ContractsProf Blog

Residential Appointments at the Harvard Project on the Foundations of Private Law

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2023. The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project seeks applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law.

Application materials are due to Bradford Conner (conner at law.harvard.edu) by 9:00 a.m. on February 28, 2023. Details on both the fellowship and the application can be found at http://blogs.harvard.edu/privatelaw/people/ under "Apply to be a Postdoctoral Fellow."

Visiting Position at Wyoming College of Law

The University of Wyoming College of Law welcomes applications for a Visiting Professor at any faculty rank to teach in the areas of business law and/or commercial law.  Specific curricular needs include, possibly Contracts, Business Organizations, Secured Transactions, Consumer Protection, and Securities Regulation.  This position can be either for a full-time, 1-year appointment or a 1-semester appointment. 

We especially welcome applications from candidates who would enhance the diversity of our faculty. Applicants for these positions should hold a J.D. degree from an accredited law school, have distinguished academic credentials, relevant legal experience, and a demonstrated commitment to outstanding teaching, research, and scholarship. The University of Wyoming is dedicated to ensuring a fair and safe environment for our faculty, staff, students, and visitors.  For more information, please contact Associate Dean Sam Kalen.

Sam Kalen
Associate Dean
University of Wyoming College of Law
Dept. 3035
1000 E. University Avenue
Laramie, WY. 82071
skalen@uwyo.edu

Update on the Robot Lawyer in Court

My student Jewel Porter provided me with the following update on the DoNotPay story that we ran last week.

Nice to see that DoNotPay has not forgotten his ABCs -- the rest of the thread is about the other marvelous services his company provides.

Alas, there is just no way to find out whether DoNotPay's robotic attorney could actually help a customer beat a parking ticket.  Or is there? If Mr. Browder is really interested in trying out his robotic attorney in a real setting (but apparently not one in which his liberty is at stake), my offer stands.  In exchange for a $1 million donation to my law school, I am ready to organize a Supreme Court style moot court at which Mr. Browder can show us the capabilities of his AI attorney.  This offer is contingent on us coming to formal agreement and all rules being followed.

Curious minds might inquire what State Bar prosecutors are and whether they have the authority to throw someone in jail for six months.  Do robots not get due process?

Yale and Harvard Leave USNews Rankings: A View from the Other Legal Academy

As reported by Anemona Hartocollis in The New York Times here, Yale Law School and Harvard Law School have announced that they are no longer going to cooperate in the US News and World Report law school rankings process.  Dean Heather Gerken (right) of Yale explains Yale's reasons here.  Dean John Manning (Left) of Harvard explains Harvard's reasons here.  Their reasons are good, solid, and in my view commendable.  If you have not already done so, you should read their brief explanations of their reasons.  I have a few quick thoughts.

First, it is not clear that this decision will have any impact on the rankings.  Yale is #1 and has been #1 since the 1990s.  Harvard is currently #4, and that must suck, but Harvard is likely to retain its status as a top-ten law school even if US News should continue to resist the reforms to its algorithms that the Deans are demanding.  The bulk of the information that US News uses to compile its rankings is publicly available.  That's why low-ranked law schools that are unhappy with their rankings cannot simply pull out.  US News will still rank them, just a little more sloppily and without giving the low-ranked law schools a chance to plead their case. 

Moreover, according to US News, 40% of the its ranking score is based on reputational surveys.  According to Sarah Lawsky, somewhere between 1/3 of 2/5 of entry-level hires at law schools got their J.D.'s from either Yale or Harvard.  Surveys of law professors account for 25% of the US News ranking.  Advantage: Yale and Harvard.  No doubt, Yale and Harvard grads are overrepresented among the other legal professionals surveyed.  If US News stands its ground and continues to include Harvard and Yale in its surveys, its graduates are still likely to rank their alma maters very highly.  And they are not alone.  I've never been to either Yale or Harvard law school. Still, knowing many academics who earned their law degrees at Yale and Harvard, and knowing the writings of current and past faculty at those institutions, I would also rank them at the top.  I can't say the same for the University of Mississippi Law School (a school chosen more or less at random).  I'm sure it's a fine law school, with fine faculty members and fine graduates, but off the top of my head, I can't name any.  And I'm confident the good people at that law school would say the same about my law school.  

Over on the Twitter, someone from The Legal Academy opined that, without USNews, law schools are unregulated, and "predatory" law schools would just take every applicant without any consequence, even if the admitted students are incapable of becoming lawyers.  Once again, when really smart people say things about my work environment that are so obviously wrong, I conclude that they must be working in a completely different environment.  Down here in the Other Legal Academy, we give little or no thought to USNews rankings.  We are unranked and will remain so.  Every once in a while an unranked school might jump up to number 130 or so, but the reasons for the change are mysterious, and often the boost is fleeting.  Absent a deus ex machina, such as an eight-figure donor or a state university that wants to adopt a private, non-profit law school, not much changes near the bottom.

It may well be that folks in The Legal Academy can scoff at ABA regulators, but here in The Other Legal Academy, deans sweat, administrative assistants work overtime, and even faculty members toil over planning documents, inspections, and follow-ups, because ABA sanctions are an existential threat.  My former law school was shut down in the aftermath of ABA discipline.  The USNews rankings remained unchanged, and that institution had long since given up on trying to move that needle.  I have been at my new institution for over two years, and I don't recall any conversations with colleagues, staff, administrators, or students about US News.  Compliance with ABA regulations comes up all the time.  If I even mention the ABA to my Associate Dean, she flies into a rage.  In fact, last month, her face turned green and she took to carrying a broomstick (as illustrated at right, where she is pictured with our dapper Dean), and I can only assume it had something to do with the ABA.

So, no, the very institutions that people in the Legal Academy think ought to be regulated by USNews are largely indifferent to it.  It ignores us, and we reciprocate.  We are instead regulated by . . . our regulators, the ABA.  US News matters to The Legal Academy.  And it may well be that the law schools at the top of the heap have the market power to regulate their regulator.  US News does not have a lot going for it other than its rankings.  If Yale and Harvard can get their chief competitors to stop cooperating with US News, they may be able to force some changes in US News's approach.  And that would be all to the good.  Either way, Yale will remain #1, and Harvard will stay in the top five, if not the top three.

Being Talked About . . .

Last week and the week before, I put up a three-part post (here, here, and here) on what I see as the major differences between teaching at top law schools, which I called "The Legal Academy," and teaching in the schools that I have taught at for most of my career, which I call "The Other Legal Academy."  The posts gathered quite a bit of attention on Twitter.  

