations of these two respective institutions, law schools and bar examiners:

1) Individual law schools are motivated to, inter alia:

(a) Keep higher bar passage rates for reasons including maximizing the number of applications, U.S. News rankings, prestige, alumni giving, and so on.

But contrarily motivated by:

(b) The willingness to accept lower bar passage rates for often overwhelming and pre-existing financial obligations (more students = more funding).

There is no easy way to determine how these two contradictory motivations play out in any given (ethical) law school, (and other factors are relevant) but my experience is that often short-sighted but powerful institutional budgetary forces may give (b) (above) more sway in many schools, particularly lower-ranked schools with smaller endowments.

Compare the motivations of the other set of institutions, state bar examiners:

2) Bar examiners we might imagine are motivated to 'adjust' cut scores (and therefore passage rates) by similarly contradictory concerns:

(a) a monopolistic desire on the part of existing influential practitioners to minimize the number of lawyers in their jurisdiction, by increasing cut scores, thereby maximizing their own incomes; the effect of this factor is obviously related to the ability of practitioners to influence 'cut scores' (as opposed to, say, the state judiciary, directly or indirectly).   My understanding is that the judiciary can in most states influence 'cut scores' rather significantly, because of its power over bar examiners.    Litigation can be (and has) been the ultimate result.  Another motivation for bar examiners is the need for a minimal level of competency by legal professionals (although this is likely overrated, as a fair percentage of legal practitioners engage in rather routine clerical work).

But contrarily motivated by:

(b) The ethical concern to act in opposition to the need of legal educators to accept unqualified students for financial reasons when statistics reveal the odds are that they will spend three exhausting and expensive years without a law license, but typically burdened with large debt.

In conclusion: state bar examiners, regulated by the non – financially motivated judiciary, should be preferred to create the most appropriate number of lawyers in a given state than either that of budgetary-influenced law schools (or practitioners).

An often stated rationale for keeping the bar passage rate more flexible is the need to keep minorities in the profession.   Indeed, this country needs a percentage of lawyers roughly proportionate to the percentage of each racial or ethnic group in the population (for various reasons).    But the Orwellian argument against a firmer 70 percent rule is ‘diversity,’ and is based on the need to achieve this by sustaining a system of ‘historically’ black law schools (supposedly to be eliminated by the 70 percent rule).   But, at least at the law school level, these schools do precisely the opposite: minimizing law school racial diversity at nearby institutions in those regions where historically black law schools exist (not to mention at the historical black law schools themselves).     Segregation is exaggerated, not reduced.  A gradual attainment of the 70 percent requirement would force law schools to become more diverse, not less, assuming racial disparities in bar passage continue, and assuming wise law school administrators see the advantages of an ethnic and racial balance of law student representation.

Almost the entire world (except the USA) gives law degrees at the undergraduate level.  Little is wasted even in countries with very low passage rates (Japan, Korea), because an additional three years of education has not been required.   Folks with law degrees just go on to work as non lawyers, often at high prestige jobs, with their law B.A.'s.

But because America requires such a massive investment of money and time into obtaining this professional degree, we owe it to our students to keep a stricter minimum bar passage rate. 

It should be clear by balancing the two sets of contradictory impulses by the two institutions above which is the better positioned to establish such minimums, as the ABA has recognized, and will hopefully implement.   

In years ahead, I predict that the proposed interpretation will, if enacted: (1) require lower ranked schools to ‘shrink’ so as to maintain the needed bar passage rate and student quality; and (2) gradually increase the diversity of law schools as institutions with sub 70 averages are forced to integrate more successfully.

Sincerely,

Brady Coleman
Associate Professor
South Texas College of Law
bcoleman@stcl.edu

Hylton Rankings: US News Without the Clutter, 2007-08 Edition

I'm just back from Gettysburg College--more on the great conference in a few days, as well as some thoughts on monument law inspired by questions I had while wandering around the battlefield. 

Gordon Hylton posted his latest edition of the Hylton rankings in the comments to my quick takes on the US News rankings.  I thought that I'd move them up from the comments.  Also, our friends over at elsblog have these as well.  Dedicated propertyprof readers may recall that I'm a fan of Hylton and the rankings.  I'll have some more thoughts on this shortly, I hope.  As ususal, I think we ought to be supplementing our assessment of schools by looking at law journals (and maybe also secondary journals).  Here's Gordon's report:

THE  2007-08  HYLTON  RANKINGS
of American Law Schools

Introduction: The Hylton Rankings rank American law schools in an order which reflects the way that they are regarded by law school professors and students. The Rankings are named [by propertyprof] for their compiler, Professor J. Gordon Hylton of Marquette University.

The Hylton Rankings are calculated using data presented in the annual rating of law schools published by the U.S. News and World Report. However, while the US News rankings are based on a variety of factors, the Hylton Rankings are based only on the peer assessment ratings provided by law professors and by the mean LSAT scores of each law school. The other US News Report categories are either arbitrary or redundant with the two used in the Hylton Rankings. Grade point average depends on undergraduate institution and major; assessment by lawyers and judges is usually just blind guessing; acceptance rates are a function of the applicant pool and subject to manipulation; employment statistics are a function of the school’s prestige and are affected by local and regional market conditions; and bar passage rates are a function of how rigorously the exam is graded and the composition of the pool of bar takers. In contrast, peer assessment tells us what law professors think about individual law schools, and LSAT scores tell us what students think about the school.

The Hylton Rankings are thus a rating based on institutional prestige and reputation rather than actual educational quality. The Hylton Rankings assume that the quality of legal education provided by ABA-accredited law schools varies very little from institution to institution.

