Category Archives: Legal Academia

Job Announcement: “Southwestern Law School: Lateral Hiring Announcement in Constitutional Law”

SWLAW Logo with Address RGB_1Southwestern Law School: Lateral Hiring Announcement in Constitutional Law

Southwestern Law School in Los Angeles seeks lateral candidates for at least one junior to mid-career lateral candidate for a position in the area of Constitutional Law. For more information, please email academicadmin@swlaw.edu and/or the co-chairs of the Lateral Appointments Committee, Roman Hoyos (rhoyos@swlaw.edu) and Danielle Kie Hart (dhart@swlaw.edu).

New Article: “Bridging the Two Cultures: Toward Transactional Poverty Lawyering”

New Article: Gregory E. Louis, Bridging the Two Cultures: Toward Transactional Poverty Lawyering, 28 Clinical L. Rev. 411 (2022). The article is here: Louis – Bridging the Two Cultures. Abstract below:

As U.S. society emerges from the COVID-19 pandemic that decimated Black and Brown communities and law schools reexamine their curricula after the summer of 2020, a moment of interest convergence has emerged: the need for legal education to matter for Black and Brown livelihoods. This Article proposes a concrete measure for meeting this moment. Informed by CUNY School of Law’s lawyering seminar and building upon scholarship long calling for a paradigm shift toward a transactional understanding of social justice – especially Professor Susan R. Jones’s work – this Article calls upon law schools to leverage their positions and resources toward Black and Brown economic recovery. Specifically, the Article proposes that law schools do so by requiring their students to enroll in a transactional poverty law seminar and clinic instructing students toward assisting socially and economically disadvantaged small businesses with applications for capitalization and finance. With such a course, law schools can become centers of what Professor Jones terms “action research,” assisting the flow of assets to populations historically locked out of capital, most recently with the pandemic economic stimulus programs. It also would serve to enlighten privileged law students on the stark exclusions within the U.S. market economy and initiate socially and economically disadvantaged law students into transactional practice. Through advancing mutual benefit about this principle of double discovery, the course would serve to bridge the gap between the two Americas as well as the silos of litigation and transactional lawyering.

[Venting/Rant Post–feel free to ignore] “On Writing from the Cheap Seats”

On Writing from the Cheap Seats

If a law professor from a lower ranked school writes something, was it actually written? If an article is not published in a top journal, was it actually published? On optimistic days, I think the answers to these questions are obvious: if it is on Hein, Westlaw, and Lexis, an academic contribution has been made that will be seen by others who work in the same field(s). But I am not optimistic on all days. On those other days, it can feel as if all that really matters is if the idea is expressed, or re-expressed, by an elite scholar at a school that “matters” among academics.

As I have observed before, one of the most significant changes in how my time is spent pre- and post- tenure is the amount of time spent reading other peoples’ works. Whether because of somewhat self-imposed, somewhat a sense of professional responsibility, between service and mentoring obligations, I spend a lot of time reading scholarly drafts. My current annoyance involves articles that proclaim their own novelty, confidently asserting that their argument / analysis has never been done before, seemingly blind to the ways in which the supposedly novel article either is building off of or even simply repeating points that others have made before.

The attractiveness of proclaiming something is novel, even when it is not, is clear—among other things it can help with placement—but it seems to be based on what is a rare form of insight, the sort that just bursts into the mind free of antecedents. While such novel arguments do exist and I think any academic can think of works that sort of burst onto the scene with their brilliance, most scholarly insight is based on a much more plodding, workaday form of intelligence. Works that fail to acknowledge the works and scholars that helped lay the path, seen from this perspective, are in some ways both dishonest and hopelessly arrogant. Put differently, part of me hopes that the short term gains of proclaimed novelty are not worth their rewards over a long career.

