Blogging from the law profs' convention
Last week I went to the Association of American Law Schools (AALS) convention, attended by law professors from all fields and (I suspect) virtually all schools. In addition to doing some networking, I went to numerous panels, some of whihc were quite interesting.
The highlight was a panel on teaching Jewish law. The panelists pointed out that there are a variety of ways of teaching: some focused on comparing Jewish law and American law (usually either “private law” issues of property and contract, or divisive social issues - also legal methodology issues such as the role of precedent and checks and balances in these systems), others focused on Israeli law’s issue of Jewish law, others compared Judaism with Christian legal traditions, and still others focused more on the broader theoretical differences between Jewish and secular legal systems.
Some of the panelists pointed out that regardless of the subject matter of the course, classroom time couldn’t be organized the same way as a regular course. Instead of reading a large amount of reading in a cursory way, students of Jewish legal texts have often focused on reading a paragraph or two intensely at a time- so one teacher had groups of two or three focus on texts a paragraph at a time. The teachers were all over the lot on writing. Some assigned long papers, others a short paper every week or two.
One thing I got from all the presentations: an appreciation of the difficulty of getting materials for such a course. The Talmud is available on CD-ROM. However, later codes (such as the Mishneh Torah) should be available- and this means that if you are not in a school with a sizable Jewish law collection, the school has to invest a few hundred dollars in its library to start one.
On the Friday of the conference (which lasted from Thurs. the 3rd to the following Sunday morning) the Federalist Society held a kind of counter-conference. The first panel was on Kelo (the Supreme Court decision reiterating that cities can employ eminent domain where a legitimate “public purpose” was involved. The most interesting panelist pointed out that Kelo is not as broad as both its supporters and critics think; one of them noted that a taking which is a “pretext” for redistribution to a private beneficiary may also be unconstitutional under Kelo, even if there is some possibility of a public benefit. For example, taking decrepit property to give to a collection of businesses is clearly OK, but giving the same property to one company that happens to be a major campaign contributor to the mayor may be suspicious.
There was also a lunchtime debate on the 2nd Amendment. The key issue was the role of the “well-regulated militia” clause of the 2nd Amendment. Does this clause limit the “keep and bear arms” clause by limiting firearms ownership to the “militia” (whoever that is)? Nelson Lund of George Mason argued that the militia clause was irrelevant, just a “sop” to fears of a standing army. Why? Lund drew an analogy. Imagine an announcement sent by my Dean to the class, saying “Prof. Lewyn being sick, class is canceled today.” Even if I am faking, class is canceled. Similarly, even if the militia doesn’t exist, the 2nd Amendment right to bear arms still exists.
I have to admit I wasn’t completely persuaded by the analogy. The “sick teacher” situation is a one-time problem, not a Constitutional clause intended to last for 200 years. In the first situation, there is no way to reconvene the class later if the teacher is discovered to be faking. By contrast, the practical impacts of the Bear Arms Clause can be adjusted if there is no militia. A better analogy would be to an announcement stating “Because Prof. Lewyn is dead, his class is canceled forever.” If I am discovered to be alive, class can reconvene.
Then came an exchange on American legal education. Prof. Shepherd of Emory discussed the cartelization of American legal education; until the 1920s and 1930s, the bar exam was not particularly difficult, and law school was not required for law practice (let alone attendance at an ABA-accredited law school). Then the big time lawyers got the states to clamp down and eliminate most of the poorer law schools, thus limiting the supply of law schools and lawyers and thus raising the price of both. (What Shepherd didn’t mention is that the situation is likely to get worse before it gets better; the ABA is thinking of requiring a minimum bar pass rate of 70 or 80 percent for accreditation).
Shepherd added that there was no reason to believe that the status quo is essential for quality education: business school is not a requirement for entry into business, yet there are academically sophisticated business schools and American business somehow seems to function without barriers to entry.
Some avenues for further research: how exactly do business schools differ from law schools? In particular, how do non-elite business schools compare to non-elite law schools? Are they cheaper? Do they produce a worse product in any significant way? What happens to their graduates? And do states that allow non-ABA schools (e.g. California) have cheaper legal services?
Prof. Schwarzchild of San Diego discussed the evolution of American legal education in recent decades. Good news: much more scholarship; 30 years ago, only elite schools showed much interest in scholarship. Bad news: crushing tuition increases leading to crushing debt burdens.
Dean Garvey of Boston College defended American legal education and explained the purposes of high tuition. There has been lots of criticism (especially from clinicians and lawyers who believe law schools should have more clinical training) of American legal education. Garvey asked: if our law schools are so bad, how come foreigners come here for LLMs? Why do students take on so my debt if legal education is so worthless?
He also addressed the tuition issue. He pointed out that faculty salaries have not kept up with the increase in lawyer salaries, so that’s not the cause. Instead, the issue was student-teacher ratios, which are much lower now than they were in 1980. Why? Because when tuition was cheaper, everyone took the same big courses, so you only needed enough faculty for the first year curriculum and a few other courses. Since then, law schools have added legal writing faculty and clinicians (to handle demand for more “practical” experience), and a variety of new specialties (to teach some of the many new specialties that have arisen in recent decades, such as civil rights and environmental law).
Another interesting panel was one on originalism. Today, originalism doesn’t just mean a belief that the intent of the Framers is binding and/or leads to conservative policy results. Neo-originalist scholars argue for originalism, but focus on the broad values animating constitutional provisions - for example, on the Fourteenth Amendment’s goal of preventing a “caste society.”
The most interesting presetnation, however, was by Prof. Rappoport of San Diego, who argued for originalism not on the traditional “rule of law” or “judicial restraint” grounds* but on the grounds that rules enacted by a supermajority (such as the Constitution in its original form) are more likely to lead to good policy results than an interpretation endorsed by a 5-4 majority of the Supreme Court. Why? Because the former rule was created by something approaching a societal consensus**, which means that the voters were not acting based on narrow partisan concerns. Admittedly, the 18th-century majority is sometimes out of touch with today’s societal consensus- but Rappoport argued that if nonoriginalist justices stop trying to “fix” the Constitution so it evolves with the times, the amendment process will solve everything.
*”Rule of Law” argument means that to enact a constitutional provision by definition means to enact its original meaning, otherwise any interpretation is plausible.
“Judicial restraint” argument means that originalism is likely to lead to a less aggressive judiciary because the Framers meant to outlaw very little- a factual claim that it is itself the subject of wide disagreement among scholars.
**At least of propertied white males- but there is no reason to believe that a broader electorate would have opposed the Constitution as written, except for provisions related to slavery which in any event were not good law after the Reconstruction Amendments were enacted.
Posted by lewyn
at 6:26 PM EST
