Average score on Q1 (nine short answer questions, the least valuable part of the exam) was 5.08 right, a weakish showing. The median as 5.25.

Average score on Q2 was 3.084 (a hair above a “B”).

Average score on Q3 (the most points) was 3.266 (a very solid “B”)

Students had seen question 2 in advance, but tended to do better on question 3, which (a) they had not seen and (b) was much harder. That surprised me.

Average final score on the exam was 3.199 (a “B” - I round down to make up for my loosey-goosey grading impulses). But now I have to add my rather generous class participation credit to calculate the final score. I use a complicated system, in which I sort the class into three tranches based on notes taken in or after almost every class during the semester, tell my secretary who’s in which group, then get back the blind grading numbers with just the tranche noted. So I don’t know who’s who until after I turn in the final grades.

I do not curve my grades, but the raw grades look vaguely bell-like; depending how the class participation falls out, I could be at, above, or below, the faculty average for upper-level courses.

Note: Averages don’t tell you much — you can drown in a river that is an average of six inches deep. I haven’t the energy right now to do medians.

If you are a beleaguered law school dean, know that this customer pays not a damn bit of attention to the U.S. News ranking — nor should your applicant pool.

He’s got reasons, and they’re decent ones, but I can’t quite get my mind around to thinking that this is the majority view. Might be good if it were, though.

My view, which I’ve stated here before, is the US News rankings are based on a pretty silly (and increasingly self-referential) formula. Small gaps tell you nothing. Large gaps do tell you something, although you could probably get almost as good info by looking at the relative size of law school endowments….

The American Constitution Society (ACS), one of the nation’s leading progressive legal organizations, seeks a talented, versatile and energetic recent law school graduate to serve as a Law Fellow. The Fellowship will begin in September 2009. The Fellow will serve as part of ACS’s Programs staff, which is led by a group of experienced attorneys who coordinate and facilitate ACS’s rapidly expanding output of innovative, highly relevant legal and public policy work. The Fellow will work with existing Programs staff to assist in coordinating the work of ACS’s Constitution in the 21st Century project, an ambitious multi-year effort to engage scholars, practitioners, public officials and law students in the articulation and dissemination of a progressive vision of the Constitution, law and public policy. In close coordination with the Programs staff attorneys, the Fellow will:

• Assist in developing and planning ACS speaking programs on cutting-edge legal and policy issues, such as briefings at the National Press Club and on Capitol Hill, conferences and symposia around the country and the ACS National Convention;
• Manage the listservs of the ACS Issue Groups (ACS’s national network of legal practitioners, scholars, and activists), selecting and posting relevant materials and leading substantive discussions among Issue Group members;
• Help draft program guides for ACS chapters and materials for the public such as short papers based on ACS Issue Briefs;
• Maintain relations with public interest advocates, academics and private practitioners;
• Perform legal research and writing projects as assigned, to further the work of the ACS Issue Groups;
• Attend conferences, hearings or other events as assigned; and
• Assist the Program team in other ways as the need arises.

The Fellowship is a one-year position, with salary and excellent benefits provided by ACS. A law degree from a U.S. law school is required. The ideal candidate will be a recent law school graduate who has a strong academic record; excellent research, writing and oral communication skills; and strong interpersonal skills. He or she also will have demonstrated initiative, organization and attention to detail.

Salary commensurate with other public service legal fellowships; the same benefits that are offered to full-time ACS staff. ACS is an equal opportunity employer; women, people of color, people with disabilities, and gay, lesbian, bisexual and transgender people are encouraged to apply. To apply, send a cover letter; resume; 5-10 page, self-edited writing sample; and three references to ACS via U.S. mail (ACS, 1333 H Street NW, 11th Floor, Washington, D.C. 20005); email (jobs@ACSLaw.org); or fax (202-393-6189; Attn: Shannon Hiller). No phone calls please.

