Shifts In Law Professors’ Views

A friend of mine, Scott Rafferty, wrote a tremendous senior thesis at Princeton back in the 1970s on the enforcement of civil rights laws during the Kennedy Administration. As part of his research, Scott interviewed a bunch of former attorneys for the Civil Rights section of the Department of Justice. Scott typed out his interview notes and donated them to the John F. Kennedy presidential library, where they remain today, and where I consulted them a few weeks ago.

Rafferty’s notes of his interview with John Doar contain an interesting observation by Doar. Referring to the Kennedy Administration’s failure to rely heavily upon the Fourteenth Amendment as a basis for the enforcement of civil-rights laws, Doar said (and here Scott may have paraphrased Doar, but I’m going to quote his notes), “You have to consider what the Fourteenth Amendment meant in 1960. The difference of what the law school professors thought was constitutional in 1960 and what they thought was constitutional in 1965 was just incredible.”

I don’t know if Doar was correct that there was a marked shift in opinion among law professors on this issue over this brief span. Regardless, his comment got me to thinking about what other issues may have witnessed similarly dramatic, swift shifts in the prevailing views of the professoriate (without prompting by significant intervening changes in the law, mind you).

Gay marriage came immediately to mind, due to the ongoing evolution of popular opinion on the topic, but my hunch is that a majority of law professors have supported gay marriage for at least 20 years now, and before then, it was less a matter of committed opposition than a general failure to consider the possibility of gay marriage at all. Another, more likely possibility might be a shift with regard to the merits of isolationism prior to World War II. I have absolutely no sense of the midcentury scholarship on this point, however, and isolationism represents more of a political issue than a legal one. So I can’t think of another example, at least not offhand. I wonder if other professors can.

Noah Messing’s The Art of Advocacy

This has been a very good month for law teachers in search of accessible resources to improve their students’ legal writing. First, Ross Guberman has been offering some helpful, free writing advice over at the Hkolov Cabal. Second, Noah Messing, a legal writing instructor at Yale Law School, just published The Art of Advocacy.

The Art of Advocacy is the very best book on legal writing I have ever read. I would give a lengthy review, but let’s be honest, no one would read it. It suffices to say that if you are interested in improving your legal writing, please please please check this book out. Trust me on this one. It’s easy to read (Noah’s sense of humor permeates the text), it’s chock-full of great examples, and it’s for sale at for less than $25.00.

Note: I went to law school with Noah, and he and I worked on the Yale Law Revue together. That said, I haven’t spoken with him in years, and if his book sucked, I’d call him out on it. 

The 2013-2014 Law-Professor Draft Preview

Mel Ripek, Sr: Welcome to the 2013-2014 law-professor draft preview. I’m Professor Mel Ripek, Sr. With me today is my co-host, Professor Todd McStay.

Todd McStay: Thanks, Mel. We’re at Wardman-minus-six, and let me tell you, we have some terrific prospects coming onto the market next fall. Some of them are almost Baude-esque in their qualifications. They can be absolute bullies.

Ripek: Like Scott Greenfield?

McStay: No; I’m using “bullies” in a good sense. Strong academics. You know.

Ripek: High praise indeed. But I see your point: We’ve got Climenko Fellows coming onto the market. We’ve got Bigelow Fellows. And we’ve got Wasserstein Fellows, Ruebhausen Fellows, Klarsterlich Fellows, and Andreeson Fellows. Only three of which I just made up.

Todd, most drafts start with the teams with the worst records. But here, we start with the best schools. Who do you have going to Yale?

McStay: I have Yale staying local and going with Margot Kaminski, the Executive Director of the law school’s Information Society Project. Kaminski is a Yale Law graduate with tremendous upside. I know that Yale doesn’t normally take anybody other than a Constitutional Law prospect this early in the draft—to them, it’s like drafting a punter in the first round. But Kaminski has tremendous intangibles, tangibles, and semi-tangibles. How about this stat: in Yale’s New York Times editorial drill, she drafted a 1,500-word op-ed on the CFAA in just 23 minutes.

Ripek (nodding): Beating the previous record of 28 minutes, which, if I am not mistaken, then-prospect Bruce Ackerman set back in 1971 with his op-ed “Release Those Pentagon Papers, Jive Nixon.”

I’m looking over Kaminski’s stat sheet right now. (Frowning.) Todd, Kaminski has authored plenty of interesting law-review articles, but she hasn’t written even one child-care book, or a single mystery novel. Are you sure she’s a good fit for Yale?

McStay: It is a weak spot in an otherwise stellar resume. But let’s remember, it wasn’t that long ago that Amy Chua was writing only about international business transactions, and we were second-guessing her move to Yale. If Kaminski develops as Yale hopes she will, a decade from now, we’ll all be watching her tell Jon Stewart about her recently published set of sci-fi graphic novels.

Ripek: Next, let’s go up I-95 to Harvard Law School. I have the Crimson taking Beth Colgan, a fellow over at Stanford Law School who specializes in criminal-justice issues. Colgan has an interesting piece coming out soon in the California Law Review. She’s the type of candidate who can just step in and give Harvard good production in the criminal procedure spot for decades to come.

McStay: I was thinking the same thing, but then I saw that Colgan actually practiced law for a while. That made me nervous.

Ripek: Me too, but given Colgan’s fellowship at Stanford, I don’t think that Harvard will punish her for that. It’s like an NFL prospect spending two years at a junior college, before transferring to a four-year institution: regrettable, but understandable. Next up: Stanford. Todd, who do you have the Cardinal picking?

McStay: Well, at first I thought Stanford might trade this pick to Florida State for either Tara Grove or Dan Markel. But I decided that they’re going to go in a slightly different direction and pick Roger Ford, a Bigelow Fellow at the University of Chicago.

Ripek: Former Easterbrook clerk. Forthcoming publication in the Cornell Law Review. MIT degree. Ford has a science background. I can see Ford working collaboratively at Stanford with professors over in chemistry and the other sciences that don’t get that much attention in the criminal procedure context, at least relative to human biology and electronics.

Ripek: Moving on to the fourth spot — oh, this just in: we have a trade.

