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agree with him about this: to a large extent, the increasing expense of a law school degree is driven by over- and outdated-regulation by the ABA.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.

Tabarrok on Medical Patents

Over at Marginal Revolution, Alex Tabarrok has an excellent post on the intellectual property bar's latest efforts to propertize everything, no matter what the social costs, including perverse consequences for research and innovation.

A Provocative Assertion about the Conservatism of the Legal Profession in the 18th Century

From Jonthan Israel, Democratic Enlightenment (Oxford 2011), pp. 231-2:

Modern historical surveys of the Enlightenment often seem to suggest that Europe's judicial systems could be and were swiftly and almost painlessly reformed in the eighteenth century, as if this was just a question of ending judicial torture, modifying the harsh treatment of debtors and unmarried mothers, and a few other widely acknowledged defects, and as if there was widespread support for the proposed changes in society and among the legal profession. But the evidence strongly suggests otherwise. Significant sections of the Enlightenment, and Hume in particular, systematically undermined every overall approach to rationalizing the law, thereby drastically limiting the scope for legal reform. In the legal and moral sphere, it was neither public opinion, nor economic pressure, nor governments, and especially not ... magistrates or lawyers that acted as agents of change. The legal profession in fact contributed practically nothing to the reform programme anywhere in Europe. Rather it was philosophy itself - and especially la philosophie moderne - helped by the sheer accumulation of social difficulties and pressures (as distinct from public attitudes), that spread awareness of deficiencies and urged root and branch reform.

I am not enough of a legal historian (especially of Europe in the 18th century) to adjudge the accuracy of Israel's strong claim. I suspect he is correct about the general conservatism of the legal profession, which seems a persistent quality. On the other hand, I find it hard to imagine that the successful legal reforms Israel discusses could have been achieved without at least the strong support, if not the instigation, of some enlightened magistrates and lawyers. If the legal profession, as a whole, possesses a conservative (perhaps Humean) mindset, the existence within that profession of a minority of reformers - both moderate and radical - seems another of its persistent qualities. Of course, Israel's apparent bias for the philosophes, especially those like Spinosa, Bayle, and Diderot with a more radical reform agenda, is understandable given his own heavy investment in their works. But it seems doubtful that they their works were the sole drivers of enlightened political, legal, and economic reform.

Gregory McNeal on Targeted Killing and Collateral Damage in U.S. Drone Warfare Operations

Gregory McNeal is Associate Professor of Law at Pepperdine University School of Law. Professor McNeal emailed me yesterday with a heads up on his new essay at the Social Science Research Network, "The U.S. Practice of Collateral Damage Estimation and Mitigation." And he's got a abbreviated version of the argument at Lawfare. An excerpt:

Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.

Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.

The first step in the military’s collateral damage estimation process requires military commanders and their subordinates to ensure that they can positively identify, with reasonable certainty, that the object or person they want to affect is a legitimate military target (in the case of persons, one who is directly participating in hostilities). In targeted killing operations, the process of positively identifying a target means that commanders and their subordinates are focusing principally on the identity of the target. This is an intelligence-heavy task that relies on the collective effort of the intelligence community (both military and civilian) to vet and ensure the validity of the target in accordance with IHL and the ROE. Before engaging in an operation, military personnel must inform a commander (or “strike approval authority”) of the assumptions and uncertainties associated with information provided for the operation, including the time sensitive nature of any intelligence relied upon. In practice, what this means is that if positive identification of a target fails, no operation will take place. This is so because in U.S. practice, positive identification satisfies the requirement of ensuring that a target has the status of a legitimate military objective. When doubt arises as to whether an object holds civilian status, there exists a presumption that it does, hence the requirement of positive identification in U.S. operations.

Continue reading.

Also, see the response from Benjamin Wittes, at Lawfare, "Gregory McNeal on U.S. Targeting Standards." And from Kenneth Anderson, at Volokh, "Gregory McNeal on US Military Targeting Processes."

RELATED: A blast from the past. See Colin H. Kahl, at International Security, "In the Crossfire or the Crosshairs? Norms, Civilian Casualties, and U.S. Conduct in Iraq."

