2012 – 2013

The Program

The Olin-Searle-Smith Fellows in Law program will offer top young legal thinkers the opportunity to spend a year working full time on writing and developing their scholarship with the goal of entering the legal academy. Up to three fellowships will be offered for the 2012-2013 academic year.

A distinguished group of academics will select the Fellows. Criteria include:

• Dedication to teaching and scholarship
• A J.D. and extremely strong academic qualifications (such as significant clerkship or law review experience)
• Commitment to the rule of law and intellectual diversity in legal academia
• The promise of a distinguished career as a legal scholar and teacher

Benefits

Stipends will include $50,000 plus benefits. While details will be worked out with the specific host school for the Fellow, in general the Fellow will be provided with an office and will be included in the life of the school. Fellows are not expected to hold other employment during the term of their fellowships.

Applications

All those who feel they fit the criteria are encouraged to apply. Applicants should submit the following:

• A resume and law school transcript
• Academic writing sample(s) with an approximately 50-page limit on the total number of pages submitted (i.e. two 25-page pieces are fine, two 50-page pieces are not)
• A brief discussion of their areas of intellectual interest (approximately 2 pages)
• A statement of their commitment to teaching law
• At least two and generally no more than three letters of support. These should come from people who can speak to your academic potential and should generally include at least two letters from law professors. If you are doing interdisciplinary work a letter from someone who can speak to your work in that area is also helpful. You may also include additional references with phone numbers.

Applications must be received no later than March 15, 2012.
Applicants will be notified in early to mid-May 2012.

Please submit applications to:

Olin-Searle-Smith Fellows in Law Program
ATTN: Tyler Lowe
c/o The Federalist Society
1015 18th Street, N.W., Suite 425
Washington, D.C. 20036
(202) 822-8138

Or send an email to tyler.lowe@fed-soc.org with “Olin-Searle-Smith” in the subject line.

Law schools have long kept a comfortable distance from the concerns of the practicing bar. Earlier calls for reform such as the MacCrate Report (1992), the Carnegie Foundation’s Educating Lawyers: Preparation for the Practice of Law (2007), and Stuckey et al, Best Practices for Legal Education (2007), have led to a greater emphasis on more practical training, at least in law school admissions brochures if not always in the curriculum. Increasing competition for rankings has also changed the dynamics of reputation with respect to academic study and practical training at some law schools. Fundamentally, however, most schools have seen little change in the curriculum and overall approach to delivery of instruction since the last century. Despite this, students have continued to flock to law schools, and more law schools have sought and received accreditation. Recently, however, a series of high-profile news reports, blogs, lawsuits by recent graduates, ABA disciplinary actions against law schools, and calls from Congress for stricter regulation have brought increased public attention to fundamental questions about the delivery of legal education in the U.S. What was once dismissed as the unfounded complaints of a minority of embittered law students is approaching a full-blown scandal. Issues such as the ABA’s capture by the law schools it is meant to accredit and regulate, the skyrocketing cost of a legal education in the face of what some argue is a long-term restructuring in the legal market and a permanent downturn in employment, and law schools’ failure to disclose meaningful and accurate information regarding employment prospects, are converging into a widespread sense of disillusionment and dissatisfaction with legal education.

While the perspectives and methods of the panelists vary, each has been a voice for reform within legal education. Some call for a strengthened regulatory hand; others call for deregulation of the legal profession or for voluntary collective action by law schools. All share a concern for the improvement of legal education and the profession. This panel will be an opportunity for a candid and highly interactive assessment of the situation and directions forward.

Does this discussion sound like the sort of late-breaking “hot topic” that ought to have been included in the AALS program?  I guess not, because it was rejected. 

Instead, the AALS chose programs on Occupy Wall Street, the Endangered Species Act, human rights in Russia, health care reform, the legacy of Derrick Bell, Supreme Court recusal, the ministerial employment discrimination exception, DOMA and alternatives to incarceration.

