August 12, 2016

Deanship Conference: "Promoting Diversity in Law School Leadership"

Today I am speaking at a panel at the University of Washington. It's part of a deanship conference titled "Promoting Diversity in Law School Leadership."

Here's the event description: "UW School of Law with Seattle University School of Law & the Society of American Law Teachers (SALT) offer this biennial workshop to encourage and assist members of underrepresented groups to pursue deanships and other university and law school leadership positions."

I am proud that King Hall has a faculty that is both excellent and diverse. In fact, to my knowledge, we have the only majority-minority faculty among top-tier law schools. See my recent op-ed on the topic in The Chronicle of Higher Education.

April 22, 2016

Legal Skills Prof Blog Highlights "Thoughts on the Future of Legal Education" Essay

Thanks to Legal Skills Prof Blog for highlighting my paper "Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'"


"Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession."

June 11, 2010

The New Building and An Interesting Proposal

by Professor Emeritus Mortimer D. Schwartz

The new addition to the UCD law school building is almost a separate entity of its own, considering its size and the scope of its interior space. From my perspective of participating in the planning of the original building starting with architect's drawings, revising here and there, and dealing with heating and electrical engineers, interior designers and library furniture manufacturers, I can state that this new addition will be a complete success.

The original building was named in honor of the Reverend Martin Luther King, Jr., and is referred to by most people as King Hall. Another part of the history of the building may be the surprise of learning that way back around 1970, plans for building an addition to King Hall were written up by Dean Ed Barrett as an interesting proposal to the Board of Regents. Major decisions such as which buildings would be constructed on any of the then nine campuses of the University were made by the University Board of Regents.

The proposal was entirely the brain child of Dean Barrett. There was some stirring at University headquarters that the initial law school enrollment of 500 students would be doubled. Ed Barrett believed that a maximum enrollment of 500 students offered best educational advantages, such as greater and better exchanges between teachers and students, compared to a law school where the enrollment was 1,000 or more students.  Both Boalt Hall in Berkeley, where Ed had been a faculty member, and UCLA, had law school enrollments of around 1,000 or more. Ed wanted closer contact among the law school community because he believed that it enriched the educational process. But Ed, because of his experience working in the bureaucracy as an assistant to the University president, knew that sometimes the best action would be to "join them if you can't beat them. "  So Ed came up with a well thought out proposal.

The first step would be to build an addition to King Hall so that 500 more students could be accommodated. This would involve more space for classrooms, more offices for additional faculty members and for administrative staff, and for student activities. There would also be a dean's office set up similar to the existing one.

The shape of the proposed new addition was interesting too. King Hall is shaped much like the letter, "U". At one arm of the U are classrooms and administrative offices. The other arm of the U consists mainly of faculty offices. The base of the U is occupied by the law library.

Ed proposed that the new annex be built on the west side of King Hall and consist of two wings that essentially turned the U into an H. The new quarters would serve as let us say, School B, the original building would house School A. The two schools would be competitive and complementary. Some subject specialties would be taught to both the A school and B school students by a faculty member who belonged to either the A or B school, but not both.  School B would have its own dean.  Both schools would be served by the existing law library.

However, it was not necessary to "join them because you can't beat them." Somehow, the idea to double the enrollment did not happen. The proposal for this first new addition may well be buried somewhere in the filing cabinets or archives of the law school.

Incidentally, did you ever notice that faculty offices on the outer side of the office wing are larger than offices across the hall from them? Originally, all offices were of the same square footage.  But the outer offices had balconies about three feet wide extending beyond the outside wall of each office. This was a touch of the  San Francisco architect who designed the building.  No, no, was the reaction of some number cruncher up in Sacramento who checked all building plans against some rules about what could and could not be included in the design of faculty offices and other parts of buildings. The easy solution was simply to do away with the balconies by extending the length of each such office so that the balconies no longer existed.

