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June 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"A Transparent Oversight Policy for Human Anatomical Specimen Management: The University of California, Davis Experience" 
Academic Medicine, March 2014, Volume 89, Issue 3, pp. 410-414
UC Davis Legal Studies Research Paper No. 379

BRANDI SCHMITT, University of California Office of the President
Email: brandi.schmitt@ucop.edu
LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu
FREDERICK J. MEYERS, Independent
Email: Fred.Meyers@ucdmc.ucdavis.edu

The authors describe the development and implementation of a University of California (UC) system of oversight, education, tracking, and accountability for human anatomical specimen use in education and research activities. This program was created and initially implemented at UC Davis in 2005. Several incidents arising out of the handling of human anatomical specimens at UC campuses revealed significant challenges in the system for maintaining control of human anatomical specimens used in education and research. These events combined to undermine the public perception for research and educational endeavors involving anatomical materials at public institutions. Risks associated with the acquisition, maintenance, and disposal of these specimens were not fully understood by the faculty, staff, and students who used them. Laws governing sources of specimens are grouped with those that govern organ procurement and tissue banking, and sometimes are found in cemetery and funeral regulations. These variables complicate interpretations and may hinder compliance. To regain confidence in the system, the need to set appropriate and realistic guidelines that mitigate risk and facilitate an institution's research and educational mission was identified. This article chronicles a multiyear process in which diverse stakeholders developed (1) a regulatory policy for oversight, (2) a policy education program, (3) procedures for tracking and accountability, and (4) a reporting and enforcement mechanism for appropriate and ethical use of human anatomical specimens in university education and research.

"Design Patents: Law Without Design" 
Stanford Technology Law Review, Vol. 17, p. 277, 2013
UC Davis Legal Studies Research Paper No. 380

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Design patents have recently burst onto the intellectual property stage, but they are surprisingly underdeveloped for a body of law that is more than a century and a half old. Design patents are, quite simply, a body of law without design: there is little coherent theoretical underpinning for this long overlooked form of intellectual property. Now, as design patents are poised to assume greater prominence in the legal and economic realms, the time is ripe for examining myriad justifications for exclusive rights in design in order to develop a richer theoretical foundation for this body of law. To that end, this Article draws from statute, doctrine, legislative history, and academic commentary to identify various theoretical justifications for design patents related to promoting progress, beautifying the human environment, rewarding creative labor, and reducing consumer confusion and promoting distinctiveness. We critically examine the cogency of these justifications and identify hidden tensions among them. Our ultimate aim is to help develop a body of design patent doctrine that is more accountable to theory. We conclude that even the most persuasive and defensible justifications for design patents counsel a limited right at best.

"Acting White? Or Acting Affluent? A Book Review of Carbado & Gulati's Acting White? Rethinking Race in 'Post-Racial' America" 
UC Davis Legal Studies Research Paper No. 381

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

Acting White? Rethinking Race in "Post-Racial" America (2013) is the latest installment in Devon Carbado and Mitu Gulati's decade-plus collaboration regarding issues of race and employment. This review lauds the book's comprehensive treatment of the double bind that racial minorities - especially blacks - experience within principally white institutions. In this volume, the authors expand on their prior employment-centered work to consider, for example, Barack and Michelle Obama's presence on the national political stage, racial identity and performance in the context of higher education admissions, and racial profiling by law enforcement. With a focus on intra-racial diversity, Carbado and Gulati begin to gesture to the intersection of class (more precisely, the struggle for upward class migration) with blackness in the high-brow settings that are the employment staple for Acting White?'s analysis.

What Carbado and Gulati overlook, however, is intra-racial diversity among whites. While the authors give a nod to aspects of identity such as gender and sexuality, acknowledging that, like race, these may render individuals "Outsiders," they otherwise treat whiteness as monolithic, as simply the foil for black identity work. In so doing, Carbado and Gulati overlook the struggle for assimilation that poor and working class whites - aspiring, striving class migrants - experience when they seek to integrate these same "white institutions." The point is that all employees are expected to assimilate to institutional norms that, in elite professional settings, are as much about class (affluence) as about race (whiteness). I thus suggest that the book might have been titled, Acting Affluent?, although that alternative would have been misleading, too, because the identity work expected in these upscale milieu implicates both race and class. Ultimately, neither the title Carbado and Gulati chose nor the one I suggest is very precise because affluent black identity and affluent white identity are unlikely to be identical. While Acting White? grapples with some very complex and potent intersections of race and class, it looks right past many other such intersections, including that of white skin privilege with class disadvantage.