That’s absolutely not my experience — the moment before the first class, open with infinite possibility, is anything but scary. Exciting and hopeful, yes. The only sour note is if any of the students seem scared — I hate that, as I want the freedom to push them to be rigorous and feel constrained in doing that if I am finding that they experience it as scary as opposed to educational. (Now, the second class, after everyone runs away…) And, kidding aside, the same is true more generally of every class — I’m always psyched to get going at the start, to the point where I often forget about any admnistrivia and announcements because my mind is on the substance. Conversely, I am usually loath to stop, as I have so much more I’d love to say…

No, for me the fourth-scariest moment in law teaching is the pre-exam review session, when students come in with their (sometimes surprisingly picky) questions — the one time in the semester I don’t have my security blanket of notes in case my mind goes blank. It hasn’t yet, but what if it did?

The third-scariest moment is right after I send in my grades. How will the students who did poorly react? So far the worst experience has been with the ones who come to my office and cry, which can be very wrenching. But in the past I’ve also had someone (a visiting student; I trust ours would know better) call me at home and harangue me to change a grade (which our rules forbid). I even had one person, long ago, come to my office and threaten me — not, I hasten to add, with physical harm, but with an implausible claim that I’d suffer professional retaliation because the one of the student’s relatives was Very Important.

And the second-scariest moment is just before I send in my exam. Exam design is very difficult, and I continually wish I could find someone to train me in it. There are so many ways things can go wrong: creation of unintentional distractions; writing questions that are too easy or too hard; writing questions destined to produce results that are hard to grade (either because there are too many minor issues or because the students all fixate on too few); and, most likely, writing questions that produce answers that are basically all alike and hence very very boring to read.

But the very scariest moment — without question — is that moment right before I open the blue books. What if I did a bad job and they didn’t learn anything?

So unlike Jay Wexler, for me, all the scariest stuff is at the end.

That would be … right about now.

Students who enroll at the University of California’s new law school in Irvine next fall will get their legal education for free.

The law school is giving full tuition scholarships worth about $100,000 to its first 2009 class of about 60 students, the National Law Journal reports.

Charles Cannon, assistant dean of development and external affairs at the law school, told the publication UC Irvine hopes to attract high-quality students with the offer. The free tuition is expected to cost the school about $6 million, he said.

Irvine is a start-up school. It has hired quality faculty, and this should let them get started with a bang.

I presume, though, they won’t be making a habit of this. But if they do, it could lead to a wave of discounting in law school tuition which would change the face of legal education (and in the long run, most likely be in substantial part at the expense of faculty salaries since I doubt we or others schools like us could raise the money it would take to replace a third of our tuition revenue).

In the course of that discussion, questions were raised about the data the law school publishes in its Viewbook. In particular, commentators questioned the claim made there that the average starting salary for UM grads who work in firms is over $100,000. I wondered about that myself, as the breakout data later on the same page seemed to suggest something lower.

Could the law school have made a (convenient) error in the viewbook?

I took my concerns to the law school administration, who responded by giving me a full data dump and a full explanation. I don’t have the energy to try to type in all the data, so I’ll just try a simplified version of the explanation. [If you really have to have more, or have further questions, the Dean of Career Development, Marcy Cox, mcox@law.miami.edu (305-284-2668), says she’s happy to address them.]

According to Career Development Office, the reason why the both $104,500 number and the more detailed but somewhat different pie charts accompanying it are accurate has to do with response rates, differing data sets, and national reporting standards.

Since firm size and starting salary are related, you might reasonably object — as I did — that it would be more reasonable to pro-rate the responses of the people who gave salary data on the assumption that the people who didn’t fill in that part of the survey earned similar amounts by comparable firm size. And I still think there’s something to that. But I’m told by the Career Office — and I believe them — that the average salary data is presented the way it is because that’s how all law schools do it and the goal is to provide prospective students with numbers that can fairly be compared to what is provided by other law schools.

The Career Development Office avers that it collects the data and reports it in accordance with ABA and NALP guidelines, using the same methods that every other accredited law school in the country uses. Were the law school to do something else, the administration notes, it would no longer be reporting to students in the way it reports to the ABA and NALP. That would mean our data would have an asterisk. And even if we were doing it in order to provide better data the inevitable conclusion that most people would draw is that we were trying to hide something. So the Catch-22 is that we have to do it this way, possibly sacrificing some statistical excellence and even accuracy, or else we’ll look like we’re engaged in some sort of cover-up. And, of course, in addition to having an asterisk, we’d be harming our competitive position since we’d have gone to some trouble to calculate and report a lower number which would harm marketing and recruiting.

