Segal Targets ABA

A new screed by the bete noir of legal academia, David Segal, in today's New York Times (here), takes on the American Bar Association (ABA) as overseer of American legal education. I never thought I say this about a David Segal article, but I actually agree with him about this: to a large extent, the increasing expense of a law school degree is driven by over- and outdated-regulation by the ABA. In fact, I deplore the monopolistic role of the ABA in legal education, and agree wholeheartedly with the sentiments expressed by Andy Morriss in the article.

A couple of other points worth noting about Segal's article: He refers positively to a couple of law review articles, a genre he previously has suggested is comprised of worthless, theoretical drivel. And he quotes approvingly several law professors throughout his article, which suggests that he managed to find some members of the new "leisure class," who are hard-working, self-critical, and not resistant to change. I wonder if he's compiling a list of the few good ones.

Workshop Mini-conference (and Book Parties)

On of the wonderful and unique traditions at Lin and Vincent Ostrom's Workshop in Political Theory and Policy Analysis here at IU is the "mini-conference," which is held at the end of each semester. The idea is to provide an opportunity for grad students (working toward their PhDs in various social-science departments) and visiting scholars (a dozen or more each semester from all over the world) to gain valuable experience in writing and presenting conference papers in a true workshop format. At the mini-conference, authors do not present their own papers; rather, they are presented and then critiqued by other scholars. The authors then have a short time for response prior to further comments, questions, and suggestions from the larger group.

This semester's mini-conference started yesterday and run's through this afternoon. This morning, I'm presenting an interesting paper by a grad student on how the Institutional Analysis and Design (IAD) framework (on which see, e.g., here) could improve Mancur Olson's analysis (in The Logic of Collective Action) of impediments to large-scale collective action.

While I'm on the subject of excellent traditions at the Workshop, I should mention "book parties," which are occasional events designed to provide feedback to Workshop-affiliated authors on manuscripts in progress. Workshop faculty, grad students, and even outside scholars from other institutions are each assigned a chapter of the draft book to review and critique at a day-long workshop (you can see why the Workshop is called the "the Workshop") We've had three book parties this semester, which may be one too many (time being a scarce commodity), but they're a great way for book authors to improve their manuscripts prior to publication.

I'm biased, of course, but if I were a grad student in any social scientific discipline, I would be attracted to do my dissertation at IU, first and foremost, because of the existence of the Workshop. It provides opportunities for collaborative learning, along with motivation and support, that are hard to find elsewhere.

Federal Courts of Appeal Cite Law Review Articles More than They Used To

That's according to a new empirical study David L. Schwartz and Lee Petherbridge recently published in the Cornell Law Review (Vol. 96, pp. 1345-74, 2011). Here's the take away from their article:

The study reported here adds a substantially more comprehensive data set to this important body of work than previous studies: an assessment of citation to legal scholarship in 296,098 reported decisions of the federal courts of appeals  between 1950 and 2008. Using clearly described and easily reproducible methods it further adds to the existing body of knowledge by empirically exploring the stridently pressed conventional wisdom that legal scholarship has drifted so far from the interests of the bench and bar that courts have little use for it.

The study produces two important results. First, the data collected support the interpretation that the use of legal scholarship by the federal circuit courts of appeals has not declined. Rather, the use of legal scholarship by such courts has increased. Taken together, the data gathered in this study call into serious question the conventional wisdom that courts have little use for legal scholarship.Second, the study provides evidence that a relatively small cohort of judges is responsible for the overwhelming majority of citations. Using empirical and theoretical methods, the study also considers explanations for the empirical results.

I wonder whether David Segal of the New York Times will retract the blanket claim he made in an article he wrote a couple weeks ago about the uselessness of legal scholarship (see here).

Robert H. McKinney School of Law

Congratulations to my friends and colleagues at the Indiana University School of Law at Indianapolis, which has just been renamed the Robert H. McKinney School of Law after a $24 million gift (over $31 million including matching funds) from that prominent IU alum and Indianapolis attorney. Along with the new name, the law school gets funding for five faculty chairs to help recruit and retain nationally (and internationally) prominent faculty. Dean Gary Roberts has done a fabulous job securing the future of the law school, which is great news for all of IU.

The official IU news release is here. A video of the public announcement can be viewed here.

The State of Higher Education

Anthony Grafton offers an unusually balanced and sensible view, avoiding both the standard blame-game and facile solutions, here in the New York Review of Books.

The University, Then and Now

Miri Rubin, a historian of the middle ages, explores the ways in which the nature, structure, and problems of the first universities are  relevant to higher education today. The piece is here in the Times Higher Education supplement.  