"Urbanormativity, Judicial Blind Spots and Abortion Law" 
Berkeley Journal of Gender, Law and Justice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 384

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
MARTA R. VANEGAS, Government of the State of California - Office of Legislative Counsel
Email: mrvanegas@ucdavis.edu

State laws regulating abortion have proliferated dramatically in recent years. Twenty-two states adopted 70 different restrictions in 2013 alone. Between 2011 and 2013, state legislatures passed 205 abortion restrictions, exceeding the 189 enacted during the entire prior decade. The U.S. Court of Appeals for the Fifth Circuit recently upheld as constitutional several such restrictions, parts of Texas H.B. 2 (2013), in Planned Parenthood of Texas v. Abbott. That court is currently considering the constitutionality of a similar Mississippi law. These and other recent cases raise issues likely to be heard soon by the U.S. Supreme Court. Among the regulations at stake in Texas H.B. 2 was a requirement that doctors performing abortions have admitting privileges at a hospital within 30 miles of the abortion clinic. The Texas law also limits the use of medication-induced abortions.

Rarely acknowledged in academic literature or media coverage of these laws and constitutional litigation arising from them is the fact that the greatest impact of these regulations - like that of many other state abortion laws enacted since the U.S. Supreme Court's 1992 decision in Planned Parenthood v. Casey - is on those who live farthest from major metropolitan areas, where abortion providers tend to be located. Indeed, these laws exact the greatest toll on women who are both rural and poor. We argue that, contrary to the Fifth Circuit's decision in Abbott, these laws place undue burdens on the abortion rights of a significant number of women and that they should be declared unconstitutional.

In addition to these doctrinal arguments, we draw on three complementary critical frames - legal geography, the concept of privilege, and rural studies concept of urbanormativity - to articulate new ways of thinking about the recent spate of so-called incremental abortion regulations and federal courts' adjudication of the constitutionality of these laws. First, legal geography provides a frame for theorizing the relationship between the abortion regulations and rurality, revealing how law's impact is variegated and variable, dictating different outcomes from place to place because of spatial differences. Second, we deploy the concept of privilege in arguing that many federal judges are spatially privileged but blind to that privilege. In our increasingly metro-centric nation, where rural populations are dwindling and marginalized literally and symbolically, most federal appellate judges appear to have little experience with or understanding of typical socio-spatial features of rurality: transport challenges, a dearth of services, lack of anonymity, and frequently extreme socioeconomic disadvantage. Yet those same spatially privileged judges are applying the undue burden standard to laws that require women to travel hundreds of miles, sometimes on multiple occasions, to access abortion services. Those judges are also typically upholding laws that burden women's access to medication-induced abortions, which have the potential to ameliorate rural women's spatial burdens. This spatial privilege and judges' obliviousness to it are most evident among U.S. Courts of Appeal judges and Supreme Court justices construing the "undue burden" standard, as evinced most recently in Abbott but also on display in Casey v. Planned Parenthood and in many U.S. Courts of Appeals decisions in Casey's wake. The spatial privilege phenomenon is closely linked to the third frame: critical rural studies' concept of urbanormativity. By treating urban life as a benchmark for what is normal and, in Abbott, dismissing as constitutionally insignificant some ten percent of Texas women who live more than 100 miles from an abortion provider, federal appellate judges are increasingly articulating an urbanormative jurisprudence.

"Everybody in the Tent: Lessons from the Grassroots About Labor Organizing, Immigrants, and Temporary Worker Policies" 
Harvard Latino Law Review, 2014, Forthcoming
UC Davis Legal Studies Research Paper No. 382

LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

Why are so many immigrant workplaces non-unionized and what can the labor movement do about it? The questions about whether and how effectively to bring immigrant workers into the labor movement involve not just the impact of immigrant labor on organizing efforts, but also the effect of the labor movement's policy positions on immigrant labor. According to the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO"), protections for immigrant workers are as important to the labor movement as protecting jobs for U.S. workers. While there are great examples of union success in organizing immigrant workplaces, however, the vast majority of immigrant workers remain unorganized. The residential construction industry is one of the areas where low-skilled, non-unionized immigrant workplaces dominate the landscape. Unions have had some limited and scattered success in rebuilding the residential construction industry labor movement in places like Los Angeles, California, but the success has not been sustained.

