Archives For Orin Kerr

Available here.  Although not the first article to build on Orin Kerr’s brilliant paper, A Theory of Law (blog post here) (that honor belongs to Josh Blackman’s challenging and thought-provoking paper, My Own Theory of the Law) (blog post here), I think this is an important contribution to this burgeoning field.  It’s still a working paper, though, so comments are welcome.

Bill Henderson vs. Orin Kerr (in comments, with reply by Henderson). HT Leiter.


U.S. Legal Education is in the midst of a large, structural transformation. This structural shift is driven by a confluence of factors, which includes three significant trends:

  1. The decline, or plateau, of the traditional time and materials legal services model
  2. The politics of law school finance
  3. A new generation of legal entrepenuers that are turning some aspects of law into process-driven products and services. * * *

My post raises two questions for law faculty that need to be answer in order:

  1. Is the evidence of structural change sufficiently compellling that we need to retool in order to survive? This is a business decision. It must be based on facts and probabilities. And it has to be answered first so the appropriate urgency and perspective is present to answer question #2.
  2. If the answer to #1 is yes, how should our law school retool its curriculum and appointments process? Law professors are prone to focus on the difficulty/impossibility of the retooling process because–let’s face it–we are worried about how the changes will affect us. Question #2 is the wrong place to start.


When I have asked a few peers who are in the business of practicing law if they think we are undergoing a major change in the legal market, or if we are just experiencing the usual cyclical pains of a recession, they generally respond that they think we are seeing the latter rather than the former. So that means that you as an academic are saying one thing about what is happening in the legal market, and the group I have spoken with who are actually in the legal market generally are saying another.

Henderson reply:

Lawyers generally don’t consult industry level data. When I talk to groups of practicing lawyers–and I do so regularly–and I show them trendlines and comparisons with other industries that have undergone structural change, very few continue to advance the deep recession argument because such an analysis just does not fit the industry level trendlines.

I’m with Henderson.  Here’s my take on the future of legal education in light of the developments he describes.  It seems clear that conventional law jobs are rapidly being replaced by technology, there is significant political and competitive pressure on the existing regulatory model, and that changes in the profession will accelerate with deregulation. These shifts are occurring apart from problems in the economy.  Indeed, these changes will increase as the economy, and therefore environment for innovation, improves. In other words, a significant portion of the legal profession may be left behind by the recession’s end.

Think what even a 30% decline in the demand for legal education (or more if tuition continues to increase) would mean for legal education.  The law schools outside the first tier in places with poor legal job markets will be left stranded.  All law schools outside the very top will have to scramble for position by changing their products.

Exactly what law schools should be doing is unclear.  This is not a time to set in place a complete revamp that could get the market’s direction wrong. But law schools are foolhardy if they think they can continue to bury their collective heads in the sand because of the soothing noises they’re hearing from their (currently) successful alumni.

Orin Kerr:

If you’re a law student who is interning for a judge this summer, here’s my advice (beyond the usual advice of working hard, being professional, etc.):

1) Be incredibly nice to the secretaries. You might think judges run judicial chambers. For the most part, though, they don’t: Judges’ secretaries run judicial chambers. Judges often keep secretaries for decades, and they rely heavily on them. If you’re working for a judge for a summer, the judge’s lead secretary (or only secretary, if the judge only has one) is going to be your friend or your enemy. Make sure the secretary is your friend. And don’t think for a second that the secretary works for you. You’re just an intern, and you work for the secretary and everyone else who will still be there when the summer is over.

2) Watch as many courtroom proceedings as you can. Interns sometimes think that their efforts are a valuable addition to the judge’s work product. They’re not. For the most part, it takes more time to teach interns what to do than interns will actually produce, and everything the interns do has to be checked and doublechecked by someone else anyway. Instead, judicial internships are largely opportunities for law students to get great experience in the law. You should therefore make sure that you get out of your office or cubicle and see as many courtroom proceedings as you can. Working in a courthouse is pretty cool. Often, there’s a lot of stuff going on. The best way to learn is to watch. So do as much watching as you can.

3) Be appreciative of the fact that you got the job. This point is related to #2. For the most part, judges agree to have interns because they think it would be good to give back to the legal profession by letting a current law student get a great experience ‘behind the scenes.’ They may get some work out of the intern — some more than others — but for the most part that’s only a side benefit. You should realize that and be appropriately appreciative of the opportunity you’ve been given. Don’t have the attitude that you’re working for free and so they better appreciate you. A judicial internship is a very cool opportunity to get to know a judge and to see how cases are really decided: You should show that you realize you’re really lucky to have the position.

4) Try to get to know the judge and the clerks, but without being annoying. One of the best parts about interning for a judge is getting to know the judge and the judge’s law clerk(s). For the most part, the judge and the judge’s clerk(s) will be very interesting people who can teach you a ton. The more you can hang out with them, the more likely they are to begin to share some great stories about how law really works. Those stories can teach some incredibly important lessons, and it’s an enriching part of the internship to hear them. So if you can, try to get to know people. But there’s an important catch: Whatever you do, don’t be annoying. Don’t assume that the judge and the judge’s clerk(s) will necessarily want to hang out with you, and don’t be pushy. Rather, let them take the lead in how much and how often you hang out, and try to take advantage of the opportunities that arise when they do.