A wise senior scholar at one point gave me two somewhat contradictory pieces of advice. First, that no writing will be perfect and successful academics know that letting a work out in public is one of the most important things you will do and you should set deadlines with yourself so you know when you have done enough. Second, that being an academic is a marathon not a sprint. It can often be hard to remember this last point. Finishing the next article—the one that will finally get well placed and that will get a larger audience (or so you hope)—can feel like a sprint. And it is inevitable given the vast amount of research that has come out that you will overlook a piece that is good for your topic. And you should be forgiven for such oversight. Of course, if it was your article that was either overlooked or glossed over by a more successful academic, it hurts.

One of the more entertaining law professors out there (or at least among my facebook friends / twitter feed people) is Brian Frye, who among other things really likes plagiarism or at least takes a contrarian perspective on whether plagiarism is bad (we are not friends in a meaningful sense so I am not sure how seriously I am meant to take the positions he takes over social media). And morally there may be some truth to that position. But on the level of feelings, being ignored or being glossed over just feels bad. When someone is making an argument that is similar to something you wrote years ago and they have reason to know about your work but still claim to be making a novel contribution without acknowledging your work, it, to put it mildly, can be annoying.

Alice Ristroph’s new book review, Read Thyself, forthcoming in Alabama Law Review, does a better job than I can, and with much more grace than I have, expressing the frustrations of seeing one’s work glossed over without adequate acknowledgment. Ristroph takes the high road. Recognizing that “many in the legal academy can hear an argument spoken from Stanford Law School or Harvard University Press that they cannot hear when it is articulated from Brooklyn Law or the Alabama Law Review,” Ristroph articulates the hope that “desire for glory” and “academic vanities” would not undermine shared ideals in a higher goal connected with scholarly work (17). And Ristroph is right, I think, to stop short of labeling the work she is critiquing as plagiarism. Such a charge is explosive and should not be leveled lightly; even when such an accusation is accurate, it can be misused by those in power. But throughout Ristroph’s review there is also the awareness and a subtle anxiety related to the fact that the academic game is different for those of us not designated as elite stars and not writing as part of the in circle.

The split between insiders and outsiders can be seen in poverty law scholarship over the past decade. Academics at Yale, Harvard, and other elite schools have woken up to the fact that inequality is a problem, that a system built on myths surrounding merit is a problem, and that the law may contribute to both inequality and subordination. Much of the writing produced by such elite scholars is brilliant, insightful, and welcome. But it also can at times be painfully unaware of scholarship—equally brilliant and insightful—produced by non-elite academics. The footnotes are filled with citations to friends and colleagues at similarly elite schools but the contributions of academics who have been plowing the fields through a lifetime of contributions to our understanding of inequality from the cheap seats are unacknowledged and uncited. Part of me wants to just celebrate and revel in the moment. To take the high road. It is great that elites have discovered inequality and only the slightly petty me wished their focus was a bit more targeted towards poverty. But part of me feels bad. Not for my work being unacknowledged—my work in poverty is all of the place and not of such depth in any one area that I have reason for angst (my work on Navajo economic development and to a lesser extent my small carved out space in property theory on the other hand might cause angst and annoyance at times)—but for the work of my friends and fellow travelers in the field. This isn’t an example of false modesty. I see my work in poverty law largely as elevating the work of others and creating a bit more space for poverty scholarship (written by others) to flourish.

One of the biggest challenges when it comes to our work selves, esp. post tenure, is striking the right balance between ambition and humanity. I’m at the point of giving up on Twitter because the medium seems to push the balance so far towards ambition that humanity gets lost. But in our scholarship, one has to hope that what ultimately matters is being decent… to fellow academics, to past writers, and to an existing scholarly field. Please excuse me if this comes off as just too annoyed. If this rant does nothing other than convince people to read Ristroph’s review with some attention to one’s relative place in the academy, it will have succeeded.

