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Jeff Redding
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TM: Thanks for your observations, but you need to take a more in-depth look at both the Case Western allegations and the SLU situation; you'll see that it's hard to characterize either as simply intra-faculty disputes. At the very least, the welfare of students and staff are also directly implicated in both situations.
anon: Thanks for your spirited reply! You're packing a lot in that reply, and I can't do justice to all of your comments, but with respect to your concerns about the length/cost of law school, let me refer you to my series of posts on the '2 v. 3 debate' from last month on The Faculty Lounge. You'll see that I contemplate there the U.K. way of doing legal education, with which I have experience, having worked in both India and Pakistan before. As to your other comments, let me just say that I consider the conditions in which faculty, staff, and students in law schools do their work to be an important issue; legal education is not simply a question of $, but also fairness and social justice. I would hate to see either students or faculty/staff face a choice where they could attend/work at a school for more $, but have to experience sexual harassment as a consequence of that $ calculation. We need baselines, regardless of cost. But I can't really respond to all of your concerns fairly within the space limits of this blog. Please accept my apologies.
Tom and Susannah: Thank you for the updates and the information!
Hi everyone, I think we clearly need a new thread on what peer-review is and can be, and I'll try to start something like that towards the end of the week/beginning of next week. Nancy Leong's point that peer-review can operate on a continuum is spot-on, and it would be helpful for people to talk about the different kind of peer-reviews they have participated in (as either a submitter or a reviewer). MacK: "Practical irrelevancy has become a point of pride to law professors"??? I really do not know who you are talking to. Most law professors I know are happy or proud when their scholarship gets pointed to or cited outside of academic contexts. Non-academic audiences are not the audience that many legal academics are writing to specifically often enough, but no one (that I know) treats day-to-day law practice as uninteresting or shun-worthy, or takes "pride" in "practical irrelevancy." As well, people have different experiences with how to be "relevant," or want to experiment with different ways. Law blogs are one such experiment.
First of all, thank you everyone for a set of very thoughtful and thought-provoking comments. This is all very interesting and helpful. I don't know if I can (or should) reply to everyone's individual comments, but here are some initial reactions to things that particularly struck me in what I've just read: Scott: I totally hear you on the problems that peer-reviewed journals experience. What I would like to suggest is that we try to de-hierarchize peer-reviewed vs. student-edited law reviews, and try to think about them as just 'different' from each other, rather than better or worse than the other. And sometimes, for different people doing different kinds of research and writing and/or policy-making, a peer-reviewed piece will be more useful than a student-edited piece (and vice-versa). Simply knowing more about how a piece was solicited and selected, then, can help facilitate those decisions. Furthermore, I think a mature scholar, at least in the law field, should probably have both experiences publishing… hence, my suggestion of a required 'mix' in scholarship for purposes of advancement within the legal academy. BC and Nancy: Peer-review works on a continuum, absolutely—thank you for highlighting that. And, yes, this is one of the reasons for my proposal #2 (for law reviews to indicated in authors' * footnotes how the particular article was solicited, reviewed, and selected for punishment). I may be wrong here, but I think more information here is better. And Nancy, I am particularly intrigued by your suggestion that perhaps submissions to student-edited law reviews should be limited to junior faculty. I think there's definitely something there. Certainly, for purposes of advancement, one has to be able to signal productivity, i.e. that one can produce 'quantity' in scholarship. The large # of student-edited law reviews facilitate that signaling goal. Yet, perhaps after getting tenure, the expectation should be that one should demonstrate capacity for 'quality' in order for advancement to full professor, with a concomitant expectation that one published in peer-reviewed journals at that point. But, again, I don't want to necessarily create a hierarchy here between student-edited and peer-reviewed journals, and/or suggest that student-edited reviews never publish quality, and that peer-reviewed journals cannot perform their role expeditiously.