In this article, I share perspectives of local residential construction workers and labor leaders collected from a series of interviews in Las Vegas, Nevada about obstacles to organizing immigrants. I conducted over 100 interviews between 2006 and 2008 that are the basis for a larger project on working conditions among immigrant workers in the residential construction industry in Las Vegas. In this article, I explore how immigrant workers and local organizers respond to questions about the difficulties in organizing immigrants. Their responses should provide some guidance to policy advocates and the labor movement as they formulate positions around comprehensive immigration reform proposals.

In Part I of this article, I describe what academics view as obstacles to immigrant worker organizing, including changes in the structure of the construction industry, and restrictive immigration laws. In Part II, I describe the Las Vegas Residential Construction Industry Study and explore the gap in perceptions between local union leaders and non-union workers about obstacles to organizing. I conclude in this part that the construction trade union movement must incorporate aspects of immigrant organizing strategies that have occurred in the service industry. In Part III, I explore the effects of union activity in the most recent negotiations over comprehensive immigration reform, analyzing how the AFL-CIO's position might work at cross-purposes to its stated goals of organizing immigrant workplaces and bringing immigrants into the labor movement. I conclude that by conceding the contingent nature of construction work and then limiting the legal avenues for immigration into construction work, the AFL-CIO's compromises further weaken local labor organizers' attempts to organize immigrants.

"The Feds are Already Here: The Federal Role in Municipal Debt Finance" 
33 Review of Banking and Financial Law 795 (2014)
UC Davis Legal Studies Research Paper No. 383

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

Should the federal government be involved in the regulation of municipal debt finance? The answer is arguably not. But this theoretical dispute is not the focus of this Article because, in fact, the federal government already regulates municipal debt finance extensively, generally much more extensively than the states regulate their municipalities' use of debt. The primary source of federal regulation is the securities laws. Less well-known is that federal tax law also serves as an important constraint. This Article surveys and critically evaluates these federal laws, and comes to three tentative conclusions. First, the current federal oversight "system," unplanned and ad hoc as it is, has been effective. Second, in part because the current system has never been thought of as a comprehensive system, there are low-hanging fruit in terms of making the system work better. To the extent the federal government does not put these reforms in place, states should. Third, even an optimally operating federal overlay does not absolve the states from more careful regulation of the financial affairs of their localities, particularly as to the use of debt. Above all, what the federal government does not - and ought not - do is provide localities with the expertise to use debt optimally; this is another area where the states should focus their reform efforts.

January 2, 2014

Award Winning Blog Entry: "Getting Law Review Fans Out of the Closet"

Congratulations to Professor Gabriel "Jack" Chin, whose PrawfsBlawg post "Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman" just won a Green Bag Exemplary Writing Award.

 

 

Here's the award winning entry in its entirety, cross-posted from PrawfsBlawg (originally published on October 21, 2013):

Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman

In a column today, Adam Liptak discusses some familiar criticisms of law reviews.  I believe law review articles are often high quality, useful and influential, as is reflected by my recent series of interviews with authors of articles cited in the U.S. Supreme Court.  Liptak quotes Second Circuit Judge Dennis Jacobs as saying in 2007 "I haven't opened up a law review in years.  No one speaks of them.  No one relies on them."  Former SG Seth Waxman is quoted as saying in 2002 that "Only a true naif would blunder to mention one at oral argument."  Do not believe either of them for a second; the record suggests that these cynics are closet idealists who regularly enjoy a good law review article.

As for Judge Jacobs, a Westlaw search shows he has cited law reviews dozens of times in his years on the bench.  In 2005, he cited a law review article for a point of sentencing law, and then as an "accord," cited a Stevens and Souter dissent.  See Guzman v. United States, 404 F.3d 139, 143 (2d Cir. 2005).  That is, Judge Jacobs cites the views of two U.S. Supreme Court justices to buttress the conclusions of a law review article.  The next year, in At Home Corp. v. Cox Communications, 446 F.3d 403, 409-10 (2d Cir. 2006), he string-cited three law review articles to explain the realities of leveraged buyouts.

