Tuesday, September 18, 2007

Advice to Law Journals: Part 8

Nasasun090607_2 8    think seriously about articles on“hot” topics–-they are both good and deserve caution.

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

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

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

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

Alfred L. Brophy
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September 18, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Sunday, September 9, 2007

At last some honesty (and perspective) about rankings

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

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

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

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

September 9, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Thursday, September 6, 2007

Advice to Law Journals: Part 7

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

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

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

Alfred L.Brophy
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September 6, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Sunday, September 2, 2007

Advice to Law Journals: Part 6

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

6   Approach “big idea” pieces skeptically.

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

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

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

Alfred L. Brophy
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September 2, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2007

Advice to Law Journals: Part 5

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

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

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

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

Alfred L. Brophy
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August 30, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Saturday, August 25, 2007

Advice to Law Journals Part 4

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

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

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

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

Alfred L. Brophy
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August 25, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2007

Advice to Law Journals: Part 3

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

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

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

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

Alfred L. Brophy
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August 21, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, August 13, 2007

Advice to Law Journals: Part 2

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

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

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

Alfred Brophy
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August 13, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 12, 2007

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

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

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

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

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

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

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

1.  Involve faculty in the selection of articles.

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

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

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

Alfred L. Brophy
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June 12, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2007

AALS Property Section Listserv

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

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

Ben Barros

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May 29, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2007

More on the 70% Bar Pass Proposal

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

Ben Barros

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May 21, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 3, 2007

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

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

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

THE  2007-08  HYLTON  RANKINGS
of American Law Schools

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

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

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

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

The 2007-08 Rankings:

FIRST QUARTILE Raw Score, 2006 Ranking

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

More below the fold.

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April 3, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2007

US News 2008 Rankings: Quick Takes

As everyone from Dave Hoffman to Brian Leiter to, well, everyone is observing, the new “2008" U.S. News rankings and ratings of law schools have appeared on the magazine’s website a few days earlier than promised. Assuming that the reported results are final, not just preliminary or phony to compete with the many fallacious predictions about rankings posted on the Internet, here’s a look at the previous and current reputational assessments by academics and by lawyers and judges, broken down by tier.

Ratings by Faculty (Peer) and Lawyers and Judges in the 2007 and 2008 U.S. News Surveys
            Peer           Lawyers & Judges
        --------------           ----------------------    Effect size
Tier     N    Mean     SD        Mean     SD
                2007
  1    100    3.04    0.76        3.34    0.60
  3      36    2.06    0.18        2.58    0.31
  4      44    1.66    0.22        2.12    0.37
Total 180   2.51    0.85        2.89    0.73        0.48
                 2008
  1    104    2.99    0.73        3.36    0.63
  3      35    2.03    0.17        2.51    0.31
  4      45    1.64    0.23        2.02    0.35
Total 184   2.48    0.82        2.87    0.78        0.49

Ratings for Tier 1, classifying the top 50 schools as Tier 1 and other Tier-1 schools as Tier 2
            Peer           Lawyers & Judges
        --------------           ----------------------
Tier     N    Mean     SD        Mean     SD
                2007
  1    50    3.63    0.65        3.80    0.52
  2    50    2.46    0.24        2.88    0.20
                2008
Tier     N    Mean     SD        Mean     SD
  1    50    3.58    0.62        3.87    0.52
  2    54    2.44    0.22        2.89    0.24

I apologize for the misalignment of the tables--I've given up trying  to get the html coding right. Here they are in prettier, pdf format.  (Note to self--never again work on html tables.) 

My brief take on the tables:

Average 2007 and 2008 assessments are very similar. Lawyers and judges give more favorable ratings than academics. Assessments are clearly related to school tier, with average ratings of schools decreasing as tier increases. Variability of the ratings is greater for the more highly ranked schools.

I looked at differences between the 2007 and 2008 ratings of individual schools. The difference for average peer assessments was never greater than 0.2 on the 5-point scale.  A difference that large occurred for only two schools; in both cases it was a decrease. Tulane’s peer assessment changed from 3.2 to 3.0, and Golden Gate’s changed from 1.7 to 1.5. Forty-five schools had a decrease of 0.1, and 30 had an increase of the same size.

Assessments of lawyer and judges changed more.  Here is a list of schools with positive (2008 rating more favorable than 2007 rating) and negative changes of 0.3 or larger. 

After I get back from Gettysburg College, where I'll be talking about Reparations Pro and Con, I hope to have some more thoughts on the relationship between law review citations (which I use as a proxy of law review quality) and peer assessment scores.  Some of my previous thoughts on this topic are available here and some longitudinal data is here.

