Dorf on Law

The NY Court of Appeals five years ago upheld the ...

2012-02-13T15:06:23.227-05:00

The NY Court of Appeals five years ago upheld the requirement to provide contraceptive coverage to Catholic institutions. The state free exercise protection was applied even to generally applicable laws, but intermediate scrutiny was applied.

One complicating factor, and a NYT article recently on Fordham U touches upon it, is that religious colleges and so forth might be the most convenient service available. The rape victim taken to a Catholic hospital and not given Plan B also is cited.

If women students at some fairly isolated university is not provided contraceptives or some other service at thier clinic, it can be a real burden.

I keep wondering about the First Amendment dimensi...

2012-02-13T10:16:31.586-05:00

I keep wondering about the First Amendment dimensions of this issue.

In this context, it's possible to view the religion clauses as a continuum across free exercise and establishment, I think -- with three main markers:

1. Where the government does nothing, staying out of the way.

2. Where the government acts reasonably to protect free exercise.

3. Where the government carves out exceptions that give religious believers special privileges not offered to others.

(1) and (2) are pretty clearly on the free exercise side of the spectrum, but (3) runs the risk of becoming Establishment, though it's dressed up in the clothing of FE.

(1) speaks for itself, as it really just invokes pure limited government. The line between (2) and (3) is the real trouble spot. A good example of (2) might be a law that allows churches to use public facilities for private use (on par with everybody else).

But the current contraception issue seems to at least potentially fall within (3). Assuming Congress has authority in the first place via the commerce clause to reach religiously-affiliated institutions like hospitals and schools, what should we make of conscience objections? On the surface, it sounds good -- after all, we're showing respect for religious preference.

But if a law is generally applicable, aren't such carve-outs actually a form of special treatment, which morphs into establishment of religion? In other words, it can be argued that the government is elevating Catholicism over everything else; the religion's stature is *augmented* by *state* action.

Further, suppose a faith-affiliated business opposes paying taxes on religious grounds. Or maybe a hospital refuses to meet certain safety regulations because of orthodox views. Are we denying religious liberty by upholding laws that require compliance? And if people want to say those issues are different (maybe they are), who decides what is and isn't a valid religious objection? Do we really want the government (including the courts) entangled in that question?

I guess what I'm saying is that the Employment v Smith rule might be the cleanest mindset.

"In what way are professional sports, acting,...

2012-02-12T22:52:49.166-05:00

"In what way are professional sports, acting, writing, etc., "practical?""

Most actors, writers, and even professional sports stars make very little money (try being a career minor league baseball player). The ones who are at the top of these professions make millions- because they generate tens or hundreds of millions in revenue for their investors and entertainment value for the public.

Law schools are funded largely with taxpayer guaranteed loans that have to be repaid by kids in their mid-twenties. If law schools had to operate by private sector rules (notably no federal guarantee and loans dischargable in bankruptcy) it would spell doom for many high cost private law schools with iffy employment prospects (perhaps even GW). It's absolutely the public's business whether those students can repay the loans in a timely manner. If they can't, law schools may have to get their funding somewhere else (and good luck convincing the government or a private foundation to fund 95% of the law review articles published today.)

Money and practicality pretty much go hand in hand...

2012-02-12T22:36:56.001-05:00

Money and practicality pretty much go hand in hand. That's why society tells young people to go to law school instead of following other dreams. You can make more money. It's more practical.

What practical use are most law professors articles, Paul?

" You can't expect to do something totall...

2012-02-12T22:26:53.977-05:00

" You can't expect to do something totally impractical and get paid a lot for it."

In what way are professional sports, acting, writing, etc., "practical?"

Your idea that remuneration generally tracks "practicality" (whatever you might mean by that) is, to put it nicely, misguided,

This isn't a question of whether law professor...

2012-02-12T21:40:25.014-05:00

This isn't a question of whether law professors do anything important. You're using this broad question to try to rally all the academic freedom types to your defense.

The issue is whether or not you should be paid so damn much for your job. You can't expect to do something totally impractical and get paid a lot for it.

Medical and Business professors do practical work, and make a lot of money. Liberal arts and social sciences professors do impractical work, and don't make all that much.

Law profs are closer to humanities profs. You are in the waning days of high salaries. If you were teaching five classes a semester, grading four-five papers/essays per class, and only making 60 k a year to do it, not a lot of people would be asking whether you were doing anything important. Nobody would care. Just like our charmingly out of touch professor of Shakespeare, you would be flying under the radar on a low salary.

Not just weak, but comically self-serving. And it ...