In truth, Judge Jacobs obviously--obviously--loves law review articles.  How can we tell?  He likes to cite articles raising interesting legal wrinkles, but which were not raised or precisely presented by the facts.  See Briscoe v. City of New Haven, 654 F.3d 200, 208 n.13 (2d Cir. 2011) (citing article offering novel reading of a recent Title VII case); Carvajal v. Artus, 633 F.3d 95, 109 n.10 (2d Cir. 2011) (citing article raising novel reading of full faith and credit clause); Pescatore v. Pan Am, 97 F.3d 1, 13 (2d Cir. 1996) (citing articles dealing with "decades-old controversy over choice of law doctrine").   He also likes empirical work.  See, e.g., United States v. Whitten, 610 F.3d 168, 201 n.25 (2d Cir. 2010).    

Judge Jacobs has cited articles written by students, judges and scholars, century-old chestnuts and brand new work, he cites celebrities like Akhil Amar and William Stuntz writing in the Harvard Law Review and the Yale Law Journal, and lesser-known scholars writing in less fancy venues.  In short, the record shows that he relies on law review articles when he concludes their research and analysis makes them worth relying on, which is exactly what judges should do. 

As for Seth Waxman, of course it would be extremely rare for an advocate to mention an article in oral argument, just as it would generally be silly to waste much time emphasizing the fact that a unanimous state supreme court or en banc circuit court agreed with your position.  He is quite right if his point is that by the time the case is in the Supreme Court, naked appeals to  authority (other than binding Supreme Court decisions) are unlikely to help.  And yet, a search of the Supreme Court brief database on Westlaw shows that Waxman authored 149 briefs citing law review articles, and 423 briefs in total.  So more than a third of the time, he concluded that citation of a law review article would be more persuasive than simply incorporating the article's cases and argument in the brief (which would be fair game--briefs and opinions need not be original).  His choice to rely on articles is the clearest possible vote of confidence in the utility of scholarly research.  On behalf of the legal academy, I say to Mr. Waxman: "You're welcome."

June 20, 2013

UC Davis Clinic Highlighted in California Supreme Court Historical Society Newsletter

By California Supreme Court Clinic Director Aimee Feinberg. Cross-posted from the California Supreme Court Historical Society Newsletter.

The California Supreme Court touches the lives of every Californian. The Court reviews the work of about 2,000 judicial officers, the largest law-trained judiciary in the world, and issues rulings governing countless day-to-day activities of the state’s residents. According to the National Center for State Courts, the California Supreme Court processed a staggering 9,562 matters in 2010, thousands of cases more than the next busiest state high court.

The Court’s reach extends beyond the state’s borders. In a comprehensive study published in 2007, Jake Dear and Edward Jessen concluded that the California Supreme Court is the most followed state high court in the United States. Thus, when it comes to tort law, insurance law, criminal law, and others, the saying rings true: as California goes, so goes the nation.

It is fitting, then, that one of the state’s newest legal clinics should train its attention on the state Supreme Court. In the fall of 2012, UC Davis School of Law launched the first and only law school clinic in the state to focus exclusively on the California Supreme Court. Inspired by a 2010 speech by former State Bar President Jeff Bleich and modeled to a large extent on Stanford’s first-in-the-nation U.S. Supreme Court clinic, UC Davis’s California Supreme Court Clinic provides pro bono representation to parties and amici in both civil and criminal cases pending before the state’s High Court. The Clinic’s six students, each of whom is selected to participate by application, become immersed in California Supreme Court practice and procedure. During the semester-long program, Clinic participants study the Court’s rules, learn principles of effective appellate advocacy, hear from seasoned practitioners, and, under faculty supervision, research and draft briefs to be filed in cases pending before the Court.