McStay: We do. has learned that Columbia Law School has traded the fourth pick in the draft to Stanford, in exchange for Nathaniel Persily. Some of you out there may recall that Persily just announced that he was leaving Columbia for Stanford.

Ripek: Hmm. Guess that’s not gonna happen.

McStay: Apparently Columbia was none too thrilled with that plan, so they’ve nixed Persily’s move with this trade, effectively dragging him back to New York. A clever, if ruthless, move. Mel, who is Stanford going to take with this additional pick?

Ripek: Well, I think that . . . .

This is the end of your Insider Preview. To see the full Mock Draft, subscribe to’s Insider service, with details available here. Law School Exam Tips (Contains Recycled Content)

It’s that time of year again, with law students starting to fret about their end-of-semester exams.

I have developed a reputation at Santa Clara for giving difficult examinations. Actually, “cultivated” is perhaps the better verb to use. I do give relatively difficult examinations, and don’t shy away from this fact.

I have my reasons. First, I want students to study, early and often. Second, I dislike examinations that are so easy that they produce a tightly compressed curve; I don’t want good students to find themselves with bad grades simply because they missed a question or two. Third, I want to reward students who come to class, and I do so by incorporating within the exam topics that were discussed, memorably, in class but (a) aren’t in the textbook; and (b) aren’t very likely to have been written down within an outline that a truant student can get his or her hands upon. Fourth, and finally, I personally like writing what I will describe as “elegant” exams. Here, I mean examinations that look extremely difficult, but often have back doors or short circuits written into them that, if detected, make the student’s task much easier.

Anyway, given the timing, I want to recycle a blog entry that I posted over at Concurring Opinions a couple of years back. The post relates a few exam tips for law students. The main take-away, for students, is this: set aside some time to think about how your professor is likely to approach the examination. Are there subjects that are “easier” to test to than others, in the sense that they lead to “right” and “wrong” answers? Are there subjects that seem to pop up on past exam after past exam? Did your professor seem to dedicate an inordinate amount of time to a particular topic? You get the idea.

Continue reading

Annals of Unnecessary Brackets: Law School Courses and Law Blogs

It’s March; bracket season. Stupid bracket-format tournament challenges represent one of the surest signs of a blog’s editorial desperation. Some things just don’t need to be seeded, then pitted against one another. Kittens, for example.

But bracket tournaments are irresistible to lazy writers and editors. Like me. Here’s why: Properly done, brackets provide fodder for not just one, but several columns: Initial seedings! First round results! Second round results! Final matchups! Postmortems! You get the idea; the bracket-tournament format is a gift that keeps on giving to bloggers. Plus, brackets combine two activities that Americans seem to really, really like: ranking things, and elimination tournaments. (As to the latter, see my continued affection for the admittedly horrible Jean-Claude Van Damme movie, Bloodsport.) So even if a bracket challenge is incredibly stupid, people will still read it, if only to comment on how stupid it is.

This siren song has seduced several relatively good blogs (ohai, Vulture) into printing dopey bracket-tournament challenges for things like movies, sitcoms, presidents, and law professors. Since I, and this blog, do not claim to have any standards at all, I thought I would jump onto the bandwagon and offer up a couple of the dumbest bracket matchups I could think of. Let the debates begin!

First, how about this bracket challenge that pits law school courses against one another:

Hmm. I may have seeded Remedies and Securities Regulation too generously. And for those of you who teach International Law or Comparative Law and think I’ve seeded these courses too harshly, well, it’s time to get a grip on reality.

It was a tough call as to whether Torts or Con Law should grab the last Number #1 seed. I went with Con Law to dispel any allegations of a pro-Torts bias. And, yes, I did accidentally seed Property twice, which I suspect tends not to occur in real tournaments. If this error bothers you, calm down, have a drink, and just tell yourself that one of the Property entries has just been declared academically ineligible or something.

If this bracket has any worthwhile qualities at all, it’s that it made me think about what the law-school curriculum equivalent of the Berlin-Kay hierarchy / ordering of words for colors would look like. (I.e., “If a law school has seven courses, these courses will include A, B, C, D, and E, and two among F, G, and H. If a law school has eight courses, these courses will include. . . .”). But that’s a topic for another day.

A bracket for law courses not your thing? How about this bracket challenge, involving law blogs:  

Wow, the tournament organizers, whoever they may be, sure set up a fascinating first-round match-up between Concurring Opinions and PrawfsBlawg. I wonder how the participants will know who is on whose team. And I don’t know about you, but I am personally very excited about the possible second-round contest between Brian Leiter’s Law School Reports and the Inside the Law School Scam blog. And just to anticipate a question some of you might ask, no, Althouse is not invited to this tournament. This is a bracket for law blogs, not for law professors who blog. There is a difference.

The Law Blog bracket tournament strikes me as ridiculous, of course, but I can’t get over the nagging suspicion that someone else already has put together a similar set of matchups. (Looking in your general direction, Above the Law.) Anyway, have at it. Contrary to the basic premise of this exercise, I promise there will be no follow-up posts.  But remember, cash gambling remains illegal in most states.

An Honest Advertisement for Law School Dean Candidates


Dean, School of Law

West Canterbury State University

January 24, 2013

The School of Law at West Canterbury State University is inviting applications for the position of Dean. West Canterbury State is a well-respected university that opened a Law School back in 2004, when that seemed like a good idea. Now, not so much.

The Law School is home to an impressive array of scholars. And many other professors, as well. It also claims a distinguished body of teaching professors, who tend not to overlap with the impressive scholars. The Law School has somewhere between four and nine associate deans; we lost track a little while ago. We don’t really know how many staff members we have. We think we still have a library.

As of writing, the Law School has three students who have applied for admission to its first-year class next year. Three. So we’re pretty much s******* bricks here. But not so much so that we’re willing to consider a mandatory four-courses-a-year teaching-load requirement for our professors. Let’s not get carried away here. Instead, we are looking for a Dean who can help us avoid real change, so professors can return to figuring out whether to go to that Rio de Janeiro law conference next year, or the one over in Venice.

The ideal candidate will possess:

A Time Machine: To ensure that we receive resumes from all interested candidates, allow us to emphasize that the machine only needs one setting: 2006, when we had plenty of applicants and things looked great. Candidates with the ability to alter or distort reality also will be considered.