Lawrence Friedman on the Aridity of Constitutional Law Scholarship

I'm proud to say that Lawrence Friedman, America's foremost legal historian, was my mentor during (and after) my  graduate legal studies at Stanford Law School. He remains among the most professionally impressive and personally influential scholars I have ever known, never wavering from his commitment to avoid writing anything dry and uninteresting.

Lawrence's most recent publication, "Law and Economics in Society," published in the Hofstra Law Review (Vol. 39, page 487), and presumably based on a lecture he gave there, is, as usual, full of wit and wisdom. In it, he criticizes some (but not all) practitioners of Law and Economics for ignoring both the limitations of economics and the advantages of  other social-scientific approaches to understanding the operation of  law in society. My favorite part of his new paper, however, is towards the end, where he laments that neither Law and Economics nor any of the other social scientific approaches to law have appreciably influenced certain "citadels" of legal scholarship, most notably constitutional law:

Most legal scholarship is sadly lacking in rigor and objectivity. Every year, law reviews publish thousands of pages of old-fashioned legal writing - blind to the realities of society, incurably solipsistic, and inbred. To be frank, constitutional law is a particularly arid field. It seems incurably devoid of interest in empirical data. Its very success, its very relevance to public issues, breeds scholarship that is either pure ideology and punditry, or the elaborate exposition of doctrines that make little or no difference to outcomes, to life in society, or reality. Most writing in the field is bloated, dismal, and biased. Many of the scholars seem eager only to spin out their own pet theories which rest on their own particular prejudices, and pass these off as some sort of eternal truth. As a legal historian, I find the pseudo-history of some constitutional lawyers, the habit of passing off their normative arguments as history, particularly irksome.... As an amateur legal sociologist, it bothers me that legal scholars seem so uninterested in whether doctrines and decisions make any difference in the real world. Maybe they assume that anything the Supreme Court says has some magic effect in society. Almost all of the "impact studies" come from political scientists. Nobody else seems to see any use for actual data. (495). 

I agree entirely with Lawrence's argument, but even if you don't, you must admit it's not dull!

Former Righthaven Defendant Brian Hill Slams Copyright Troll in New Video

My attorney David Kerr represented defendant Brian Hill.

See: "Brian Hill explains how Righthaven LLC works and how they operate as a proxy to avoid liability."

PREVIOUSLY: "Beating Righthaven," and "Poor Babies! Righthaven Whines About 'Scorched-Earth, Anti-Righthaven Litigation Tactics'."

Newt Gingrich Courts Conservative Backlash on Immigration

At New York Times, "Gingrich Risks Conservative Outrage on Immigration":

Did Newt Gingrich have a “heartless” moment on Tuesday night?

In a September debate, Rick Perry, the governor of Texas, drew a furious response from conservatives in his party when he said critics of in-state tuition for illegal immigrants “did not have a heart.” The response halted Mr. Perry’s momentum amid charges from rivals that he was too soft on the issue of immigration for the party faithful.

Now, Mr. Gingrich — the newest leader in the national polls — has embraced a similar apostasy: the idea that the country should find a way to make many millions of illegal immigrants legal.

“There’s a way to ultimately end up with a country where there’s no more illegality, but you haven’t automatically given amnesty to anyone,” Mr. Gingrich said, citing a program from the Vernon K. Krieble Foundation.

That was enough for Mr. Gingrich’s rivals to pounce. Mitt Romney, the former governor of Massachusetts, refused to allow Mr. Gingrich to claim that his suggestion was different than amnesty.

“If people who come here illegally are going to get to stay illegally for the rest of their life, that’s going to only encourage more people to come here illegally,” Mr. Romney said.

Representative Michele Bachmann of Minnesota agreed with Mr. Romney. “I don’t agree that you would make 11 million workers legal, because that in effect is amnesty,” she said.

Also, at The Hill, "Rep. King denounces Gingrich immigration plan as 'amnesty'." (Via Memeorandum.) And check AoSHQ, "Gingrich's Daft Immigration 'Solution'."