May 21, 2010

Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might

Many commentators and some Republican Senators have been suggesting that Supreme Court nominee Elena Kagan should undergo particularly rigorous questioning in the Senate because the "paper record" setting out what she believes and stands for is rather thin. This thinness is due in part, say some Kagan detractors, to the fact that she is not, and has never been, a judge. In this column, I discuss the relevance of Kagan's not having served in the judiciary to the adequacy of her paper record, and discuss more generally — based on something that is in her record — what the hearings might feature.

Kagan Lacks Judicial Experience — But So Did Some Influential Prior Justices

Let's begin with the criticism that Kagan's record is opaque because she hasn't ever been a judge. It's true that every member who has been appointed to the Court for the last 40 years or so had some judicial experience, and that every Justice today came to the Court from the United States Court of Appeals.

But, of course, great (that is, influential) Justices like Earl Warren, William Rehnquist, and Hugo Black lacked significant judicial experience before their appointments to the Court.

Equally importantly, many other, more recent, Justices lacked enough judicial experience to really tell us much about the kind of Justices they would likely be if confirmed. It might initially seem that the Senate's task is easy when a nominee has been a judge: simply read a jurist's past decisions to glean his/her approach to judging, and compare that approach to the Senate's own vision(s). But, in fact, past decisions may not tell us much, and may indeed be misleading in what they do suggest.

For one thing, stare decisis — the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid — limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning that are deeply in conflict with the judge's own views.

Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent, despite the judge's personal views, may in fact illustrate a virtue, even though, during the confirmation process, past respect for the rule of stare decisis places limits on how much we can really learn from a lower court judge's record.

Moreover, some existing state (as opposed to federal) court judges may not have had occasion to consider many of the kinds of federal questions that regularly confront the Supreme Court. (Because certain federal questions can be easily litigated in federal court, they arise infrequently in state court; indeed, some federal issues, such as those regarding federal criminal law, are almost never heard in state courts.)

Thus, the kind of judge whose record tells us a lot about the kind of Justice s/he will make is a lower federal court judge who has served long enough such that s/he will have confronted many important questions on which (confining) Supreme Court precedent has been sparse. Some of the Court's current Justices — like Justices Alito, Kennedy and Sotomayor — had just such a record. But others, like Chief Justice Roberts or Justice Thomas (or retired Justice Souter, who was appointed in the 1990s), did not serve on a lower federal court for a sufficiently long period of time to generate a large number of probative rulings that provided a meaningful sense of how each might rule when freed from the duty to abide by the rulings of a higher Court.

Indeed, Chief Justice Roberts's paper record, prior to his time on the Court, was about as thin as Dean Kagan's. When Roberts was nominated, he had no lengthy judicial track record, but rather a distinguished history of serving particular clients — specifically, Presidential Administrations and private clients. Kagan, for her part, has represented mainly Presidential Administrations. And, of course, a lawyer representing clients must make arguments based on what the client wants to accomplish, rather than what the lawyer believes is necessarily right as a matter of law.

Thus, on the whole, for Roberts there were — and for Kagan, there are — not very many specific articulations of viewpoints to go on. Instead, the President's nomination was more probably grounded on non-public information he had, and/or a general sense of each nominee's philosophy based on the organizations, institutions and Administrations the nominee had chosen to affiliate with in the past. But my suggestion here is that there was not much more to go on for Roberts than there is for Kagan, and yet Roberts's sparse record didn't bother Republicans during his nomination and confirmation process.

Can Other Sources Tell Us What We Need to Know About What Kagan Would Be Like as a Justice?

In Kagan's case, we might expect that we could glean a lot from her scholarship as an academic. After all, law professors (unlike lower court judges and practicing lawyers) are constrained by neither precedent nor a client's need, in the positions they take. Academic freedom means that scholars are able, and encouraged, to say what they really believe.

Still, even here, we need all be sensitive to the nuanced roles that academics play. Professors are taught to be, and rewarded for being, provocative. Thus, an academic will sometimes float an argument in order to generate discussion and dialogue, even when he is not yet convinced that he is right. (Some of unsuccessful Supreme Court nominee Robert Bork's controversial scholarship may belong in this category.)