According to Oscar Wilde, there is only one thing worse than being talked about and that is not being talked about.  But Oscar Wilde was never talked about on Twitter. . . . 

I joke.  People on Twitter had nice and interesting things to say.  There, and in private correspondence, people in the OLA thanked me for giving voice to their experience.  Other people in the OLA shared their very different experiences in the OLA.  As they say on Twitter, YMMV.  People in the LA reached out to try to bridge the gap between the LA and the OLA.  I appreciate their efforts, but I think they to some extent misconstrued my point.  

I set out as an academic hoping to have the kind of life that my professors had.  I do not have that life, but I love my professional life, and I don't know if I would be happy in the LA.  I also recognize that there are trade-offs.  As Joni Mitchell puts it, "Something's lost, but something's gained in living every day."  Moreover, the very different ways in which people in the LA and the OLA need to allocate their time steadily widens the gulf between my part of OLA and the LA.  Differences in resources and certain structural formations push us farther apart.  I wasn't writing in the hopes of sparking a reform movement.  I was just describing the situation as I have experienced it.  But the LA and the OLA will always overlap to some extent, and I am happy about that.  

Now, over at Prawfsblawg, Jeff Lipshaw has more nice and interesting things to say about his very different experiences in the OLA.  His is an interesting perspective to compare with mine, as Jeff and I have crossed paths numerous times, in large part because of our overlapping interests in commercial law and German social theory.  He focuses on his life as a scholar.  He has not felt as cut off from the LA as I have.  

I started the series noting that there are "at least" two legal academies, and Jeff teaches at a school that is somewhere between where I teach and the LA of my youthful fantasies.  He teaches in a major city, home to plenty of other law schools.  But some of the differences just have to do with differences between Jeff and me.  Perhaps those differences have to do with our personalities or our professional drive, perhaps Jeff is a more talented scholar than I am.  Again YMMV.

The least talked-about part of my three-part post was the part about teaching.  Perhaps that is because that part came last and people were just tired of the topic and or my authorial voice, which was tendentious right from the start.  Perhaps it's because teaching is so personal and idiosyncratic.  But I think the differences in teaching in the OLA and the LA drive everything else.  

The Two Legal Academies, Part III: Teaching

In the first post in this series, I said that I have come to believe that there are at least two legal academies, and I argued that there are two job search processes operating on parallel tracks.  Top schools grab established scholars from rivals or less well-ranked institutions and make entry-level hires to Ph.D.'s and people who recently completed positions as visiting assistant professors (VAPs) in top programs.  But in the job market in which I operate, we don't especially prize Ph.D.s (not that there's anything wrong with it), and the top people won't take our offers anyway.  We look for scholarly promise, commitment to teaching, and practice experience to which our students can relate. 

In the second post, I went into more detail about what separates The Legal Academy (LA) from The Other Legal Academy (OLA) in terms of scholarship.  The two posts resonated with a lot of people on Twitter, but in that forum people emphasized more than I have the "at least" part in my opening post.  I have not addressed the other parallel universes of legal writing instructors and clinicians, who may or may not be tenure-track, the world of adjuncts, or the experiences of people who teach law or in law-related fields on the college level.  I won't address those other parts of the legal academy much here either because other people are better situated than I am to do so.  

Teaching burdens fall unequally throughout the academy, and inequities abound.  But the point of these posts is not to highlight inequity.  I envy people in the LA, but I do not resent them, nor do I think I deserve to be where they are.  I've gotten good at what I do.  I don't know if I would be successful in the LA.  Also, I'm really grateful to be in the OLA.  I lost my job in 2020 when my law school closed, and my career prospects were grim as a 56-year-old professor emeritus of a no-longer-exiting law school.  Being able to continue my career in the OLA is a privilege and a pleasure.  I'm not throwing away my shot. 

But what does that mean in the OLA?  I'm no longer young, scrappy and hungry, but like most people (I think) and certainly like most professionals, I want my life to mean something.  I noted in the previous post that I no longer think that my scholarship will have any impact.  It seems comical that I ever did think that it would. Some people in the OLA focus on local issues and law reform, but I have never been that practical.  I enjoy theoretical inquiry.  I have wanted to be an academic since I was 18, and I never deviated.  It's not that I never wanted to effect social change; I saw myself as one of the people that make sure that efforts at effecting social change have the proper, historically-rooted, economically sound, theoretical foundations. [Yes, I'm being self-mocking, but it's not far off.]

For reasons given in last post, I no longer have any confidence that my scholarship is any good.  But I'm pretty confident that I'm a good teacher, and for the last decade or so, my professional identity has been dominated by efforts at improving in that realm, because that is in my view, without question, the most important thing we do in the OLA.  To be honest, I think teaching is also the most important thing going on in the LA, but there, because the students are largely self-sufficient, it is enough to do no harm in the classroom, and I think endowed chairs are rarely awarded in the LA for great teaching.  It is easier in the LA to think of oneself primarily as a scholar.  Back when I was on the job market, I occasionally had screener interviews with LA schools in which teaching never came up.

We teach a lot in the OLA, although it's nothing compared to the teaching load of legal writing instructors and clinicians or of people who teach undergraduates.  [Sidebar: one of the reasons why people in the OLA should never feel sorry for themselves is that we get paid twice as much to teach half the course load, and we don't have to publish (at least) a book for tenure.]  The teaching load in the OLA  is not that different from the LA -- usually 2/2 -- but sabbaticals are rare, and you only get one semester off.  One can get a break from service responsibilities by visiting at another law school, but very few OLA professors do so.  I was able to do so a couple of times earlier in my career, but such positions tend to arise at the last minute, as associate deans scramble to address emergency needs, and an OLA professor can't jump ship in June or July without creating an emergency for their own associate dean.  

The bigger difference, at the law schools where I have mostly taught, is that half of the admitted class will only pass the bar with the help of courses designed to help them to do so.  I have my views about having to teach to the test, but I say my secular version of the serenity prayer and work with the cards I've been dealt.  What this means on the practical level is that I do bar prep in first-year contracts, and I do it again when I teach sales.  That means that I focus a lot on doctrine, which is not surprising, but also that I give assessments throughout the semester that test students' knowledge, build their legal writing skills, and help them develop UBE-specific test-taking strategies. 

What follows is idiosyncratic.  I'm not claiming that what I do is typical of teaching in the OLA.  I'm only saying that I do this because I'm in the OLA.  It would be a waste of time for students at top law schools.  I'm also not suggesting that others should do what I do.  There are lots of ways to be a dedicated law professor in the OLA.  This is one.