PREVIOUSLY: "Newt Goes All 'Dede Scozzafava' on Immigration!"

BONUS: Jeff Goldstein's post from last night, "Debate thoughts, nano edition."

Newt Goes All 'Dede Scozzafava' on Immigration!

Remember Dede?

Michelle has the refresher: "An ACORN-Friendly, Big Labor-Backing, Tax-and-Spend Radical in GOP Clothing."

Old Newt's getting a little too comfortable up there in the frontrunner's spot, it turns out. He's already angling for the independent vote and we're still weeks away from the Iowa caucuses. Can you say "RINO"? See The Hill, "Immigration exchange during GOP debate nudges Gingrich toward the center":

Newt Gingrich ended up to the left of his GOP rivals on immigration during a CNN debate on Tuesday, defending his position that the United States shouldn't deport every illegal immigrant while the other presidential hopefuls accused him of supporting magnets that attract illegal immigration.

"I don't see any reason to punish someone who came here at 3 years of age and wants to serve the United States of America," Gingrich said, adding that those whose parents brought them to the country illegally but want to serve in the U.S. military should be included in a program that lets foreigners earn citizenship through military service.

Gingrich said he found it hard to believe that Americans would support deporting millions of people and that visas should be made available for those with math and science skills.

But he also made it clear that flexibility would apply only to those who had been contributing positively to the nation for years, not to those continuing to flout U.S. immigration laws.

"I do believe if you've come here recently and you have no ties to the U.S., we should deport you," he said.

Basically, come here illegally, don't get caught and live in the shadows for a decade or two, and you're good to go!

Yay Newt! We knew you still had the old RINO spirit!

Also at Politico (and Memeorandum).

Another Attack on Law Schools from the New York Times

In recent months, the New York Times has been attacking law schools and, more generally, the structure of legal education in a series of articles (see, e.g., here, here, and here). In today's edition (here), David Segal writes about the deplorable fact that law school graduates have no idea how to close a merger deal by drafting a certificate of merger and filing it with the Secretary of State's office. That's right, after spending $100,000 or more on a legal education, most law grads don't have that nugget of professional wisdom, and must learn it (presumably from a legal secretary or another practicing attorney, in a one minute conversation). The message is clear, law school curricula need to change to make sure that our grads not only know what a certificate of merger is but also where to find the Secretary of State's office. Such practical knowledge is far more important than actually thinking about and understanding complex legal rules and the various contexts in which they apply (or not).

Segal also, inevitably, takes a run at the hundreds of practically useless law review articles that are authored each year. No doubt, the various titles he quotes constitute a representative sample, so no need to worry about bias. He's certainly correct that law reviews publish a lot of drivel, a pile to which I have contributed my fair share (or more). But that too many articles are theoretical rather than practical is a common refrain for which I have yet to see any empirical evidence. Each week, when I receive the list of newly published articles,  I see a lot of abstract theoretical-looking articles and also a lot of very practical stuff, including many articles on recent court decisions and how they fit into or alter the preexisting body of law. What should be the proper percentage of practical to theoretical scholarship (assuming we can always tell the difference between the two)? I have no idea. I'm never quite as sure as jurists and journalists seem to be about which scholarly offerings, from which scholars (at which schools), contribute most to society's stock of useful knowledge.

The sum and substance of Segal's screed against legal education is that it is way too theoretical and insufficiently practical, leaving poor law firms to engage in remedial practical training. He ignores, conveniently, the fact that during the past 30 years law schools already have become far more practical in response to pressures from law firms. A relative of mine graduated from the Columbia Law School in the 1970s without having written a single paper. That would not be possible at any accredited law school in the country today thanks to  mandatory legal research and writing courses (whose teachers are, as Segal correctly notes, deplorably reduced to second-class status on most law faculties).

