Author Archives: Stephen Diamond

ABA does the right thing in keeping tenure standard for law schools

At a weekend meeting the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted (pay wall) to retain tenure as a condition of becoming an ABA accredited law school. In light of an earlier call by a majority of the Council’s members to change that requirement, this is a significant victory for academic freedom and quality at the nation’s most important law schools.

The decision is being justly celebrated, as well, by the American Association of University Professors (AAUP), which helped create the modern interlocking institutions of academic freedom, tenure and shared governance. The AAUP commented on the proposed cutback to tenure and helped law faculty weigh in in defense of tenure.

While some law school critics argue that requirements like tenure are a barrier to affordable legal education, in fact, it is tenure that insures that law students get what they pay, sometimes dearly, for: quality faculty who must demonstrate to their peers over several years their ability to teach, engage in relevant scholarly research and give back to their universities and surrounding communities through various forms of service. In several states, of course, California included, it is possible for students to pick non-ABA law schools and still sit for the bar, thus offering lower cost alternatives.

It is an important sign as well that the ABA leadership listened to the many faculty from law school academia who spoke up in defense of tenure. A culture gap has long existed between practicing lawyers, who dominate the ABA, and the legal academy. Hopefully with this battle behind us, new constructive efforts to bridge that gap can be made. Our best and best known legal scholars should make a point of being available on a regular basis to the bar for discussion of their work.

Legal academics can listen and learn from the practicing bar as well. In one of my fields, business law, it is almost not possible to tackle complex research problems without being close to the experience of the practicing bar but no doubt even there we could do a better job.

State bars, together with law school deans, could take the lead in developing such relationships. It can potentially benefit all constituencies that make up the broader legal community. As an example, I recently wrote an article on insider trading and the startup world of Silicon Valley. It was first written for a California state bar audience and then was seen by a leading corporate law scholar and I revised it for inclusion in an academic collection that scholar edited. Both the academic world and the practice world benefited, presumably, as did I by working through the issues first for that real world audience and then for a more academic audience.

AAUP national elections: why I am voting to re-elect the “Organizing for Change” slate

National elections for the American Association of University Professors are now underway. An incumbent slate called Organizing for Change is being challenged by the Unity slate which is led by AAUP figures who used to be in power. I am voting to re-elect the Organizing for Change slate and I think if you are an AAUP member in good standing you should do the same.

The reason I support OFC is straightforward. The challenges facing faculty across all sectors of higher education are dramatic and are taking on a momentum that we have probably never experienced in this country. We need a national advocacy group that wants to respond to those challenges aggressively and with creativity. Most importantly we need the AAUP to have real meaning and impact on the ground where it really counts. I think that is the basic goal of OFC and it represents an important and relevant shift in the orientation of the organization. I think for the first time in many years (I have been an AAUP member since I joined my faculty as a junior professor in 1999) the AAUP feels like a real presence not just in Washington but on our campuses where it counts.

Part of what OFC is trying to do is strengthen the collective bargaining arm of the organization. That likely creates some tension in the AAUP because it means a shift in culture and even resources. There is a suggestion by some that this means giving less attention to academic freedom, the issue for which AAUP is best known historically. In reality these two efforts are two sides of the same coin.

This does not mean that collective bargaining is always the right approach or even necessary but it must be a viable part of what we do if we take academic freedom seriously. Why? Because the greatest challenge we face in academia today, whether at the junior college level, or at Berkeley and Harvard, is the change in organizational structure of the university.

A permanent new administrative, if not bureaucratic, caste is taking hold of managerial authority in the universities. Instead of an experienced faculty member spending a few years as a dean or even provost or president and then returning to the teaching faculty, today individuals who take on  those positions have almost uniformly left teaching and research behind forever.

Inevitably, these individuals develop a skill set and outlook that matches that of the corporate executives who now control most university boards of trustees. In turn the trustees and administration increasingly treat faculty not as partners in the governance of an academic institution but as employees of a giant corporation. And indeed as government funding for higher education has receded corporate and foundation spending has ramped up making it appear as if we do work for corporations. Corporate executives, of course, feel more comfortable with deans, provosts and presidents who can talk their language and that often means reassuring the trustees that they can get their faculty “under control.” That has led to a wide range of conflicts with faculty as well as to developments like the widespread use of contingent faculty and the waning of the tenure track.