But let me end with a huge thank you and acknowledgment of some of those whose guidance, past works, and/or humanity have been invaluable to me and to my own (not very novel) writing. Rob Williams, Jr., Jim Anaya, Peter Iverson, Ray Austin, Kristen Carpenter, Angela Riley, Matthew Fletcher, Rebecca Tsosie, Lee Fennell, Andrew Hammond, Peter Edelman, David Super, Daniel Hatcher, Audrey McFarlane, Francine Lipman, Susan Bennett, Claudio Grossman, Herman Schwartz, Kaaryn Gustafson, Joe Singer, Carol Rose, Duncan Kennedy, R.M. Unger, Marsha Lee Weisiger, Matt Gallaway, Andrew Needham, Juliet Brodie, Claire Pastore, Jeff Selbin, Marie Failinger, Sarah Krakoff, Robert Miller, Pat Hugg, Mary Algero, John Lovett, Jack Knight, Shailaja Fennell, etc, etc. [NOTE I’m going to stop making this point, but I have to add that shortly after posting I experienced the downside of any such list–it risks being seen as a slight for missing people–so I’m going to add three that should have been on the list the first time, Lisa Pruitt, Bruce Haynes, and Jessica Shoemaker but going to restrain myself from adding others.]

New Article: “Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals”

New Article: Kenneth Oldfield, Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals, 69 J. Legal. Ed. 239 (2020).

[Venting post] Legal Scholarship and (False) Claims of Originality

There is nothing new about what I am about to write, I just need to vent. But it is important to acknowledge when ideas are not original or at least not new. My need to vent comes from reading far too many articles, esp. article introductions, that stake out a position that the article is making a novel contribution and discussing/identifying/exploring an area that has not been covered by others before. This seems to be particularly a specialty of junior scholars at top law schools, but examples of such broad, “look at me,” claims can be found throughout the legal literature. Indeed, a sub-category of this genre consists of articles written by the same scholar who wrote the leading works on exactly the topic that is supposedly being presented for the first time in a later article. (Once, when I was asked to review a star scholars work, I read more than a dozen articles by the same scholar, none of which acknowledged previous work and most of which contain a large amount of self-plagiarism.)

I probably should not be venting or annoyed by this but I recently finished reading (“for fun”) Rhodes’ excellent book, The Making of the Atomic Bomb, which shows just how different norms can be. Among the scientists described in that book, if someone were to simply repeat an earlier discovery or claim that had been previously been made by another scientist, they would be shamed and/or laughed out of the room. The progress in scientific understanding (and horrors) described in the book depended on acknowledging and building on the works of others. That seems foreign to legal scholarship, where law review editors prize claims of novelty and lack a long view of scholarship. It also though says something about both the authors and readers of such “novel” works that fail to acknowledge the work of others or that treat it dismissively.

We in the legal academy are arguably becoming immunized against such grandiose claims of originality and treat is as just part of the game, of how one gets a good article placement. And perhaps for some writers it is inadvertent. Looking just at citation practices, it does appear that the more elite authors tend to only really read other elite authors… so if it hasn’t been said before by someone at a T14 school, has it even been said before?

There is a risk that this post will come off as either too superior or as too annoyed, after all we all fail to cite all those we should in our work and cannot be expected to keep up with everything possibly related to big topics we chose to write about. But I think we ought to be annoyed with such false claims of originality. They mislead the audience, they fail to acknowledge the contributions of others that lead to what is new, and, for lack of better words, they are just annoyingly arrogant. That said, civility also matters and perhaps explains why only rarely do such false claims get called out. I’m not going to name names so to speak because (a) it is unclear what the purpose of providing names would be and (b) many of the “novel” claims are pushing valuable things even if they are a little too desperately seeking attention.

But I do feel bad for the authors and scholars slighted by such falsely grand claims, for those who have done great work but find it either ignored or treated dismissively in the footnotes even though they made essentially the same claims. This post was “triggered” by my annoyance for a friend, someone whose work truly did push the needle and ball. Part of me hopes she never stumbles on the new scholarship that proudly asserts its novelty. But my friend is a good scholar and not at a leading law school so I bet she does come across such work. But the choice to let such claims of novelty slide because that is how the game is played is not without pain and certainly results in the same ground being plowed more times than it should.

Job Posting: Housing Clinic position at USC

The University of Southern California (USC) Gould School of Law is seeking applicants for the position of Clinical Professor, Clinical Associate Professor, or Clinical Assistant Professor, with responsibility for the Housing Clinic. This is a full-time, clinical position in the Law School’s Research Teaching, Practice, and Teaching (RTPC) track, to begin no later than Summer 2022.