Unlike the US News ratings, the Hylton Rankings list law schools from #1 to #184. This, of course, can be highly misleading, as the difference between one school and the next is always quite small. However, those schools at the top of the list contain a larger percentage of academically talented students and are more highly regarded by law professors than those at the bottom. The top 19 schools have raw scores above 70 (out of a possible 100) while the bottom 23 schools have raw scores between 30 and 40. The raw scores listed next to the names of the school can be used to compute the actual distance between any two schools on the list.

The 2007-08 Rankings:

FIRST QUARTILE Raw Score, 2006 Ranking

1.  Yale    92   2
2.  Harvard  90   1
3.  Columbia  87.5   3
4.  University of Chicago 86.5   5
4.  Stanford  86.5   3
6.  New York University 86   6
7.  Michigan 83   8
7.  Virginia 83   7
9.   Pennsylvania  82   9
10.  California—Berkeley  80 10
10.  Georgetown 80 11
12.  Northwestern 79 12
13.  Cornell 78 14
13.  Duke  78 13
15.  UCLA  75.5 15
16.  Texas 75 15
17.  Southern California 73 17
18.  Vanderbilt  72.5 18
19.  Minnesota         70 19
20.  Washington University 69.5 21
21.  Boston University         68.5 23
21.  George Washington         68.5 20
21.  Notre Dame 68.5 25
21.  Washington & Lee         68.5 21
25.  Emory 68 27
26.  Illinois  67.5 23
27.  Boston College 67 29
27.  Fordham  67 26
29.  California-Davis  66 33
29.  North Carolina  66 27
29.  William & Mary 66 30
32.  Iowa  64.5 30
32.  Wisconsin         64.5 30
34.  California—Hastings  63.5 33
34.  Ohio State 63.5 37
34.  University of Washington         63.5 64
37.  Wake Forest 63 35
38.  Indiana-Bloomington 62.5 37
39.  Arizona 62 39
39.  Colorado 62 42
41.  Brigham Young 61.5 44
41.  Maryland 61.5 47
43.  Tulane 61 39
44.  Yeshiva-Cardozo 60.5 45
45.  Alabama 60 51
45.  Connecticut 60 47
45.  George Mason 60 47
45.  Georgia 60 42

More below the fold.

SECOND QUARTILE          Raw Score 2006 Ranking

49.  American 59.5 46
49.  San Diego 59.5 47
51.  Brooklyn 59 52
51.  Florida 59 39
53.  Arizona St. 57.5 60
53.  Florida St. 57.5 56
53.  Pittsburgh 57.5 58
53.  Villanova 57.5 53
57.  Chicago-Kent 57 53
57.  Oregon 57 63
57.  SMU  57 67
57.  Temple 57 56
61.  Utah 56.5 53
62.  Case Western 56 58
62.  Lewis & Clark 56 71
62.  Loyola-Chicago 56 71
62.  Loyola-Los Angeles 56 60
62.  Miami 56 63
62.  Rutgers-Camden 56 63
68.  Houston 55.5 60
68.  Seton Hall 55.5 71
70.  Baylor 54 63
70. Cincinnati 54 71
70.  Kansas 54 79
70.  Missouri 54 68
70.  Tennessee         54 68
75.  Kentucky 53.5 68
75.  Richmond         53.5 76
77.  Rutgers-Newark 53 76
78.  Georgia St. 52.5 84
78.  Pepperdine 52.5 87
78.  Santa Clara 52.5 79
78.  St. Johns 52.5 76
82.  Catholic 52 83
82.  DePaul 52 81
82.  Hawaii 52 84
82.  Northeastern 52 71
86.  Denver 51.5 81
86.  Indiana-Indianapolis 51.5 91
88.  Nebraska 51 91
88.  Oklahoma         51 87
90.  UNLV 50.5 102
90.  South Carolina 50.5 91

THIRD QUARTILE Raw Score 2006 Ranking

92.  Marquette         50 91
92.  New Mexico 50 102
92.  Penn St.-Dickenson 50 105
92.  San Francisco 50 87
92.  St. Louis 50 87
92.  Wayne St.         50 97
98.  LSU 49.5 95
98.  Louisville 49.5 97
98.  Michigan St. 49.5 97
98.  Seattle 49.5 105
98.  SUNY-Buffalo 49.5 95
103.  Syracuse         49 97
104.  Hofstra 48.5 84
104.  Willamette 48.5 111
106.  Arkansas-Fayetteville 48 105
107.  Maine 47.5 104
107.  Pacific-McGeorge         47.5 97
107.  Quinnipiac 47.5 111
107.  Toledo 47.5 105
111.  Mississippi 47 109
112.  Albany 46 111
112.  Gonzaga         46 121
114.  Akron 45.5 111
114.  Drake 45.5 124
114.  Mercer 45.5 117
114.  New York Law 45.5 111
114.  Samford-Cumberland 45.5 128
114.  Stetson 45.5 121
114.  Suffolk  45.5 121
121.  Creighton 45 135
121.  Missouri-Kansas City 45 111
121.  Pace 45 117
121.  Vermont         45 109
125.  Arkansas-Little Rock 44.5 117
125.  Washburn         44.5 142
127.  Cleveland St. 44 128
127.  Idaho 44 117
127.  St. Thomas (MN)         44 ---
127.  Texas Tech 44 124
127.  William Mitchell         44 134
132.  Chapman         43.5 148
132.  Hamline 43.5 128
132.  Loyola-New Orleans 43.5 124
132.  Memphis         43.5 128
136.  Howard 43 139