This turn of events is not healthy for the fundamental purpose of our system of higher education: to generate knowledge in order to help solve social problems while preparing young people to join our society prepared to confront those same problems. Employees or, worse, automatons are not good at original thinking. Control and creativity rarely go well together.

In such a situation the AAUP needs to be a living, breathing organization that has a meaningful presence on campus. In my experience with the OFC leadership they have been successful at helping build that kind of presence. I teach at a relatively small and private institution. While collective bargaining might be helpful there it is not a likely outcome given the legal and political constraints we face. But there is a role for our chapter to raise that issue and even pursue it if our colleagues wish to do so. And a “union outlook” on issues is not a bad way to motivate fellow faculty and stir up discussion of important issues even shy of actual bargaining.

At a minimum AAUP chapters can play an advocacy role that makes issues clear and signals to the administration the limits of their ability to manage the institution without robust shared governance. Right now on our campus it is the only forum for just faculty members to assemble and discuss important issues independently of the administration. And the OFC leadership has been very helpful to me and my fellow AAUP chapter members in understanding how to play a constructive role in an ongoing governance crisis on the campus. They have been there when it counted several times in the last two years.

So, in sum, I think OFC has breathed new life into the AAUP. It does not have all the answers and I have a great deal of respect for the traditions of the organization. I hope that the Unity slate will continue to be an active force but for now I think OFC deserves more time to help  move us ahead as we confront the significant changes impacting higher education today.


The Crimean problem: Obama’s relativism comes home to roost

It was clear enough during the 2008 campaign but many ignored it. It became more clear as Obama took office and attempted to “engage” with authoritarian regimes all around the world. Even then the commentariat, particularly on the left, did not understand what was going on. One by one the left ignored the implications of Obama’s approach – in Tibet (snubbing the Dalai Lama, in Iran (snubbing the Green Revolution), in Venezuela (cozying up to Chavez), in Cuba (cozying up to Raul Castro), in Egypt (standing by the military), in Syria (erasing his own red line).

But now with the invasion of Ukraine by Putin the results of five years of Obama foreign policy are undeniably clear.

Obama has thought all along he could appease authoritarian regimes and lure them into a fantasy world of global trade and governance. The fact is that despite the end of the cold war more than 20 years ago authoritarian regimes persist and have shown incredible resiliency. China’s neo-stalinist model is working, for the party and its allies in the new entrepreneurial class. And in Iran, Syria and elsewhere, authoritarianism continues to draw widespread support. These authoritarians have no interest in neo-liberal fantasies about free trade and free markets. The volatility and instability of those markets, brought home to hundreds of millions when the western financial system collapsed in 2008, is fuel for the fires of the authoritarian alternative.

To this alternative Obama has no answer. He rode the wave of naive liberal left distaste for global war and politics to office and now that political capital has exhausted itself.

This is a huge problem for the American national security apparatus and for American global economic power as well. The country is led by someone who does not understand what is going on in the world and cannot craft a coherent response to it. He is wedded to a relativist outlook born in the pro-third world neo-stalinist rhetoric of the late 1960s that helped shape his early world view. He will not be able to shed that history or outlook and it is extremely difficult for the institutional apparatus of US power to act coherently when the White House is led by a team that is so intellectually and politically stunted.

But it is an equally large problem for the global left. This global left emerged in the late 1990s, a product too of the end of the Cold War. There was hope in the protests against the WTO and globalization that a new democratic alternative could emerge from below, linking the workers movements of Poland with those of Brazil, the environmental movements of the first world with the movements for agrarian reform in the third world. But since 9/11 that nascent left has spun this way and that completely disoriented by the continued health of authoritarian regimes. Thus the left has become largely only an anti-war left and sometimes worse, offering apologies for the behavior of regimes like those of Syria and Iran and no doubt now in defense of Putin. So much for the defenders of Pussy Riot.

