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In response to many calls for possible dismissal (or at least investigation) of John Yoo at the Boalt (Cal Berkeley) School of Law, Dean Chris Edley yesterday issued a memorandum strongly rejecting the idea (albeit reserving some harsh words for Yoo's work in the government).
Although I have been among the most vociferous critics of both John Yoo's work in the government and his scholarship, I largely agree with most (though not quite all) of what Dean Edley says here, and I, too, am uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor. (Full disclosure, for what it's worth: I worked both with Chris Edley in the Clinton administration and with John Yoo in the Bush administration. I have not spoken to either of them about this matter.) For an alternative view, see this provocative post (and the resulting comments thread) from Henry Farrell.
Especially because I don't have any special insight on this question, I'm very interested in what my co-bloggers have to say about it and, more broadly, about whether there are other steps that members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing.
Continue reading at Balkinization ...
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Adam, you're right to point out that the process for joining a law faculty as a tenure-track junior professor is not family-friendly at all. But once you're hired, a law-teaching job is pretty much the model of a family-friendly job—the schedule is extremely flexible. Other than classes and some light committee work, individual faculty are pretty much in charge of when they come into the office and when they work from home and how much they work—at least in the short run.
True, tenure is typically up-or-out after a fixed number of years, and pay tends to be lockstep or close to it, but as I suggested vis-a-vis firms, that's not necessarily a bad thing overall. It prevents faculties from stringing junior faculty along and makes faculty life more equitable. And, in fact, the tenure rate at law schools (not university departments, just law schools) is quite high—I'd guess better than the rate at which associates are promoted to partnership at big firms. The tenure clock is also stopped for paternity leaves, and unlike firm practice, you can usually simply pick up where you left off with the type of research and writing most professors do.
This isn't because law schools are somehow more virtuous than firms. Rather, it's because what we do is different, because we aren't as immediately and directly disciplined by market forces and because we've all already decided to make the lifestyle-for-income tradeoff. As for options, one can join a law faculty as a clinical professor or teaching professor at many law schools with dramatically reduced expectations for scholarly output, and one can teach part-time as an adjunct professor.
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Phil—to echo Orin’s skepticism about part-time at law firms, I wonder whether flexibility isn’t actually part of the same phenomenon that also accounts for heavier and heavier workloads. While it’s true that firms are becoming more flexible in terms of part-time arrangements to accommodate working parents and flexible partnership tracks, isn’t a lot of this just a move toward an eat-what-you-kill system generally? The demise of lockstep for partnership, for instance, does mean people who take time off aren’t fired (so long as they are otherwise productive and valuable to the firm), but it also has meant longer probationary periods before partnership generally and the rise of a whole range of demi-partnership statuses (such as the somewhat puzzling status of “non-equity partner”—basically a glorified associate who gets to pay self-employment tax). Large firms now routinely fire or demote partners (technically vote them out of the partnership) who fail to perform to expectations; conversely, rainmakers demand salaries that rival those of investment bankers and necessitate higher billable-hours requirements across the board for associates and partners alike.
This has made things more equal in a sense because there’s less room for favoritism and gender bias in a world of ruthless competition and an unyielding focus on the bottom line—as any economist will tell you, highly competitive markets tend to punish irrational discrimination. But they reward rational discrimination. For women and men who want more time off, this means they can get whatever they can negotiate in a competitive market. Maybe this is better than a system where part-time is out of the question, but it’s not exactly “family friendly.” And even if you do take leave or swing a part-time schedule, the bottom line is still the bottom line: If you’re a partner, you can’t just take three months off and forget about your clients; if you’re an associate and you check out for three months, someone else is going to be doing all of what used to be your work (or at least all of your good work) when you get back, and you’ll have to scramble to make your billables. Obviously this all affects women disproportionately, but little of it is sex discrimination.
Official firm leave and part-time policies don’t mean much in this context—they set a tone, but in the end your schedule depends on your relationship to clients and partners. Suppose you go on paternity leave, and two weeks later a partner you enjoy working for asks if you can help out a little bit from home on an exciting new matter. “I just want to be sure you’re in the loop so when you get back from leave you can take the lead on this.” You could, of course, forbid this type of request and insist that parents take their leave. But is that really better for women? That partner is doing you a favor—she could have just gotten someone else who’s not on leave to take the case and they’d have the plum assignment. Ditto a long-hours assignment for someone supposedly working part time.