Close Friendships with Any of the Following: Mark Zuckerberg, Warren Buffett, Larry Ellison, Carlos Slim, Bill Gates, or the Sultan of Brunei. Alternatively, candidates with maps to large stashes of prospector’s gold also should apply. So too should heirs to family fortunes of $500 million or more who enjoy skydiving and would be interested in completing personalized take-home assignments in our world-famous Wills and Trusts courses.

Incriminating Photos of U.S. News & World Report Bigwigs: Not going to say why, but hopefully you get the picture. Hint: We believe our new Rights for Left-Handers Clinic justifies, or at least could provide a smokescreen for, a 138-spot jump in the U.S. News rankings.

Powers of Hypnosis: Self-explanatory.

A Bulletproof Vest: In the event that the candidate actually has to make any real changes around here.

West Canterbury State University is an Equal-Opportunity Employer.

Law Faculty Salaries, Circa 1940

I just returned from the Association of American Law Schools conference, in New Orleans. I was sick for most of the weekend, which kind of sucked. Nevertheless, I had several opportunities to walk around the city, which was lovely. Except for Bourbon Street near Canal Street, that is. Which remains a pit.

Anyway, for nostaglia’s sake I dug this old AALS memorandum out of storage last night. The memo, which dates from March 1940, announces the site of the 1940 AALS convention (Chicago! In December!) and relates the results of an extensive survey of faculty salaries that the organization had conducted. From this survey, one learns that as of 1939-1940:

  • the average salary of a full professor at reporting law schools was $5,521; of an associate professor, $3,607. According to the ol’ Bureau of Labor Statistics inflation calculator, $5,521, as of 1940, had the same purchasing power as $90,789 did in 2012.
  • one school – I am guessing Harvard Law, though it may have been one of the two schools that did not respond to the survey – spent $291,500 on faculty salaries. After that institution, there was a pretty steep drop-off in this type of expenditure, and only five schools spent more than $100,000 on faculties salaries, overall.
  • at the other extreme, a bunch of law schools spent less than $20,000 on total faculty salaries, and a few spent less than $10,000. To put the latter figure in perspective, if my memory is correct, at least a few top-flight Yale Law and Harvard Law professors were making more than $10,000 a year, apiece, during this era.



A Law-School Advertisement of the Near Future

With the ongoing free-fall in LSAT takers, perhaps we’ve reached the point when all law schools will need to do more to promote themselves to prospective students.

For example, the editor of has recently acquired the following draft script of an advertisement for his alma mater, Yale Law School, seeking applicants:

[Director’s Note: The commercial opens with three attractive twenty-somethings, two women and one men, sitting on an urban streetcorner.  All look depressed. All wear scarves. Two are drinking "fair-trade" chai tea. At least one should look like Zooey Deschanel. For maximum exposure to likely applicants, the commercial should air during late-night ‘Storage Wars’ episodes.]

Twentysomething One: I am so sick of my Virginia Wolff dissertation. And, query: To what purpose, my degree?

[All three nod.]

Twentysomething Two: I just wish there was a place where we could continue to do as much, or as little, as we want, but be guaranteed lots and lots of money when we graduate.

[The scene should now transition to a head-and-torso shot of Yale Law School Dean Robert Post, dressed in a tweed suit and sitting on a leather chair in his office, legs crossed, reading a book, fireplace roaring in the background. Post looks up from the book and speaks, in an avuncular manner, to the camera.]

Post: Oh! [Smiles.] Hello there. [Shuts book.] I’m Robert Post. Yes, that’s right [nodding], the Robert Post.

Is your life stuck in an rut, like an English Ph.D. program? Are you pursuing any sort of “career” in philosophy? Does your principal skill involve figuring out seating patterns at dinner parties where the guests all have first names that begin with different letters, and must be positioned just so? Well, if you answered these questions with a “yes,” let me tell you about a place that can give your career just the boost it needs: Yale Law School. I’m its dean, and I’m proud to call it home.

[Post stands up, walks toward his office's door, opens it, and waves his hand, beckoning the viewer to follow him out the door, into the rest of the school.]

[Cut to Post, walking down the law school’s main hallway, and continuing to address the camera.]

Post: You never know who you’ll meet – or become – here at Yale Law School.

Future Supreme Court justices . . .

[Here, Post should walk past paintings of Justices Alito, Sotomayor, and Thomas that line the hallway. To make sure the audience knows who these people are, the words “SUPREME COURT JUSTICES!!!” should flash in bright letters at the bottom of the screen.]

“Survivor” contestants . . .

[Here, Post should walk past a painting of Yul Kwon. If there is no such painting, we will have one prepared for the ad.]

Or even Presidents of the United States . . .

[Here, Post will walk past paintings of Gerald Ford, Bill Clinton, and Barack Obama. Again, we need “PRESIDENTS!!!” flashing in bold font on the bottom of the screen. While Obama isn’t a Yale alumnus, applicants won’t know that.]

Post: You name ‘em, we’ve got ‘em. Who knows [turns to camera, points at screen, and smiles] – YOU just might be on this bland concrete wall some day.

[As Post continues to walk down the hall, a bearded man, also dressed in tweed, comes into view. The man is intently reading sheets of paper posted on a law-school wall, which bears the label, “The Wall.”]

Post: [Feigning surprise.] Why, it’s Yale Law School’s own Sterling Professor, constitutional law scholar, and famous author, Akhil Amar! Hello there, Professor Amar – or as our students all call you, ‘khil. What’re you doing?

Amar: [Turning around, and gesturing to The Wall.] Oh, I’m just reading these student posts on The Wall. Fascinating! All of them! I am definitely learning something here about the optimal methods of constitutional interpretation.

Post: [Solemnly.] Yes, we all have learned much from The Wall. Akhil, what makes Yale Law School such a terrific value for students?

Amar: Where to begin?  I would start with me, for one thing.  And then, there’s our U.S. News ranking – number one for, what is it now, twenty years in a row? That’s something like a dozen spots ahead of the University of Chicago Law School. Where, I might add, Richard Posner teaches. Infer what you will from the connection.

Post [Incredulous]: Chicago still has a law school? I did not know that.