2012-02-12T18:11:26.023-05:00

Not just weak, but comically self-serving. And it isn't "the educational system" that is insisting that it's "essential to a civilized society." It is a leisured class of individuals, Buchanan and his fellow professors and administrators, who desperately want us to believe that it is somehow "essential to civilization" that their faux-academic lifestyle of disproportionately high pay and preposterously low work hours should continue indefinitely, at the expense of kids and taxpayers.

It is remarkable that an educational system that c...

2012-02-12T17:01:02.154-05:00

It is remarkable that an educational system that can only give about 40% of graduates a decent job, would be insisting that it is essential to civilized society. What a weak argument.

Wishing for that edit button again.... "your...

2012-02-12T15:43:02.634-05:00

Wishing for that edit button again....

"your prior post" in this case it was the royal DoL "your" and the post was, in fact, authored by Neil.

Speaking to your prior post, it is a controversy a...

2012-02-12T15:41:40.892-05:00

Speaking to your prior post, it is a controversy and problem only because Catholics, by in large, are Democrats. If they weren't, this would probably be a non-issue.

If they simply follow the money, probably a third ...

2012-02-12T13:49:50.883-05:00

If they simply follow the money, probably a third to half of all law schools will not be able to show prospective law students enough of it to interest them - in a world where law schools are no longer allowed to mislead their students.

For the sake of those not yet in our predicament as a "lost generation" of attorneys, we will do everything we can to make clear to prospective law students that they are not all being prepared for a career in the law, despite their education. Somewhere between a third to a half of them are merely subsidizing the careers of those who will have an opportunity to have a career in the law, although that won't be clear to them until they've taken a bar exam and determined absolutely that they are unprepared to do the smallest legal task for a paying client.

Frankly, I wouldn't mind seeing a meteor strike my alma mater, but I'd settle for it closing its doors forever.

You guys like to pretend your job is to produce sc...

2012-02-12T13:40:30.804-05:00

You guys like to pretend your job is to produce scholarship, but what you're really selling, like it or not, is opportunity. That's why kids are financing to the tune of 100k+ to attend your schools. Sure there's value in knowledge for knowledge's sake, and that value may take a very long time before it percolates through outside academia. But Rome is burning folks! Costs and benefits are inextricably linked. So "observing that legal scholarship has made an enormous difference in the development of the law" is not going to cut it if to repeat that history we will require an army of debt zombies to make it happen again.

DJM, Are Ohio State's numbers going to once a...

2012-02-12T08:14:10.654-05:00

DJM,

Are Ohio State's numbers going to once again fraudulently calculate an "average" salary based on the highest earning 50% of graduates, and represent that as the salary for all 100%?

I'm really starting to get sick and tired of people like DJM and Campos who run their mouths but do not lift a finger to do a damn thing about the problem that unjustly pays them a fortune each year.

Mr. Buchanan, The problem with your approach is t...

2012-02-12T08:10:44.575-05:00

Mr. Buchanan,

The problem with your approach is that it will tangibly harm innocent people.

Your actions and indeed seemingly your hopes, are that college graduates are fooled by fraudulent job placement statistics into borrowing fortunes from taxpayers, to fund the salaries of law professors "for the good of the profession."

Having established that, i.e. having established that the unpricipled thought processes of legal academics such as yourself results in the victimization of innocent people - a classic form of evil - the conclusion can only be that it is not the backlash against people like you that damaged the legal profession. No, people like you damaged the legal profession long ago.

In summary Sir, you need to stop rent-seeking off of the backs of defrauded students and taxpayers. I am up early on a Sunday morning to get to work, after having worked 70 hours last week doing menial labor (I have a JD from a good school) and I still do not earn anywhere near the income that you earn by working an estimated 10-20 hours a week (perhaps 30 hours a week if we call your blogging and other commenting "work".)

You can't fool all of the people all of the time, and for law professors the game is over.

I can't say anything that Mike and Neil have s...

2012-02-12T00:07:57.672-05:00

I can't say anything that Mike and Neil have said more effectively than they've both said it. As another who's published both in 'pure' peer-reviewed journals and in more quasi-peer-reviewed, student-run law reviews, however, I heartily join in the judgment that both sorts can be dreadful, both sorts can be great, and both sorts can be all things in between. I'm often tempted to analogize the values and disvalues at play here to those that are implicated by vindication of the first amendment. In both the latter and the student-edited journals, for example, allowing lots of chaff to get through seems effectively to be the cost associated with enabling a fair amount of great grain to be sown and grown. The flip-side CBA applicable to 'purer' peer-reviewed journals, for its part, requires that we note that sizable numbers of really great 'game-changing,' ground-breaking work is screened out by established folk who sometimes end up doing nothing better than perpetuating stale methodological orthodoxies well in need of 'reset' buttons. Seems to me we ought accordingly be glad that we've got *all* the sundry kinds of journal that we find out there.