Why the rejection?  There are two hypotheses: the AALS didn’t think its members would regard the future of legal education to be as important and current a topic as those just listed; or the AALS as an organization didn’t want to be the forum for such a panel.

Either way, the rejection seems disturbing for law teaching (not for me — I can find other things to do).

Introduction

• The Lowell Milken Institute for Business Law and Policy at UCLA School of Law is now accepting applications for the Lowell Milken Institute Law Teaching Fellowship.

• This fellowship is a full-time, year-round, one or two academic-year position (approximately July 2012 through June 2013 or June 2014).  The position involves law teaching, legal and policy research and writing, preparing to go on the law teaching market, and assisting with organizing projects such as conferences and workshops, and teaching.  No degree will be offered as part of the Fellowship program.

Eligibility

• Fellowship candidates must hold a JD degree from an ABA accredited law school and be committed to a career of law teaching and scholarship in the field of  business law and policy.  Applicants should have demonstrated an outstanding aptitude for independent legal research, preferably through research and/or writing as a law student or through exceptional legal experience after law school. Law Teaching Fellowship candidates must have strong academic records that will make them highly competitive for law teaching jobs.

Fellowship Requirements

The Fellowship program is year-round, over one or two academic years, during which time the Fellow will:

• complete at least one substantial scholarly publication and present the publication as a work-in-progress to the UCLA School of Law faculty;
• teach at least one class per academic year of the appointment;
• work closely with a faculty mentor in order to observe and participate in teaching, as well as to complete a publishable scholarly piece;
• assist the Institute’s Executive Director with other projects relating to the Institute’s work, including organizing conferences and other events,  research, publications, public education and outreach efforts;
• permit the Institute to publish any article(s) resulting from the Fellowship—as long as such publication will not interfere with the Fellow’s ability to publish such articles in a law journal; and
• acknowledge the Institute’s assistance in any published work that is facilitated by the Fellowship.

Fellowship Benefits

The unique features of this Fellowship include opportunities to:

• develop expertise in business law and public policy;
• work with a faculty mentor;
• develop expertise in business law teaching;
• complete a published piece of research before entering the law teaching market;
• obtain faculty recommendations and support for law teaching jobs;
• participate in the rich mixture of scholarly symposia, invited lectures, and conferences of the Lowell Milken Institute for Business Law and Policy; and
• participate in UCLA School of Law’s rich interdisciplinary scholarly symposia, lectures, and conferences.

Application Material and Deadlines

To apply for the 2012-2013 Lowell Milken Institute Law Teaching Fellowship, please submit the following materials by March 1, 2012:

• A cover letter summarizing your qualifications for the fellowship;
• A current resume, including a list of published works;
• An official law school transcript;
• Contact information for three references, including at least one from a law school professor familiar with your scholarly potential;
• A detailed research proposal, no longer than five single-spaced pages in length; and
• A description of teaching interests (course abstract and plan for class or seminar preferred)

Interested candidates should submit materials as a single PDF or Word.doc file to estrada@law.ucla.edu.

Equal Opportunity Employer

The University of California is an affirmative action/equal opportunity employer, and seeks candidates committed to the highest standards of scholarship and professional activities and to a campus climate that supports equality and diversity.

Last year I wrote here about Roni LLC v Arfa, which I cited as an example of the ”troubling lawlessness of NY LLC law.” In brief, the court sustained a non-disclosure claim based on “plaintiffs’ allegations that the promoter defendants planned the business venture, organized the LLCs, and solicited plaintiffs to invest in them” despite holding that the parties’ arms-length pre-formation business relationship did not support a fiduciary relationship.  I argued that this new pre-formation duty to disclose

promises to make a mess out of NY LLC law. It also creates significant problems for business people who now have a fiduciary duty, with uncertain disclosure duties, imposed on what the court itself recognized is basically an arms’ length market relationship. It’s not even clear how parties can contract out of this duty, since the whole problem is that they do not yet have a contract.