The left must firmly declare its opposition to authoritarianism wherever it appears. To do so is not to give comfort to the war mongers on the right. Instead it will help establish the left as a credible alternative to US unilateralism. From that position the left must then begin to articulate a new foreign policy for the US based in our own deeply held democratic instincts and institutions. I began one such approach with the call for a new “Solidarity Doctrine” here.

The risks of the new era are now clear to all – the statist authoritarianism is in a clash to the death with western market fundamentalism. Neither can win but they can both destroy.

As I said in 2012:

“We have the technological and economic resources to solve these problems and build healthier alternatives. We know the institutional framework – democracy and freedom – that must be in place for those resources to be effective. Instead of developing a foreign policy that matches our resources with that institutional framework, we have instead used the crude tools of neo-conservative intervention or the dangerously naive relativism of spent late-60s ideology. A “Solidarity Doctrine” offers a new approach.”

Before you let the ABA ruin your law school, listen to this talk by Dean Harry Arthurs

As the pressure on legal education and new JD’s from the fallout of the worst financial crisis in the modern era continues, there are efforts underway to transform the nature of American legal education. As I have suggested elsewhere in some depth, the goal of this effort is the death of the autonomous law school as an academic institution in favor of what can, at best, be referred to as “training.”

Thus, the recent ABA Task Force Report on the Future Legal Education calls for a substantial weakening of tenure, and by implication, academic freedom. (Notably, the words academic freedom do not appear in the Report, as if the members of the Task Force are unaware of its centrality to the success of the law school. There were efforts to bring this problem to their attention, both by me and the AAUP.)

Now a prominent former dean and university president, Harry Arthurs, has laid out a critique of the effort to enforce a new pedagogical regime on the law school environment. You can watch Dean Arthurs present his views here at a recent conference on the future of law school hosted by the University of Alberta and read the paper upon which the talk is based here.

As he makes clear the fundamental goal of the law school, which is firmly situated in an academic environment, is to pursue knowledge. It is not a substitute for “training” lawyers whether under the guise of producing “practice ready” graduates or steeping students in so-called “experiential learning.”

While it makes sense to have a certain amount of hands-on activity available for students in law school (I, for example, use mock negotiations and drafting a part of my securities law and corporate finance classes) it is impossible to replicate in the law school setting the process of skills building needed in daily practice of law.

Law schools, fundamentally “knowledge communities” as explained by Dean Arthurs, are not cut out for this task and should not be forced cookie cutter-like into a mold shaped by external market forces. The tension this effort creates is brought home sharply in the final moments of the talk when Dean Arthurs has an interesting exchange with an individual who it appears is the new dean of another Canadian law school.

In Dean Arthur’s words, “law schools should play a leading role in the creation and transformation of legal knowledge, legal practice, and the legal system — a role that requires them to provide their students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers.”

Although Dean Arthurs is Canadian and was dean of Osgoode Hall, one of Canada’s leading law schools, and later president of York University where Osgoode resides, it is clear that the pressure from Canadian law societies on law schools is identical to the pressure being exerted by the ABA to cut the cost of law school at the expense of its academic mission.

It becomes equally clear after listening to this elegant and thoughtful presentation how utterly incoherent the reform agenda is. Thus, his views, echoed in part recently by the faculty at Yale Law School, are well worth considering.


Drug violence in Mexico linked to neo-liberal reforms and NAFTA in new research

I heard a very interesting paper presented yesterday at the Comparative Politics Workshop at Stanford by Oendrila Dube who is visiting there from NYU. It is a thorough empirical analysis of the correlation between reform of Mexico’s agricultural sector over the last two decades and drug-related violence. The authors suggest a link between the passage of NAFTA as well as domestic policy reform to the price decline of corn in Mexico which in turn forced poor farmers to cultivate marijuana and even poppies for opium production. As cartels moved in violence escalated. This continues Professor Dube’s very interesting work connecting violence, economics and policy reform in places like Colombia and Sierra Leone.

The paper can be found here.