Unfortunately, Segal and the several wonderful lawyers and jurists he quotes in his article (all of whom somehow survived all of the theoretical nonsense, and lack of practical instruction, in law school), neglect two basic functions of academic legal training that, to my mind, are (a) far more socially valuable than knowing such discrete factoids as how to file a certificate of merger with the Secretary of State (something a beginning associate's secretary could probably do) and (b) could never be taught by law firms. First, law students learn about the legal system as a whole, beyond the specific areas in which they end of practicing (assuming they do end up practicing, rather than running businesses or doing the myriad other things in life for which legal education is relevant and valuable). This broad education empowers them to be active citizens and even leaders in their communities. Second, law schools teach the deep analytical skills needed not just to practice law but to judge, make, and even change the law. Third, law students learn how to decipher court decisions, legislation, regulatory rules and communicate about them in clear, sensible and critical writing. Without these skills learned in law school, it simply wouldn't matter that graduates knew what a certificate of merger was or where to file it.

Law schools certainly are far from perfect; they should and will change (however begrudgingly) as the market and broader society require. But the problem is not that they are hiring too many PhDs and too few practicing lawyers (many of whom apply to law schools seeking a cozy retirement from practice). Whatever changes are needed, the notion that law schools should change merely to serve the interests of the existing cadre of lawyers and jurists is far from clear. Law schools are and will remain professional and academic institutions that combine theoretical and practical training (in some combination that will never please everyone). The proper mix of the theoretical and practical (assuming we can always disentangle which is which - I've always thought of Legal History as a practical course) inevitably remains contestable. Law schools are not and never will be non-professional graduate schools. Neither should they become white-collar, vocational training schools for practicing lawyers.

"Property in Land and Other Resources" Is Now Available for Pre-Order

My new book, co-edited with Elinor Ostrom, Property in Land and Other Resources (Lincoln Institute 2011), is now available for pre-order at Amazon.com (here) for just $28.63. That's $6.37 (18%) off the cover price. According to the Amazon listing, the book will be published on November 28.

You can also purchase the book directly from the Lincoln Institute of Land Policy (here).

You can see the full Table of Contents, read Doug North's forward, and read Lin and my Introduction to the book here.

When is Command-and-Control Efficient? Evidence from the Field

"Command-and-control" is a derisive label usually applied (mainly by economists) to traditional forms of environmental regulation including technology-based "design standards" and "performance standards" (which are non-tradable quota limits). In most of the environmental instrument-choice literature, "command-and-control" is considered generally inefficient both nominally and relative to so-called "economic instruments,"* which include effluent taxes and cap-and-trade (a performance standard with trading of pollution rights or allowances).

More than a decade ago, Peter Grossman and I published a long article (a pre-publication version is here), with an unusually long title, in the Wisconsin Law Review about the limitations of cap-and-trade and effluent taxes as substitutes for traditional forms of quantity-based regulations.** In “When is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection,” we explained why, as a matter of both theory and historical experience, traditional forms of environmental regulation have sometimes been, and sometimes remain, more efficient and effective than so-called “economic instruments” mainly because of monitoring and enforcement cost differentials. In at least some cases, command-and-control regulations, particularly technology-based standards, can have administrative cost advantages that offset, or more than offset, the admitted compliance-cost advantages of cap-and-trade or effluent taxes.

One important implication of our analysis in that article is that compliance costs are not the sole concern in environmental protection (although they are often treated as such by economists*). Rather, society should be concerned with minimizing the total costs of environmental protection, which are the sum of compliance costs, administrative (monitoring and enforcement) costs, and residual pollution costs. See, e.g., Peter Z. Grossman and Daniel H. Cole, "Toward a Total Cost Approach to Environmental Instrument Choice," in T. Swanson & R. Zerbe (eds), An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design, 20 Research in Law & Economics 225 (2002) (see here). Moreover, it is a mistake to presume that minimizing compliance costs necessarily minimizes total costs, as if differential administrative or residual pollution costs are either insignificant or inevitably move in the same direction as compliance costs.

In the years since we published our Wisconsin Law Review article, it has been cited hundreds of times (more often by legal scholars than by economists). To date, our analysis and findings have not been substantially challenged. Now comes a new article in the October 2011 issue of The American Economic Review providing further empirical support for sometimes preferring traditional forms of regulations over "economic instruments."