Like many appellate advocacy programs, the Clinic aims to teach students critical brief-writing skills. But focusing exclusively on the California Supreme Court offers students other important learning opportunities. Because the Court grapples with some of the most complex and consequential issues facing the state, students in the Clinic learn to research and analyze legal questions at an exceptionally deep level. They are called on to leave no stone unturned in their case research, to comb through legislative history, to examine agency regulations, to canvass laws in other jurisdictions, and to marshal policy arguments. By concentrating on the state’s highest court, moreover, the Clinic offers students the chance to see how a legal issue travels through the state system from start to finish. Likewise, because the Court (for the most part) has discretion to decide what cases it will hear, Clinic enrollees learn about the petition-for-review process and the characteristics of cases that may find their way onto the docket of a court of last resort. At the same time, focusing on a court with a docket as diverse as that of the California Supreme Court exposes students to an unusually broad array of legal issues. And by observing the Court’s oral argument sessions, students see some of the nation’s most respected jurists question advocates and explore the intricacies of complicated legal questions.

Litigating cases before the California Supreme Court also provides students with an important opportunity to serve the public interest. Although the federal courts undoubtedly decide significant issues, the California state courts provide the forum for many more disputes to be resolved: in 2012, litigants filed 372,563 matters in federal district court; in fiscal year 2010–2011, filings in California superior courts surpassed 9.4 million. At the same time, the state system often adjudicates cases

in the areas of law most likely to affect people’s everyday lives — how contracts are enforced, the accused are tried, businesses are regulated, marriages are dissolved, children are reared, and property is owned. By working on cases pending before the state’s highest court, Clinic enrollees have the chance to present their clients’ arguments knowing that a case’s outcome will almost certainly impact the lives of many people.

The Court’s special place in the state’s judicial system offers special opportunities for law students. For the participants in the Clinic, it is an honor to litigate before the Court.

 

May 19, 2011

SALT Great Teacher 2012: Keith Aoki

The Society of American Law Teachers has released the following statement regarding the naming of Keith Aoki, our colleague who passed away last month, receipient of its 2012 Great Teacher Award.

"The Board of Governors of the Society of American Law Teachers (SALT) announces with pride and sadness that it will be honoring Professor Keith Aoki posthumously with its 2012 SALT Great Teacher Award at the Saturday, January 7, 2012 SALT Annual Dinner in conjunction with the AALS annual meeting in Washington, D.C.

"A talented, creative, committed professor, teacher, friend, colleague, musician, artist, husband, and father, Keith has left his mark on the legal academy and in the hearts of students and colleagues alike.

"Keith’s educational path reflected the fact that his legal analysis and scholarship were intimately connected to his love of art and music.  That made Keith into a risk-taking intellectual who was passionate about ideas and justice.  Keith earned a B.F.A. degree from Wayne State, M.A. in Fine Arts from Hunter College, J.D. from Harvard Law School, and LL.M. from the University of Wisconsin Law School. At the time of his
death, Keith was a professor at the University of California at Davis School of Law, having come from the University of Oregon School of Law, where he taught from 1993 to 2006. He also taught at Lewis & Clark, Columbia, and Boston College.

"He brought his performance art into the classroom, delighting and unnerving students, challenging their assumptions and expectations.  He made generations of pompous law professors and law school students laugh at themselves with his legal comics.

"Reviewing the comments posted by those who knew Keith after his untimely death was announced, we know that he was also a teacher of teachers, mentoring colleagues through the first years of classroom preparation, urging them to be brave in their scholarship, and reminding them that their vulnerability wasn’t such a bad thing."Keith Aoki was a generous spirit, and his teaching, scholarship, and service were the creative products of that generosity, intelligence, compassion, and determination to make the world a better place."

Read tributes to Professor Aoki here, here and here.  A memorial service to honor Professor Aoki will take place at the law school on Thursday, May 26, at 3 pm.

April 5, 2011

New John D. Ayer Bankruptcy Chair Honors Leading Bankruptcy Scholar

Professor Emeritus Jack Ayer has long been recognized for his national leadership in bankruptcy law.  The John D. Ayer Bankruptcy Chair honors Professor Ayer for the lasting legacy he leaves in this area.  I was delighted to join other faculty in San Francisco yesterday evening to launch this chair.  Thanks to our hosts, the McNutt Law Group, who have spectacular offices overlooking the Bay and Yerba Buena Island.