My wife for instance, who works for a large firm in San Francisco, was in the office a week after she gave birth to our daughter (and without an epidural, no less!). No one forced her to come in, and in fact, she was roundly chastised for it. A week later, a courier delivered five banker boxes of documents and a laptop to our home so she could keep up while out on “leave” (for the last two years she's also been "part time," which is roughly 40 hours a week, plus the inevitable weeks or months "from hell" when something explodes and she has to take care of it). Again, this was her decision—she’d have a job in three months even if she did no work on her leave. But there’s no way she can just come back to the same job she left while doing nothing—her clients and relationships require some ongoing maintenance, many of the relationships are personal and can’t be transferred back and forth, it takes time to get up to speed on a client’s portfolio, etc. If the firm had more people working on a given matter, one person could take up the slack for someone on leave without taking over entirely. But except for huge deals and make-or-break litigation, firms tend to staff leanly. Given the hourly rates big-firm attorneys charge, clients understandably demand it. And given the salaries attorneys earn, firms can’t afford to write off too much idle time.
So the bigger problem is, as Phil and Orin suggested, the general crazy upward spiral of salaries and hours. No one is really to blame for this—or everyone is. Maybe it’s a collective action problem—firms think they need to offer larger and larger salaries to get the best students out of law school; status-conscious law students think high salary is an indicator of prestige and pick firms accordingly, even though they’d prefer less pay and lower hours. If so, there should be solutions, such as the initiatives among law students to rate firms based on lifestyle and social responsibility in order to change what counts as high status. On the other hand, it could be that people like to complain about their hours, but in fact they prefer long hours and high salaries to the alternative (it might be a bit like airlines: Everyone gripes about the lousy amenities, delays, and tiny seats, but they choose almost exclusively based on price).
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Deb's post on "Women in Law" raises an interesting question about why different subject areas tend to have different gender ratios among law profs. I've wondered about this myself. For example, in my own area, criminal law and procedure, most of the junior hires at "top 10" law schools in the last few years have been women. They include Jeannie Suk (Harvard), Erin Murphy (Berkeley), Rachel Barkow (NYU), Rachel Harmon (Virginia), and Eve Brensike Primus (Michigan). I'm not sure why that is, and it could just be a coincidence, but it's a pretty interesting trend.
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Well, Doug, between your support for Obama and that last post lamenting the continuing dilemmas of women lawyers with families, the progressive lawyers over at the American Constitution Society may need to declare you an honorary member.
I've always been reluctant to wade into public discussions about women and law, in part I suspect because ever since taking a great college course in feminist theory from de Beauvoir to Gilligan to McKinnon to bell hooks (et seq.), I've had the nagging feeling I've not read anything genuinely new on the subject of women's equality in the United States. Sure, there've been regular and unfortunate flare-ups in the appalling "mommy wars" and, of course, a regular diet of studies on women in the professions—which are always useful but never entirely convincing on questions of how things are, why things are as they seem to be, or what should be done about any of it. And there is also the likely possibility I've just not read everything I need to read.
Yet despite the risk of adding to the surfeit of nothing new, I admit Doug's post just brought rather acutely to mind several conversations I've had in the past few months with law professor friends and colleagues of mine, many of whom have been generous in offering advice and guidance as I ponder embarking on a career in legal academia (having already experienced for at least some time men and women at work during stints as a federal law clerk, a law firm associate, and a nonprofit attorney).
The most daunting advice was from a female tenured professor, who warned that constitutional law especially was one of the last great bastions of good-old-boy power in legal academe and that I'd better steel myself with all the arrogance I could muster if I expected to survive. And, fair enough, the "human rights law" conferences I've attended have been overflowing with talented women, while I've felt noticeably more isolated on panels in the realm of national security or constitutional law. The women I've spoken to often echo (more often less sternly) the notion that this is some remaining vestige of the good old boys. Most men have said they see it as an unexplained dearth of women in the field.
(A few other men in recent years have suggested that I, like their wives/colleagues' wives/junior colleagues, just not worry about a "real" tenure-track job. If research/writing/teaching is what I enjoy, easy enough to do that in a perpetual researcher capacity. After all (I paraphrase only slightly), my husband has tenure enough for us both. Such dinners generally haven't extended through dessert. And I am reminded of why arrogance can be such a boon to individual happiness in life.)
The most gender-uniform warnings, though, come from a certain kind of parent of young children (and I know such folks of both genders). "I haven't written anything since the first one was born." "I only write during the summer." "Our faculty seminars are always held at dinnertime/bedtime/after school." And so on. Despite all the generally well-meaning people of both genders I know and the every-few-years-in-every-venue-I've-worked-stunningly-sexist remarks I've heard (my longtime personal favorite: "You have to realize your mind is a sword, people are going to perceive it that way, and you need to work on softening that.")—it's the parenting argument I find most currently compelling. I've no doubt there are gender differences writ large here in how this plays out. But for this kind of professional parent of either gender, there just aren't enough hours in the day. And so I find myself struck by the family-friendly musings of Doug Kmiec. But pessimistic there'll be a solution during my working life.