In “Clearing the Air? The Effects of Gasoline Content Regulation on Air Quality,” co-authors Maxmiliian Auffhammer and Ryan Kellogg, analyze empirical data on national and state-level (California) gasoline-content regulations, and find that the more flexible federal approach has virtually zero cost-effectiveness (costs of compliance were minimized but at the price of completely nullifying the environmental effect of the regulation), but California's more stringent set of traditional regulations have reduced substantially emissions that contribute to low-level ozone pollution, albeit at higher cost of compliance (but providing substantial net social benefits). Here is their abstract:

This paper examines whether US gasoline content regulations, which impose substantial costs on consumers, have successfully reduced ozone pollution. We take advantage of spatial and temporal variation in the regulations' implementation to show that federal gasoline standards, which allow refiners flexibility in choosing a compliance mechanism, did not improve air quality. This outcome occurred because minimizing the cost of compliance does not reduce emissions of those compounds most prone to forming ozone. In California, however, we find that precisely targeted, inflexible regulations requiring the removal of particularly harmful compounds significantly improved air quality.

The empirical information and conclusions of Aufhammer and Kellogg's article further support Cole and Grossman's conclusion that command-and-control regulations are sometimes (but certainly not always) more effective and efficient than market-based mechanisms. Where our analysis focused on differential administrative costs that sometimes favor design standards, Aufhammer and Kellogg have a somewhat different concern, that more flexible regulatory mechanisms, by focusing myopically on the minimization of compliance costs, might fail to achieve emissions reductions necessary to achieve the (exogenous) environmental goal. For reasons that should be obvious, a regulation with zero cost-effectiveness (purchasing at some positive cost zero additional increments of environmental protection) cannot be considered efficient, let alone more efficient than another regulation, albeit one with higher compliance costs, but which actually furthers the environmental protection goal (assuming the goal itself is economically sensible).

Aufhammer and Kellogg's empirical analysis provides a welcome reminder that social scientists, legal scholars, and policy analysts should not neglect or underestimate the potential of traditional command-and-control instruments in the environmental policy mix.

---------------------------------

*In effect, all forms of regulation are economic instruments. Even technology-based standards function by raising the costs of polluting activity, which shifts the supply curve outward and (assuming some price elasticity of demand) reduces the rate of demand for pollution-intensive goods. What economists really mean when they use the phrase "economic instruments" is "economically more efficient instruments." This presumes that the compliance cost advantage of cap-and-trade and effluent taxes means that they necessarily have lower total costs than command-and-control instruments. As noted above, this presumption is unwarranted.

** Unfortunately the full, final published versions of the three articles cited in this post are not freely downloadable on the Web. Each, however, is available behind a pay-wall.

Justice Stevens on the Supreme Court

I just finished reading Justice Stevens highly readable, insightful, and surprisingly substantive book, Five Chiefs: A Supreme Court Memoir (Little, Brown 2011). Always an engaging writer, Justice Stevens provides a highly personal account of his tenure on the Court, organized around the five Chief Justices with whom he served. Along the way, we learn about his personal history and path to the Court, how the Court functions on a day-to-day basis, the almost invariably warm personal relations among the justices (which doesn't prevent Stevens from taking issue with several of his colleagues or pointing out their endearing or not-so-endearing character traits), and Stevens's views about various landmark cases decided by the Court, while he was a member. This book is highly recommended for all readers with any interest in the US Supreme Court and constitutional, regardless of prior expertise. It should be required reading for all law professors and students.

The Social Cost of Carbon at ABA SEER

The American Bar Association's Section on Energy, Environment, and Resources (ABA SEER) is holding its annual meeting in Indy this week. Yesterday, I was on a really fun panel on the social cost of carbon (SCC), which the federal government set at $21.40 per ton for 2010 (rising from that year to nearly $50 per ton by 2050). The only legal significance of the SCC at this point is that federal, executive-branch agencies must use the cost figure in calculating costs and benefits of proposed regulations. This has a salutary effect of forcing agencies to at least confront the problem of climate change in everyday rule-making activities (except to the extent they farm out preparing of CBAs to outside consultancy organizations). But no one on the panel thought that incorporating the SCC into regulatory decisions would significantly shape those decisions; the consensus, on the panel at least, was that the federal government's SCC is too low to do that, and also lower than it should be.