Yet for Dean Kagan, the real problem is not that we might overread her scholarship, but rather that there may not be enough for us to read. Either because she was interested and involved in Deaning early in her career, or for other reasons altogether, she simply didn't produce a large number of meaty law review articles or essays or books. There are, to be sure, some important pieces she wrote; she did very careful work in the area of free speech doctrine, and wrote a substantial article on various aspects of administrative law. She also wrote an interesting essay on hate speech codes for the UC Davis Law Review about 15 years ago (at my invitation and the invitation of my frequent FindLaw co-author, Alan Brownstein).

The Book Review Kagan Authored that May Play an Important Role During the Hearings

But there is one piece in particular that Kagan wrote that may well stand out, and become central in her confirmation hearing. In it, she didn't talk about her views concerning Roe v. Wade, or Bakke, or Miranda, or the death penalty, or other momentous substantive constitutional issues of our day. But she did talk about a big and timely question of constitutional process — the proper role the Senate should play in the confirmation hearings.

In a 1995 University of Chicago Law Review book review, Dean Kagan powerfully critiqued a book written by Yale Law professor Stephen Carter, in which Professor Carter essentially argued that the Senate should avoid asking specific and substantive questions about a nominee's constitutional vision, but should instead largely satisfy itself with an inquiry into the nominee's qualifications, temperament, and character.

Disagreeing sharply with this view, Professor Kagan labelled the current state of affairs — in which nominees avoid answering specific questions ("stonewalling" is the term she uses) about specific constitutional controversies of our era — a "mess." She characterized the modern confirmation process as lacking in "seriousness and substance," and as an exercise that "takes on an air of vacuity and farce."

In her book review, Kagan observed that without specific questions and meaningful answers, the Senate isn't doing its job and the country can't learn what it needs to know; general discussions of philosophies simply are not revealing enough. Nominee "comments on particular issues" are necessary.

Kagan criticized the Senate for not putting more pressure on the nominees, and, importantly, she pointed out that recent nominees' reasons for refusing to answer specific questions — that answers would compromise judicial independence — were hogwash (an "especial red herring" she termed it.) If this reason for clamming up were right, she correctly observed, then "Justice Scalia [would be] in a permanent state of recusal, given that in the corpus of his judicial opinions he has stated unequivocal views on every subject of any importance."

I myself have expressed views similar to Kagan's, on this website and in academic writings, both before and after Kagan's book review. In my writings, I've explored in much more detail why the explanations nominees have proffered for refusing to answer simply don't hold up to scrutiny. For me (and apparently for Dean Kagan), a specific question by the Senate is fair game so long as it does not seek a promise or a commitment from the nominee, in form or effect, as to how s/he would rule if confirmed. So I laud Dean Kagan for the views she expressed in this 15-year-old book review.

In Light of Kagan's Position in Favor of Searching Senate Questioning, Must She, as a Nominee, Provide Answers to Such Questioning?

The question now, of course, is whether (or how) Kagan can avoid providing specific answers to questions about her views on the hot-button constitutional issues, given that she is on clear record that the Senate's job is to obtain these answers and that there is no reason that such answers can't be given by a nominee.

To be sure, at other points in her book review, Kagan does point out that nominees understandably conform their behavior in the hearings to that of many prior nominees, and that in their hearings Justices Ginsburg and Breyer sincerely believed the mantra about judicial independence that they offered to explain their refusal to answer certain questions. But unless Dean Kagan says that she now agrees with Ginsburg's and Breyer's flimsy reasoning — which would be hard to do, given the force with which she argued to the contrary in 1995 — we may very well get some meaningful and specific answers from Kagan in the hearings to fill in the somewhat sparse record.

Cross-posted from

April 12, 2010

Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools

Co-authored with Associate Dean and FindLaw columnist Vikram Amar.