Amar: [Chuckling.] If only I did have eleven Constitutions; there’d be one for each institution between Yale and Chicago in the rankings.

[Post nods, knowingly, and steals a glance at the camera to let the point sink in to the viewer before returning his gaze to Amar.]

[Amar turns toward, and then addresses the camera]

Amar: But don’t just take it from me – take it from Yale Law School Professors Amy Chua and John Langbein, together with famous celebrity Wesley Snipes.

[Scene shifts to an ultra-bright, comfortable living-room scene, where Professors Langbein and Chua are seated on a white sofa, along with Snipes. Langbein is dressed in a lime-green sweater vest, a blue, open-collared oxford shirt, and tan khakis.]

Langbein [smiling]: Thanks, Akhil. [Puts down his cup of coffee, and turns to Chua.] Amy, we all know that Yale Law School offers its students four-star dining — just thinking about our superb duck confit, my mouth starts to water — a money-back guarantee that all clinic participants will personally argue a case before the United States Supreme Court before they graduate, and three actual “get out of jail free” cards. But, even given all that, how does Yale Law offer any better a value proposition than, say, an air-conditioner repair trade school?

Chua:  Great question, John. [Turns to camera, smiling.] I have a personal story to tell here. Just the other week, my youngest daughter, who is nine, threw a fit and told me that she didn’t want to go to Yale Law School. She said there were too many law students, but too few jobs! Well, let me tell you, that made this “tiger mother” let out quite the growl!

[Everyone laughs, including Snipes.]

Chua: After telling Jed to leave the room, I told her that if she didn’t go to Yale Law School, I would kill her. Seriously. Kill her. Knife across the neck. [Runs finger across throat.] To underscore the point, I pulled her goldfish out of its bowl, placed it on my daughter’s desk, and let it flop around, gasping for air, for just a few seconds. I think my little cub got the message. Hello, Yale Law School class of 2027! [Smiling; turns back to Langbein.]

[Langbein and Snipes stare at Chua, mouths agape and horrified.]

Langbein [soldiering on]: Wesley: How much would you pay for a Yale Law School degree?

Snipes: Today, or before my conviction for tax evasion?

[Everyone laughs]

Snipes [suddenly turning thoughtful]: No, but seriously. I think Yale Law offers a “Major League” experience to its students. I wish I had been “Passenger 57″ on this “Money Train”!  So, let me guess. But before I do — you’re throwing in the Second Circuit clerkship for free, right?

Langbein: Of course! Though we can’t guarantee the judge. We only promise that no Yale Law student will ever, ever, ever have to clerk on the Third or [shudders] Sixth Circuits.

Snipes: OK. How about . . . $100,000 a year?

Langbein [smiling, slyly]: Keep guessing . . .

Snipes [skeptically]: $80,000?

Langbein: Nope . . .

Snipes: There is simply no way you could offer this education for less than $75,000 per year. There’s just no way!

Langbein: That’s where you’re wrong, Wesley. For a limited time, we are offering an “all-inclusive” tuition, fees, room, and board package for the low, low price of $69,999 per year!

[Director's note: At this point, the bold text "$69,999!!! OPERATORS ARE STANDING BY," and the number to call should flash at the bottom of the screen.]


[Director’s note: The remainder of the commercial remains to be written. It probably needs a jingle, too. And this is extremely important: If the camera inadvertently captures any scenes of New Haven, away from the law school campus, make ABSOLUTELY CERTAIN to delete these clips in the editing process.]


OK, not really. For the record, I adore Dean Post and Professors Amar, Chua, and Langbein, none of whom would ever, ever appear in an ad like this or say these sorts of things.

Vanderbilt TV News Archive + Hoover Institution’s “Firing Line” Archive

I recently came across two resources that may be of interest to those of you who teach law.

First, Vanderbilt has compiled an impressive archive of old television nightly-news broadcasts, from the late 1960s to the present day. For a fee, Vanderbilt will splice together various clips that you locate in their searchable database, put them on a DVD, and loan that DVD to you. These clips may add some useful context to prominent cases taught in class, and illustrate recurring disconnects between the true content of judicial decisions and how the media describes these outcomes.

These clips don’t capture every case of note, but they do reflect some highlights of the Supreme Court’s docket. For example, using search terms such as “Fourth Amendment,” “search and seizure,” and “police searches,” I came across nightly-news clips on Crim Pro cases such as Sitz v. Michigan Dept. of Police, United States v. Ross, United States v. Robinson, Atwater v. City of Lago Vista, Florida v. Bostick, Hudson v. Michigan, Florida v. J.L., Oliver v. United States, Illinois v. Gates, and others.

Second, the Hoover Institution hosts an archive of old “Firing Line” broadcasts, capturing the show’s entire 1966-1999 run. Some of these episodes are available for purchase through Other episodes (about 1/3 of the total run of 1,505 episodes) can be ordered from the Hoover Institution. Some of the older broadcasts that are available for purchase include “Criminals and the Supreme Court” (original airdate: November 7, 1966); “Wiretapping-Electronic Bugging” (January 24, 1968); “Obscenity and the Supreme Court” (June 24, 1968); and “The Fifth Amendment” (February 2, 1969). Five-minute clips for some of these episodes also have been posted on YouTube.


Admittedly Dumb Idea, Number Two: The Santa Clara Law Mysteries

My law school doesn’t have a billion-dollar endowment, so I’m always on the lookout for new ways for our institution to raise some money.

A little while back, I hit upon this admittedly dumb idea. After seeing Yale Law School Professor Stephen Carter snag a $4.2 million advance for “The Emperor of Ocean Park,” and fellow YLS Prof. Jed Rubenfeld collect upwards of $1.8 million for “An Interpretation of Murder,” I decided that our faculty should write a series of murder-mystery novels, with each book keyed to the specific author / professor’s principal area of study. I figured that even if this series doesn’t earn quite as much as Carter and Rubenfeld did, we could at least raise enough to buy the “Dig Dug“ coffee-table arcade game that I want for our faculty lounge.