Jack: Thanks for weighing in. As to my first recommendation and academic freedom, I'll go out on a limb here and suggest that, presently, there is too often a quid pro quo going on between law professors and students (at any particular institution) with respect to article acceptance, and that quid pro quo has many of the exploitative features that faculty/student sexual relations can have. For that reason, I think we can regulate it. As to my second and third recommendations—and here I want to try to respond to Orin's remarks as well—I am not very certain at all that people outside of U.S. legal academia know that most U.S. law reviews are student-edited. I interact regularly with non-legal academics in the United States, and also outside the United States, and I can't count how many times I've seen jaws drop, and eyes pop, when I explain the U.S. law review article review process. Furthermore, the information I would like to see requisite in the * footnote (for example) would perhaps encourage some student-edited law reviews to distinguish themselves by upping the amount of peer-review they put into their articles acceptance process; this information in the * footnote then would not necessarily act as a badge of shame, but could be a marker/indicator of excellence. Finally, some users of the Bluebook would insist that when citing to a student note that that information must appear in the citation… why not then make the kind of law review (e.g. student-edited v. peer-reviewed) that a cited article appears in also requisite (parenthetical) information for the Bluebook citation to that article?
anon: I think all of your proposals are sound ones, and thank you for replying. With respect to your first proposal about institutional expectations that faculty serve on article selection committees and the like, I am particularly intrigued and have thought something of the same before. One wrinkle that deserves attention though is how to handle article review for specialty journals, for example one pertaining to international and comparative law. There may not be, from year to year, the critical mass of faculty at any particular institution to support peer-review for a specialty journal. The problem could be solved, of course, by inter-institutional collaborations, but that is obviously more complicated than doing something within one institution. But maybe, regardless of those complexities, and regardless of the reduction of specialty journals which would result, we should go in that direction… it may, interestingly, result in specialty 'secondary' journals being of higher quality than the generalist 'primary' law reviews.
Andrew: The problem with your original comment is that, as you just admit, it did *not* acknowledge a number of obvious points/realities. My pointing to the Nussbaum book was to suggest that a number of people within legal academia (and Nussbaum is presently within legal academia, and also a number of other disciplines) have been making the anti-commodification argument for a long time. The argument has been largely unsuccessful, however, because of overwhelming cultural forces that insist on speaking of "inputs" and "outputs" and (naive conceptions of ) "costs," rather than more humanistic priorities and understandings of all of the above. In other words, please don't blame the victim. Moreover, what you're hearing/experiencing as inconsistent messages from legal academy is certainly hypocrisy amongst some, but it's also different voices making different arguments in the same time-space… as I hope you know, no academia speaks with one voice. But if you want to anthropomorphize it all, then it does start to look like one big monster speaking out of both sides of its multiple mouths. Finally, Nussbaum's controversial take-down of Judith Butler in Nussbaum's essay "The Professor of Parody" can only through a very odd set of moves be mobilized for your purposes here. Whatever you think of my original invocation of Nussbaum, please do not do with this essay what you are trying to do. It's not pretty.
Andrew, First, to cite Nussbaum's essay "Professor of Parody" for your points here is ridiculous and intellectually suspect. Second, I characterize your discussion as paranoid because it paints a pluralistic set of actors as acting with a common interest (against you, the 'real academic,' in particular). I don't expect you to pay attention to this blog, or my posts on it for the past six months, but do an archive search and you'll find that I'm hardly drinking the law-skool kool-aid (if there is one). Moreover, beyond me, there are a pretty diverse set of actors making & resisting decisions in their respective law schools. Those diverse actors come from different political orientations, different behavioral dispositions, different financial positions (e.g. junior faculty still struggling to pay off their own sizable law-school debt versus senior & junior trust-fund beneficiaries), etc. So, in other words, before you pull out your disciplinary whip in order to herd cats, do a bit more digging.
I look forward to reading this article. The above comments by Andrew are largely paranoid and ahistorical; the commoditization of higher education has been a concern for decades now. Martha Nussbaum's book on this subject, "Cultivating Humanity" (http://www.amazon.com/Cultivating-Humanity-Classical-Defense-Education/dp/0674179498), dates from 1998. And, as great as that book is, it might be considered to have come to the game a bit late. Law schools might have taken the commoditization of education to lengths that even commoditized liberal arts schools would find shocking, but law schools were hardly unique in traversing that path. For that reason, and others, we can consider the problem a 'cultural' one.
Ben: Thanks for your comments. I do agree that we, as faculty, need to step up and take responsibility for the moral mess that law reviews are seeped it, and not focus the blame on students. Yet, to my mind, some reforms do need to target both sides of 'the problem.' At certain institutions, some students certainly have an interest in soliciting and approving certain faculty members' articles, in the hopes of recommendations, etc. Indeed, unscrupulous law faculty who abuse their home institution's law review article selection process were law students themselves somewhere at some point in time... the lack of scruples did not just magically appear at the AALS hiring conference.
anon: I think your idea of starting some sort of collective action vis-a-vis panels at AALS and LSA is excellent. I hope multiple people run with this idea! I'm curious: What do you see as the 5-10 most urgent issues facing law reviews? Please expand!