About a month ago, we wrote a column for arguing that the influential U.S. News & World Reports law school rankings should consider the diversity of the student body in evaluating the quality of law schools. In essence, we contended that a diverse student body contributes to a better learning environment for students, and therefore should be used in measuring the quality of a law school.

In this column, we contend that the diversity of a law school faculty should also be factored into the U.S. News law school rankings methodology. Faculty diversity contributes measurably to the quality of legal education, as well as to the overall quality of the scholarship produced by a law faculty. It therefore warrants consideration in any legitimate law school ranking system.

The Modern Legal Profession: Dramatically Changed Demographics, Yet There Is Much Progress Still to Be Made

Women and racial minorities are much better represented in law schools today than they were just a generation ago. Specifically, women law students today comprise 47 percent of the total, and minorities account for about 20 percent of all law students.

As a result of the evolving law school demographics, the literal face of the legal profession is changing before our very eyes. Thankfully, long gone are the days when Justice Sandra Day O'Connor, one of the few women in her graduating class at Stanford Law School in 1952, had a difficult time finding a job as an attorney. In 1970, less than 3 percent of all lawyers were women, compared to about 34.5 percent in 2010. Although there certainly are questions about the so-called "glass ceiling" facing women attorneys, it is unquestionably the case that there are many more women in the legal profession today than a generation ago.

The increase has been less dramatic, but nonetheless steady, for most racial minorities. For African Americans, for example, the increase has been from 1.2 percent of all lawyers in 1970 to 4.6 percent in 2010.

As a result of the modern demographics of law student bodies, the iconic Professor Kingsfield of "The Paper Chase" no longer represents the typical law professor in the United States. However, law school faculties have been somewhat slower than the student bodies in increasing their percentages of women and minority faculty members.

Today, women comprise 37 percent and minorities constitute about 16 percent of full-time law teachers, numbers that lag behind the corresponding percentages in law school student bodies.

The underrepresentation of racial minorities on law school faculties is even greater if one looks at the general population. Latinos and African Americans each comprise roughly 13% of the overall population, and Asian Americans about 4%. These three groups together account for about 30 percent of the population, yet all minorities comprise only 16 percent of all law faculty members.

The representation of women is also deeply disappointing. When roughly half the students in law school are women, there is simply no excuse – unless one were to make the untenable argument that women on the whole are generally less qualified as men for the academy – for law schools not to aspire to have faculties that are not composed of roughly half women. This is especially true given that women are well-represented among the student bodies at the two law schools that send the most graduates into legal academia, Harvard (currently at approximately 47 percent) and Yale (49 percent). Although the numbers for racial minorities are smaller, there remains no reason for law schools not to strive to hire the same percentage as can be found in law student bodies.

This data begs the obvious question: Why is the gender and racial diversity of law faculties important to evaluating the quality of law schools? We believe that diverse law school faculties better prepare students to practice law in a world with diverse clients and lawyers, and we believe that diverse law school faculties are also more likely to produce cutting-edge scholarship. Let us explain why.

Law Faculty Members as Role Models

To begin, law students need role models while they are in law school. This is especially the case for women students and students who are members of racial minorities, as these groups historically were excluded from the legal profession. A full representation of women in law school faculties, for example, would confirm in the eyes of women law students that they can be effective lawyers and indeed can in fact succeed in the legal profession. In this vein, the appointments of Supreme Court Justices Sandra Day O'Connor, Ruth Bader Ginsburg, and Sonia Sotomayor sent powerful messages to women lawyers about the possibility for women to rise to the loftiest echelons of the legal profession.

The same holds true for law students who are members of racial minorities. African American, Latino, Asian American, and Native American students often clamor for minority role models on their law school faculties. Minority faculty members teach minority students by example – sending the strong message that these students in fact belong in law school and can be top-flight lawyers. In the same way, the appointment of Justices Thurgood Marshall, Clarence Thomas, and Sonia Sotomayor told African Americans and Latinos, respectively, something important about their ability to ascend to the very top echelons of the legal profession, and of the government.