With this plan, we–or more precisely, the super-agent we would hire–would market the novels as the “Santa Clara Law Mysteries.” Within this series, a Torts professor (cough, ahem) could write a mystery novel with a Torts theme; a Tax professor could write a novel with a Tax theme; a Contracts professor, a novel with (wait for it . . ) a Contracts theme, and so forth. I don’t know how we’d pull off the Conflicts murder-mystery novel, but if we ever got that far along, we’d find a way.

Then we would build baskets, or perhaps large nets, to collect the money that would inevitably pour in. I don’t know why law professors get such large advances for their mystery novels, just like I don’t know why Americans like to name motel chains after numbers. But if publishing houses are prepared to throw big money at law professors who dabble in fiction, we’d be foolish to leave this cash on the table.

Yes, I understand that we’re coming a little late to the Law-Professors-Writing-Mystery-Novels Party. But take a gander at the following tentative titles and plot summaries, and I’ll wager that any such concerns will evaporate:

Torts: “Criminal Conversation.” Mississippi playboy Evan Golusty didn’t order bayou water as his last drink, but the three gunshot wounds in his back mean it’ll have to do. Clutched in the water-logged corpse’s fist: a complaint that names Golusty as the defendant in an alienation of affections lawsuit. Who stripped away Golusty’s heartbalm, not to mention his heart? The embittered plaintiff in the civil suit, local district attorney Randolph Dupree? His wife, attorney Violet Dupree, with whom Golusty had just broken off a torrid affair? Or another of the quirky residents of West Magnolia, Mississippi? You’d be negligent to pass this story up.

Corporations:  ”Regulation 10-B-Dead.” Convicted insider trader Martha Deepockett was never a fan of Blue Sky statutes. The law of gravity does her no favors, either, as she plummets 49 stories from her midtown penthouse apartment to the cement sidewalk below. Was it suicide? Or were the true “risk factors” Martha’s old hedge-fund partners, fresh out of prison themselves? And what about the head of the SEC, with whom Deepockett was having a torrid affair? Use your business judgment in solving this mystery without any material omissions .

IP: “The Markman Marked Men.”  The new Powerhouse 2300 dynamo could end our reliance on foreign oil forever–but only if its owner, DynamiCorp, can defeat the patent- invalidity suit brought by global energy giant PowerBiz and its charismatic CEO, Tex Redherring. As the date for the crucial Markman hearing draws near, the lifespans of several top DynamiCorp executives are permanently “infringed.” Suspicions point toward PowerBiz and Redherring, who is having a torrid affair with the Powerhouse 2300. Is the solution to this mystery obvious, or non-obvious?

Accounting for Lawyers: I’m still thinking this one up.

Keep in mind that the actual novels would be much, much better than this. So, let me close with a message to all you literary agents out there: Let the bidding begin!

The Bar Exam: Early 1900s Outlines (1903-1914)

The proliferation of large, brightly-colored workbooks around the Santa Clara campus means that Barbri season has begun. Many of my former Santa Clara students will be spending the next two months studying for the bar examination, and I suspect that most of these students will take the Barbri course to prepare for the test.

I’m a Barbri fan, though I concede that the program is awfully expensive. (Not that it matters, but last year a private equity fund run by Leeds Equity Partners purchased Barbri. There’s gold in them thar law-student anxiety.) I credit the course with having helped me pass the California bar exam back in 2001, even though I hadn’t taken several of the tested subjects in law school, and remained pretty clueless about a bunch of the subjects that I had taken.

At the same time, I wonder whether technological innovations have whittled away some of the program’s utility. It struck me that Barbri’s value lay, in large part, in its rigid structure. Every day, we students had to trudge to a particular place (usually a law school or, in my case, the Goleta Community Center), where we’d watch a speaker, or a video, for several hours. The speaker would help us fill in our workbooks (just like a third-grade Phonics lesson!), and that, plus lots and lots of supplemental studying, is how we’d familiarize ourselves with the material. Without this day-in, day-out routine, I doubt I would have been disciplined enough to study very much–especially during May and early June, when the bar exam still seemed so very far away.

Today, students can download these videos “on demand,” meaning that they don’t have to attend the lectures or screenings. I appreciate that students probably lobbied for this download feature, but I think it’s an awful idea. Had it existed back in 2001, I absolutely would have skipped a whole bunch of Barbri classes to go hiking or biking or eating or sleeping or something. I would have promised myself, each time, that I’d watch the video later. Which, in a few rare instances, I actually might–maybe while on the beach, or at a cafe, and in any event never, ever paying more than about 50 percent of my complete attention to the video.

Well, my students are probably much more disciplined than I was. To turn the page within this post, I have little useful advice for those of you who are studying for the bar examination right now. It’s a slog, and the last two weeks, in particular, involve a pretty awful sleep-panic studying-sleep cyclical routine. Personally, during the final countdown to the 2001 bar examination, I felt like a particularly hapless version of the Little Dutch Boy. Only I was trying to plug a seemingly infinite number of holes in my brain, instead of leaks in a dike. If I had to offer some simple advice or encouragement, it would be this:

1) Know what the exam tests. The bar exam is, in my opinion, only about 50 percent concerned with your nuanced knowledge of the substantive law. If you don’t believe me, look at the “model” answers to essay questions that the California Bar posts online, after each administration of the exam. Often, the two posted answers for each question will come to directly conflicting conclusions on key points of substantive law.

As much as it probes your knowledge of the law, the bar exam tests candidates’ writing, reading, and generic critical-thinking skills. This point applies in particular force to the exam’s “performance tests,” and also to the essay and multiple-choice portions of the examination. As for these essays and multiple-choice questions–and I know this sounds obvious, but still–you must must must read the questions and answers carefully, paying particular attention to the call of each question. The bar examiners are experts at things like subtly hiding double hearsay within an Evidence multiple-choice question. If you skim the question, or read it too quickly, or fail to consider all of the answer choices (remember, here, that you are looking for the “best,” not the “perfect,” answer), you’ll get it wrong. 