It seems to me that UM is between a rock and a hard place here. I would prefer that we use the best statistical techniques, pro-rate the data we have, and let the chips fall where they may. Following the national standards will, I believe, tend to cause this (and apparently almost every other) law school to report a number as “average” that is in fact likely to be higher than the reality. By my back-of-the-envelope calculations, what UM — following a methodology its competitors use — reports as an “average” salary for graduates in firms, is most likely closer to what someone in the 75th percentile of the salary distribution gets. And given the law firm salary structure is now a notoriously double-humped curve (see Starting Salaries For Law Students are BiModal — If Not Bipolar for more details), this is a fairly severe truth-in-advertising problem.

Students nationally have some right to be upset. On the other hand, it seems pretty hard to ask UM to engage in unilateral disarmament in the recruitment wars: this is a job for the ABA or the AALS to resolve on a national level. (It also means that students thinking about a law career and hoping for the giant salaries offered by the biggest firms should really understand what that double-humped curve means to their prospects.)

Meanwhile, however, I’ve asked the Career Development Office to include something in the next edition of the Viewbook that makes clearer the relationship between the various data sets it uses. They’ve agreed in principle, and we’ll thrash out some language when time comes to do the next edition.

I’ve reproduced the full table below, sorted by percentage passing, based on the raw data (sorted by number passing) contained in a .pdf from the Bar Examiners.

But first, a few words of warning: Bar Pass Rates are Over-Rated As A Measure of Law School Quality.

It would be sort of interesting to extend this table with a column showing percent of class taking the exam, and also percent of class taking out of state exams.

The percent in-state vs. out-of-state tells you something about how national/regional/local the law school is. A large number taking no bar at all raises the question whether the law school is steering some students away from the summer bar exam in order to prop up its statistics, although there are also other very innocuous explanations. It may be that many students go on to LL.Ms and put off the bar, or that the school prepares them for other sorts of careers. The no-bar-anywhere number only raises a question, rather than answering it.

The first number is probably easy to get, but I don’t know about the second. We graduated 442 JD’s last year, making the 236 Florida test takers just 53.3% of the UM graduating class. My impression is that just about all of our JDs took a bar exam somewhere, and that the numbers reflect a reality that we run a school with both national and Florida ambitions, but I could be wrong about that. Indeed, if you’d asked me, I’d have guessed that the Florida-national ratio was more like 2:1 than 1:1, which suggests either that anecdotal evidence is not worth much, or that the school is becoming more national.

Ten Reasons Why You Should Teach Here — And Three Why You Shouldn't (v. 2.0)

1. Faculty

The best reason to come to U.M. is the faculty. At its best (which is to say, "outside of faculty meetings"), this is a faculty that believes ideas are serious things, but also is willing to play with them. You will see this most vividly at faculty seminars, especially those with external speakers. The faculty reads the paper in advance of the talk. It thinks about it. We don't let the presenter speak a long time — we want to have a discussion. There may be an element of performance in the questions and comments, but that usually just adds to the fun. Unlike some faculties I've heard about, we are not worshipers at the temple of sub-disciplinarity: faculty members feel comfortable commenting on papers far outside their own specialties, and they are usually right to do so as the distant perspective sometimes proves at least as valuable as the insider's. [Update: A recent visiting professor, John Flood, gave a good description of the experience of a Miami seminar in Giving Papers at Miami.]

While faculty vary in the extent to which they will seek you out — some are shy; others are busy — they will almost all be happy to see you if you seek them out. Very few will treat you like a junior colleague; for most, you will be part of the family from the start. And it's an interesting family, including some big names in international law, tax, law and society, law and identity, and several other subjects.

The faculty stood out for me at the AALS recruiting conference as one of the most intellectually engaged faculties with which I met over the weekend. They actually were interested in my writing projects, and gave me the sense that they took them and me seriously. My time with the committee ran out too quickly for me. My feeling of intellectual comfort with the faculty was only enhanced during my visit to the campus later in November, but that was augmented by my delight that this would be a group with which I'd be comfortable beyond simply discussing scholarly work. They were a bit quirky, and in a way about which I am excited. I am excited about the diversity of the city of Miami as well, and the opportunities that I think it will provide me to think about my areas of research in new ways — ranging from race and the the law (where the Law School has long been at the forefront in American legal education) to comparative separation of powers issues in Latin America.