I won't go into the details of the assignments, but I spend 10-12 weekends during the Fall semester grading homework.  I have 70-80 contracts students each Fall, so I don't grade them all every week, but there are three different types of homework, and each student gets graded on each type at least once.  They each get feedback from me on their homework five times over the course of the semester in addition to the in-class midterm.  I also invite students to submit for my comments any of the half-dozen or so  practice essays I assign over the course of the semester and which we go over in class.  Not very many students take advantage of the option of turning in draft essays, but the option is there for those who do.

In the Spring semester contracts course, I replace the homework with three quizzes scattered throughout the semester.  At the beginning of the semester the students are disappointed, because they like the feedback.  I have three reasons for not continuing: they have already gotten the main benefit of the early feedback; they have an additional doctrinal course in the Spring and so are more pressed for time; and most importantly, I just don't think I could keep up the grading through both semesters without getting burnt out.  Legal writing instructors, I salute you. 

I admit it.  Grading is the part of the job I like least.  I used to think it was because student writing is sometimes miserable, but I have come to realize that each grading episode is a fresh encounter with my own pedagogical shortcomings.  I recite Beckett's version of the serenity prayer: "Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better." Also, not throwing away my shot (right).

Bar prep is not the only thing I do when I teach contracts.  We talk policy, I introduce them to various jurisprudential approaches, and I still believe that there is such a thing as "thinking like a lawyer," so I try to make that a theme as well.  I divide my class into two sections of 35-40, and on a typical day, I engage 20-25 of them in each section in some sort of Socratic exchange.  On the best days (thanks, Lucy v. Zehmer and Leonard v. PepsiCo.!), every student talks.  I'm  emphasizing the bar prep component in this post because that's what makes my experience of teaching in the OLA so very different from teaching in the LA.  At least, I think it does.  I've never taught in the LA, so I am to some extent engaged in conjecture, but when I was a law student, I did not think about the bar exam at all until I had to prepare for it, and I don't recall any references to bar prep in any of my courses.

There are other differences that matter.  I have been called paternalistic and authoritarian on Twitter because I take attendance and think students are better off without their laptops.    So be it.  I have written about the former here and here.  I am told that my students are adults.  I don't disagree exactly, but I think it is more accurate to say that  they are emerging adults.  In any case, they don't always make good decisions. If you think otherwise, talk to your dean of students.  They'll have some stories to tell.  I am unpersuaded that the best way to respect my students' autonomy is to do nothing to nudge them towards a disciplined approach to their legal education.  I bind my students to the mast so that they may experience autonomy free from caprice.  But I would be less of a paternalist if I taught in the LA, where I could be confident that my students would have successful law careers without such nudges.   

The other difference is that my students are not my peers, and almost none of them ever will be.  The analogy to Canadian hockey players that I employed in the last post was lifted from a post I wrote years ago about the challenges my students face:

By the time these students arrive at law school, they seem less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools.  Standardized tests tells us this is the case.  They are none of those things.  They are bright, ambitious people who were born in December.  They never got the training that the students born in January got.  They never were asked to compete on the same level.  They never got the same encouragement.  They sat out entire seasons due to outside pressures that prevented them from focusing on their own careers.  

And now they arrive at law school, and nothing as changed. . . .  They are still subject to the same outside pressures that prevented them from getting the most out of their college educational experiences. . . . No matter how many times we tell them that being a law student is a full-time job, the message does not sink in for students from families who think of school as a part-time endeavor supplemented with a "real job."  . . . When I confronted my students in a bar prep course on contracts. . . with evidence showing that almost none of our graduates who worked while studying for the bar passed the bar exam, they responded with outraged exclamations: "Well, I've gotta eat!"

I derive a lot of pleasure from helping my students, but my students cannot regularly help me.  I hire them as research assistants to try to help them become better researchers and writers.  Only rarely can I use their work.  For the most part, I can't bounce scholarly ideas off of them and expect valuable feedback.  I have a special FaceBook page so that I can keep up socially with former students.  Our professional paths do not cross once they graduate.  All told, as far as I know, I have had two students in all my years of teaching who have gone into law teaching, even on the adjunct level.  I have had one law student with a Ph.D.  In short, what. I do in the OLA is vocational training.  It is not graduate school, and I think in the LA it is (or can be) something of a hybrid.

This difference does not affect my professional life.  It is my professional life.  And I'll stop there.  On this Labor Day, I have student papers to respond to.

The Two Legal Academies, Part II: Scholarship

In the first post in this series, I focused on how different the hiring market looks from the perspective of an unranked school compared to how it looks in the top schools.  The response I got on Twitter and through private correspondence suggests that a lot of people involved in hiring at unranked or lower-ranked schools feel the same way.  Today's post is about doing scholarship in The Other Legal Academy.  The last post will be about teaching in The Other Legal Academy.  In these posts, I am less confident than I was in the first that I speak for many others, but I think what I have to say will resonate with at least some of my colleagues in The Other Legal Academy.

I should start by thanking Orin Kerr (right), whose excellent podcast, The Legal Academy, helped me crystallize my thoughts on this subject.  That podcast featured interviews with some very accomplished law professors who described what it is like to work, teach, and do scholarship in The Legal Academy.  I love listening to such people.  They are inspiring, insightful, witty, and wise.  Each has a unique narrative.  But their lives and work overlap with mine only slightly.  I wrote to Orin and pointed out that there is a different legal academy out there.  Because his podcast was in part aimed at job candidates, I thought he should let them know that not every c.v. looks like that of Orin's first guest, Akhil Amar.  Professor Amar went from Yale College, directly into Yale Law School, directly to a Supreme Court clerkship, directly into teaching at Yale Law School, where he's been ever since, other than some guest teaching stints. [Correction: Professor Amar clerked for Stephen Breyer, but that was when he was Judge Breyer of the First Circuit -- thanks to Guha Krishnamurthi for that correction!]  Professor Amar has had an extraordinary career, but he may be the single least representative member of the legal academy.  Orin is a mensch, and he took my comments to heart, attempting to broaden his approach, but still, he did not manage to penetrate very deeply into my portion of the legal academy.  How could he?  The two legal academies meet fleetingly.  It would be hard for him to know whom to invite.  In one episode, with a guest who has taught at an unranked law school, Orin asked about that experience, but the guest either misunderstood the question or did not want to answer it.  The subject matter was never really explored.