The federal SCC has virtually no current implications for lawyers outside of federal agency/regulatory practice. For that reason, I was somewhat surprised to see that the (fairly large) room was pretty well packed for the panel. During the question/discussion period, it became clear that a number of those in attendance were there just because they were interested in learning more about the problem of climate change and the challenge of climate policy. Of course, some corporate lawyers might have attended because they foresee a time when the SCC will have relevance for their companies, e.g. in the form of a carbon tax.

Here is the outline of my own presentation from the panel:

Presentation on the SCC.aba SEER.oct 2011

This afternoon, I'm heading back to Indy because the I.U. Maurer Law School is hosting a reception for its alums and current students who are attending the conference. (A bit of irony here, as I moved to Bloomington to avoid the commute from Indy. Indeed, I have to go back to Indy a third day in a row on Saturday to pick up my wife at the airport).  

MLEA 2011

As I mentioned in my previous post, I'm attending the Midwest Law & Economics Association annual meeting here at IU, Bloomington. The conference has been really good this year. Very few of the papers (possibly including my own) have been duds; most have been really creative, interesting, and strongly argued. I'm especially impressed by some of the up and coming young scholars, who I think are likely to make major contributions to the field in the coming years. It speaks well of the organization (albeit one without any real hierarchy, but largely sustained by the work of my Maurer School colleague Jeff Stake) and its relatively informal and non-threatening culture that it attracts such talented young scholars.

The paper I presented, on the social cost of carbon, is at a fairly early stage, and I received some useful feedback, as I continue to work on it in the lead up to another presentation at the ABA Section on Environment, Energy and Resources next month in Indianapolis. I'll post an updated version of the (short) paper on this blog sometime in the next couple of weeks.

Update on Cole and Grossman, Principles of Law and Economics (2d Ed.)

A 200-page Teacher's Manual and a disk containing PowerPoint slides for each chapter are now available for professors adopting the new edition of the book, published by Kluwer/Aspen.

Principles of Law and Economics, 2d Edition

The second edition of Cole and Grossman, Principles of Law and Economics (Aspen 2011) is now available, just in time for the fall semester (here). Here is what Tom Schelling has to say about the book (from the back cover): "I'm an economist who has taught economics and public policy to law students. This is the book I would have used if the authors had got around to it a couple of decades earlier."

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 Wages of Law

The ABA Journal has a site (here) where you can find out what lawyers earn in counties from around the US. In Marion County, Indiana, which is coterminous with the City of Indianapolis, the mean salary for attorneys is $105,990; the median salary is $95,030; and the 75th percentile salary is $126,340.

Given all the dire news out there about change in the legal profession and reports questioning whether law school is worth the money, it is useful to remember that lawyers still earn, on average, a comparatively good living.

Principles of Law and Economics, 2d Edition (forthcoming summer 2011)

Peter Grossman and I have just completed the final revisions of chapters for the second edition of our Principles of Law and Economics textbook, which should be published in plenty of time for the Fall 2011 semester by Kluwer/Aspen. We did not change the overall structure or organization of the book, but worked in several new cases (while weeding out some old ones), added more game theory applications throughout, and slightly increased the coverage of intellectual property issues. The Table of Contents remains the same:

1. Economic Concepts and Institutions
2. An Introduction to the American Legal System
3. Putting Law and Economics Together: Frameworks, History, and Perspectives
4. "The Problem of Social Cost" and Modern Law and Economics
5. Property I: Acquisition
6. Property II: Protection
7. Property III: Limits
8. Contracts I: Formation and Enforcement
9. Contracts II: Remedies
10. Torts I: Negligence
11. Torts II: Strict Liability
12. Torts III: Reform
13. Crime and Punishment
14. Antitrust and Regulated Industries
15. Environmental Protection

We are very pleased with the way the book has worked for us in our classes, and even more pleased with the great support from Kluwer/Aspen, which will be marketing the book for both undergraduate and law school use.