The Housing Clinic will be a new clinic for the law school in 2022-23; accordingly, candidates are invited to share in detail their vision for how such a clinic will best function.  A significant part of the work of the clinic will be eviction defense, but other housing practice areas are also anticipated. Candidates should share their views on the appropriate portfolio for the clinic.

More details and application process are here: https://usccareers.usc.edu/job/los-angeles/clinical-professor-of-law-clinical-associate-professor-of-law-clinical-assistant-professor-of-law-o/1209/14189984528 

New Article: “Entrenched Racial Hierarchy: Educational Inequality from the Cradle to the LSAT”

New Article: Kevin Woodson, Entrenched Racial Hierarchy: Educational Inequality from the Cradle to the LSAT, 105 Minn. L. Rev. 481 (2021). 

Not poverty law focused: Tony Varona and the University of Miami

This is not poverty law focused but is instead about the University of Miami President’s decision to fire Dean Varona as the dean of the law school.

A blog reader has asked that I share the idea that there should be a virtual picket line to educate anyone who receives (or has already received) an invitation to apply for Miami Law’s (interim) deanship, that solidarity demands declining to succeed Dean Varona in these circumstances.

The firing has been condemned by the AALS’s Minority Group Section’s Executive Committee. And others have noted the absurdity of firing Varona.

Personally, I don’t have a lot to say on this, in part because I consider Tony a friend. From when I first met him, when we were both “junior” (or as we say at American, “pre-tenured”) faculty, it was clear to me that Tony would be a natural dean. He is both thoughtful and charming. He also cares: about students, about colleagues, and about institutions. So his firing was a surprise to those of us who respect him deeply, which is I think why so many faculty members are upset about it.

My own view on a picket line or bar on anyone but Tony serving as Dean is, however, complicated. A law school as an institution needs a dean; more importantly, Miami students need a dean. And the dean ideally should have at least a working relationship with the major players at the university level. I don’t see a way for Miami or an successor dean to move forward with clean hands and heart, but I also suspect the Miami President won’t back down. Rather than a win-win, this looks like a lose-lose all around: for Tony, for the faculty, for faculty governance, for students, for alumni, and for whoever eventually is convinced to come in to replace Tony. So the most I can do is repeat what the blog reader is pointing out, that replacing Tony is and should be a fraught activity, and virtually send a big hug to Tony.

New Article: ClassCrits Time? Building Institutions, Building Frameworks

New Article: Athena D. Mutua, ClassCrits Time? Building Institutions, Building Frameworks, 1 J. L. & Pol. Econ. 333 (2021). Abstract below:

This essay chronicles the development of ClassCrits, an organization of US legal scholars that seeks to ground economic analyses in progressive legal jurisprudence. Today, ClassCrits ideas may resonate with a broader audience. I attribute this institutional success partly to ClassCrits’ commitment to: an interdisciplinary “big tent” openness, safe and responsive space, and praxis and collaboration. I then explore three key topics in a selection of ClassCrits writings on class and law: (1) neoliberal entrenchment and preservation; (2) class oppression; and (3) the intersecting oppression of class and race. I argue that ClassCrits scholarship on law and neoliberalism is productively viewed through and anticipates Wendy Brown’s recent work, and that Erik Olin Wright’s approach to class analysis may add more theoretical cohesion to ClassCrits work on law and class. Finally, I suggest that Cedric Robinson’s theory of racial capitalism holds promise for ClassCrits scholarship on the intersection of race and class.

New Article: Masters of The Code

New Article: Robert Gordon, Masters of The Code, The Journal of Things We Like (Lots), Sept. 28, 2020.

In 1984, Ronald Gilson made a path-breaking contribution to theorizing the social function of the work-product of business lawyers, or at least of some business lawyers, with his Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. 239 (1984). He characterized the lawyers’ role in helping to structure business deals as that of “transaction cost engineers” who help to reduce the frictions of deal-making, e.g., by helping the parties to anticipate and provide for common risks and information asymmetries.