PropertyProf Blog

Marcilynn Burke -- Recently Tenured at Houston

Please join me in congratulating Marcilynn Burke who received a unanimous vote in favor of tenure on Friday, November 21, 2008 from her colleagues at the University of Houston Law Center.  This is a wonderful accomplishment and well-deserved.

Carol N. Brown

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

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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

Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.

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
Comments are held for approval, so they will not appear immediately.