2) Make life easy for your grader. Test-takers think that their exam answer will be the cynosure of their grader’s attention, even if only for a few minutes. Maybe, maybe not. Your grader very well may be watching TV, or playing shufflepuck, or doing something else while he or she marks up your answer. This likelihood means that you must make it as easy as possible for him or her to understand and follow your thought process. This general suggestion breaks down into several subpoints:

a. With your essay answers and performance test responses, especially, I seriously doubt that anyone can provide too much road-mapping at the outset of his or her answer, or too many headings or signal words (e.g., “first,” “second,” “third,” etc.) at the start of new paragraphs, consistent with the architecture laid out in your roadmap.

b. Likewise, avoid long paragraphs in your answers to essay questions and performance tests. Overly long paragraphs – especially overly long paragraphs that lack topic sentences – are a pet peeve of mine as a professor. My attention span is barely long enough to slog through a page-and-a-half-long paragraph. You’d better believe that the average bar-exam grader has even less patience, and less desire to mine a sea of text for the “right” answer. Short paragraphs–and here I’m thinking four or five crisp sentences, tops–are much more reader-friendly.

c. Don’t assume your graders know how smart you are. This point represents the flip side to Tip #2.b, above. With the additional time that your shortened paragraphs provide you, briefly touch upon and discuss some points that you think are obvious.

Almost everyone, as a writer, filters out stuff that they assume the reader already knows. Sometimes this is useful, but just as often, it creates problems–either because the reader doesn’t know this information, or because it doesn’t matter what the reader knows or doesn’t know–it matters what you, the writer, know, and put down on paper.  The bar exam falls into the latter category. If you leave something off an exam, it’s dead to the grader, who doesn’t know you from Adam or Eve, and doesn’t know if you omitted the point because the answer is apodictic, or because you failed to identify the issue in the first place.

Here again, I encourage students who are taking the California bar exam to quickly skim a couple of questions and model answers to the test. As to any question, the common denominator isn’t that both model responses got the law entirely right, or entirely wrong. Instead, both of the commended answers usually respond to the questions that were asked, spot the key issues, provide the reader with a brief road-map or overview, do not assume that any issue is beneath discussion, and work through these issues in a methodical, reader-friendly (read: short paragraphs) manner. These model answers suggest that someone who exclusively focuses her studying on the substantive law, while overlooking how she’s going to present that information to the grader, is like a Hollywood movie studio that pays $200 million for special effects on a movie with a $5 script.  

3. Finally, remember that any hardship associated with the bar is, in the end, a First World Problem. And that in taking the bar, and suffering while you study for it, you are just part of a long continuum. If you think it was easy to pass the bar a century ago, you might consider these bar outlines for 1903 (New York), 1910 (Illinois), and 1914 (also New York, and written by future judge Harold Medina). Just don’t consider them for too long; you have lots of studying to do.


You Can’t Always Choose Your Talents: William Rehnquist, The Novelist

Earlier today, while on a visit to the Stanford campus, I detoured into the Hoover Institution’s archives to take a quick look at a few of William Rehnquist’s papers.

As some of you may know, the former Chief Justice donated his papers to the Hoover Institution, but most of these documents remain under seal. The terms of his gift to the Institution provided that to the extent that his papers involve Supreme Court cases, they are to remain off-limits until such time as all other Justices on the Court at the time of the case in question have passed away. Accordingly, at the present time only Rehnquist’s personal papers, as well as documents that relate to cases heard by the Court between 1972 and 1974, are open for research.

Happily, I wasn’t especially interested in reading old opinion drafts. What piqued my curiosity, instead, were a few other notations in the Rehnquist papers finding aid. First, I saw that the Rehnquist collection included several of his old law-school notebooks. Might be interesting, I thought. Second, the finding aid indicated that Box 193 of the Rehnquist papers included a folder with the title, “Novel Notes, 1974-1980.” Chief Justice Rehnquist wrote a novel?, I wondered. This I gotta see. Third, there was a folder in Box 88, “Ten most important Rehnquist opinions.” I didn’t (and still don’t) know who identified these opinions, but I thought it might be interesting to see what the folder contained.

Let’s start with the notebooks. A few observations:

(1) It appears that as a young man, Chief Justice Rehnquist liked to gamble. One of the notebooks in Box One of the Rehnquist papers includes a few lists of bets that Rehnquist recently had made. I know that Rehnquist liked to play poker (and the notebook does reference a poker game); it looks like he liked to place bets on football games and horse races, too.

(2) It also appears that Rehnquist liked to doodle, and in particular, that he enjoyed drawing portraits of now-obscure individuals in the margins of his notebooks. So, here’s a word of advice to you kids out there: Don’t pay attention in class, and you eventually will become Chief Justice of the United States Supreme Court.

(3) Rehnquist’s Constitutional Law notes are pretty interesting. (Across his classes, Rehnquist took very good notes.) His Constitutional Law course appears to have spent a considerable amount of time on the Commerce Clause; I’d draw some inferences from his notes on this subject, but this post is already going to be too long. Unfortunately for any hope that Rehnquist’s Con Law notes might shed light on his Plessy v. Feguson memo to Robert Jackson, the notes seem to end right at that very case; on the general subject of equal protection as it relates to public accommodations, all Rehnquist writes is, “Ct has said that segregation per se was not denial of equal protection if accommodations are equal.” (I would not expect much editorializing about the case, in any event; that does not appear to have been Rehnquist’s style as a note-taker.)

Now, let’s move on to the “Novel Notes” folder. The title of this blog post comes from a line in a recent episode of “Mad Men,” in which Don Draper tells his wife, Megan, that a person can’t always choose his or her talents. (Megan wants to be an actress, but her gifts may lie more in advertising.) The implication being, that on balance, a person will be happiest if she chooses a career that exploits her talents, rather than trying to tack against the wind.

I did not know William Rehnquist personally (though I suspect I would have liked him).  I don’t know if he ever wanted to be a novelist, or whether it was just a hobby of his. Review of his novel notes establishes beyond argument, however, that G_d did not put William Rehnquist on earth to write novels.

The Rehnquist papers include outlines and drafts of a novel that Rehnquist tried to write in the mid-1970s, and in all candor, it is not very good. Rehnquist was told as much by the editors to whom his agent sent the manuscript. In one letter to Rehnquist, the agent relayed an editor’s criticism of the writing as “a little stiff,” such that the manuscript “would need a very considerable craftsman/editor to shape it into an acceptable novel for publication.” This editor also commented that “the author insists on telling when [he] ought to be showing or revealing, and there is not enough complexity in the case itself.” In another letter to Rehnquist, the agent reports that a different editor liked the plot, but  ”[w]here he feels the book falls down is in the sheer writing skill.”  Yup, that can be a problem.