I spoke with some friends about doing an alternative podcast called The Other Legal Academy, in which we would interview outstanding faculty members at lower-ranked schools.  I did not do it for two reasons.  First, I already have too much on my plate.  But that seems lame, given how incredibly busy, prolific, and productive people like Orin Kerr, Akhil Amar, Eric Segall, Will Baude & Dan Epps, Steve Vladek and Bobby Chesney, Felipe Jimenez, and the amazing Strict Scrutiny trio of Leah Littman, Melissa Murray, and Kate Shaw manage to find the time to make podcasts from which I have benefitted tremendously.  But the second reason is killer: very few people would care, for the same reason that very few people care about what I write as a legal scholar

Here is my main conclusion about doing scholarship in The Other Legal Academy.  You should do scholarship, and doing scholarship will keep you engaged in the law and contribute to your teaching.  It is best to do scholarship relevant to the subject matters you teach (or at least post on a blog on that subject).  But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.  My hypothetical podcast would have very few listeners for the same reason my scholarship has few readers: sitting as I do in The Other Legal Academy, I can't make my voice heard over the din of other high-quality scholarship out there.

I was, of course, disappointed early in my career, when I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned.  I write for myself and to better myself for my students.  I try to publish because I am vain enough to  crave affirmation.  I do not expect that my scholarship will change the world, even though I think the world would benefit from listening to my advice.  It is not that I think that people in The Legal Academy are snobs who wouldn't consider reading my work.  Most would and they sometimes do.  I have generally found that the people who are at the top of the heap in the legal academy are generous with their time, endlessly curious, and eager to engage.  But their time is limited, and there is so much other stuff for them to do and to read, much of it involving people with whom they regularly interact.  In addition, the people in The Legal Academy have to be up-to-date on what people are talking about, and they are not, for the most part, talking about scholarship that comes from The Other Legal Academy. 

I do regret that I don't think I will ever know if my scholarship is any good.  People are kind in The Other Legal Academy -- or avoidant -- and one rarely gets the kind of substantive feedback that I got when I had real academic mentors, e.g., in graduate school.  Sometimes when I submit my work for peer review, I get a taste, but that is a very small data set.   

I suspect that my skills as a scholar are in decline for reasons nicely illustrated in Malcolm Gladwell's book Outliers.  Gladwell reports on the importance of birth dates in Canadian hockey.  Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year.  As a result, the January and February kids get picked for all the travel teams and then all the all-star teams.  They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations.  With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*

I think something similar happens in the legal profession.  The initial distinctions that separate stand-out law students from the rest of the crowd are not as arbitrary as birthdates.  Still, some students just come more prepared for for the first year of law school than others.  They may have the advantage of lawyers in the family, or they may be the children of academics.  In any case, they have a particular kind of smarts, which is not the only kind of smarts or necessarily the kind of smarts that translates into scholarly promise or teaching ability.  Those students get onto law review and get the best clerkships.  They get special attention from the professors who oversee their law review notes.  Based on their prestigious clerkships, they have better shots at the VAP opportunities if they want them, and while doing their VAPs, they have time and resources, including mentors, that help them improve their legal scholarship.  Based on their impeccable credentials and newly-established scholarly promise, they then land jobs at good or even top law schools where they have more resources and time for research.  By contrast, in twenty years of teaching, I have had a grand total of two semesters when I did not have a full teaching load, and many years I have taught overloads.   

They regularly get invited to the small conferences at which faculty members still exchange meaningful feedback.  They get invited to publish in edited collections or to present at symposia, which are then published in law reviews.  They see advance copies of major forthcoming publications and can write responses for prestigious journals' online supplements, if not for their print issues.  They know things about the placement process that those of us in The Other Legal Academy learn years later and never fully comprehend. They  interact with or collaborate with their colleagues, all of whom are at the top of their fields, and so they are constantly gaining advantages over the people in The Other Legal Academy.  Perhaps I am romanticizing the life of academics in The Legal Academy, but I hope not.  It's a good life, and the people who have it have earned it.  I hope they make the most of it. 

This is not sour grapes; it is armchair sociology.  Almost all of my encounters with The Legal Academy have been rewarding and encouraging.  For the most part, I am extremely impressed by the people who make it into The Legal Academy, and I wish I could keep up with them, but neither group has the time for that.  My time is mostly devoted to teaching in The Other Legal Academy, which will be subject of Part III of these musings.  I said above that I have resigned myself to not having a scholarly impact.  Instead, I am now committed to having an impact through teaching, and I will turn to that subject in the next post.

*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.

New Journal of Law Teaching and Learning

We bring you news from the world of law publishing:

The Institute for Law Teaching and Learning is thrilled to be launching a new scholarly journal.  The Journal of Law Teaching and Learning will publish scholarly articles about pedagogy and will provide authors with rigorous peer review. We hope to publish our first issue in Fall 2023. 

If you have a scholarly article that might fit the needs of The Journal of Law Teaching and Learning, please consider submitting it directly to us via email at mcolatrella@pacific.edu or through the Scholastica platform. 

Congratulations to Bobby Chesney!

Word broke last week that Bobby Chesney (right) has been appointed the incoming Dean of UT Austin School of Law.  Dean Chesney is one of the nicest people you will ever meet in the academy.  That is one reason why I have been hesitant to congratulate Dean Chesney on his new position.  But he is currently UT Austin's Associate Dean, so maybe the new position will be somewhat less onerous.  I wish him luck.

Dean Chesney is also a highly capable scholar, with some notable administrative and entrepreneurial skills that will no doubt serve him well in his new capacity.  I met him early in my career as a law professor when I was writing about the state secrets privilege.  He wrote a seminal article on the topic, which guided me into the literature.  My views on the proper scope of the privilege were and continue to be far different from his, but he invited me to participate in a fabulous gathering of academics, JAG officers, and representatives from the International Committee of the Red Cross.  I had the opportunity to participate in a couple of these gatherings, and they proved very valuable as I was able to supplement my public international  courses with the materials participants shared on the law of armed conflict.  That in turn enabled me to develop some courses on the law of armed conflict, including one of my favorite teaching experiences, a two-week study-abroad course on the law of armed conflict in Israel and Palestine.

My real concern upon hearing the news, however, was that Bobby Chesney as Dean Chesney would have even less time than he had a Associate Dean Chesney to record his incomparable National Security Law podcasts with his phenomenal friend, colleague, and sparring partner, Steve Vladeck.  Happy news!  A new episode dropped this week, and the hosts predict that they will have more time to record than they have had during the past academic year.  

This blog is indebted to that podcast for our occasional weekend frivolity feature, so I at least am relieved to know that the original frivolity, as well as very high-level discussions of national security law, will continue to flow.

Heartfelt congratulations all around!