More evidence that lawyers hate economics – the myth of “financial exigency” at Albany Law School

I teach corporate finance, business law and securities regulation – in a law school. And that means I have as students each year many folks who would rather, I suppose understandably, be debating Roe v. Wade and Brown v. Board of Education instead of listening to me explain, as I did briefly last week, how synthetic collateralized debt obligations work. Of course, those synthetic CDO’s are far more important to what is going on in legal education and the legal job market today than almost any major Supreme Court case of the last 50 years.

Why? Because it was the creation of ever more complex and, as it turns out, fictitious forms of capital that led, in part, to the credit bubble we experienced in the wake of the dot com bubble. Now we are experiencing in law schools and the legal job market the impact of the collapse of that bubble. The downturn in jobs and the consequential downturn in applications to law schools will eventually bottom out, and it may be doing so already. And, slowly it will turn upward again. This will happen, unfortunately, too slowly for many recent JD’s who got caught in the updraft and applied to law school thinking the credit bubble was a permanent expansion of the economy and now have been caught in the downdraft.

But the big risk now is that many law schools will be tempted to make the same mistake some made during the bubble phase – rapid expansion of spending on staff and clinics then (as opposed to tenure track hiring, which has slowed overall in higher education dramatically in recent years) – but now in reverse, unwinding that over-spending by over-cutting including threatening layoffs of tenure track faculty.

The most recent example is occurring at Albany Law School, a very old (by US standards) independent law school, with a long tradition of serving upstate New York (and not far from where New York State’s very first law school was established in the Hudson Valley.)

From reports on the web it appears Albany Law School, facing the same decline in applications and enrollment that almost every other law school in the country outside of the world of Harvard and Yale and Stanford and Chicago are facing, is threatening its tenure track faculty with layoffs. Yet Albany is committed to academic freedom and derives its definition from the AAUP’s 1940 Statement on Academic Freedom which more than 200 colleges and universities support.

The AAUP has developed a set of derivative procedural standards that help guide universities in protecting academic freedom. Among these is a commitment that faculty not be threatened with dismissal absent cause or what is known as “financial exigency.” This has led the law school critics, in their typically opportunistic manner, to declare that indeed ALS is facing such a financial exigency.

Apparently, these critics are no more familiar with the basics of accounting than they are with those of finance.

The AAUP’s guidelines define a “financial exigency” as “imminent financial crisis which threatens the survival of the institution as a whole.”

(See AAUP letter to Albany Law School here. The AAUP National President has also issued a strong defense of tenure’s place in the accreditation of the American law school to the ABA here.)

Yet a cursory review of just the publicly available information suffices to demonstrate that this situation is nowhere near reaching that standard.

In 2010-2011 its revenues exceeded expenses by $10 million and while this declined to a $3 million positive margin in 2011-12 it is hardly a suggestion the School is no longer a “going concern.”  And Albany has an endowment of $47 million, far larger than most law schools (granted it does not have a parent institution it might turn to so it has, prudently it would appear, built up an endowment for precisely the situation it now faces.) Some $43 million of its assets on hand are unrestricted and it has most of the endowment in liquid securities.

(See financial data here and here.)

Of course, turning to the seed corn in a crisis is a challenge but one has to call into question any conclusion that suggests the institution is threatened with closing its doors unless it starts laying off faculty. This suggests the Dean and Board of Trustees of the School may be attempting to engineer a reform agenda while using the temporary financial problems of all law schools as an excuse.

Law and Labor in the Fields: Social Justice Workshop – Spring 2014 Semester

cesartributeMy spring seminar, Law and Labor in the Fields, is underway.

Our first guest speaker will be here this coming week, Thursday, January 30. He is Frank Bardacke, the author of a magisterial and award winning new history of the United Farm Workers called Trampling Out the Vintage: Cesar Chavez and the Two Souls of the United Farm Workers published by Verso.

The event is open to the public and will take place in Room 333 in Bannan Hall on the Santa Clara University campus, 500 El Camino Real, Santa Clara, CA 95053. It starts at 4:05 and runs until 5:45. The talk and discussion will be followed by a reception to which all who attend the talk are invited.

There will be several other public talks during the semester. The schedule for the entire semester can be found here: Seminar Schedule.