I wonder what impact this criticism had on Rehnquist. Here you have an immensely talented man, so successful at one type of writing, basically being told that as a novelist, he’s an incompetent. I suspect that Rehnquist had a sufficiently well-developed sense of humor that he didn’t take these rejections too personally, but maybe they did sting just a little.

Finally, let’s have some fun with the “Ten Most Important Rehnquist Opinions” Folder. I will open up the comments function on this blog for a while to accommodate guesses as to what these 10 opinions are. If someone correctly names six out of the 10 opinions contained within the folder, I will donate $50 to an animal rescue shelter. (And, hey, Brazilian spammers, 6/10 is an inflexible bar, one that I will refuse to modify even if you tell me that my blog “Is very interesting. One of the best ones out there. I really enjoy your points of view.”)

Hint: the “Top 10″ folder within the Rehnquist papers includes ONLY opinions written between 1972 and 1981; my guess is that it was pulled together for some 10-year anniversary of Rehnquist’s appointment to the bench. So Rehnquist’s later ouvre is out, and several of the opinions within the folder are, today, quite obscure. Again, I don’t know who identified these 10 opinions, but it would be interesting if it was Rehnquist himself . . .

Admittedly Dumb Idea (Number One): The Proffie Awards

This post will inaugurate an occasional series, Admittedly Dumb Ideas*, that I may post on this site.

This Admittedly Dumb Idea occurred to me recently, when I read a newspaper article that described a particular law professor as “prominent.” It struck me that when laypeople read that someone is a “prominent,” “well-known,” or “eminent” law professor, they may want to know: how prominent? There’s no law-professor equivalent to a Nobel or Pulitzer Prize, or to an even more generic label such as “best-selling” or “twice-convicted,” to help the public decide whether to ignore a professor’s opinion, or genuflect before it.

In most other fields of effort, there exist awards or honors to distinguish the good from the great. And so, let me propose the following Proffie Awards that might provide laypersons with some potentially helpful information. As I will explain, each of these awards draws from an honor that’s issued in another arena, and signifies a different sort of professorial achievement.

1. Law Professor of the Year (inspiration: Time Magazine’s “Person of the Year”):

What the Award Signifies: Time states that its award goes to the person who, “for better or for worse . . . has done the most to influence the events of the year.”

Law Professor Equivalent: Easy–”Law Professor of the Year,” going to the current law professor (sorry, President Obama) who “for better or for worse . . . has done the most to influence the events of the year.”

Randy Barnett is the leader in the clubhouse for 2012′s Law Professor of the Year. Even if you despise the entirety of the ACA litigation, there’s no denying the important role Barnett has played in this controversy.

I haven’t considered who the retroactive winners of the Law Professor of the Year award would be, though I’m sure Larry Lessig would probably nab at least one title (1999 or 2000), as would Catherine McKinnon (1986).

2. Five Timers’ Club (inspiration: Saturday Night Live’s Five Timers’ Club): Saturday Night Live has a recurring skit (here’s a link) in which certain of the show’s hosts are initiated into the “Five Timers’ Club,” reserved for entertainers who have hosted the program on five occasions.

What the Award Signifies: Extended relevance. Membership in the Five Timers’ Club does not connote eternal fame, or even excellence; while Steve Martin, Tom Hanks, Christopher Walken, and Alec Baldwin are all members of this set, so too are Elliott Gould and Buck Henry. Instead, membership in this group simply establishes that you were relevant for a period of several years. Which is a long time, in the worlds of entertainment and law alike. You can’t be totally washed-up or a non-celebrity and still host SNL (ok, except for Miskel Spillman, but that was a special case), and you can’t host the show five times in anything less than four or five seasons.

Law Professor Equivalent: Five (non-co-authored) articles or essays published in flagship T14 journals. (Here, we’re talking about substantial articles or essays, not book reviews or tributes or weak symposium entries.) The same basic limiting principles apply here, as to the SNL Five Timers’ Club: a law professor can’t get this done in just a year. Plus, it’s hard to milk a single topic for five articles, so anyone who wins this award has made themselves relevant to at least a couple of significant ongoing debates.

I could be convinced that publication in any flagship T14 journal casts too broad a net; in some future Admittedly Dumb Ideas post, I may start to compile a list of members of the Law Professor Five Timers’ Club, and decide if I have to tighten the criteria for admission, or come up with some different award that recognizes some sort of Inner Circle.

3. EGOT (inspiration: the TV program “30 Rock”): The Tracy Jordan character on “30 Rock” is obsessed with winning the full “EGOT” series of awards (“EGOT” stands for Emmy, Grammy, Oscar, and Tony).  If he did so, he’d join Sir John Gielgud, Helen Hayes, Audrey Hepburn, Rita Moreno, Whoopi Goldberg, Marvin Hamlisch, Richard Rodgers, Jonathan Tunick, Mel Brooks, Mike Nichols, and Scott Rudin.

What the Award Signifies: Excellence across different media. Note that unlike the Five Timers’ Club, someone can earn the EGOT in a single year; thus this award doesn’t recognize sustained achievement so much as it does reaching a series of pinnacles at some particular moment, or moments, in time.

Law Professor Equivalent: This is a tough one. Let’s assume that a law professor is ideally  1) a great teacher; 2) a great scholar qua scholar; 3) a useful scholar; and 4) a public intellectual.

From this, I think that winning law students’ “Professor of the Year” award at an institution would pin down the first element, at least as well as anything else might. We’ve already given an honor tied to publications at high-end journals, so for the “scholarship” component, how about a book published by Oxford University Press? The third element requires at least one citation to the scholar’s work by the United States Supreme Court.

Finally, the fourth element would involve an in-studio interview on either “The Daily Show” or “The Colbert Report.” This sounds like an impossible element to satisfy, but hey, you gotta earn your EGOT. And it’s not as if this component is that difficult to achieve; over the past few years the following law professors have appeared on one or another of these shows: Jonathan Macey (Yale), Jonathan Zittrain (Harvard), Robert Glennon (University of Arizona), Larry Lessig (Harvard), Neal Katyal (Georgetown), John Coffee (Columbia), Amy Chua (Yale), and possibly others.