For many years, law schools have recognized the need for minorities on law school faculties, and have undertaken focused efforts to hire more of them. Law schools aggressively recruit minorities, especially those with elite credentials. The claim that there is a "pool problem" due to a lack of minorities in the legal profession carries some weight but, as demonstrated above, its persuasiveness has markedly lessened over time. And, going forward, there simply will be no "pool problem" at all when it comes to women law school graduates.

The Diversity of Faculty Perspectives Clearly Matters When It Comes to Teaching and Scholarship

There are other benefits, as well, to having a diversity of backgrounds represented in law school classrooms. For example, might it not be possible – some would contend even probable – that a woman teaching legal concepts surrounding rape or abortion might present the law in different ways, with different perspectives on, these subjects than her male counterparts would? Recall, for instance, that Justice Ruth Bader Ginsburg reportedly helped change the minds of several of her male colleagues on the Supreme Court in the recent Fourth Amendment case (Safford Unified School District v. Redding) holding that a strip search of a young female teen at her middle school violated the Fourth Amendment.

Similarly, an African American man might understandably bring an entirely different set of perspectives to the discussion of racial profiling in law enforcement than the average white colleague might offer. Harvard Professor Charles Ogletree, who is African American (or, for that matter, Harvard's Henry Louis Gates, whose racially-charged run-in last summer with the Cambridge, Massachusetts police made the national news), in all likelihood might bring different perspectives to bear on criminal justice than, say, Wayne LaFave, who is white, even though few would question that LaFave is one of the leading criminal procedure scholars of his generation.

So too, Latino and Asian American law professors might bring entirely different perspectives on immigration law and enforcement than even a brilliant white colleague could offer. A Native American faculty member might have an entirely different perspective on Indian Law than other professors could provide. And, rather obviously, an Arab or Muslim professor might bring to bear wholly different perspectives on the various security measures taken by the U.S. government after September 11, 2001 than other faculty members. And these are only the most obvious examples: Importantly, this difference of perspective is not limited to particular subject matters that are directly related to race, ethnicity or gender, but also might be expected to apply across the board to various legal topics as well.

Nor is the classroom the only sphere where faculty diversity matters. Differences of perspective can affect scholarship just as they can affect teaching. Even if one does not believe that there is a "voice of color," it is an unquestionable truth that, in the aggregate, members of different minority groups will bring different experiences and perspectives to bear on the analysis of the law and legal doctrine. It would be startling, moreover, if one did not see these differences influence their scholarship to some degree.

Of course, we do not mean to say that all minorities or all women will add different perspectives to the mix. Rather, what we mean to say is that a diversity of faculty with various backgrounds and experiences can help enrich teaching and scholarship. And in other respects, our legal system embodies the belief that a diverse set of perspectives leads to improved decisionmaking. For instance, Supreme Courts in the federal and state systems are designed to have many (ranging from five to nine) Justices, rather than a single Justice, deciding cases. Similarly, we strive for the juries that decide civil and criminal cases to be comprised of many persons (usually twelve) pulled from a cross-section of the community. There also is good reason to consider the diversity of faculties in evaluating the quality of law schools. There, too, a multiplicity of perspectives will predictably improve the quality of debate and deliberation on vital issues.

Faculty Diversity is an Index of Law School Quality, Both Locally and Nationally

In our previous column for this site, we argued that, because the U.S. News rankings seek to employ a methodology that accurately evaluates the overall quality of law schools, it makes perfect sense to evaluate the diversity of the student bodies for all U.S. law schools and include that evaluation in the rankings. There can be no convincing justification for the special treatment of law schools in states that may not enjoy the same demographic diversity as, say, California and Florida. (Schools in Maine and Kansas were the examples used by U.S. News's law school rankings guru, Robert Morse). The diversity of faculty is as important to the quality of a legal education and of legal scholarship in Maine as it is in California.

As with student diversity, the concern that law schools in less diverse locales should be subject to different criteria carries no weight in evaluating the quality of the schools' faculty. Indeed, the market for law teachers is unquestionably national. Serious faculty candidates generally are willing to relocate to wherever they land the best job. Consequently, there is no reason why a law school in Maine or Kansas has any excuse for failing to have a gender- or racially-diverse faculty.