Rick: I think blind (and especially double-blind) submissions processes can help, but some of the most egregious (to my mind) examples of student-edited law reviews publishing home institution's profs articles happens at elite institutions, where students are savvy enough to know what a number of their professors are working on academically, and will be able to discern when they have gotten something from such a prof. Also, at any law school, elite or non-elite, it is totally possible for a faculty member to signal one's work to one's students (e.g. at symposia, public talks, in class, etc.), thus also defeating the purpose of double-blind. To be sure, I think double-blind review can certainly help, but it may not be possible for a number of reasons, and even with it, we need a fairly rigid rule here to prevent the continuing very serious problems with the selection processes on student-edited law journals.
ML: Thanks for your comments. My initial reactions are two-fold: 1) Publications should not exist solely for advancement purposes, and 2) People other than tenure/hiring committees, for whom law publications should hopefully be helpful, don't have perfect information about the law review placement process, and so probably can't make the 'discount' that you are suggesting. But I'm not sure we disagree entirely... I would just have the 'discount' equal the entire weight of the article in the situations you describe, i.e. I don't think tenure or hiring committees should consider *at all* a publication placed in a home journal, unless it is part of a symposium or some other reason justifies its placement. JustMe: I am not for the total elimination of student-edited law reviews, which your proposal's #s suggest as a likely outcome. I think such law reviews serve a variety of helpful purposes, including teaching important writing and editing skills to students. But perhaps any faculty who want to put a student-edited law review publication on their CV should have to have it clearly marked as such, so that people outside of the discipline can understand that its quality is not properly certified.
Sammie: Thank you for all of this information, and for alerting us of the very interesting work of STATIC.
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Toggle Commented Sep 25, 2013 on Locating a Law School at The Faculty Lounge
Anon, thanks for the information and detailed explanation—quite useful to know all of this.
Toggle Commented Sep 17, 2013 on The University Law School at The Faculty Lounge
E, thanks for your question. What I was immediately thinking of was the possibility of harnessing law faculty to teach undergraduates. Perhaps this couldn't be done directly, by assigning law faculty courses in the undergraduate curriculum, but it could be done through cross-listing and heavily promoting certain courses taught by law faculty. It's also relatively easy to imagine a university colonizing the facilities of a law school (e.g. using its lecture halls, its event spaces, transforming its empty offices into university-oriented offices), and there is often the incentive to do so, I would think, given that law schools tend to have the nicer buildings on university campuses. With respect to harnessing law faculty to teach undergraduates, it would be the law faculty who can teach in an interdisciplinary way who would be most valued by the university in that situation (most likely). That would put doctrinal faculty in somewhat of a position of vulnerability. Again, this is all hypothetical, but the larger point is that there are local political economies driving law school reform which the '2 v. 3' debate largely ignores.
Toggle Commented Sep 16, 2013 on The University Law School at The Faculty Lounge
MacK: I think you are totally overlooking and failing to respond to the central observation of my past couple of posts: the way in which debates over law school curriculum and length cannot occur in a vacuum that overlooks the kind of education—and its many deficiencies—that undergraduates are getting in the United States. As a result, your proposals come off in way that you perhaps don't intend, i.e. as recycling the basic model of what we already have. I'll add, I find it surprising that you don't find the irony in our own position: you adopt a quite critical, almost lefty stance towards the current law school model, but then try to cement an uncritical approach to law that is largely what we already have right now. I appreciate your critique, but you really need to start owning it and think about how you got to this position... and allow others that same possibility.
anon: Could you identify an area of law that does *not* involve intersections or, in other words, an area of 'pure law'? BoredJD: That's not my experience with legal writing. There are serious issues pertaining the status of legal research & writing faculty, and your comment reflects an attitude that they are not 'real faculty,' which I have many problems with. I have found LR&W faculty deeply committed to their students, taking them along a very long and painful process to break down their preconceived ideas about writing, and to get them somewhere much better. Faculty like myself, as well, have taken courses (Comparative Law in my case) that were primarily exam-based and converted them to paper-based. I would love to spend a post or two explaining that process, and its reception, but that's another post and conversation. But do come visit sometime; you're always welcome to sit in.