2. Institutional style & institutional support

UM wants productive faculty, and it believes in research. But it isn't about telling you what to do. My own story may be instructive: I was hired thinking that I would be writing mostly about administrative and constitutional law. In fact, however, within a couple of years I had turned into an Internet lawyer, and was writing primarily about computers, networks and the law. At no time did anyone here ever suggest that this was a problem. What mattered to people was that I was publishing.

Another way in which UM may differ from some law schools is that our faculty is routinely interdisciplinary and international. Many publish in non-legal journals — a fact which does not necessarily help either our publication or citation counts since the legal tabulators tend to focus only on law journals. Although we recognize that there may be some reputational costs, we are not prepared to tell people where they should publish. We just want it to be good.

There is no international ghetto at UM (the same is true of tax, a traditional faculty strength). As a matter of unwritten policy, everyone is expected to teach a basic course outside their specialty; the result is both that we can have more internationalists (and tax scholars), and that there's a much greater community of overlapping interests.

3. Library

The University of Miami enjoys a superb law library, the result of a decision more than two decades ago to make library acquisitions a financial priority. And if we don't have it, the library will borrow it for you, no questions asked. (As one former librarian put it, "we aim to provide law-firm-quality service". And in fact, it is almost as good as a top law firm, and the librarians are much nicer.)

The law library has extensive holdings in related disciplines, notably political science, and of course the university library is literally next door, and it also has ever-growing electronic access to journals — which can even be accessed from your home office. We have a particularly strong collection in Latin American and Caribbean law, but also strong holdings in European law. We are weak in India, China, and Russia, and no doubt several other countries with non-Romance alphabets, so if your research involves heavy use of materials from one of those countries, you should check to see if we have you covered. I also have a sense that our holdings for pre-1940 materials are not as strong generally as for things published in the last 70 years. But I am continually having pleasant surprises when I consult Baron, the online card catalog. They've done some impressive buying over the years — which is a good thing, as the next major law library is a long way away.

4. Students

We have smart students with upwardly mobile ambitions. Some come from wealthy families, but for many a law degree will be the highest level of education ever achieved in their families — a matter of pride for an extended clan you may have the good fortune to meet at graduation. Despite the lures of nearby South Beach, UM students are by and large a studious lot: their awareness that few silver platters await at graduation usually translates into a commendable work ethic. At least until the end-of-term fog settles in, I find that my students have done the reading, and often have something to say about it. There is a little shyness — some students don't want to ask questions for fear of looking silly; other students worry about being labeled a "gunner" — but ordinarily class discussion can be pretty lively. Although we have more men than women as students, it is often the case that the women lead the discussions and make the most substantive contributions. Classes tend to be fun (at least for the instructor). Visiting professors from other law schools consistently remark on the high quality of classroom performance here.

The UM student body has improved greatly in the past decade. Our best students would be at home in any law school. Our worst students would have been near the middle of the class 15 years ago. The only fly in the ointment is that despite their good college grades and creditable LSATs, a substantial fraction of the class comes to law school unable to write as well as they think or speak. Overcoming this obstacle remains one of our biggest challenges. That said, every year we have students who write publishable papers in classes and seminars. It's been a particular pleasure to see those pieces go into print along side those of full-time academics.

Some of our students will go on to be national leaders; a much larger number will play key roles in the State of Florida, as judges, politicians, and leading members of the bar. Some people have described alumni reunions as state judges' conventions, but this is slightly unfair. On the other hand, there's no question that both Florida as a place, and UM graduates as important players in that place, have been at the center of major wrangles with national impact ranging from the 2000 election to the Terri Schiavo affair.