Introducing: the Ladies Who Law School Podcast (LWLS)

Ever since I listened to the first season of Serial, I have thought it would be great to do a podcast called 1L.  It would track the experience of a group of law students through their first year of law school.  Not Harvard.  Not Yale.  Ordinary law students at an ordinary law school, experiencing what all law students experience, but not stepping into the same river twice.  

The podcast exists!  And it has been shockingly close for the past two years.  Two recent graduates of my law school, the Oklahoma City University School of Law, started podcasting about their experiences in January 2020.  The podcast is called Ladies Who Law School (LWLS), and it is even better than I imagined it would be.  I have yet to meet the two hosts, Samantha Lemke (left) and Haylie Davis (below, right).  I only learned of the podcast at their graduation, but I have started listening, and there is so much of value here!  I am five episodes in, and I want to share some of what I have learned.  I will post occasionally as I come across more content of interest to followers of this blog.   

I want to stress is that this blog is so very useful:

• for students considering law school;
• for students just starting law school;
• for students who are in law school but want to hear from people who are sharing some of their experiences; and
• for law professors, who so rarely get to hear honest conversations about what law school is like for our students

They launched the podcast just after having received their first-year grades.  They relate some experiences that, I have to admit, highlight some problematic features of legal education.  They amaze me with their complete lack of bitterness.  In the first episode, we learn that neither of them had any graded assessments in any of their doctrinal courses before the final exams.  In addition, they report that one of their exams had a skills component that caught them by surprise.  Their take-away: anything covered in the course is fair game for the final.  We as law professors should be grateful for students like Samantha and Haylie who  accept that challenges we throw at them.  

I am not a fan of winner-take-all final exams, especially not in the first semester of law school. That said, I also know that there are a lot of different ways to be an effective law professor.  I just think it is unfortunate if students are only exposed to one approach, and I feel like we let down our first-year students if none of them got any graded, substantive feedback in their first semester of law school until they got their grades back in January.  I commend Haylie and Samantha for the maturity with which they responded to a pedagogical experience that they might have thought less than ideal.

In Episode 2, they come to terms a little bit more with their first-semester grades.  The reality of their grades begins to sink in, and they are a bit more deflated.  Fortunately, they already know what I think I have to tell my students: their law school grades do not define them, and they will find plenty of ways to distinguish themselves and find suitable careers regardless of their class rank.  They also address the stress of cold calling and the Socratic method.  Once again, LWLS demonstrates that my students often understand law school pedagogy better than I give them credit for doing.  They really understand why we teach the way we do, and they buy into it, which really helps them get the most out of their legal education.  They know that the pressure of cold calling keeps them on top of the material, and they know that they have to keep on top of the material, because law school requires that students step up their game compared to their previous educational experiences.  

Episode 3 has useful tips about how to apply and prepare for law school. Along the way, once again the LWLS hosts understand things that students need to know: law school is not like college.  It's like a really demanding, full-time job.  Your family and loved-ones need to know that and know that you cannot be available for them as you were before.  "This is something I'm doing for me," they repeat, and I hope their classmates and peers hear it!  Episode 4 addresses the pros and cons of transferring after your first year.  I have never before heard how this calculus looks from the student perspective, other than conversations with individual students contemplating transfer.  Those conversations focus on the individual student's reasons for transferring, which are sui generis.  LWLS provides a macro perspective on transferring that I had never heard before. 

I'll admit that I skipped a lot of Episode 5, which was a Valentine's Day episode dedicated to dating while in law school, but what I heard was pretty enlightening.  I was already married when I went to law school, so dating was not an issue.  But the LWLS hosts have interesting insights and experiences to share.  One is in a long-distance relationship; the other is dating a classmate.  You can imagine the challenges. 

I approached the podcast with some trepidation.  Do I really want to hear law students talking about their experiences?  Do I want to hear commentary on my colleagues' professional performances?  So far, I have been pleasantly surprised.  LWLS refrains from picking the low-hanging fruit.  They are extremely reluctant to say anything negative about the classroom experience.  The farthest they will go is to say something like, "Let's just say, it's not my favorite course."  And as to particular professors, they recognize that an ineffective professor might just be ineffective for you.  They give us the benefit of the doubt, whether or not we deserve it.  

It's not that I don't think the legal academy would benefit from a more jaundiced perspective on our methods.  I'm just glad this podcast is not the vehicle for that.  It nevertheless manages to convey a very clear-eyed, realistic perspective on the life of law students, told as it is experienced, in something approaching real time.  

I recommend this podcast to my colleagues who want to hear what this experience looks like from the other side of the lectern.  I look forward to listening to the remaining episodes, and I will share highlights as I come across them over the summer.

Why Take Attendance? Part II

In yesterday's post, I introduced the topic of why I take attendance.  I began with a caveat, which boils down to, I might feel differently if I taught at a different kind of school.

Today, I offer three responses to what I call the libertarian and the anti-authoritarian/Foucaultian arguments against taking attendance.

The first and least satisfying (but also not as dumb as it seems) is that I take attendance because the ABA requires me to do so.  The second and third turn on what I think is an unfair and implausible imputation regarding the motivations of faculty members who take attendance.   That is, people seem to think that law professors who take attendance do so in order to assert control over or discipline students.  I don't know why other professors take attendance, but control and discipline are not my primary motivators.

The ABA requires that law schools have an attendance policy (Standard 308a).  That Standard is very vague, but most law schools (in my experience) adopt a requirement that faculty must take attendance and must require that students attend 75% or 80% of class sessions.  Also in my experience, skills and experiential learning courses are, for understandable reasons, less forgiving about absences.  I have no idea why the ABA has its policy, but I know that, as a result of the ABA's policy, there is a person at every law school with a title like "Dean of Students" or "Assistant Dean for Student Affairs," and that person spends a lot of their time tracking down students and trying to figure out why they aren't coming to class.  I make that person's job a lot easier when I take attendance and shoot an e-mail to the appropriate administrator saying, "So and so has missed two classes and didn't turn in their last assignment.  Do you know what's up with them?"  Such calls can lead to early interventions that help the student and thus help the administrator as well.  The worst that can happen is that a student got pestered.  I'll take that risk.  

One libertarian perspective argues that our students are paying us for a service, and they are free to make as much or as little use of the service for which they are paying as they choose.  The analogy offered was a gym membership.  One's gym does not have an attendance policy.  Well, what if they did?  Actually, my gym offers a discount if you use it more.  I like the model.  Our students learn of the attendance policy during orientation if not sooner.  Even libertarian students can constrain their wills through private legislation.