The seminar is dedicated to the memories of both Cesar Chavez, who passed away 20 years ago last year and the late Herman Levy, our Santa Clara Law School colleague who played a key role in drafting the Agricultural Labor Relations Act, who passed away ten years ago.

Yes, Virginia, judges do read those law reviews, after all

Much of the attack on law schools over the last few years has focused on the alleged irrelevance of legal scholarship. At times the level of rhetoric has been so intense one feels as if the “anti-intellectualism in American life” so eloquently described fifty years ago by Richard Hofstadter has once again raised its ugly head. Things are not helped when prominent jurists like Chief Justice Roberts pile on.

Research is a tough road, good questions are hard to specify and methodology can be challenging to develop. It is hard enough when one is dealing with the physical world so imagine trying to fashion a reliable scientific method for the constantly shifting social world.

In response to this challenge, legal academia has over the last few decades gone down two separate roads, one that can largely be characterized as quantitative and the other as qualitative. Both have their advantages and limitations.

Fortunately, legal academia enjoys one distinct advantage: peer review is largely absent and so the heavy reliance on “prestige” journals has not stifled innovation. Law school publishing is in many ways an analog precursor of the open source world. Much work that is not all that good gets published but the very best can rise to the top. And there are often nuggets of value even in work that is not terribly important – and that’s where databases like Lexis become invaluable.

Arguably, law and social science are ahead of the physical sciences in this game having supported the creation of new online sites like the Social Science Research Network. Paul Krugman, a Nobel prize winning economist, weighed in recently in favor of the online world.

Of course, many deride the lack of peer review as a serious problem and point to the demanding review process of the world of physical science. But it turns out that the way good work gets done in legal academia is not far from what happens in the physical or other social sciences (I speak with some exposure to both arenas as I am married to a physical scientist, am cross trained in political science and have been working closely with an economist for several years).

And it turns out that within the world of physical science there is a concern, expressed most recently by this year’s Nobel Prize winner in Medicine, cell biologist Randy Schekman, that the traditional system has rewarded too highly publication in certain “luxury” journals in a manner that, in today’s online world, stifles innovative work.

Michael Jensen, a founder and Chairman of SSRN, tells me he “share[s] Schekman’s views completely….I am committed to changing this crazy system that we have backed into.”

And SSRN Managing Director Bernard Black of Northwestern Law School and the Kellogg School of Management emailed me the following comment:

“SSRN doesn’t solve the problem, but it helps. In areas where posting working papers in SSRN is the norm, a near-final working paper provides a respectable substitute. I’m also involved right now in launching a new peer-reviewed Journal of Law, Finance, and Accounting, where the business model contemplates that submitted papers will remain available on SSRN from submission through publication, and will automatically be replaced with the true final version 6 months after publication. Unfortunately, there are areas – including health care and medicine – where the idea of publishing a ‘working paper’ online remains verboten.”

The so-called “luxury” hard science journals (Schekman points to Cell, Science and Nature, in particular) are loath to have work they want to publish subject to any criticism prior to publication that an open system like SSRN might entail. This is the kind of problem Schekman wants to take on because of the fear that the current system stifles innovative thinking in the hard sciences.

(This only underscores the inexplicable and reactionary effort underway in Kansas to stifle academic freedom through the suppression of the use of online media as explained by legal scholar and economist Bill Black here, here and here and as explored by me here. Update: There is some indication now that the KU Regents may back down.)

In other words, just as the law school critics have opened up two barrels on allegedly weak academic work in the world of law schools, that world has already incorporated a form of review akin to so-called “hard” science, while the world of “hard” science is developing models that take advantage of what Schekman calls the “new breed of open-access journals that are free for anybody to read.”

While it is conceivable that a law professor may write something and send it out for possible publication without any input from his or her peers, that is often the exception and it certainly rarely happens with very good work that ends up in the most widely followed journals. Instead, papers often go from proposal or rough draft to working draft, to a seminar paper or workshop presentation, then on to conference(s) to posting online for more comments and then, finally, perhaps, submitted for publication in a law review or formally peer reviewed journals. The result is, in fact, a process not dissimilar from that of traditional peer review in other disciplines.