Currently, there are not as many women and racial minorities as might be desirable on many law faculties – and that fact is not lost on law schools. As a result, the competition for those much-coveted potential faculty members is often intense. Yet the intensity of that competition should not be an excuse for the lack of diversity in law school faculties. Importantly, there are law schools – and not only those that rank among the most top tier of schools – that are doing something right in recruiting and retaining diverse faculties. Those schools should be rewarded for their effective competition and for improving the quality of the education their schools provide.

This brings us to the question of how a law school might work to secure and maintain a diverse faculty. This is a topic that is well beyond the scope of this column. But, as with most things, it takes leadership, commitment, time, and effort. Law school Deans must be willing to instill the values of diversity and excellence in the hiring of faculty. Faculty appointments committees that include women and minorities are important, in order to increase the likelihood of diverse search outcomes. Appointments committees must, within legal limitations, be encouraged to bring a diverse group of candidates to campus for the full faculty to consider.

The Need for a Critical Mass of Minority Professors, If Legal Education Is to Improve

A faculty diversity index that values significant, as opposed to minimal, diversity is called for as a measure of faculty diversity. That is because a "critical mass" of minority faculty members – not just one or two – on a law school faculty is good for both the teaching and scholarly missions of the law school.

A critical mass of minority and female faculty will ensure that students are exposed to a diversity of law professors possessing different experiences and perspectives. This diversity will, in turn, provide students with a richer environment – one that more likely mirrors the diversity of lawyers and clients that the students will encounter as lawyers. A token minority professor teaching a class or two clearly will not have nearly as positive an impact on a student's educational experience as having a wide variety of minority and women teachers. Indeed, seeing the diversity of opinion within members of a minority group, and among women, teaches students much about diversity in and of itself.

Moreover, creating a critical mass will help to ensure that minority faculty members do not feel as if they are mere window dressing, or that they are being looked to by students and colleagues as being required to offer the "minority perspective." A lonely (minority) soul is more likely to leave a given law school for greener pastures elsewhere. Thus, the retention of minority faculty members, too, will depend in part on the ability of a law school to maintain a "critical mass" of diversity on its faculty.

Who Counts? Why the Representation of Asian American Faculty Should Matter, Too

In measuring the racial diversity of law faculties, it seems clear that we should consider Latinos, African Americans, and Native Americans. Some might question whether Asian Americans, who are so richly represented on many college and university campus, should be counted. We believe that they should.

As with student diversity, we are not making a remedial argument for faculty diversity here – that is, we are not calling for diversity to remedy historic wrongs, but rather to enhance today's teaching and scholarship and provide a superior experience for today's law students. Importantly, as with student body diversity, the benefits of the diversity of a law faculty accrue with or without the underrepresentation of a particular group, such as Asian Americans. In any event, Asian Americans historically have been underrepresented in law, often because of societal pressures that funneled them into math and the sciences. Some have also claimed that law faculties have relied on stereotypes of the "passive" Asian to argue that Asian American faculty candidates whose scholarship was strong nevertheless would not do well in the classroom, and thus to decline to hire them.

As this discussion suggests, the quality of law schools rests in part on the diversity of their law faculties as well as of their student bodies. The U.S. News rankings therefore should expressly consider both faculty and student diversity, rewarding the schools that encourage either or, ideally, both.

Finally, while we have focused in this column on gender and racial minorities, we acknowledge that other kinds of diversity among the members of law faculties may also make a positive difference in law teaching and scholarship. For example, socioeconomic diversity, ideological diversity, LGBT diversity, religious diversity, etc., among faculties also may be important. We are open to ideas on how to ensure these and other kinds of faculty diversity that might improve legal education and scholarship, and open to arguments that these kinds of diversity, too, should be taken account of by the U.S. News rankings.

Cross-posted at FindLaw.