But ultimately I just reject the notion that my relationship with my students is akin to that of a service-provider.  I am building a life-long relationship with my students, or at least I hope to.  I keep in touch with some of my law school professors.  I have in recent years reached out to two of my college professors.  Both remembered me (from the 1980s!).  Both were glad to hear from me, but they shaped my sensibilities and my life journey in ways that I can barely articulate much less adequately acknowledge.  I can't say that about any of the people with whom I have interacted in the many gyms in which I have engaged in ritualistic forms of exercise. 

Moreover, I owe duties as an educator to constituencies other than my students.  Law schools fail.  I've seen it happen.  That's something I never want to experience again.  Even if I weren't committed to my students' success for their sake, I would be committed to it for the sake of my institution.  I also owe more attenuated but still significant duties to the legal profession, to my students' future clients, to my law school's alumni and supporters, and to the parents and others who are supporting students financially and through their encouragement.  My students and I are not ships passing in the night, or at least I hope that we are not.  The cash nexus does not define our relationship.  It's hard for me to imagine that any conscientious law professor would think that it does.

Finally, often students are not paying their own way or they at least have help.  They have scholarship money or, if they attend a state institution, part of their tuition might be underwritten by tax dollars.  Early in my teaching career, I had a good friend who taught at a community college in South Carolina.  Tuition was almost nothing.  One of her feckless students tried to make the "I'm paying for this education and so . . .  " argument.  She responded, "Actually, my tax dollars are paying for your education, and right now, I'm not getting my money's worth."  Nothing about that conversations was right, but I still admire her to this day for that snappy comeback.  

To the Foucaultian/anti-authoritarians, I concede that in taking attendance and having an attendance policy that can -- in rare cases -- penalize students for poor attendance, I am engaged in policing and social control of my students in a very broad sense.  But my relationship to my students is not that of the police to potential lawbreakers, nor is it that of the watchful state to its law-abiding citizens who are law-abiding in part because their conduct is shaped by their constant awareness that they are being or could be under surveillance at any time.  My relationship to my students is also not that of a parent to a child. 

And yet it is also not true that my relationship to my students bears none of the characteristics of the police to the criminal, the state to its citizens, or the parent to a child.  My students are mostly still emerging adults, which means that they are a little less boundedly rational than I am.  I want what is best for them.  I have views about what is best for them.  I also respect their autonomy.  They will make their own decisions, but I will contribute to the environment in which they make those decisions in (at least) one small way -- by encouraging them to come to class.  

To my colleagues at other law schools who say that they will not police their students, I would like to know how you avoid doing so and still perform your role as a law professor.  The minimal policing I do by taking attendance is nothing compared with the policing I do by grading them.   I suspect that my non-attendance-taking colleagues also grade their students and thus serve as the guardians of the path into the profession.  There is no shame in it. Not every admitted student will become a lawyer.  Perhaps others want to throw open the profession to all comers.  I don't have to have a view on that subject.  The bar exam exists, and it will keep some students out.  Performance in first-year contracts is a pretty robust predictor of likely success on the bar.  I happily provide to students, whom I recognize as independent agents, a useful datapoint to consider as they make choices about re-enrollment.

But returning to my earlier point, neither my attendance policy nor my custom of giving students grades exist to punish students.  Both are structures to help guide them along a path that they have chosen.  Faculty members who do not take attendance miss an opportunity to check in with students as they proceed along that path, and their failure to take attendance creates more work for those who do.  It is not uncommon that when I e-mail a dean of students or student affairs coordinator, my report is the first they have heard of the student's absence.  When a student who hears nothing from a professor when they miss multiple class sessions, does that silence communicate respect for students' autonomy or indifference?  

It is no doubt true that some students regard themselves as adults who resent calls from the law school when they are dealing with some crisis.  "Professor so-and-so doesn't even take attendance," I have heard them gripe.  I will not disparage a colleague in front of a student.  "I'm sure Professor so-and-so has their reasons."  And that is truly what I believe.  I draw no conclusions about my colleagues' motivations for doing what they do, nor do I assume that my colleagues who do not take attendance care any less about their students than I care about mine. 

But I do want those colleagues to know this: by far the more frequent response I get from the missing students with whom I check in is gratitude.  They are fine.  They don't need anything.  They just had something they had to deal with, and they are grateful to me for checking in and asking, as I usually do, whether there is anything they need to stay on top of the class material.  And then, every once in a while, my intervention with a student in crisis helps them get over that crisis and re-commit to their professional path.  Or perhaps they were always committed, but they were having a personal crisis and they just needed to know that somebody at the law school cared enough to reach out.  

Law students are under an incredible amount of stress.  COVID has not helped.  I don't know how we can know how students whom we do not see are doing if we don't have some means of catching warning signs.

So yes, I take attendance.  Yes, it's a bit paternalistic.  But the alternative seems to me much worse.

US News Announces that Ratings Will Henceforth Be Based on Twitter Followers

U.S. News and World Report (USNWR), an unranked online news magazine, is best known in these parts for its rankings of law schools.  Vital life decisions are made based on USNWR's mysterious calculations.  Students decide which law school to attend, faculty members decide which job offers to take or determine where to place their articles based on USNWR's rankings.  It thus comes as no surprise that law school deans take USNWR rankings into account in their strategic decisions, and academics bemoan the fact that their self-worth is tied up with the mysterious process that fuels the rankings. 

USNWR's rankings editor, Algo Rhythm, rocked the world of the legal academy, when he announced that starting next year, the reputational component of rankings will be based on the number of followers faculty members have on their Twitter feeds. 

This blog reached out to the popular Twitter personality Lawprofblawg (left), to ask if they would be revealing their true identity, now that their school's USNWR ranking could benefit from it, to which Lawprofblawg responded, "You are LITERALLY the only person who still does not know who I am!" 

We also reached out to USNWR for an explanation of this unexpected change. Mr. Rhythm responded:

It's too easy to game our system by having friends at other law schools fill out our surveys in a way that skews the results.  In addition, other unranked, online journals were making fun of us for relying on paper ballots distributed through snail mail. 

Twitter followers are a much better measure of scholarly impact.  For one thing, following someone is a real commitment.  You have to click a button or something.  It's not like citing to someone's law review article -- those citations could be added by research assistants or law review editors.  But also, high numbers of Twitter followers indicates an ability to reach beyond the academy and say things that ordinary people are interested in hearing.  If you can't revolutionize constitutional theory in 280 characters, you're just another blowhard.

Celebrated sh*tposter, Scott Shapiro (right), asked what impact USNWR's new approach would have his institution's ranking, affected disinterest.  "I don't know why people are so obsessed with the fact that I have 73,900 Twitter followers (but who's counting?).  I also have a podcast, you know, and Brian Leiter is not the only legal philosopher who blogs."  