 

August 22, 2010

Elitism and Education (Part II): Rethinking the Wisdom of an Elite Undergrduate Education

Written by Lisa R. Pruitt

This story, "Placing the Blame as Students are Buried in Debt," caught my attention when it appeared in the New York Times in May.   The report features Cortney Munna, a 26-year-old NYU grad who is buried under $100,000 of student debt.  Journalist Ron Lieber tells us that Ms. Munna would "struggle" to make her student loan payments if she had to, but she's been deferring them since her 2005 graduation, in part by taking night classes.  Lieber writes:

"This is not a long-term solution, because the interest on the loans continues to pile up. So in an eerie echo of the mortgage crisis, tens of thousands of people like Ms. Munna are facing a reckoning. They and their families made borrowing decisions based more on emotion than reason, much as subprime borrowers assumed the value of their houses would always go up."

This story, which also appears under the headline, "Another Debt Crisis is Looming, This One in Student Loans," discusses the range of stakeholders who could be blamed for the situation in which Ms. Munna and many others find themselves:  the universities, the parents, and--of course--the lenders.  At one point Lieber suggests a "shared failure of parenting and underwriting."  He continues:

"How could her mother have let her run up that debt, and why didn’t she try to make her daughter transfer to, say, the best school in the much cheaper state university system in New York? 'All I could see was college, and a good college and how proud I was of her,' [her mother] said. 'All we needed to do was get this education and get the good job. This is the thing that eats away at me, the naïveté on my part.'”

For me, one of the most striking aspects of this cautionary tale is the emotional component driving the decision for Cortney to attend an elite university like NYU rather than a state school.  How common is this, I wonder?  Cortney's family is described as middle class, but the story's details indicate quite a bit of financial insecurity (Cortney's  farther died when she was 13, and Cortney's mom was going back to college to finish her degree at the same time Cortney was at NYU).  It seems that Cortney and her mom may have picked NYU for what they thought it offered in possible class mobility and security.  Ironically, at this point they have neither.

All this got me thinking (again) about the attraction of elite tertiary educational institutions.  They enjoy enormous cachet, and conventional wisdom suggests that attending them opens up opportunities that not all college (or law school) graduates enjoy.  (But see this recent study in the context of law school admissions).   In fact, two studies suggest that the eliteness of one's undergraduate degree has relatively little effect on future earnings.

But salary is only one measure of success.  Another is what a degree from an elite college does, both short-term and long-term, to open doors via alumni networks, public perception, and so forth.  One such door is that to graduate and professional school admission.  As progressive law professors, we are supposed to be sensitive to privilege and at least somewhat intentional about not re-creating it.  Yet if  we give too much weight to elite undergraduate degrees in the law school admissions process we are very often doing just that.

Admissions at any given law school is, in fact, a zero sum game, so we may close doors to graduates of less elite schools, often public colleges and universities (the eliteness of which varies greatly from state to state), if we uncritically favor graduates of their elite counterparts.  In the context of grad and professional school admissions, we should bear in mind that it is often the graduates of public institutions of higher education--where annual tuition may be just a couple thousand dollars, in contrast to an elite school's $50,000--who most need the boost grad or professional school would confer in terms of class mobility.  Further, while the tendency may be to see state school grads as lacking vision and ambition, we could instead view them as models of prudence and sound financial judgment.  Particularly when a student is from a lower socioeconomic stratum and/or is first generation to get to college, s/he may have grown up with enormous financial insecurity.  We should appreciate the courage and drive it has taken for him/her to make the investment of time and money just to get that degree, to take that initial step up the mobility ladder.  We should appreciate this even more, of course, if the student has performed well.  Expecting such students to have the added "confidence" to have spent tens (even hundreds) of thousands of extra dollars to get a degree from an elite institution--and to judge the student unfavorably against those who have--overlooks critical context and invites folly.