I later noted that my blog post was cited in the appellants’ brief on appeal, which triggered a response in the respondents’ brief (see n. 25) and then my amicus brief in connection with the appeal, which the NY Court of Appeals accepted for filing.

Now the NY Court of Appeals has decided the case.  In its brief opinion the Court said “we conclude that plaintiffs’ allegations of a fiduciary relationship survive the dismissal motion.” The Court added (footnote 2):

2 Based on the foregoing analysis, we need not decide the question of whether the promoter defendants’ status as organizers of the limited liability companies, standing alone, was sufficient to allege a fiduciary relationship.

In other words, the Court of Appeals, without saying so directly, effectively rejected the lower court’s determination that the complaint had not alleged a fiduciary relationship.  The Court did so in order to avoid a holding in favor of promoter liability that would, I argued, “make a mess out of NY LLC law.”

The Court elsewhere in its brief opinion alluded to another aspect of my amicus brief.  My brief pointed out (p. 6) that there was no authority for a pre-formation disclosure duty in LLCs, and that analogies from other business entities

should be drawn carefully because * * * the LLC has evolved as a unique entity, sharing some features of but ultimately distinct from all other business entities. See generally, Larry E. Ribstein, Rise of the Uncorporation ch. 6 (2010). 

In its opinion, the Court recognized (n. 1) that “[c]ertainly, there are differences between limited liability companies and traditional corporations, but the distinctions are not relevant to the allegations in this case.”  They were not relevant because the Court strained to accept the alternative basis for a fiduciary duty the lower court had rejected.

In short, I invited the Court not to wreck NY LLC law by imposing open-ended pre-formation promoter liability.  The Court accepted my invitation although this forced it to weave a circuitous course around the lower court’s opinion.

Now, I must avoid taking too much credit for the result in the case.  The NY court might have reached the same conclusion without my brief.  The case was very well argued by the defendant-appellant’s lawyer, David Katz, who raised all the relevant issues. 

All I can say for sure is that my brief made it harder for the Court of Appeals to accept the lower court’s promoter liability theory, and the Court did, in fact, reject that theory.   I think it’s plausible my brief affected some of the language in the opinion, and thereby the course of NY LLC law.

I make these points not solely out of pure ego (not that I’m totally devoid of same) but because they relate to the many words that have been spilled over the uselessness of legal academics.  You see, we academics do have some credibility because we devote ourselves to the study of underlying theory and policy rather than to achieving particular results in cases.  This is a quality that could be lost if legal academic is restructured so as to reduce the time and resources available for such work.

The article seeks to rebut the claim of the chairman of the ABA’s legal education section that high accreditation standards are necessary to give students “what they have a right to receive in terms of education” and “protect the public and make certain that graduates who offer themselves as qualified lawyers know what they’re doing.”  It examines the experiences of a start up law school in Tennessee, the Duncan School of Law, which is seeking ABA accreditation. The school must have a big library and professors with tenure and time to write law review articles.  This setup is great for law professors. So, as a couple of former law deans tell Segal, the professors exert their power through the accreditation process to maintain the status quo. 

In the end, the Duncan folks had to fly to a beachfront Ritz-Carlton in Puerto Rico to meet with the ABA to meet and make a 15-minute argument for provisional accreditation. The ABA’s questions indicated they were interested in the lawyer market in east Tennessee, suggesting that lowering clients’ costs mattered less to them than threatening lawyers’ income.

As usual (see my posts on past Segal screeds here and here) Segal presents common complaints in an overwrought stew with little cogent analysis.  Law is high-priced because the ABA is powerful and wants to keep it that way. Clifford Winston, co-author of First Thing We Do, Let’s Deregulate All the Lawyers, says this ABA-enforced “near-total absence of competition” is the big problem.  Raise your hand if this shocks or surprises you.

If you want more thoughtful analysis on the modern issues confronting law teaching you need to look beyond the NYT to a blog — namely this one, and especially our “Unlocking the Law” symposium, which had essays by, among many others, Gillian Hadfield and Winston’s co-author, Robert Crandall. My law review article, Practicing Theory, discusses many of the issues presented in Segal’s paper.