I can't say anything that Mike and Neil have s...

2012-02-12T00:06:37.638-05:00

This "defense" reminds me of a scene fro...

2012-02-11T18:48:34.198-05:00

This "defense" reminds me of a scene from one of my favorite movies, Casino.

Sam Rothstein (Lefty Rosenthal in real life, who operates the Tangiers (the Stardust in real life), has just confronted his slot machine manager over three simultaneous jackpot payouts. The odds of this are astronomical, suggesting a fix. The slot manager is grossly underqualified for the job, contributes nothing to the operation of the Tangiers and only has the job because his brother in law is on the County Commission.

Rothstein has had enough.

Ace Rothstein: [grows more irritated] Ward, you're p******g me off. Now you're insulting my intelligence; what you think I am, a fuckin' idiot? You know g****n well that someone had to get into those machines and set those f*****' reels. The probability of one four-reel machine is a million and a half to one; the probability of three machines in a row; it's in the billions! It cannot happen, would not happen, you f*****' momo! What's the matter with you? Didn't you see you were being set up on the second win?
Don Ward: I really think...
Ace Rothstein: [interrupts] Wait! You didn't see that you were being set up on the second win?
Don Ward: I really think you're overreacting...
Ace Rothstein: Listen, you f*****' yokel, I've had it with you. I've been carrying your a** in this place ever since I got here. Get your a** and get your things and get out of here.
Don Ward: You're firing me?
Ace Rothstein: I'm firing you. No, I'm not firing, I'm firing you, ya...
Don Ward: You might regret this, Mr. Rothstein.
Ace Rothstein: I'll regret it even more if I keep you on.
Don Ward: This is not the way to treat people.
Ace Rothstein: Listen, if you didn't know you were being scammed you're too f*****' dumb to keep this job, if you did know, you were in on it. Either way, YOU'RE OUT! Get out. Go on, let's go.

And to the author of this post, I echo a similar sentiment. If you do not know that you are perpetuating a system that destroys as many lives as it improves, you're too dumb to keep this job. If you do know, you're in on it. EITHER WAY, GET OUT!

My first comment on Neil's post said nothing a...

2012-02-11T16:37:21.175-05:00

My first comment on Neil's post said nothing about how or even whether legal scholarship ought to be funded. I was only observing that legal scholarship has made an enormous difference in the development of the law. It is possible that legal realism would have developed outside the legal academy in a world without law schools. It's also possible that nowadays legal scholarship soaks up more money in cost than value it produces--although here, as in the liberal arts, much of the argument would be about defining value. As I have said before, if legal scholarship (or basic research in any other field) is not worth paying for, then it should not be paid for by any means. If it is worth paying for, then there is no necessary reason why it should be paid for from tuition rather than government grants, foundation grants, or other sources. Earlier posts at:

http://www.dorfonlaw.org/2011/11/new-york-times-is-shocked-to-discover.html

and

http://www.dorfonlaw.org/2009/04/future-of-universities.html

I take Neil's broader point to be that mixed in with quite legitimate complaints about lack of transparency and cost are all sorts of red herrings that may or may not be valid, but really would not be coming up now were it not for the understandable frustration of law students and recent graduates with the job market, their debt load, and the complicity of their alma maters in creating their unfortunate circumstances.

The other points might have validity, even if they really have nothing to do with the core economic complaints. An example is Lois Turner's claim that non-peer-reviewed work is worthless. Both Neil and I have published in peer-reviewed journals and university presses. We have both served as peer reviewers as well. And we have also both published in student-edited law journals (many of which now include blind faculty review in the selection process). I can't speak for Neil, but speaking from my own experience, I find that there are advantages and disadvantages to both processes, and much could be said about this. But the arguments would have little to nothing to do with the underlying economics of the relationship between the teaching and scholarly missions of law schools and universities.

Churn out as much of your worthless non-peer-revie...

2012-02-11T14:55:34.159-05:00

Churn out as much of your worthless non-peer-reviewed "scholarship" as you like, but find some way of paying for it other than scamming kids.

How can we consider the long-term damage from the ...