Al Brophy
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March 28, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, December 18, 2006

Case Method in Law School Teaching

Over at the VC, David Post has some commentary on an issue near and dear to my heart -- using unedited cases in law school.  His basic position is against.  In the comments to his post, I've stated my position to the contrary.  But anyway, if you're interested in this issue, read the whole thing.

Ben Barros

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December 18, 2006 in Law Schools, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, November 30, 2006

Median v. Mean LSAT

Could someone who has knowledge of these things explain to me why it is that US News and others are fixated on median LSAT rather than mean LSAT?  It seems to me that both would be relevant measures of student quality, and that mean LSAT might be a better measure of aggregate student quality.

Ben Barros

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November 30, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, October 2, 2006

Bar Pass Rates in California and New York

Lawbarpassels2_1 Over at Money-Law, I have a post on the relationship of schools' bar pass rates and the LSAT scores of their students in California and New York, which follows up on some of Bill Henderson's discussions over at ELS blog (and here, which inspired a discussion at Money-Law).  I get a lot of inspiration from Bill!

Tomorrow, in honor of propertyprof's one-year anniversary, I shall post something on missionaries' thoughts about property law in Hawaii in the period 1820-1850.  The missionaries had some pretty interesting ruminations on the connections between property law and civilization....

Alfred L. Brophy

October 2, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Thursday, September 28, 2006

What's Happening?

As Secretary of the AALS Property Section, I have the great privilege of putting together this year's Section Newsletter.  One feature of the newsletter is a list of recent scholarship and other professional achievements by section members.  So if you're a section member, please send me an e-mail telling me what you've done in the past year.  Thanks.

Ben Barros

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September 28, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Friday, September 22, 2006

Hierarchy of Legal Scholarship

The legal blogosphere is atwitter about J.B. Ruhl’s provocative post on the Hierarchy of Legal Scholarship, which in simplified for ranks types of legal scholarship (from lower to higher) as doctrinal, theoretical, and empirical.  Larry Solum has already noted some of the flaws in the list, but I think the whole idea is misguided.  To me, there are two things that matter with legal scholarship:  is it good or bad (in the competency sense) and is it interesting or boring.  Using these two metrics, here’s my hierarchy of legal scholarship (from lower to higher):

(1) Bad and boring.  Simple enough.

(2) Bad and interesting.  Often interdisciplinary; only ranks higher than bad and boring because bad and interesting makes for a more entertaining train wreck.

(3) Good and boring.  A lot of legal scholars would switch 2 and 3, though not many would admit to it.

(4) Good and interesting.  Obviously the top.

I personally think that theoretical and empirical scholarship is more likely to be interesting than straight doctrine.  But there is some very good and interesting doctrinal scholarship out there, and it often suffers in the pecking order because good doctrinal scholarship can be subtle.  The great treatise writers (Prosser, Corbin, etc.) were very descriptive, but were transformative in the way they described doctrine.  Only a person familiar with the area of doctrine is likely to recognize the transformative nature of a given piece of doctrinal scholarship.  And hey, who wants to spend the time during a hiring committee meeting trying to figure out whether someone’s scholarship is actually good or bad when you can just dismiss it as [fill in your personal bias]?

Ben Barros

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September 22, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, September 11, 2006

Research Canons For Property Law

PrawfsBlawg has a great new series of posts on the research canons in different areas of the law.  Here's an excerpt from Matt Bodie's post explaining the basics of the idea:

The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Unlike other disciplines, most law academics do not have an advanced degree in "law."  For students pursuing a Ph.D in areas such as economics, history, or social psychology, they must pass comprehensive exams showing that they have a broad knowledge of the most important works in the field.  It is only after comps that students go on to complete their specialized dissertation research.

Legal academia assumes that entry-level candidates and new scholars have done the background research necessary for their area of expertise.  But it is left to the individual to get this knowledge.  Certainly, the J.D. provides a baseline, and mentors are helpful in providing further direction.  But there is nothing akin to comps that sets forth a comprehensive listing for new folks to follow.  Many of us have heard the question, in the AALS interview, in the job talk, or as a new scholar presenting a paper: "Well, of course, you have read the work of Prof. X in this area, right?"  Failure to respond appropriately to this question may raise eyebrows and cast doubt on the scholar's research.

The Research Canons project is intended to fill this gap.