Eric Segall, when asked to comment responded in "what may be my last TikTok ever" by noting that TikTok is the wave of the future and USNWR should really be taking note of TikTok followers rather than Twitter followers.  "Twitter is to TikTok what blogs are to Twitter, no offense," he noted, adding, "And the U.S. Supreme Court is not a court."

We have it on good information that Blog Emperor and law dean Paul Caron is pressuring USNWR to take blogging into account as well.  Until that happy day, my dean has asked that I remind readers that you can follow us on Twitter.

DePaul Seeks Visitor to Teach (inter alia) Contracts

DePaul University:
PROVOST: COLLEGE OF LAW: LAW ACADEMIC

Apply here!

Location

Chicago, IL - College of Law

Open Date

Mar 17, 2022

Description

DePaul University College of Law invites applications for a one-semester position as a visiting professor during the 2022-2023 academic year. Specific curricular needs include Contracts, Business Organizations, and Taxation. We welcome candidates with excellent academic credentials and strongly prefer those with a successful teaching record, including demonstrated experience teaching first-year law students. DePaul Law enthusiastically encourages applicants who would enrich the diversity of our academic community to apply.

Qualifications

All candidates must hold a J.D. or equivalent degree, with preference for candidates who have significant teaching experience.

Application Instructions

Required materials include a cover letter, curriculum vitae, and diverse learning environment statement. Please direct any questions about the position to Associate Dean for Academic Affairs Allison Brownell Tirres (atirres@depaul.edu).

DePaul Law is committed to improving society by educating purpose-driven lawyers who will serve their clients, the legal profession, and the broader community in ways that enhance access to justice and promote equitable policies and processes. To learn more, please visit https://law.depaul.edu/Pages/default.aspx.

Hiring: Animal Law at OCU Law

OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW seeks a visiting faculty member to teach Animal Law and other subjects of interest to the candidate.  The visitor will serve as a full-time faculty member for the 2022-23 academic year. Both one-semester and full-year visits may be possible. We expect successful candidates to teach in person. Both experienced and entry-level candidates will be considered.

Candidates must have a J.D., LL.M. or S.J.D. degree from an ABA-accredited law school and be licensed to practice law in one of the states or the District of Columbia. 

Oklahoma City University School of Law is located in downtown Oklahoma City and is deeply engaged with the legal, business, and governmental communities.  Oklahoma City has been named “American’s Most Livable Community” and is consistently ranked among the most affordable and prosperous cities, among the top cities for entrepreneurs and small businesses, and among the best-run large cities.  

Oklahoma City University is an equal opportunity employer and affirms the values and goals of diversity.  We strongly encourage applications from members of demographic groups historically underrepresented in the teaching and practice of law.  For the university’s complete nondiscrimination policy, please see: https://www.okcu.edu/admin/hr/policies/general/nondiscrimination-policy-equity-resolution-process/nondiscrimination-policy/. 

To apply, please submit a CV to Associate Dean Paula Dalley (pdalley@okcu.edu).

If you have questions before you brave an encounter with the imposing Paula Dalley, feel free to reach out to me, datelman@okcu.edu 

Two Yale Law Students Sue Yale for Breach of Contract

Yale Law School (YLS) gets a bad wrap for being too theoretical.  Outside of the clinics, so that saying goes, one hardly learns doctrine at all during one's three years in law school.  A famous alum once said to me that practicing law with a degree from YLS and nothing else is a recipe for malpractice.  He may have proved himself right.

But two YLS students have figured out a way to immerse themselves in the practicalities of litigation: they are suing their law school!  The anonymous students, styled John Doe and Jane Doe in the complaint, allege that YLS's Dean and Associate Dean (the Deans) conspired to "blackball" the plaintiffs and cut them off from career opportunities in retaliation for their refusal to lie in support of the YLS's investigation of Amy Chua.

The allegations involve the YLS Dean's attempt to discipline Chua or alleged inappropriate conduct involving social gatherings at her home and advice relating to how to dress for success in the context of clerkships.  Both plaintiffs describe themselves as persons of color, and they reached out to Professor Chua, one of YLS's few faculty members of color, to discuss the peculiar obstacles they faced as students of color at YLS.  Two such meetings took place at Chua's home, allegedly in violation of a "no-socializing" agreement that Chua had entered into with YLS.  Word of these assignations somehow got to a third YLS student, who assembled the 20-page "Dossier" and turned it over to the YLS administration. 

Plaintiffs allege that the Deans approached a professor of constitutional law and pressured him to not hire the plaintiffs as Coker Fellows (teaching assistants) in retaliation for their refusal to lie about Amy Chua.  Given the lack of grades at YLS, a Coker Fellowship is a way for a Yale student to evidence their achievement.  As a result of the Deans' actions, plaintiffs were not hired as Coker Fellows, nor did they even apply for judicial clerkships because, they allege, the Deans threatened to share with any judges who might hire them Dossier detailing plaintiffs' alleged misconduct with Professor Chua.  Plaintiffs allege that the Deans violated the University’s Policy Against Discrimination and Harassment (the Handbook), which they say is a contract "by its own terms" that prohibits the administration from "retaliating against students who report a concern, file a complaint, and/or participate in an investigation."

 According to the complaint, the Deans and the YLS Director of Equity, Diversity and Inclusion, hounded the plaintiffs and pressured them on a daily basis to testify against Professor Chua.  When they refused to do so, retaliation ensued.  Both plaintiffs have been deeply affected by the incident.  Jane has taken a leave of absence; John has resigned as the Dean's speechwriter.  Both have physical symptoms brought on by the harassment to which they have been subjected.

The complaint alleges causes of action sounding in breach of contract and promissory estoppel, plus the torts of intentional interference with prospective business relations, defamation, unreasonable publicity, false light, and intentional infliction of emotional distress.

I will be very interested to see in what sense the Handbook is a contract "by its own terms."  The Complaint does not cite to any place in the Handbook where it so self-identifies, and most such handbooks are not contracts and sometimes explicitly say that they are not contracts.  But YLS is a unique institution, so who knows?

Help Wanted: Widener Law

Widener University Commonwealth Law School in Harrisburg Pennsylvania is seeking an entry-level or lateral tenure-track professor to teach contracts, a two-semester, five-credit course, beginning with the  2022-23 academic year.   For more information about the position and other needs of the law school, please see our position description here at or contact Professor Jill Family, Appointments Committee Chair at jefamily@widener.edu

Editorial Assistance Available for Law Professors in Need!