Your advice, colleagues, remains most welcome.
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When Linda Greenhouse recently announced that she was leaving the New York Times, it was a sad day for Supreme Court coverage. Now there's good Greenhouse news--and a coup for Yale Law School. Greenhouse will be the law school's Distinguished Journalist-in-Residence starting in January 2009, a new position created for her, to support her research as well as participate in law school doings. Court observers will still miss her on the front pages, but they'll get her sharp eye and analysis in other forms. I can't think of a downside.
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Phillip asked about Harvard's new tuition-waiver program, which he thinks will encourage students to take public service jobs. Maybe, but I'm not so sure.
Suppose that the third year of Harvard Law School costs $40,000. Under plan (1), you borrow $40,000 from a bank and give the money to Harvard in return for your education; you owe $40,000 but Harvard pays it, so that you pay $0 back per month as long as you are employed in a sufficiently low-paying public service job. If you stay in that job long enough, you pay back $0 and the debt is retired. Under plan (2), you don't borrow anything and don't pay Harvard anything, nor do you have a debt. But you have a contractual obligation to pay Harvard $40,000 (actually more) if you never take the public service job, and the amount you are required to pay if you breach your pledge gradually declines to $0 as you stay longer in the job. In short, under plan (1) and plan (2) you pay nothing for your third year at Harvard if you take a public service job for a sufficiently long period time, and you pay something up to $40,000 if you do not. Incidentally, because the two plans are identical (except for their names and for trivial details, and for the fact that the loan-forgiveness plan may cover more than one year of tuition), the new plan will not have any special incentive effects, for women or anyone else, that the old plan lacked.
To be sure, the new plan seems to have fewer restrictions than the loan-forgiveness plan. It appears to offer tuition forgiveness to more highly paid people. So in conjunction, the plans appear more generous. But perhaps not as much as first meets the eye. Harvard has said that it is committed to paying $3 million per year for this new plan. But if your $40,000 tuition payment is waived, then you can borrow $40,000 less than you otherwise would, which means that Harvard will have to forgive precisely $40,000 less in loans--a wash. In theory, Harvard could be saving in loan-forgiveness expenditures the same $3 million it is paying for the students' tuition. It is likely that Harvard won't make back the entire $3 million, of course. But one can't tell without looking at Harvard's actual expenditures for the two programs, and that information will not be available until they both have been put in operation. If the additional expenditures turn out to be small, then so will the effect on students' incentives.
Well, if Harvard is being even a little more generous, that's a good thing, isn't it? It depends on what you mean by generous. The money has to come from somewhere. Harvard does not have shareholders who earn lower returns because of this program. Perhaps, some donors are giving more to fund this program, or perhaps Harvard is paying its faculty less, or maybe students who get law-firm jobs are paying more. So it's not so much Harvard that is being generous as its donors, faculty, or students who prefer to take a law firm job. Is this a good use of their money? It depends on how their money would have been used if this program were not put in place.
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Amidst all the reporting about massive first-year associate salaries at big law firms, greedy lawyers who will do anything to win a case, and other shark tales, every now and then there comes some positive news. This time the good news comes from Harvard Law School, where a number of our Convictions contributors teach. HLS is planning to waive the third-year tuition for any law student who commits to spending their first five years after graduation in public service (broadly defined). According to the Washington Post:
The initiative will save students who start their law classes this fall more than $41,000 in tuition. The school estimates that the program will cost about $3 million annually over five years.
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Harvard described the initiative as the first program of its kind in legal education. Students will be asked to demonstrate a commitment to public service during their time in law school. Although the program is geared toward students entering the school this fall, current students will be eligible for smaller tuition grants of $5,000 and $10,000.
The school defines public-service work as any full-time job in government (federal, state and local and the military), any full-time job for a nonprofit organization and any full-time job for a political campaign. Up to one year of a clerkship can qualify toward the five-year commitment.
Like many schools, Harvard Law also offers a loan repayment assistance program for graduates who choose careers in government, public interest and higher education.
So far, so good. I think it's generally a good idea for law schools to encourage public service. But is this the best way to do it? One can easily imagine the enormous enforcement headache this will create on the back end. I've had some experience with that in the context of the Truman Scholarship, a federal grant which aims to encourage public service, but has a mediocre track record at doing so because Truman Scholars often change their career plans after graduation. And there are other concerns too. Carolyn raises some good points at law.com's blog regarding potential effects on the legal labor market that may disadvantage graduates at schools (particularly those without the resources to waive their 3L tuition). And she points to this note by UCLA economist Matthew Kahn, who thinks there may be important socioeconomic consequences which flow from this program that lead to more of a "glass ceiling" at law firms down the road.
I'm curious what my Convictions colleagues think. Should law schools be in the business of encouraging public service? And if so, how?