Hat tip: The Browser

SPEA Retreat

I spent all afternoon today at a retreat organized by the IU School of Public and Environmental Affairs (SPEA) Faculty Group on Governance and Management. More than two dozen members of the SPEA faculty, both junior and senior scholars, gave brief introductions to ourselves and our work. Every one of the presentations was fascinating. I was highly impressed at the caliber of my new SPEA colleagues, and am very excited to be working with them.

Here are my two favorite phrases from today's presentations:

     "empirically proven moral adjectives;" and

     "civicky things".

The retreat took place at the Stone Age Institute, north of Bloomington. It's a very interesting place in a bucolic setting. It seems to be a well-kept secret around Bloomington - I had never heard of it prior to the initial announcement of this retreat - but I look forward to returning for future events there.

Summer Labors

My summers are always devoted to research, writing, and cycling (not necessarily in that order). This summer, my work plans are unusually banal, which may be just as well considering that I'm in the process of moving jobs and possibly homes. Aside from the working paper I posted the other day (here), which I wrote for a conference last month, my summer writing consists mainly in preparing new editions of existing works.

Peter Grossman and I are currently working on a teachers manual to accompany the new edition of our Principles of Law and Economics, which will be published next month by Wolters Kluwer Aspen. I don't use teachers manuals myself, but Peter and I realize the importance of writing one for marketing purposes. So, we're working hard to make ours useful. It is not, however, the most edifying of projects. I also just finished up the copyright clearances for works we excerpt in the textbook. That was also a less than fascinating chore.

Once Peter and I finish up with  teachers manual and the page proofs (hopefully next week) my attention will turn to the new edition of Natural Resources Law, which I'm co-authoring with Jan Laitos, Sandi Zellmer, and Mary Wood. I've already completed first drafts of updates and revisions of two chapters. I just have the chapter on mining and mineral leasing law to go. My main goal for that chapter (aside from the usual updating of new cases, regulations, etc.), is to cut some fat from the last edition, and add in a new section on the Deepwater Horizon oil spill and its aftermath. That new section will be the one fun part of yet another uninspiring project.

If I'm lucky, I'll finish most of the work on new editions of existing books by mid-July, which would leave me a month before classes begin to get some work done on my long-suffering climate policy monograph. I don't have high hopes however, especially if we wind up moving lock, stock, and barrel to Bloomington. I have to be out of my office in Indy by the end of this month, and I'm about halfway moved out already; I've been moving boxes to Bloomington in drips and drabs each time I go down there. 

I Don't Particularly Care Whether Judges and Lawyers Read My Scholarship

Over at Concurring Opinions (here), my colleague and friend Gerard Magliocca has just posted on the perennially controversial issue of the relevance of legal scholarship for the legal profession. Having butchered the comment I posted in the string following Gerard's post, I thought I would rephrase and expand on my remarks here.

Plenty of legal scholarship has been, and continues to be, written primarily for the benefit of practicing attorneys and judges. Personally, I find most such scholarship to be uninteresting, perhaps for the same reasons that legal practitioners find it useful. In any case, the subset of legal scholarship devoted to the practical affairs of judges and lawyers seems to have been shrinking, as a percentage of the entire corpus of legal scholarship. An increasing percentage of the literature is not written primarily to educate and/or influence lawyers and judges. Unsurprisingly, then, that they find the literature less relevant to their day-to-day work. It's not supposed to be relevant (at least not directly).

My sense is that Justice Roberts understands that point, but Judge Harry Edwards does not. The former considers much of legal scholarship to be irrelevant to his work on the Court, but does not denigrate it as the later has. I find bemusing the presumptuousness of judges and practitioners who believe that they comprise the only legitimate audience for legal scholarship.

I confess that some of my scholarship (for instance, my work on the Takings Clause) is intended to influence or educate (however ineffectually) lawyers and judges. But they are not the intended audience for much of my work. Much of what I publish is intended to influence or educate law-makers and regulators; and sometimes I am just working through problems and puzzles with my colleagues in academia. Even if some judges and lawyers cannot understand why I might want to do that, such scholarship has significant social value, contributing to the stock of useful knowledge in the world.

What If?

I'm attending a very interesting conference this morning organized by my esteemed colleague Gerard Magliocca, and sponsored by the Indiana Law Review, on "What If? Counterfactuals in Constitutional History."

I've long been a fan of counterfactual analysis in law. I've even written a couple of  related articles (one of which is available here) based, in part, on a constitutional counterfactual question: What if the Fifth Amendment to the US Constitution did not include the Taking Clause? Put differently, how much of a difference does constitutional/judicial protection of private property from government over-regulation and expropriation really make? By comparing constitutional protection of private property in the US with the system of almost purely political protection of private property in the UK, I concluded that the case for constitutional protection is not very strong.