Cross-posted at SALTLaw.Blog

August 9, 2010

Elitism and Education (Part I): Class and the Legal Profession

I've been contemplating a series on "Elitism in Education," but the posting of a new paper by Richard Sander and Jane Yakowitz  prompted me to change the title to "Elitism and Education."  That's because their new study, "The Secret of My Success:  How Status, Prestige and School Performance Shape Legal Careers," suggests that an elite law school education is not as important to a successful legal career as conventional wisdom suggests.  The draft paper is not yet peer reviewed, but here's a summarizing excerpt:

The consistent theme we find throughout this analysis is that performance in law school--as measured by law school grades--is the most important predictor of career success.  It is decisively more important than law school 'eliteness.'  Socioeconomic factors play a critical role in shaping the pool from which law students are drawn, but little or no discernible role in shaping post-graduate careers.  Since the dominant conventional wisdom says that law school prestige is all important, and since students who 'trade up' in school prestige generally take a hit to their school performance, we think prospective students are getting the wrong message.

Sander is, of course, well known for arguing that black law students are not well served by affirmative action when it places them in law schools where their numerical entering credentials (LSAT and UGPA) are significantly poorer than those of their classmates.   He has also asserted that affirmative action hurts blacks in the context of hiring by large law firms when blacks have lower law school GPAs than their white counterparts.  He maintains that this "handicaps" them "substantially in the the big law 'tournament,' plausibly leading to much higher attrition and lower rates of partnership attainment."  Sander and Yakowitz explain that one purpose of this new study is to respond in part to skepticism that Sander's prior article generated regarding the link between law school grades and career success.

I want to focus here on the new study's insights into class (im)mobility, what Sander and Yakowitz refer to as SES (socioeconmic status).  Here's the bad news:

On the one hand, law students come predominantly from upper-middle- and upper-class backgrounds.  This was true fifty years ago and continues to be true today--to almost exactly the same degree.  Whatever is necessary to shape the credentials and desire necessary to end up in law school, it is distributed  in ways that correlate strongly with most conventional measures of social eliteness.

Elsewhere they expand on this (p. 12 of the draft):

[H]alf of all students at elite schools in the 'After the JD' dataset (who generally began law school in 1996 or 1997) had parents with occupational levels that put them in the top 10% of American households; only ten percent had SES backgrounds that put them in the bottom half of the American distribution.  As in the Warkow-Davis analysis [from the 1960s], students at less elite schools are more socially heterogeneous ...  The similarity across time is striking; if anything, it is perhaps fair to infer that the most elite schools have become more SES-elite over time, while the least elite schools in the spectrum are a bit more socially heterogeneous than their 1961 counterparts.

So, if someone is  just breaking into the professional/managerial class by getting a legal education, chances are very good s/he is doing so at a non-elite school.   This is not terribly surprising because, as Sander and Yakowitz point out, getting into law school as a function of  (a) who is in the pool of college graduates; (b) who wants to go to law school and believes they can finance it; and (c) who has sufficiently high LSAT and UGPA credentials.   Those from lower SES strata--especially if they are white--may not "look good on paper" to more elite schools.   Indeed, those from working class families may not even apply to higher ranked schools.  (Hard as it is for people who are in the know to believe, some prospective law students may not have "gotten the memo" about going to the best law school that will accept you.  Here is my own account of being a law school applicant from a working-class family).  They may choose non-elite law schools if and when those schools are less expensive, both in terms of tuition and in terms of requiring a move.   I wonder, for example, how many law students from working-class backgrounds attend local law schools with night programs.

If Sander and Yakowitz are correct that the power of law school eliteness is over-rated as a career maker, this is (somewhat ironically) especially good news for lower SES folks because they are particularly unlikely to get an elite legal education.

Now for the (other) good news:

[T]he role of social eliteness in shaping lawyer careers after law school  has changed dramatically over the past two generations.  Whereas in the 1960s, social class, proper 'connections' and religion all played influential roles in shaping the types of legal careers available to law graduates, those factors do not seem to bear the same significance today.

Sander and Yakowitz go on to depict in Table 2 (based on After the JD data) how factors reflecting family capital (e.g., "lawyers in the family," "one or both parents are supervisors," "family helped with career strategy," "family was very important for obtaining first job") relate to a lawyer's median income.  I was admittedly shocked to see that among  7 such factors, only "lawyers in the family"was a positive indicator for a higher median salary.  Six other factors correlate with lower median salary, while a final one that might suggest a lack of family capital, "both parents are immigrants," had no apparent impact on salary.

But therein lies a serious limitation of the Sander and Yakowitz study:  Salary is their principal measure of success, with some references also to law firm partnership.   Other lower-paid but prestigious and powerful legal career paths are not acknowledged as markers of success.  Also, I would like to see Sander and Yakowitz attempt to assess the influence of aspects of social capital that are not directly related to a lawyer's family of origin.