Property and Real Estate will be up for canonical treatment on Wednesday, 9/13.  [UPDATE: the property canons post is now up on PrawfsBlawg].  Property isn't the most cohesive of legal subjects, so I suspect the list will be all over the place.  I'll give this more thought over the next few days, but here are some of my candidates:

The Classics of the Moral and Political Theory of Property

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability:  One View of the Cathedral"

Great Contemporary Work on Property Theory

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Ben Barros

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September 11, 2006 in Books, Law Schools, Natural Resources, Property Theory, Recent Scholarship, Takings | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 23, 2006

Five Minute Property Class

Iupuiclassroom Last fall, Michael Dorf of Columbia Law School wrote an article on FindLaw, aimed at incoming students, entitled “The Five Minute Law School.”  In it he attempted to summarize in a very brief compass what students would study in the first year.  Dorf took his inspiration for the article from two rather divergent sources: the pre-law school summer courses that I guess are being sold to lots of students these days and Father Guido Sarducci’s Five Minute University.  The former I know less about than I ought to; the latter I was completely ignorant of.  But now I see that it (like virtually everything else) is available on the web.  Here are some great excerpts:

I find that education, it don't matter where you go to school, Italy, America, Brazil, all are the same -- it's all this memorization and it don't matter how long you can remember anything just so you can parrot it back for the tests.

I got this idea for a school I would like to start, something called the Five Minute University. The idea is that in five minutes you learn what the average college graduate remembers five years after he or she is out of school. . . .

You know, like in college you have to take a foreign language. Well, at the Five Minute University you can have your choice, any language you want you can take it. Say if you want to take Spanish, what I teach you is "¿Como está usted?" that means, "how are you", and the answer is "muy bien," means "very well." And believe me, if you took two years of college Spanish, five years after you are out of school "¿Como está usted?" and "muy bien" about all you're gonna remember. . . .

Theology, I'm gonna have a theology department, you know, since I'm a priest, and what you have to learn in theology is the answer to the question, "Where is God?", and the answer is, "God is everywhere." Why? "Because he likes you." That's kind of a combination of the Disney and Roman Catholic philosophy. It's just perfect for the late 70s or early 80s you know, just perfect.. . .

Great skit.  I love it--it's worth reading in its (blessedly short) entirety.  And you know what, it’s from the days when Saturday Night Live skits were the right length.  Now that was entertainment. 

(Much like SNL, I think my teaching’s gone downhill in recent years).

Professor Dorf did a very nice job for a couple of subjects, like torts and contracts.  Of torts he had this to say:

The law of torts can be reduced to three principles. First, as used in the first-year law-school curriculum, a "tort" is not a pastry. If someone had pointed this important principle out to me before I started law school, I might not have gained those ten pounds in the first couple of weeks. "Tort" literally means "injury" or "wrong," and, as a technical matter, means the breach of a legal duty imposed by law (rather than voluntarily undertaken by contract). That's about a third of the course.

Second, in order for a plaintiff to win her torts case, she must prove not only that the defendant committed a legal wrong against her, but also that the wrong caused an injury to the plaintiff. As anybody who has ever read any science fiction knows, in some sense, almost every past event caused every subsequent event. If you go back in time millions of years and kill a butterfly, you unleash a chain of events culminating in your own disappearance in a puff of logic.

But the law does not traffic in such absurdities, so you can't sue for every past legal wrong that anybody committed. For example, suppose Joe is driving down a divided highway when his attention is drawn to the wreckage of an accident that occurred when Dave, who was driving drunk in the other direction, plowed his car into the guard rail. As a result, Joe takes his eyes off the road for a second, and when he looks back, it is too late for him to avoid rear-ending a car driven by Paul, who has also slowed his car to rubber-neck. Can Paul successfully sue Dave? (Most characters in law school examples have names beginning with the same letter as the name of the parties they become. Thus, "P" is for Paul and plaintiff, while "D" is for Dave and defendant. Amazingly, this phenomenon holds true in real life as well. Con!)

No, Paul cannot bring a successful claim against Dave. To be sure, absent Dave's wrongful drunk driving, Paul would have escaped injury, but the courts will say that the causal chain was too attenuated to hold Dave responsible. In torts jargon, we say that Dave's drunk driving was not the "proximate cause" of Paul's injury.

How close a relationship must there be between cause and effect for the former to count as the proximate cause of the latter? The law does not attempt to quantify the answer; it's a matter of judgment and common sense. That drives law students nuts. But if you remember that "proximate cause" is simply a fancy way of saying "use your common sense," you'll spend less time trying to reconcile all the nonsense written about proximate cause, which will leave you more time to sing the praises of your professors on your blog.

Speaking of time, the essentials of torts don't take much time to teach or learn. Accordingly, many torts professor fill most of their class time teaching something called "law and economics." As you would expect from the term, the discipline applies economic analysis to law. In practice, law and economics can yield some pretty odd conclusions. For example, if it would be cheaper for people who live downwind from a pig farm to purchase and wear gas masks, than for the pig farmer to prevent noxious fumes from escaping his farm, then, some law and economics scholars would say, the farmer should not be held liable for the tort of nuisance.

But when it comes to property law, Professor Dorf trails off into a short (and to us property profs, a not very funny) joke:

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August 23, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)