Today's conference includes several interesting panels, featuring  papers by a wonderful group of panelists, including:

Amanda Tyler on "The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Write of Habeas Corpus"

Ilya Somin, "What If Kelo Had Gone the Other Way?"

Alison LaCroix, "What If Madison Had Really Won? Legislative v. Judicial Supremacy"

Kim Roosevelt, "What If Slaughterhouse Had Been Decided Differently?"

Heidi Kitrosser, "What If Daniel Ellsberg Hadn't Bothered?"

Carlton Larson, "What If Chief Justice Fred Vinson Hadn't Died in 1953?"

The Market for Philosophy

Over at Crooked Timber (here), Ingryd Robbins has an interesting post on efforts to close down Philosophy departments at various universities in the UK. This is part of a disturbing trend I have posted about previously (see here). Here is one very good paragraph from Robbins' post:

I think the tendencies are clear. If you are teaching/doing research in a field/discipline that can not easily show (quantitatively, please!) to policy makers & bureaucrats that you will make a significant positive contribute to economic growth, your very existence is at stake. Never mind that you’re opening up minds, teaching logic or the arts, passing on history to the next generations. Either someone on the market should be willing to pay for what you’re doing, or else you are at mercy of the benevolence of your government. The University as a public good? That’s an old fashioned idea from premodern times, obviously.

It's Official, I'm Moving Sixty Miles South

At the end of the current school year, I will be leaving the Indiana University School of Law - Indianapolis to take up a joint appointment in Bloomington at the Indiana University Maurer School of Law, the School of Public and Environmental Affairs, and the Workshop in Political Theory and Policy Analysis. Needless to say, I'm very excited about the new challenges and opportunities, though I'm also a bit sad to leave friends and colleagues with whom I've worked, in some cases, for two full decades.

It remains to be seen whether we will move house to Bloomington immediately; much depends on the real estate market. The commute, if necessary, is doable. Overall, this is a minimally disruptive move, which is about as much disruption as I am able to tolerate.

Judge Posner Slams the Harvard "Blue Book"

Here. I doubt Judge Posner's common sense will ever prevail among the pointy-headed purveyors of legal citation form. I learned basic "Blue Book" style back in law school, and continue to use it when necessary, although I have not bothered to keep up with the cancerous growth (as Judge Posner describes it) of "Blue Book" rules. I don't think I've actually looked at a "Blue Book" in more than 20 years. I only rarely publish in law reviews anymore anyway, but I vastly prefer social science approaches to citations and references, and nearly always use them in my books.

Hat tip: The Browser.

Bruno Frey on the Future of Academia

The distinguished Swiss economist Bruno Frey has posted a concise new working paper on the changing nature of the academic enterprise and the forces driving those changes. Here is the abstract:

Strong forces lead to a withering of academia as it exists today. The major causal forces are the rankings mania, increased division of labor in research, intense publication pressure, academic fraud, dilution of the concept of “university,” and inadequate organizational forms for modern research. Academia, in a broader sense understood as “the locus of seeking truth and learning through methodological inquiry,” will subsist in different forms. The conclusion is therefore pessimistic with respect to the academic system as it presently exists but not to scholarly endeavour as such. However, the transformation predicted is expected to be fundamental.

The Nature of Academic Conferences

Stanley Fish has a nice column in today's New York Times (here) about the nature of the academic enterprise. His main claim, with which I agree, is that the primary purpose of academic work and meetings is not to derive normative conclusions with direct relevance for policy, but to ask and argue about big issues outside of the policy-making pressure cooker.

Fish explains that a conference he recently attended on "originalism" in constitutional interpretation was a success, not because it resolved substantive problems in the world, but because "a set of intellectual problems had been tossed around and teased out by men and women at the top of their game," who " were more than willing to do the hard work involved in trying to get things straight." They were "willing and eager, that is, to do academic work."

What's an Academic To Do on a Snow/Ice "Holiday"

I've been teaching in Indianapolis for 20 years. This is the first time I can remember having the entire campus closed down for two days in a row. What's an academic to do?

Fortunately, the academic profession is not highly weather-sensitive. To begin with, I work at home as much or more than I work at school. So, the fact that school is closed hardly means that I cannot work. The only thing I cannot do on snow/ice days is teach class. I missed one class yesterday because of the storm, but I don't have one scheduled for today. (By the way, using existing technologies I certainly could teach from home, so long as the electricity and internet are working, but it is not yet convenient, via existing university systems, to connect up with students who are not all sitting in a single room together.)

