Category Archives: Law School

Everyone wants to be in Miami when the weather is good.

• Today, John Bruton, European Union ambassador to the United States, will speak at the law school on “The European Union Today: Consequences of the Constitutional impasse and Relations with the United States.” From what I gather it’s going to be popular–probably standing room only.
• Tomorrow, Professor Jan Paulsson, the international arbitrator who is visiting the Law School this semester, will give an LL.M seminar on “Law and Sports in the International Arena,” which I presume will be about the IOC and other sports bodies’ athletic controversies over alleged doping by athletes.
• Thursday, Justice Stephen G. Breyer will deliver the Cole Lecture at UM Law School. I don’t think it’s open to the public without a ticket — the faculty had to RSVP to get seats and students had to enter a lottery to get tickets. [Update: it looks like this last part is wrong — see the comments.]

I finally finished grading today — an activity that for me always re-enacts Parkinson’s Law.

I find grading very difficult and stressful. It takes a long time.

That it is dreadfully boring is not the worst of it, although it does seem to get more and more boring the more often I teach the same course (the questions change more than the errors do — an indictment of my teaching, no doubt). I feel it requires the utmost care, since the outcomes matter so much to the students. And while I am pretty sure that most of my grades would be the same were I to grade these again next month, especially the A’s B+’s C’s and down, there is a large mass of exams clustering around the C+/B border (we don’t have a B- grade here), where I am pretty sure a degree of randomness, or arbitrariness if you prefer, inevitably creeps in. These are exams with some virtues, far from lost causes, but they each bear several specimens from the menagerie of incommensurable vices. And I must reduce them to a number or letter.

The worst part of it is that I want the students all to do well. And of course they don’t all do well. Blah answers are bad enough. What really drives me ’round the bend are the aggressively wrong ones. How, I ask myself, could they be there in the room with me — and they were there, I take attendance — for so many hours and still think that? How could I have failed to communicate something so basic? And whether or not it was my fault, what will happen if they inflict this misunderstanding on clients? And how, now that they are out of my clutches, will I ever set them straight about it? And, oh look, it’s quite a while since my mind wandered….

We don’t have a curve except for first year students. And I usually let the chips fall where they may. This year, however, I graded a little differently from usual. Thanks to some prodding via a general memo to all the faculty from an Associate Dean, I was slightly more lenient this year. To begin with, in addition to the two-week attendance-taking moratorium right after Wilma, I forgave slightly more absences than I otherwise would have.

In Internet Law I rounded a few grades up instead of, as usual, rounding everything down. (The usual rule is less harsh than it sounds since I give a lot of generous class participation credit, which I find tends to inflate grades. Were I to round up routinely, between rounding and class participation credit, a lucky C+ could become a B+; that’s just too big a leap for me.)

In Administrative Law, I gave every student a 0.125 point (out of 4.0) ‘hurricane bonus’ which resulted in raising a substantial number of grades. Even so, to my surprise, this left me slightly under the five-year average grade distribution for core courses at UM as regards the number of A’s.

Since I submit exam grades on blind grading numbers and simultaneously hand in a list of who will get fixed quantities of class participation credit before I know who got which grade, I don’t have an obvious way to curve grades to achieve some predetermined quota, even if I wanted to. Which I don’t, particularly.

I will say this: if you got an A on my exam, or even as a final grade in my class, you earned it. (Students wishing to see the overall grade distribution for their class can find it at that class’s online presence. Individual grades are only available from the Registrar and via MyUM.)

I would love to teach an extra class in a week or two in which we all went over the exam and discussed it. But I fear that many of the students who would benefit the most from such a thing would not attend.

Fred Shapiro of Yale Law School has kindly allowed me to reproduce the following question which he posted to a constitutional law professors’ mailing list a few days ago:

I apologize for diverting attention from the very important substantive discussion of the Alito hearings with a question about the sociology of legal scholarship that may be too much elite-law-school-inside-baseball for many on this list, but here goes:

I notice that the New York Times “News Analysis” about the hearings this morning quotes Cass Sunstein of Chicago, Jack Balkin of Yale, Vikram Amar of Hastings, Mark Tushnet of Georgetown, John Yoo of Berkeley, Noah Feldman of NYU, Douglas Kmiec of Pepperdine, Judith Resnik of Yale. It strikes me that no one from Harvard Law School is quoted, reminding me that I recently compiled data for a list of the most-cited law review articles of the last 10 years and found that Harvard Law School faculty figured on the list only minimally. I also found that none of the seven most-cited articles from that period were published in the Harvard Law Review, which has dominated all previous most-cited lists.

So I am wondering whether Harvard Law School may have in recent years dropped off the intellectual map of legal scholarship relative to its past position of great prominence? Does this ring true subjectively with any students of legal scholarship? (I realize that Harvard Law School may still kick ass in other aspects of its mission, such as training leaders of the bar or future Supreme Court justices or influencing the corporate world or influencing elites in foreign countries.)