Aspiring faculty sometimes worry that they will not find good research assistants outside a top ten law school. It's true that I don't hear stories about students writing papers that professors then publish under their own name — as I did when I was a law student at Yale. But if you are looking for a research assistant rather than a ghost writer, then my experience suggests this is not a serious problem if you teach a first-year class. As a teacher in the larger first year classes you can identify the students who are good and who fit your style before they get too caught up in other things. Some of them will get on law review, and will be too busy to work for you; some of those that don't will work downtown for higher pay than the law school can offer, but usually there's someone you will be happy to have who will be happy to have the job in their second or third year. I can't claim that every research assistant I've had has been stellar, but I can say that some of them were amazing — and that they are harder to find when I don't teach first years.

5. Research support

Research support exists to make it easier for you to write. The most important part of UM's research support is its excellent law library. But it doesn't stop there: In addition to the collection itself, we have a staff of helpful law librarians who seem happiest when given difficult research requests. There's a document delivery service which will get you any book or article you ask for and deliver it to your office within a day if it's on campus or a few days if it must be sent from far away. (One down side: you can gain weight from the loss of movement caused by having everything come to you.)

At conferences I sometimes hear stories about places where senior colleagues try to tell tenure-track faculty what to write about (or, worse, forbid certain topics or styles). We don't do that. If anything, we have erred in the other direction — tip-toeing around junior faculty sensibilities so much that we may have provided insufficient mentoring.  In an effort to do better in that department, the faculty now enjoys the services of a "director of faculty development" — yours truly as of a year ago — whose job it is to help colleagues (and especially pre-tenure colleagues) with their research and writing by identifying resources, serving as a sounding board, or just staying out of the way.

In addition, every faculty member has an office budget which allows you to hire a research assistant, books and supplies, and to travel to conferences. Each of these budgets is fairly generous, and the Associate Dean has discretionary funds to add to them up for good cause. In my experience, any cause I can bring myself to ask about has been treated as a good one.

6. The University

A generation ago it was "Suntan U". Today, under the (very) energetic leadership of Donna Shalala and an impressive suite of Deans, the University of Miami is joining the ranks of the leading research universities in the USA. For openers, President Shalala raised $1 billion for the University. YES, $1 BILLION. Now that it's in the bank, she's warming up for a new round of fund-raising. The lion's share of the first round went to the medical school, but we are told that the law school should be able to claim a bigger share of the next round -- and we'll need it because we've also been offered a chance to build a brand new building on a prime location on campus that is already zoned for construction (trust me, that matters).

More importantly, the past couple of decades have seen a transformation in the quality of both the students and the faculty in the arts and sciences. It's become hard for students to get in; and departments such as History, Psychology, Business, and Sociology have attracted faculties that include a wealth of potential collaborators, adding to existing strengths in Medicine and Communications. Both the law school and the University encourage inter-disciplinary collaboration. The law school has begun to take advantage of these resources (I, for example, am working with a team on health privacy issues that includes participants from both the Business School and the Med School), but there's much waiting for you that remains untapped.

7. Perks

The law school wants to support your research, and we try to put our money where our mouth is. Entry-level faculty can apply for a summer research grant before starting work in order to prepare their courses. We light-load you (usually only one course per semester) during your first year to give you time to find your feet. You'll get a summer grant as of right every summer until tenure to encourage you to write — after that you'll have to submit proposals, and make good on them too. And you're entitled to a semester's leave before tenure, more or less in the term of your choice, in order to help you write.

The law school is located on a very beautiful campus in the center of suburban Coral Gables, itself a very pleasant city with excellent restaurants. Rumor has it that in the old days the university administration spent more on landscaping than books; whatever the truth, there's no question that the campus is very nice to look at. It also sports a state-of-the-art gym that's about three minutes walk from the law school around our picturesque lake (crocodile optional). The campus sports other useful amenities, including a faculty club, a food court, and an on-campus daycare.

8. Miami

Miami is a cosmopolitan city. Part of its identity is as the defacto capitol of Latin America; part is as an artistic and musical center; and then there's the celebrity-and-tourist thing. It's an attractive place for young and old, and — if you take care to live in the right school districts, or have kids who qualify for the right magnet schools, or are ok with private schools — a pretty easy place for the middle-aged pater and mater familias. Like many sunbelt cities, Miami is more sprawling mosaic than urban core and periphery. Both urban and suburban living are within easy reach of the campus. Our politics are fascinating and complex, with much political power held by first and second generation immigrants from Cuba, and to a lesser degree Haiti, and Central America. The region now enjoys a lively cultural life, with a rich music and dance scene and some creditable small theater companies. If you prefer nature to culture, there's always the nearby Everglades as well as world-class coral reefs for diving just south of Miami.  And one of my colleagues sometimes totes a surfboard.