The NYT article typically fails to articulate the causes and cures of our over-priced legal system beyond the commonplace that the ABA somehow manages to restrict competition.  Segal blames the law professors, finding comfort in the scam-bloggers’ simple-minded denunciation of high-priced legal scholarship. But since Segal doesn’t explain how a bunch of eggheads sitting around writing useless articles came to control the ABA, he sounds like he’s blaming the mosquitoes for banning DDT.  This narrow focus isn’t surprising given Segal’s mission, which not to analyze or educate, but to entertain with simplistic narratives and pithy quotes.

So what’s really happening?  The cause of the current situation, as I make clear in my Practicing Theory, is obviously the practicing bar, a powerful lawyer interest group with an incentive to keep the price of legal services high.  Lawyers operate not only through the ABA but also local bar associations. Legal educators (law professors, law school and university administrators) come into the picture because they manage the key instrument for doing so — the academic institutions that keep the price of entry high. If the lawyers really wanted to make law school cheaper and more “practical” they could do it in an instant.

Gillian Hadfield’s suggestion to Segal of alternative accrediting bodies is one possible future world, but there are others.  The route to all of these worlds isn’t simply changing the law school accreditation system (accreditation is pervasive throughout the education world), but changing the system of lawyer licensing which maintains the current one-size-fits-all approach.  But how to do that when the powerful lawyers’ guild has maintained its grip on the process for almost a century?   

As I have discussed (Practicing Theory, Law’s Information Revolution, Delawyering the Corporation, Death of Big Law) the answer lies in the current rise of technology and global competition, which are combining with the soaring costs of legal services to crack the foundations of the current regulatory system.  Systemic changes such as changing the choice of law rules regulation of the structure of law practice and changing the intellectual property rules governing legal information products (Law’s Information Revolution, Law as a Byproduct) could hasten this process. 

Reform of law school accreditation ultimately will come along with significant changes to lawyer licensing whether lawyers and law professors like it or not.  Regulation of legal services will be unbundled, with only core legal services (however that comes to be defined) subject to anything like the current level of regulation, and other areas regulated at different levels or deregulated altogether. 

While lawyers and law professors can’t stop change they can shape the future.  In particular, they should start to provide a rationale for why the world needs at least some high-priced legal experts.  What, exactly, is it that lawyers do that’s so valuable?  The answer is clearly not “nothing,” although in a world of increasing competition and sophisticated technology may not be enough to maintain the current level of lawyer employment.

With respect to legal educators, as I discuss in Practicing Theory, law schools should continue to do what they do best — teach theory.  Although the theory should be relevant to what lawyers do, this doesn’t mean that law school should devolve to three-year apprenticeships overseen by practitioners.  The new world of law practice will leave the more menial and routine stuff to machines and non-lawyers.  Lawyers will handle the high-level legal planning and architecture.  They will have to learn how to build that legal architecture using disciplines such as philosophy, economics, political science, psychology, and computer science.

This leads me to the most interesting, if unspoken, aspect of Segal’s article.  All of the non-ex-dean law professors quoted in the article trained as economists. This isn’t surprising. An economist would not ask how we make sure lawyers remain important, but rather what it is that lawyers contribute on the margin.  (Perhaps it’s that tendency to ask such pesky questions and their skepticism about the government regulation that secures the demand for lawyers that some law professors don’t like about economists.) This is the kind of multidisciplinary perspective (as noted above, not just economics) that will provide the intellectual foundation of the future of legal services.  It’s going to come from law professors writing the high-priced articles that Segal and the scam-bloggers decry.  Of course, there will be fewer of them, at fewer schools, but that’s a story for another day.

The WSJ reports that Beijing-based King & Wood is planning to join with Australian firm Mallesons Stephen Jaques to form Hong Kong-based verein King & Wood Mallesons.  It would be the largest non-U.S. or U.K law firm merger. 