Here is something else Sander and Yakowitz appear to overlook.  The salaries of lawyers who earn more money in spite of lack of family capital may do so because earning a higher salary is more important to them than other metrics for or manifestations of success.  Even assuming those from SES disadvantaged backgrounds are proportionately represented among those who earn good grades in law school, that number is really very small.  This group in particular may be more highly compensated than some of their counterparts from more privileged backgrounds because the former place a premium on making money, which gets reflected in their career trajectory.  A higher income may be more important to the lawyer who has transcended class boundaries precisely because s/he grew up with less (if any) financial security.   A lawyer from an upper-middle or upper-class background who has always known financial stability (and may enjoy the benefit of family financial reserves) may feel freer to choose the more rewarding or "alternative" law career path, even if the compensation is not so handsome.

So, this study brings some good news regarding class mobility for those in lower SES strata who have an undergraduate degree, "want to go to law school and believe they can finance it" (an increasingly Herculean task given the skyrocketing cost of higher education)--especially if they get good grades.  The devastating news is how few such people actually wind up in law school.  Sander and Yakowitz's study indicates remarkably little SES upward mobility as reflected in actually getting the SES disadvantaged into law schools and therefore out into the legal profession.  The reasons for that are surely worth further study.

Cross-posted to SALTLaw Blog.

July 25, 2010

Memoir - The Bodenheimer Saga

Brigitte and Edgar Bodenheimer were colleagues and dear friends for many of us. My relationship with them was very close. I even gave them a ride to the San Francisco Airport, and when they left on a trip, I would babysit their home. And when they first visited Davis to check out everything, I drove them around on a tour of the town.  In my entire experience with Brigitte and Edgar, they never spoke of the past. Here is some information about them that I garnered from an outside source.

Brigitte and Edgar were natives of Germany and trained as lawyers there.  Brigitte’s father, Ernst Levy, was a renowned Roman law expert. Back in the early 30’s, after reading Hitler’s book, Mein Kampf, Edgar concluded that the family should quickly leave Germany.

The family wound up in Seattle, where Ernst Levy had received an appointment at the University of Washington as a history professor. But there was a problem. Ernst did not speak English well, if at all. This was quickly remedied by Brigitte. She transliterated his written lectures so that when he read them, he was reading what appeared to be German but the sounds were coming out as English.

At the same time, Brigitte and Edgar matriculated at the University of Washington law school. Both did well. In fact, after classes, students would assemble around the outgoing Brigitte to discuss what went on in the class lectures, while reticent Edgar would stand on the periphery and listen attentively. On one occasion, Edgar suddenly spoke up to disagree with what Brigitte had stated.  He cited the exact page and words from the casebook to emphasize his disagreement.  Edgar obviously had a photographic memory. The students then started gathering around Edgar.

From Seattle, the Bodenheimers moved to Washington, D.C. where eventually Edgar wound up on the staff of the prosecution at the Nuremburg Trials. From there, the Bodenheimers went on and joined the law faculty at the University of Utah where they did very well. But the siren song of Davis lured them to the new UCD law school and they became part of the founding faculty. We talked about many things, which was easy to do since our offices were near each other. Edgar helped me by evaluating a program that my son wished to join. Brigitte helped me much with great input on family law issues, especially childrens’ rights, that I was researching. But never was there any referring to what I state above. This was related to me by Marian Gallagher, the law librarian at the University of Washington, who knew the Bodenheimers well too.

One further item. Edgar specialized in legal philosophy, but he also taught a class in Equity law, which at the time was emphasized on the California Bar Exam. After the exam books were graded, the State Bar would send reports to each law school indicating how their students did on the various subjects covered by the exam. Edgar’s students always did very well above average. His scores usually put him at or near the top when compared to our other UCD teachers. This I remember well because I was always amazed that a philosopher could handle so well a basic subject like Equity.

July 11, 2010

Yep, That's What We Strive For

Overheard in a coffee shop near a law school:

...post-Socratic stress disorder.


Could be right.

 

Crossposted at Underbelly.

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 www.FindLaw.com 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.