If your work involves domestic issues, you will find them in Miami, which is the city of the future in ways both good and bad. Along with our glitz you will find us on the cutting edge of today's and tomorrow's political and social issues: immigration, environmental (think "Everglades restoration"), medical (think "retirees"), and all the social questions that big cities produce.

Housing costs are plummeting, many other living costs were already low, and there is no state income tax.  Plus, the University has taken bold steps to help faculty find good housing by offering new hires a deal in which the university will subsidize part of your home purchase in exchange for a proportionate share in the equity when you sell, an offer that puts many very nice homes within reach.

9. Weather

Miami's weather is glorious for almost half the year; variable for another chunk, and miserable in the dog days of summer and early Fall. The good news is that much (but not all) of the miserable part comes when the law school is not in session, so you can escape if you choose. When the weather is nice, our central courtyard, the "bricks," becomes the social center of the community, a place where students and faculty mingle between classes. Even office rats like me end up looking healthier than the wan, pale, parka-clad figures I see huddling on the Boston subway. For those with outdoor ambitions, you can live on Miami Beach, or just enjoy the sea view from a balcony in a tower apartment in downtown Brickel.

10. The revolution is here

In last year's edition of this memo, I wrote that the "revolution is coming".   Well, it's here.

As a result of an unusually detailed and painstaking strategic planning exercise last year we are undertaking a radical transformation in the faculty, and perhaps the style, of University of Miami School of Law. We have at least six open jobs at present, with the likelihood of much more turnover as faculty retire (couples welcome!). The next three to five years stand a good chance of determining the future course of the school for a generation to come.   Hiring is going to be a big part of that transformation.

At present we have less than half a dozen faculty under 40, only a few more between 40 and 50, another dozen or so between 50 and 60; the single largest group — well over a dozen —  are over sixty, including some well over sixty. Our hiring is resolutely in compliance with the Age Discrimination in Employment Act (of our last nine entry-level hires, two were very experienced lawyers well over 40), but given the overall composition of the entry-level market, it is likely that this age profile will change dramatically in the next few years.

But more than simply replacing faculty as they retire, we hope to do something even more dramatic. Under the leadership of Interim Dean Paul Verkuil, we've asked the Provost to authorize us to hire a very large number of additional faculty, over and above the half-dozen openings we have already. 

What this means for our new hires is that they will find themselves at the heart of their new community — and have a chance to lead it — much earlier in their careers than they might otherwise. The coming turnover and expansion in the faculty, coupled with this year's Dean search introduces an element of uncertainty about what we'll be like in the future that may not be to everyone's taste. Fortunately, the faculty engaged in a successful strategic planning exercise last year, which means that any new hires will be spared that chore at least.  But it also means that we're going to be growing and experimenting. 

Today, the law school enjoys a nearly unique chance to reinvent itself, and people with ideas and energy should find all the breathing room and opportunity they want.   We 'll create a host of new Centers and Institutes -- several are already in advanced stages of planning.  We're going to change some (but only some) of the ways we do teaching.  We're going to ramp up the scholarly enterpirse by having more talks, more conferences, more happenings.  And we're going to be open to your new ideas.

I hope that people reading this will come join us in building something wonderful.

All that is very well, but honesty compels me to say that there are also some reasons why not everyone may be happy here. Indeed, there are three main reasons why you should not teach here:

1. Weather

If skiing is your passion, and neither waterskiing nor snorkeling are substitutes, then Miami may make you sad. It's hot and very humid here from July until the heat breaks sometime in October or September. That means you can have up to three and half months when it's not much fun to go outside. Plus, occasionally we get weather with a name. But we don't get snowstorms, avalanches, wildfires, earthquakes, random tornadoes, floods, or mudslides. If you want immunity to natural disasters, move to Rhode Island.