Obviously the law business is following the global economy to Asia. Will U.S law firms be part of that move?  Or will they continue to assume that the U.S. is the center around which the rest of world business revolves. The article concludes:

New York University law professor Jerome Cohen, a leading scholar on the Chinese legal system, said that despite the restrictions, he expects the deal to spur other Western firms to seek Chinese partners. “It’s going to be a scramble,” he said

In my recent Practicing Theory: Legal Education for the Twenty-First Century I noted:

Global competition is relevant not only to the legal market within the United States but also to U.S. law firms seeking to enter foreign markets. U.S. law firms used to have the significant advantage of exporting clearly superior American legal technology. This enabled them to easily enter foreign markets at low cost with their own U.S.-trained lawyers. However, foreign law firms more recently have been able to enter non-U.S. markets with lawyers who can combine U.S. LLMs and local knowledge. Also, countries such as Japan and Korea have increased the quality and output of their law schools, partly by incorporating knowledge from the United States. Thus, the United States’ export of its legal infrastructure, though profitable in the short-term, ultimately may contribute to the long-term erosion of its global competitive advantage.

I concluded that U.S. legal educators needed to prepare for these developments.  Yet subjects like comparative law are still small niches in the curriculum.

The expert practitioner is expert in part because when he listens to a client or walks into a courtroom the field of action is already configured for him by an internalized understanding of what could possibly be at stake in proceedings like these.

That understanding is what law schools offer (among other things). Law schools ask and answer the question, “What’s the game here?”; the ins and outs of the game you learn later, as in any profession. The complaint reported by David Segal in his Times article is that law firms must teach their new hires tricks of the trade they never learned in their * * * classes. But learning the tricks would not amount to much and might well be impossible for someone who did not know — in a deep sense of know — what the trade is and why it is important to practice it. * * *

I agree. I argue in Practicing Theory that technology will enable lawyers to shed the small tasks that machines can do and focus on the big questions Fish describes. For example, instead of using forms to draft contracts, lawyers can leave this to machines and create the forms.  This will entail focusing more directly on the functions of contracts than most lawyers do today. Law schools should enable this deeper focus rather than shifting to training students for tasks that technology is making obsolete.

Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains. * * * The real problem * * * is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands.

Today’s NYT has an editorial that tracks many of Segal’s criticisms. Leiter has already subjected the editorial to a thorough fisking. I agree with many of Leiter’s criticisms — and particularly regarding the editorial’s confused attempt to relate the problems of legal education. 

But I note with interest that the editorial seems to pick up on some of the points I made in my blog post and article:

• The editorial notes the need to “teach to what legal practice now entails.”
• Just as I said future lawyers will be “architects and designers” the NYT says they will be “negotiators and deal-shapers, and problem-solvers.”
• Tracking my basic point, the editorial says “the choice is not between teaching legal theory or practice.” 
• Both the editorial and my article criticized legal education’s Langdellian heritage. (Leiter correctly observes that the NYT’s criticism is misguided; the point in my article wasn’t so much that Langdell was wrong, but that his influence marked the divide between legal education and the market for lawyers). 

So maybe it’s not too much of a stretch to think the Grey Lady is stooping to the blogs, even if not getting her hands too dirty with them.

With ever mounting frequency, law professors flood the courts with “scholars’ briefs,” in which they advise judges and Supreme Court Justices on how to resolve disputed issues based on their purportedly disinterested expertise. As often as not, however, scholars’ briefs are not scholarly. They commonly offer one-sided depictions of relevant authorities. In addition, many signatories attach their names to assertions that overreach their scholarly expertise. Political orientation frequently drives participation.