BoredJD: Let me defer a full answer to your initial set of questions until my next post, but one of my major worries is deficient writing skills, which I think is the result of pedagogical deficiencies in undergraduate (and pre-undergraduate) education, and which law school doesn't do enough to surmount. Writing is a tough beast to teach though, but let me hypothesize a few things about it in my next post. Thanks for your questions. anon-abc: You make some excellent points. I'll try to respond in my next post.
Toggle Commented Aug 31, 2013 on 2 v. 3 v. The Liberal Arts at The Faculty Lounge
BoredJD, thanks for your comments. As I indicated in my post, however, I'm not in any way pre-committed to a particular form of legal education. Many of your concerns about costs, in fact, could be at least partially addressed by making law an undergraduate degree—as it is in many nations. But I'd still have my concerns about what kind of lawyers are being produced in such a system, and whether they have the skills, knowledge base, and ethical capacity that I would hope we would want in a lawyer. Furthermore, we can address your concerns about costs by handing law degrees away for free, but I assume even you would not want to see that kind of 'system' and that you too (at the end of the day) have concerns about what substance we fill however many years—at whatever cost—in whatever system we will have.
Toggle Commented Aug 30, 2013 on 2 v. 3 v. The Liberal Arts at The Faculty Lounge
Anonprof: I am sympathetic to much of what you describe and I'll delve a bit more into some of your concerns in future posts. Paul: I think 18-year-olds make decisions about undergraduate degrees with much-less-than-perfect information, and also with much parental pressure about 'being practical.' So I'm not willing to fault them on their choices in this respect. Given that position, I also think we need to make law school available and viable for people who wish to change careers and goals later in life and so, yes, maybe we need something like the med school entrance requirements model - entrance requirements which anyone (with means) can theoretically take whether in undergraduate or post-undergraduate. Doug: I have no doubt that that is the case, and law schools should offer such courses or allow students to cross-register in other schools to take them. I feel the same way about language courses. But yes, I still do believe that history (along with other liberal disciplines) give students crucial perspectives on our legal system that an accounting course (of study) probably does not—I am willing to be convinced otherwise—and I'll talk more about this in future posts.
Toggle Commented Aug 30, 2013 on 2 v. 3 v. The Liberal Arts at The Faculty Lounge
Papa Beyondi, nice to finally meet you; we've never met in person, but I've heard a lot about you! Hopefully some of my response to David made sense to you. Warmest regards, from the bubble beyond...
David, thanks for your comment, and sorry for the delay in replying. I think you sell yourself short when you write "I don't follow this post at all"—at least it seems to me that you do get the gist of it and, rather than a moment of incomprehension here, we have a moment of disagreement! I don't think it's 'nihilistic' to critique the choice of plaintiffs that mainstream LGB organizations bring forward to 'represent the community.' These are not random people, obviously, and they represent not only different legal issues, but also the particular people & faces that mainstream LGB organizations want to invest in. One suggestion here then (and by far not a unique or unprecedented argument) is that the faces of 'marriage equality' be representative of more-average queer people and their life situations. The estate tax and its administration is not an issue for most queer people or, alternatively, for those queer people most in need. Your comment has anticipated another future post of mine on United States v. Windsor, which I will write in the near future, but there are other queer people, affected negatively by DOMA, who could have not only been more sympathetic 'victims' (more sympathetic for both people within the community and critics outside of the community), but whose challenging of DOMA would likely have generated a majority opinion that is less about money and more about justice generally. (I don't think money and justice are unrelated, but I don't think justice is all about money.) I take it that the LGB rights movement is ultimately about justice—Edith Windsor's own interviews situate her concerns as ones about 'injustice'—so I don't know how one detaches this case or other cases from larger social justice issues, whether those concern the tax system, the criminal-prosecution system, etc. Perhaps the money-driven nature of 'the real Edith Windsor' precludes us from seeing those links; this indeed is my fear of how plaintiffs like her, with her particular issues, shape discourse of what 'equality' means in everyday life. In a world saturated in inequality, we rarely see equality, and it matters how it emerges. Justice Kennedy would have written a different opinion with a different kind of plaintiff in front of him; alternatively, a different kind of plaintiff would have motivated Justice Sotomayor to take the lead in writing the majority opinion. Either way, we would have a different articulation of 'equality' if that indeed still remained the focus (rather than, say, 'fairness' or 'justice'—these are not all the same).