2. Language

Many people in South Florida speak Spanish as their first (and often only) language. The campus is Anglo — although some of the bilingual staff and students will speak Spanish to each other — so this is not a work issue. But it is a life issue: you will hear lots of Spanish in the stores and on AM radio. If you are the sort of person who can't cope with foreign languages around you, there's a strong chance you will not be happy here. I don't speak Spanish, and I only found it a noticeable handicap for my first few weeks here, when I would get lost driving around and stop at a store for directions, then wait impatiently while they went to find the English-speaker. It's a non-issue today unless I happen to go bargain shopping for some exotic household good, and indeed contributes to Miami's cosmopolitan vibe.

3. Geography

It's flat here — no mountains (and houses have no basements). More seriously, it's also far from many of the legal nerve centers. If you're doing national work and you are having meetings related to it, odds are the meeting will neither be in Miami nor even within driving distance. That means air travel. And while we have great direct air connections to most of the world and the law school is generous with travel support, we do not have a working time machine. Given the post-9/11 security regime at airports, and the increasing vagaries of air travel generally, it is rarely possible to have a meeting in New York or Washington without spending the night out of town. That can mean having to reschedule a class (something we allow for good causes), which is a pain for you and even more of one for your students. It certainly means that doing national committee work is always a substantial time commitment. It is almost 500 miles to the state line, and then where are you? Somewhere between Tallahassee and Moultrie, Ga.

This year I am not on our entry-level hiring committee, but I am on our lateral hiring committee.  Whichever group you fall into, if you find the positives outweigh the negatives and have an interest in coming here, I'd be happy to try to answer any further questions you might have, either in comments to this entry or by private email.  Get in touch.

If I were teaching a first year legal “toolbox” course, I’d certainly teach Coase as part of it. And I’d include something like this too: Unenumerated: The Coase Theorem is false: contracts depend on tort law.

The proof that the Coase Theorem is false is actually quite simple: the assumptions of the Theorem contradict each other. The assumption that transactions are voluntary contradicts the assumption that any prior allocation of rights is possible, including rights that allow one party to coerce another. In fact, for the Theorem to at all make sense, a very large and crucial set of prior rights allocations must be excluded — namely any that allow any party to coerce another.

But we can’t generally solve externalities problems by bargaining under this revised assumption. Externalities cannot be neatly distinguished from coercive acts, as extending one of Coase’s own examples illustrates. In this example we have a railroad with a train that, passing by a farmer’s wheat field, gives off sparks, which may start a fire in the field. In Coase’s account, the prior allocation of rights might give the railroad the right to give off sparks, in which case the farmer must either plant his wheat far enough away from the railroad (wasting land) or buy the right to be free from sparks from the railroad. The prior allocation might instead already give the farmer the right to be completely free from sparks, in which case the railroad can either buy the right to emit sparks from the farmer or install spark-suppressors. If these are the two possible prior allocations of rights, Coase concluded that the railroad and the farmer will in the absence of transaction costs bargain to the most economically efficient outcome: if it costs less for the railroad to reduce the sparks than for the farmer to keep an unplanted firebreak, bargaining will achieve this outcome, and if the reverse, bargaining will achieve the reverse outcome, regardless of whether the farmer initially had the right to be free from sparks. So far, so good — it seems, on the surface, that if bargaining is costless an efficient outcome will be achieved.

The problem is that these are not the only prior allocations possible. The Coase Theorem is supposed to work under any other allocation of prior rights. But it doesn’t. It fails for a large and crucially important class of prior allocations: namely any that allow one party to coerce another.

But I don’t teach a first year “toolbox” course. Indeed, we don’t have such a course. (We have “Elements” which — I’m told — is about how to read lines of cases, something which is important but different.)

I do, however, teach a Jurisprudence course of my own devising. I do “Of Coase and Cattle” there. Should I add something like this? It would be a distraction from where I’m trying to go, but maybe a useful one.

Then again, if I really let myself get distracted, I’d soon be trying to explain why the solution to the problem here is Habermassian, not libertarian. And that would take me very far from where the course is currently designed to go. But maybe I should bite the bullet and take it there? But that would make it much more of a philosophy course, and much less of an analytic jurisprudence course, than I intend it to be.