4. Hall of Fame (inspiration: the Baseball, Football, Basketball, Hockey, and Country Music Halls of Fame):

What the Award Signifies: This honor resists definition, since the criteria for admission into any Hall of Fame change over time. Sustained excellence certainly offers one route into a Hall of Fame, but it’s not the only avenue; for every Walter Johnson in the baseball Hall of Fame, there’s a Sandy Koufax or Dizzy Dean, who were just as (or possibly, more) excellent, but for a much shorter period of time than Johnson was; and a Candy Cummings, who wasn’t very excellent at all, but who “earned” his spot there by “inventing” the curveball. (It’s disputed whether Cummings actually invented the curveball, but the Baseball Hall of Fame says that he did, and the Hall of Fame and its voters aren’t going to let a little thing like a dispute over the facts stand in the way of modern mythology development.)

Meanwhile, even long-term excellence doesn’t guarantee admission into a Hall of Fame if one runs afoul of a contemporary taboo, be it cheating or gambling or steroids. But once you’re in, you’re in, even as times change. Today, no one seriously proposes kicking Ty Cobb, Tom Yawkey, or Kenesaw Mountain Landis out of the Baseball Hall of Fame because they were racists, or Babe Ruth, because he probably used a doctored bat a couple of times.

The bottom line for all Halls of Fame is a sense an inductee is important to the sport–important in a good way–for reasons that normally should be capable of quantification, but aren’t always. The “aren’t always” override permits the induction of athletes such as Dean, Gale Sayers, and Pete Maravich, who all had electric but brief careers, into their respective Halls of Fame, as well as “trailblazers” (like Cummings), owners, umpires and referees, managers, and general managers. The same “override” principle might open the Law Professor Hall of Fame’s doors to scholars such as Arthur Leff and Alexander Bickel, both of whom died too young; to Lutie Lytle, the first female law professor; and to deans who produced little scholarship, but built great institutions.

Law Professor Equivalent: A Law Professor Hall of Fame, naturally. Although I know that Washington, D.C., offers the logical location for the Hall, the institution would compete with way too many other, better attractions there. So I would suggest placing the Hall in Litchfield, Connecticut–the former home of the Litchfield Law School–instead. Induction ceremonies would take place on June 21, the date when (in 1788) New Hampshire became the ninth state to ratify the Constitution. Instead of plaques, inductees would receive, and be memorialized in the hall by, bronzed copies of one of their publications (their choice).

I don’t have a short list for early inductees into the Law Professor Hall of Fame. One has to think that the these inductees would certainly include Langdell, Calabresi, Posner, Ames, Epstein, Fuller, Green, MacKinnon, Ely, Prosser, Wigmore, Hart, Weschler, Sunstein, Story (Old Timers’ Division), Frankfurter, Pound, Llewellyn, Michelman, Corbin, Williston, and Tribe. I’m sure I’m overlooking many other deserving professors. I’m also looking forward to aggressive campaigns by supporters of particular candidates, particularly if we limit the number of inductees in any given year. Who wouldn’t want to relive, say, the faculty battles of yesteryear between Critical Legal Studies and Law and Economics scholars, only with today’s Hall of Fame candidates as proxies?


There could be other Proffie Awards, of course; this list isn’t exhaustive.  But I already have spent way too much of this Sunday morning conjuring up this Admittedly Dumb Idea.

* = I acknowledge that “Admittedly Dumb Ideas” sounds a bit like “Half-Baked Ideas,” a quite funny series by B.S. Report correspondent Kevin Wildes. Unlike Wildes’ ideas, each of which contains a kernel of value, my thoughts are pretty much useless, and very possibly counterproductive to positive social virtues.

Has the Full-Time Law Teacher Got What It Takes?

This is a brief follow-up to my last post, on law professors and FDR’s “court-packing” plan. To my knowledge, the debate over Roosevelt’s proposal was the first time that law professors were denounced, as a general class, as a bunch of far-out lefties. One of my favorite screeds in this genre is titled Has the Full-Time Law Teacher Got What It Takes?  Written by attorney Eustace Cullinan and published in the June 1937 edition of the California State Bar Journal, the article provides in pertinent part as follows:

The debate on the President’s proposal to enlarge the Supreme Court must have caused members of the bar to wonder whether some experience in the practice of the law should not be a required part of the training of law teachers.

There is a spreading impression that the teaching branch of the profession is diverging at a wide angle from the practicing and judicial branches. This divergence was illustrated sharply by the respective attitudes of the teaching and practicing branches toward the President’s proposal. . . .

I am not aware of any available statistics showing the number or proportion of law school teachers who were for or against the proposal, but much of the support for the proposal within the profession came from the teaching branch and it seemed to me that most of the law-school professors who were vocal on the subject favored the proposal.* It is alarming that so many law teachers saw nothing dangerous or wrong in the President’s drive to bend the court to his will. . . .

[T]his generation of law teacher has been pastured on the sheltered college campus and has never had to forage on the unfenced and overcrowded range. If he has gained something thereby he has also missed something. His job is to fit youth for life on the range. But has he got what it takes?


* KFG Note: This point is highly debatable, even suspect. A majority of the law professors who testified before Congress regarding the plan opposed it, and many professors hostile to the plan reached out to the press to make their concerns known.


75 Years of Law Professors as Pundits

It’s an interesting coincidence that part of last week’s oral argument on the Affordable Care Act occurred exactly 75 years (to the day) after the United States Supreme Court issued its opinion in West Coast Hotel v. Parrish. Most of you probably already know that, in upholding a Washington state minimum wage law, the Court’s 5-4 decision in West Coast Hotel snuffed out some of the outrage that had generated the momentum for FDR’s “court-packing” plan.

The ACA and Roosevelt’s proposal are tied together in that both pose fascinating legal questions. Moreover, the ongoing dialogue regarding the role(s) that law professors can, should, and do play in shaping public opinion–sparked by the active engagement of law professors in the ACA challenge–mirrors a similar conversation that surrounded the debate over the court-packing plan.

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