Sensible and useful advice for the many law students with these jobs for the summer.

Jonathan Adler and Orin Kerr chime in over at VC to make the point that MSNBC’s rules against contributions from television personalities is pointless, or perhaps counterproductive.  Here’s Adler:

I agree with Orin that strict application of rules against political activity by journalists to opinionated commentators and hosts is silly.  No one believes these figures are neutral or objective journalists.  They’re not reporters; they are commentators and entertainers.  They have strong — often quite partisan — political views, and that’s part of their appeal.  Whether or not Olbermann (or Hannity) gives a dime to a political campaign, we all know which candidates and causes they support.

And here’s Professor Kerr:

I find this exceedingly silly. Keith Olbermann is not shy about his personal views, and no one who has watched him has any doubt as to who he supports. Why he should be suspended for donating money to the candidates he supports is a mystery to me.

There appears to be some debate over whether Olbermann’s conduct violated provisions in his contract.  Assuming Olbermann did violate the contractual obligation to seek permission before donating, that seems like a pretty good reason to suspend someone.  I doubt that either Jonathan or Orin mean that flouting contractual obligations is a silly or exceedingly silly or mysterious reason to suspend someone — instead, they must mean that it is silly for those obligations to appear in the contract in the first place.

Maybe.  Maybe not.  But I suspect not.  Here’s why.

Continue Reading…

Some Links

Josh Wright —  8 September 2010
  • SCOTUS judge and law clerk selection as principal-agent / incomplete contracting problem (Orin Kerr)
  • How to read an academic article (Peter Klein), though what seems missing are decision-rules for when articles should be “rejected” for a full-read after skimming
  • The Washington Post reports that antitrust at the Varney DOJ isn’t much different than antitrust under the Barnett DOJ in terms of enforcement, and particularly, monopolization activity — but TOTM readers already know that
  • An update on the Google/ ITA investigation
  • Does technology move too fast for antitrust — revisited, again … (SF Chronicle — featuring comments from former economist, TOTM guest blogger and my co-author, David Evans)

So, there is some new evidence that state laws banning cell phone usage does not reduce accidents (HT: Orin Kerr).  The Insurance Institute for Highway Safety study has gotten some attention in the media.  See, for example, this NYT piece discussing the researchers “surprise” that they did not find the result they were looking for.   The NYT piece also suggests that there are so many alternative forms of driver distraction that it is not likely such a ban will, on the margin, reduce accidents.  Even worse, a ban might provide additional incentives to engage in substitute forms of communication that could be more distracting.  Of course, the empirical evidence will be interpreted in two ways.  While critics of the bans will point to the study as evidence that the restrictions provide no benefit, proponents of the cell phone bans will point out that the study demonstrates that, in order to be effective, states must also ban other reasonable substitutes for cell phone distractions.

The Harvard Law Record report on Daryl Levinson’s presentation on the entry-level market is must read material.  HT to Orin Kerr who pointed out the article and was amused by Levinson’s comment that practical legal experience is “is pretty nearly disqualifying.”  I agree that comment might well shock some prospective law profs out there, but here’s the exchange would most likely catch the attention of academics in other departments:

Q: What’s hardest: getting the entry-level job, getting the next job, or getting tenure?

A: Tenure is relatively easy – presumptively everyone gets it, and those who don’t are the exception, not the rule. In the schools with the strictest requirements, about one out of every four professors don’t get tenure.

I don’t know where he is getting the data from (if there are data) but a tenure rate of >75% is consistent with casual empiricism and anectodal evidence I’ve heard.

Kerr on Exam Answers

Josh Wright —  13 February 2007

Orin Kerr gives an hypothetical law school question and works his way through what makes law school exam answers good, bad, or terrific.  As a general matter, I find myself in agreement with the distinctions between answers that Orin makes, including the following:

To get a top grade, a student needs to identify the relevant legal question accurately, and then articulate exactly why applying the law to the facts leads to a particular outcome.

This advice sounds a little generic, as Orin notes, but I think it is pretty valuable.  Especially in first year exams, there is a good deal of variance in student ability to nail the second half of that formula (the analysis part).  I find that students from quantiative backgrounds sometimes have trouble with this since in those fields, the quality of being able to get to the answer in fewer steps or more concisely is appreciated and sometimes even viewed as elegant (think mathematics … ).  Though most of the problem, I think, is just a function of going through the process of figuring out what law school exams are about and what exactly the student is being asked to do.  I have spent a substantial amount of time attempting to articulate these distinctions to my Contracts 1Ls both in class and in exam review meetings — I hope with some success.  In any event, I really like Orin’s example and think it is a very useful illustration of the characteristics of good, bad and mediocre answers.

P.S. On law school exams and grading, CoOp has a whole series of interesting posts up right now.