This drew a reply, from Steve Burbank of Penn,

What a peculiar post, although perhaps not given the New Haven source. Since when do talking heads have anything to do with scholarship? One would have to see the full results, and consider the methodology, of the citation study in order to determine whether it is relevant to a question worth asking and what its probative value might be. Until then, I would hesitate to give this rumor legs.

To which Fred Shaprio answered,

I realize that talking heads does not equal scholarship, and the instance I cited may reflect nothing more than the characteristics of one reporter’s Rolodex. But I am suggesting that HLS’s influence on scholarship and constitutional law policy debates may have waned, and am looking whether this rings true subjectively with those who know much more about the substance and structure of legal scholarship than I do. (And, as this respondent suggests, I can’t necessarily get impartial assessments in New Haven!).

Fred Shapiro (Harvard Law School Class of 1980)

As a YLS ’87 grad, I expect to see some Harvard spirit in the comments.

On a more serious note, here’s yet more unsatisfactory advice from the NYT Magazine Sunday “Ethicist”.

Question:

Our university’s faculty club gives members a $2 discount on lunches. A colleague, not a member, habitually cheats the system by claiming the discount. He is now up for tenure. Based on our department’s criteria, he is indisputably qualified, yet I’m inclined to vote against him because of his dishonesty and its potential extension to his research. May I reject him professionally because of his lunch behavior? Anonymous, California

The Ethicist’s Answer:

If you’re eager to respond disproportionally to a colleague’s petty transgression, why not just go over to his house and shoot him? That’ll teach him to cadge a $2 discount.

I realize that his repeated paltry swindles must rankle, and they do add up. Under the circumstances, you may deny this fellow your friendship, but you may not deny him his job.

There’s more I haven’t quoted, but even in full I find this answer very unhelpful. (For example, if the advice is to tattle to the faculty club management, this seems quite likely to lead to the sort of stink that gets back to the administration and would likely have some effect on a tenure decision…)

I do think that fraud or theft, if proved beyond reasonable doubt, is a reason to deny someone tenure, especially in a law school; the only issue here for me is only whether there’s a de minimis exception. I’m not sure it makes any difference if the person were fiddling expense accounts or diddling the faculty club for a discount. Either way, doesn’t it suggest a lack of basic rectitude? And isn’t that relevant?

On the other hand, my instinct is that most non-work-related personal issues that don’t rise to the level of illegality are not relevant to a tenure vote. If the candidate had a messy divorce from a charming spouse, that’s none of our business. And even if the candidate were a serial adulterer, as long as it didn’t involve students, I think I would turn a blind eye during the tenure vote. (Or at least that I ought to.) However, were I ever to encounter job-related cruelty to students, staff, or even colleagues, I’d certainly take that into account.

So my questions to readers are:

1. Are my instincts on either of these questions wrong?

2. If my very much lower tolerance for law-breaking is the right standard, is it right generally, or is there a higher standard for law professors because of the nature of our enterprise? In other words, does it matter more if a teacher of tort is ethically elastic than it would in the cases of teachers of De Hooch, irregular verbs, Nietzsche, plate tectonics, Skinner boxes, statistics, or surgery?

[For debate over a somewhat related question, see the Yale Law Journal Debate Blog; there the question was whether to refuse to publish an otherwise worthy article due to qualms about offensive behavior by the author that had no direct connection to the article.]

Redressing a 15-year-old error, the University of Michigan Law School has given Jessica Litman a tenured offer. And she’s accepted. The only down side here is that it reduces the number of faculty couples employed at the same law school. (At least temporarily.)

Several years ago, concerned about what was then a low bar pass rate (it has since improved quite a lot) the UM law school did a pretty comprehensive study in an attempt to identify which factors in our students’ legal education might be correlated with bar passage or failure.

As I recall, the data collected for the study failed to confirm almost every hypothesis to a statistically significant confidence interval except the fact that being right at the bottom of the class — having been on academic probation, and maybe graduating in the bottom 10% if I recall — was a very significant marker for likelihood of failing the bar. Everything else we could measure from transcripts (if I recall, and it was quite a while ago, we didn’t do a formal survey of bar study habits) failed to show a statistically significant effect on bar passage odds — not being in the top 10%, not taking particular courses, not taking particular professors or particular sections of ‘bar courses’.

We were left with anecdotal evidence, but I believed it: the people who showed up to bar review and who worked hard passed; the people who skipped bar review classes and/or didn’t study like fiends, were far more likely to fail. This was one of the reasons why, when the Deans asked us to, I agreed to toughen my class attendance policies: I decided it made sense to send the institutional message that an important part of life is just showing up.

Comes now this unfortunate reminder that without enough cramming anyone can fail the bar exam, even very very accomplished lawyers….even law Deans: WSJ.com – Raising the Bar: Even Top Lawyers Fail California Exam.