2012-02-11T14:16:53.164-05:00

How can we consider the long-term damage from the assault on law schools when you refuse to consider the long-term damage the academy is doing to their students and the profession by not controlling the number of students graduating from law schools each year? This is a profession that relies on it's reputation for self-regulation to maintain high fees and barriers to entry. Every unemployed law graduate, or law graduate who is working for 12/hr part-time, or for free and living at home, or doing contract doc review in a basement, damages that reputation. This is a direct result of too many law students being produced by the academy without a commensurate increase in the number of full-time, JD required, decent wage jobs. Without law schools to take them in, these students would not be underemployed or unemployed JDs with tens or hundreds of thousands of dollars in debt.

Hey Mike, What was tuition+COL at law schools in...

2012-02-11T14:03:45.484-05:00

Hey Mike,

What was tuition+COL at law schools in the early 20th Century? How many of those students took on non-dischargable, 7.9% interest rate debt for the benefit of the legal realists?

You guys really think this is still about your scholarship and articles, your casebook method and issue-spotter exams? This is about students coming out of law school with 150-200K in non-dischargeable high-interest rate debt and a no job, or a job paying 40-50K which makes it impossible to service that debt. That's the norm now. Is it still worth it?

Neil, one other thought that I consider equally im...

2012-02-11T13:41:57.401-05:00

Neil, one other thought that I consider equally important: I strongly agree that "it is impossible to make a case in favor of allowing law schools to lie about their employment statistics." By the end of next week, all law schools will know the 9-month employment outcomes for their 2011 graduates. Will you join me in pressing schools to publish those data immediately on their websites? If the numbers are better than 2010, then surely schools will want to give that fresh information to potential recruits; we will all enroll most of the new class during the next three months.

Conversely, if the numbers are worse (which I strongly suspect will be the case at many, many schools), then applicants should know those facts before signing tuition and loan agreements. And law school faculty need to be aware of those numbers and think about what they mean. I, along with many others, think that there are massive structural changes in law (largely driven by technology) that will long outlast the recession. Indeed, like most things technology-related, the impacts are likely to escalate.

One reason I am so bothered by schools' foot dragging in publishing employment information is that the conduct is the antithesis of academic behavior. Academic inquiry is premised on seeking truth--even when the truth is uncomfortable. Withholding employment information negates our academic integrity and fuels the attacks on law schools.

Not to mention that publishing old data, when more current data are available, is unethical and, well, fraudulent.... What do you think? I'm going to press for OSU to publish its updated data. Will you do the same at GWU? It's going to unpopular, but it seems academically and ethically right to me.

Three years of tuition at your law school costs al...

2012-02-11T13:38:54.574-05:00

Three years of tuition at your law school costs almost $150,00. Add in living expenses and the cost will be close to a quarter of a million to get the degree. Yet there are no full-time legal jobs for huge numbers of your graduates. Their lives are ruined because they believed your B.S. and enabled you to live a prosperous, stress-free and otherwise agreeable life. Don't you care? No wonder you think that law school is the best thing since sliced bread.

Neil, I agree that the attack on law schools engag...

2012-02-11T13:27:04.877-05:00

Neil, I agree that the attack on law schools engages anti-intellectual themes that have marked American culture at least since the mid eighteenth century. But that doesn't mean all of the attacks are wrong. Indeed, one of the best ways to defuse the anti-intellectualism is to identify the valid attacks and work to solve them. That, after all, is in the spirit of all academic inquiry: Use intellectual courage to identify problems (even in things that have long been taken for granted), examine the problems using knowledge from all relevant disciplines, and propose innovative solutions.

Very few law professors talk about the extensive research in cognitive science, education theory, medical education (a huge field in itself), and other disciplines that sheds light on how law professors teach and how new lawyers acquire professional expertise. We could learn a lot from that literature, yet too many law professors become all huffy about how we know what we're doing with the case method.

To be blunt, the current law school program is far from state-of-the-art. It's a kind of anti-intellectualism in itself to defend the program so strongly without consulting the academic literature on how professionals learn. Why not plug for understanding more about what we do and drawing upon knowledge from other disciplines?

Even if our economy recovers tomorrow, many young ...

2012-02-11T11:44:57.348-05:00

Even if our economy recovers tomorrow, many young lawyers and law students will be left out in the cold. Don't pretend to not understand legal hiring. The firms will skip over the graduates and 3L's to go straight for the kids at OCI. So how does this help everybody else?

You're also trying to change the subject to an argument you know you can win. But really, many of us don't care what professors write in their articles. We're just concerned that they're drawing six figure salaries to do do, and that they aren't being asked to do enough in the classroom.