Examination of the standards that should govern law professors’ participation in scholars’ briefs is long overdue. That topic — which this Article opens up for debate — is important not only for its own sake, at a time when appellate lawyers increasingly solicit supportive scholars’ briefs as a routine litigation tactic, but also because it furnishes a window onto broader questions about law professors’ professional roles and obligations. On the one hand, it is discomfiting that professors who claim the mantle of scholars would file briefs that deviate very considerably from the standards of scholarly integrity that apply to books and law review articles. On the other hand, we are long past the day, if ever there was one, when most law professors thought their sole professional contributions should come through traditional scholarship and teaching. By participating in scholars’ briefs, law professors can potentially influence the direction of the law. And in many of law professors’ professional activities, within bounds that need to be defined, an ethic of consequences requires the tailoring of arguments to audiences.

In this Article, Professor Fallon examines issues involving law professors’ moral and ethical obligations through the lens of role-based moral theory. More particularly, he considers how professors’ participation in scholars’ briefs relates to other, presumptively permissible role-based activities in a world in which law schools boast in their alumni magazines and on their websites whenever faculty members author op-ed articles, appear on radio or television programs, testify before legislative committees, or even post comments on blogs. Professor Fallon argues that law professors ought to uphold higher standards of scholarly integrity — which he carefully explicates — than many now do when deciding whether to participate in scholars’ briefs. Along that dimension, the Article offers strong prescriptions for reform. But the Article also demonstrates that it is impossible to identify the moral and ethical standards that should govern participation in scholars’ briefs without taking account of the diversity of roles that professors play and of appropriate, role-based variances in their professional obligations. The Article’s analytical framework offers a template for addressing myriad issues of professorial responsibility.

Fallon’s paper deserves widespread attention in the academic community. It raises the question whether law profs should sign onto amicus briefs just because they happen to agree with the brief’s conclusion without understanding and agreeing with the arguments to that conclusion.  If the law professor derives authority from her expertise, then the brief should reflect that expertise.

The article relates to my own The Public Face of Scholarship.  There I argue for scholars’ participation in public debate through what I call “publicly engaged academic posts.”  Here’s the theory in a nutshell (footnotes omitted):

PEAPs’ significance as a distinct category of amateur journalism is that they connect both with journalism and scholarship. While PEAPs involve the same sort of activity as professional journalism, scholar-journalists gain an advantage over professionals by leveraging their expertise. This has three implications. First, the posts are more informed than other blogs that engage in self-expression. Scholars can draw from their expertise to make immediate and timely posts without engaging in the significant new research that generalist journalists would have to perform. Second, the post is likely to be more disciplined and objective than other selfexpressive blogs because it derives from a body of prior ideas developed without specific public policy objectives. Third, the blogger stakes her scholarly reputation on the post, and therefore has more incentive than other amateurs to carefully support her position. These differences between PEAPs and other forms of amateur journalism relate to the impact PEAPs may have on the nature and quality of professional journalism * * *

PEAPs are bloggers who derive credibility from their scholarly perspective.  This supports standards of academic blogging that are similar to those Fallon suggests for participation in amicus briefs.

There continues to be an active debate on the question of whether or not law school is a good investment. I prefer to think of the question not in terms of “whether,” but in terms of “when.” In this essay, I conduct an analysis for three current undergraduates who are considering attending private law schools. I demonstrate how such individuals should take all known costs and all expected benefits into account in making their “investment” decision. As the calculation necessarily differs dramatically from one potential law student to another, my conclusions are far less important than my methodology.

Schlunk’s initial paper followed my highly simplistic analysis suggesting this investment approach. I haven’t fully analyzed this paper but it appears to be careful and competent. My main caveat is that valuing a law degree is immensely complicated by the significant technological and market changes the law business is undergoing (see Law’s Information Revolution).  This means that a legal education may be significantly more or less valuable than Schlunk assumes.  How much more or less depends in part on the type of legal education the new lawyer receives. That’s where my Practicing Theory comes in.  

The considerable flux in the market means law graduates may need to be patient in order to fully exploit their opportunities.  Obviously their ability to be patient will depend significantly on their debt load.

Given these extra complications on top of the complications inherent in Schlunk’s analysis, one must be skeptical of simplistic conclusions that law school is a rip-off or a good deal even for a particular applicant, much less in general.