Of course the thoroughness of the process that legal scholars rely on is widely ignored by the law school critics who blithely assume they can better understand the academic work process than those who specialize in it. While, as I explain below, they typically concentrate their attacks on the work of conceptual or qualitative scholars – naively assuming they can more easily pick such work apart – they also have recently attempted to undermine quantitative work as well. The results have not been pretty. In the case of their attacks on the JD earnings premium study by Professors Simkovic and McIntyre the result was downright embarrassing.

As Professor Leiter explained yesterday the critics’ leading advocate, a tenured law professor himself, may have finally jumped the shark when he openly admitted at the conclusion of his specious attack on a fellow academic that his own credentials “don’t actually have much if anything to do with either carrying out serious academic work or training people to practice law.”

One of the arguments of the critics, of course, is that it is the qualitative or conceptual work that is weakest and least relevant to the actual practice of law.  Recently, the critics (who move like a swarm of locusts, first alighting on one target, then another) have made the object of their screeching concern an article by a rising star in legal academia, Professor Nancy Leong, of the University of Denver. Professor Leong visited at UCLA this Fall term even though she has yet to be tenured at Denver (a strong sign of the wider academy’s interest in her work). For those catching up, Brian Leiter summarizes the core of the atrocious attack on her here.

Much, even most, of the criticism of her work, and, sadly, of her personally, has gone way beyond what is appropriate or even civil, apparently because the critics have decided one of her (several) major articles, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (64 Fla. L. Rev. 305) (and available on SSRN here and first “published” as a University of Denver working paper), should be made a kind of poster child for everything that is wrong about legal scholarship. (One bright bulb in the locust crowd actually wrote about Professor Leong: “She is the perfect poster child for what is wrong with legal education in this country.”) A central claim of the critics is that legal scholarship is irrelevant to the actual practice of law and that law professors are featherbedding bums who fit the old canard, “those who can’t, teach.”

How timely, then, it is that a federal circuit court judge recently placed the “Open Road” article at the heart of his opinion in United States v. Mubdi, 691 F. 3d 334 (CA4 2012).

In his partial concurrence with the majority, Judge Davis opens his opinion with a quote from “Open Road” and then in the body of his opinion again quotes extensively from the piece, calling it a “cogent summary of the evolved legal regime” with respect to racial profiling and traffic stops. And then once more relies on Professor Leong for her “correct” observation that “close calls always seem to go to law enforcement.”

Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion.

Granted, Judge Davis himself spent three years as a law professor and so may be more open to the potential value of legal scholarship than those members of the judiciary with more limited backgrounds. And granted, as this is only one example, law faculty might be able to think more carefully about ways to assist the bar and judiciary think through complex social and legal problems with good scholarship.

But it has to be noted that the very article used to ridicule an entire academic discipline for its allegedly weak connection to live legal issues turns out to be at the heart of a federal appellate court opinion about a very live legal issue, indeed.

I recall the poignant moment in a large class of mine a few years ago when one of my students approached me after class to explain why she was late – despite being well within the speed limit, she had been pulled over by a police officer while on her way to campus for a “DWB” infraction – “driving while black.”

No wonder, then, that Judge Davis quotes Professor Leong when she concludes:

“Thus, even an officer with no actual purpose other than to harass and annoy may—according to the Supreme Court—use a traffic stop as an entirely constitutional starting point for such actions, as long as an objectively reasonable evaluation would conclude that the officer had probable cause to believe that a traffic violation occurred at the time she made the stop.”

It is, in fact, hard to find a more compelling and relevant piece of scholarship than this piece by Professor Leong and yet this eludes practically the entire corpus of law school critics. When one sees such a radical disconnect in the locusts’ argument, it has to make one wonder about the integrity and common sense of the critics themselves.

Simkovic schools Steven Harper on basics of valuation

You would think a former BigLaw partner would know better.

Brian Leiter’s Law School Reports.

Mike Simkovic explains basic statistical concepts to law school critics

Brian Leiter’s Law School Reports.

It probably won’t convince the rigid ideologues to recognize the world is not flat but worth a shot.