Aside from teaching, I can do (and am doing) virtually everything else I do on a daily basis, including class preparations, internet-based research, and writing/editing everything from articles and book chapters to letters of recommendation, committee reports, and blog posts (like this one).

Even if the electricity (and with it the internet) were to go out, I could still prepare PowerPoint slides for class on my laptop until the battery ran dry. If need be, I could even resort to my BlackBerry for longer battery life. And when all the batteries have run dry, I could simply read by candlelight.

The rest of society may not consider academics to be very productive, but at least we are not rendered substantially less productive by short-term weather events (aside from truly extreme events like tornadoes, hurricanes, and floods).

The Ice Storm Cometh

Indy is predicted to get 1" to 1.5" of ice overnight tonight and through the day on Tuesday. Here's the forecast map from Weather Underground:

The IU School of Law - Indianapolis will close for weather only if the entire IUPUI campus is closed. In my experience, those responsible for making that decision are overly reluctant to close the campus. They do not seem averse to the risks students, faculty, and staff face in getting to school on icy roads.

If the law school does close tomorrow, students will receive an official notification. If the law school does not officially close, I will make my own risk assessment for myself and my students, and let them know if I decide to cancel my Climate Law & Policy class. If students receive no announcements, they should presume that classes are going ahead as scheduled.

UPDATE: Late this afternoon, in an unprecedented preemptive move, the IUPUI brain trust cancelled closed down the campus as of 5 pm, before road conditions had deteriorated much.

Are Law Schools in Trouble?

For a year or more, I've been reading and hearing gloom and doom stories (many from my own Dean) that the current model of legal education is obsolete and that law schools must change or die. In recent months, these stories have been supported by declining admissions, both at my law school and nationally, and national press reports (such as this one) raising legitimate questions about whether legal education is worth the money.

However, when I look at the graph below (from the Economix blog in today's New York Times, here), I see the very recent downturn in law school admissions, which more or less tracks the recession, as a small part of a longer cycle of generally rising law school applications. Perhaps the doomsayers are right, but I'll need more than one or two years of downturns in law school applications to convince me of structural changes in the market.

If You Want to Know Why College/Law School Tuition Is Increasing

In August, the Goldwater Institute published a report on "Administrative Bloat at American Universities: The Real Reason for High Costs in Higher Education". Here is the Executive Summary of that report:

Enrollment at America’s leading universities has been increasing dramatically, rising nearly 15 percent between 1993 and 2007. But unlike almost every other growing industry, higher education has not become more efficient. Instead, universities now have more administrative employees and spend more on administration to educate each student. In short, universities are suffering from “administrative bloat,” expanding the resources devoted to administration significantly faster than spending on instruction, research and service.

Between 1993 and 2007, the number of full-time administrators per 100 students at America’s leading universities grew by 39 percent, while the number of employees engaged in teaching, research or service only grew by 18 percent. Inflation-adjusted spending on administration per student increased by 61 percent during the same period, while instructional spending per student rose 39 percent. Arizona State University, for example, increased the number of administrators per 100 students by 94 percent during this period while actually reducing the number of employees engaged in instruction, research and service by 2 percent. Nearly half of all full-time employees at Arizona State University are administrators.

A significant reason for the administrative bloat is that students pay only a small portion of administrative costs. The lion’s share of university resources comes from the federal and state governments, as well as private gifts and fees for non-educational services. The large and increasing rate of government subsidy for higher education facilitates administrative bloat by insulating students from the costs. Reducing government subsidies would do much to make universities more efficient.

We base our conclusions on data from the Integrated Postsecondary Education Data System (IPEDS), which is sponsored by the U.S. Department of Education. Higher education institutions report basic information about enrollment, employment and spending in various categories to IPEDS, which then makes this systematically collected information publicly available. In this report, we focus on the 198 leading universities in the United States. They are the ones in IPEDS identified as four year colleges that also grant doctorates and engage in a high or very high level of research. This set includes all state flagship public universities as well as elite private institutions.

Hat tip: Environmental Economics

The Last Week of Winter Break

While many of my colleagues will be heading to San Francisco this week for the massively over-priced and always underwhelming annual meeting of the Association of American Law Schools, I'm staying home preparing to teach Climate Law & Policy for the first time and a Seminar in Property Theory for the second time (and the first time in more than half-decade). I also have to draft an introduction for an edited volume this week. It may be my only opportunity to get any new writing done this semester.

The second 8-week session of winter training also begins this week. Now that the holidays are over, it's really time to start ramping up the effort to add some watts and drop some pounds.