One of the great things about working at the Valparaiso University Law School was its talented and dedicated staff.  Among the most talented and dedicated was Karen Koelemeyer, who worked with the Law Review and with faculty on getting manuscripts in shape before final submission.  I rarely send out an article for publication without first sending it to Karen for above- and below-the-line edits.  Thanks to Karen, I have gotten by with my vintage 1999 knowledge of the Bluebook.  I make a good faith effort to get my footnotes into shape, and I leave it to her to tidy up my mess.  I have also relied on Karen to translate my footnotes in accordance with other citation styles.  She knows many on her own, but if you have something exotic, just send her a style manual and she will do the rest.

Karen also has an outstanding eye for line edits.  She has been editing legal manuscripts for decades.  If something doesn't make sense to her, it likely doesn't make sense. 

When Valparaiso University decided to close its law school, faculty and staff scattered to the four winds.  Most of us landed well, but Karen's talents are uniquely suited to editing legal scholarship, and there is not a lot of demand for that skill in Northwest Indiana these days.  Our loss can be your gain. 

If you have a manuscript that you would like edited, contact Karen at klkdynamics@gmail.com   She can usually turn things around in a couple of weeks, but if she is backed up with other projects, she will certainly let you know.  The cost will depend on the length of the manuscript and the state of your footnotes ex ante, but Karen will provide a reliable estimate.

Weekend Frivolity (sort of): Valparaiso University Law Review's Final Issue

Over at the Mother Ship, the Blog Emperor has posted a link to the final issue of my former Law School's Law Review.  

The volume includes a number of tributes to the law school from its departing, or recently-retired faculty, as well as some of the greatest hits -- contributions to the Law Review that turned out to be especially citable or were memorable for other reasons, such as the stature of their authors.  Contributors include Justice Sandra Day O'Connor, Justice Ruth Baader Ginsburg, Indiana Supreme Court Justice Robert Rucker, Roscoe Pound, and Erwin Chemerinsky.

The final volume is a great tribute to the institution and to the final group of students who got it over the threshold and into the light of the world.

John Eastman and University of Colorado Part Ways Less Amicably

Back in January, we posted about reports that John Eastman had resigned his faculty position at Chapman University and both parties agreed not to pursue legal remedies.  Now, as reported in Colorado Politics, it appears that Professor Eastman's departure from the University of Colorado Boulder (the University), where Eastman was a visiting professor, is a bit rockier (get it?).  

Professor Eastman had been hired as a visiting scholar at the Bruce D. Benson Center for the Study of Western Civilization.  He was slated to teach two courses per semester in 2020-21.  After he  gave a speech at a pro-Trump rally in Washington, D.C., that immediately preceded the assault on the Capitol Building on January 6, 2021, the University canceled his classes for the Spring semester, citing low enrollments.  

On April 29th, the University explained its actions with respect to Professor Eastman as follows:

The campus's decisions regarding Professor Eastman were made in accordance with its university policies concerning freedom of expression and academic freedom. Consistent with First Amendment principles and the university’s policies, Professor Eastman is able to speak on any subject he wishes and pursue his scholarship. The university has taken no action that would deter a reasonable person from engaging in free speech, and Professor Eastman continues to express his views in writing, John Eastman’s Statement on His Retirement from Chapman University's Fowler School of Law - The American Mind, on television, Now-Retired Law Professor John Eastman Says His Words at Trump’s ‘Save America’ Rally Did Not Incite U.S. Capitol Siege (msn.com), and at in-person events, What Really Happened? An Insider’s Perspective on Representing the President and Claims of Election Fraud.  The university, however, is not constitutionally obligated to have him serve in a representational capacity when he exercises his right to free speech.  Professor Eastman was not suspended.  The College of Arts & Sciences canceled his spring courses for low enrollment in accordance with its policies. Provost Moore appropriately relieved him from performing outreach functions on behalf of the Benson Center, because his continued performance of those duties would likely cause disruption and harm to the center.

The University continued to pay Eastman his $185,000 salary.  He contends that the reasons given for the cancellation of his classes were pretextual, as other classes offered through the Benson Center also have very low enrollments. 

Professor Eastman seeks $1.85 million in damages, representing his losses due to reputational harms done to him by the University.  He claims that the University's actions will prevent him from earning a salary through teaching for the next ten years.  It is hard to square that allegation with this statement that Professor Eastman published in The American Mind on January 14, 2021:

I am currently on leave from Chapman while serving as the Visiting Professor of Conservative Thought and Policy at the Benson Center for the Study of Western Civilization at the University of Colorado Boulder, so my mid-year retirement will not have any impact on my Chapman students. Once that visitorship is concluded, I plan to devote my full-time efforts to the Claremont Institute and its Center for Constitutional Jurisprudence, which I direct.

More on William Perdue's Legacy at Duke: Willful Breach in M&A Contracts

Earlier this week, we posted about "Lipstick on a Pig": Specific Performance Clauses in Action, by Theresa Arnold, Amanda Dixon, Madison Sherrill, Hadar Tanne, and Mitu Gulati.  The same authors have another article, Damages as a Function of Fault: Willful Breach in M&A Contracts.   Both articles, as well as The Myth of Optimal Expectation Damages, about which we blogged in September, were made possible by a grant to the Duke University School of Law from the family of William Perdue.  The fund was meant to encourage collaborations in the vein of Lon Fuller and William Perdue from the 1930s.  At the time they wrote their pathbreaking works on the reliance interest, Lon Fuller was on the Duke faculty, and William Perdue was a 3L! 

Here's the abstract for the latest, free from SSRN

The traditional framework of U.S. private law that every first-year student learns is that contracts and torts are different realms: contracts is the realm of strict liability and tort, of fault. Contracts, we learn from the writings of Holmes and Posner, are best viewed as options: they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of a thousand M&A contracts and thirty in-depth interviews with M&A lawyers, we find that there is at least one significant area of transactional practice that rejects the “fault is irrelevant to contract breach” perspective.

Ten years ago, Omri-Ben-Shahar and Ariel Porat published a book on the subject of Fault in American Contract Law.  The book is the product of a conference that I attended.  That conference included one of the most memorable moments I have experienced in the academy.  Richard Posner delivered a paper called "Let Us Never Blame a Contract Breaker."  George M. Cohen (pictured) presented a paper arguing, more or less, the opposite, which was entitled "The Fault that Lies Within Our Contract Law."  As he started his paper, Professor Cohen noted that it had occurred to him that Judge Posner's title was trochaic pentameter, while his was iambic pentameter.  The difference between the two papers, Professor Cohen observed, was really just a matter of emphasis.

Magnifique!