Saturday, April 30, 2011


I'm always disappointed when law students go ballistic over a downward move in the USNWR rankings (see, e.g., here, discussing Emory's brouhaha).  I know, I know:  the higher-ranked the school, the easier it is to get a foot in the door at BigLaw firms.  I get that, and the fact that the USNWR rankings matter so much to BigLaw is a big flaw in the BigLaw recruiting process.  So shame on those BigLaw firms that only look at GPA cutoffs and rankings.  They're missing out on some stellar people who don't fit the traditional BigLaw profile but who would do wonderful work for them.

But let's face it:  USNWR is a magazine.  It sends out surveys to a very small sample size (for you non-statistics geeks, that means that the surveys aren't providing very reliable information), and those surveys count for way too much of the final scores.  The rest of the scores are based on criteria that are too easily manipulated.

So basing one's view of one's law school on the scoring system that a magazine uses to sell issues is a bit like caring that one's speakers go to 11.

If the dean at Emory resigned just because of the rankings, that's a sad commentary on the misplaced importance that people place on this single way of viewing the array of ABA-accredited law schools.  On the other hand, I know from first-hand experience how much fun it is to transition back to a faculty after having been a dean.  So, welcome back to the life of a law professor, David.  You'll enjoy it.

Friday, April 15, 2011

Welcome back to Stanford, Bob Gordon!

Brian Leiter breaks the news here.  Bob was one of my professors, and it's nice to hear that he's coming home.

I sure wish I could go to this conference.

See here and here.  Hat tip to TaxProf Blog.

What bothers me about law students (and lawyers) who post anonymously on blogs.

When I take breaks from my work, I often check out blogs.  There's a relatively new blog that covers law in Las Vegas.  It frequently has stories about Boyd Law School and the people who work there.

It's not the stories I mind.*  It's some of the comments that people post that bother me--and not because of the text of the comments.  What bothers me is that the comments are posted anonymously.   Some of those comments are posted by people who appear to have a connection to Boyd. 

Here's what I don't get:  no one forces anyone to post anything on a blog.  Posting on a blog isn't a course requirement.  One doesn't have to write blog posts to get admitted to the bar, or to stay in good standing with the bar.  Blog posts are voluntary acts. 

Because posting is voluntary, I consider anonymous posting to be mobbing behavior.  I consider anonymous posting by law-trained people to be particularly repugnant.

Lawyers have to sign their names to their work.  They sign pleadings.  (And, in federal court, they're signing those pleadings with an understanding that Rule 11 applies to them.)  Even transactional lawyers create drafts that they forward to the other side under their own names.  For better or worse, what a lawyer does is inextricably linked to his or her reputation.

What of those lawyers who are posting their thoughts about judges, and doing so anonymously?  I suppose that they're posting anonymously because they're afraid of running afoul of ethics rules like this one (Nevada Rule of Professional Conduct 8.2):
    Judicial and Legal Officials.
      (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
If a lawyer posts that a judge is biased or incompetent, he or she had better be able to back that allegation up with facts

There are mechanisms for communicating to the public that a judge is biased or incompetent.  There are surveys about judges' abilities.  There are disciplinary proceedings that someone can initiate.  (Whether those disciplinary proceedings actually work is another matter.)  Some of these mechanisms even allow anonymity to provide protection for those trying to seek change (e.g., voting an elected judge out of office).  So, for lawyers who are worried about retaliation for complaining about judges, there are legitimate outlets for their complaints.  (There are also mechanisms that lawyers can use when they have serious problems with other lawyers, such as rules requiring reporting of known and serious misconduct.  For example, there's Rule 8.3.  Again, I'm not convinced that this particular mechanism is effective, but it does exist.)

Most law students are lawyers in training.  If they have problems with something occurring in law school, they have their own mechanisms for communicating those problems--even some mechanisms that can protect them from any feared retaliation.  If they have a problem with someone's teaching, they can fill out course evaluations, which are anonymous.  (I know, I know:  students evaluating tenured professors often believe that their evaluations fall on deaf ears, because the administration may have little power to correct the problems raised by those evaluations.**)  If they have problems with an administration's policies, they have ways of communicating those problems in a group, or through a representative.

But I believe that most fears of retaliation are overblown, and I also believe that people who resort to anonymous posting on blogs to express their concerns are cowards.  Again, posting a comment is a voluntary act.  If someone feels so strongly about something that he's compelled to post a comment, he should have the courage to sign his name to that posting.  If he's a law student preparing to become a lawyer, he had better get used to signing his name to his work.

Anonymous postings also lack credibility.  It's hard for me to take seriously an anonymous comment, precisely because I don't have the opportunity to consider the source of the comment.

How strongly do I feel about anonymous posts?  Well, after I publish this post, I'll be posting links to it on this other blog.  And, of course, those links will identify me.  I have no problem with that.

* OK, I'm bothered by the fact that the authors of the blog prefer to remain anonymous themselves, but that's their choice as the blog's creators.  They're acting as aggregators of information, and perhaps they fear those types of unjustified lawsuits that confuse the aggregators of information with the actual information that others post on their site.

** In fact, administrations do have the ability to deal with egregious misbehavior by even the most senior, tenured professor.  The administration will have to run through more hoops, but it's possible to discipline such misbehavior.  First, though, the administration needs to know about the behavior, which means that people have to come forward with credible complaints.

Wednesday, April 13, 2011

In the "good news" category....

Jeff & I heard that our Law School Survival Manual will be available on Kindle soon (here).

It's all about the incentives.

See this morning's New York Times story in the Dealbook section (here).  The easy part is realizing that incentives will almost always dictate behavior.  The hard part is figuring out how to put the right incentives in place.  That's why I liked Steven Davidoff's story so much.

Glenn Reynolds is absolutely right about lowering the drinking age.

See his op-ed in the Wall Street Journal (here). 

Of all the places to display one of the retired space shuttles . . . .

Houston would seem to be the no-brainer, obvious choice, right?  After all, the Johnson Space Center is where all of the action in the space program began.

But no:  LA is getting one.  New York City is getting one.  DC is getting one.  The Kennedy Space Center down in Florida is getting one.  But not Houston (here).

It makes sense for the Kennedy Space Center to get one.  And DC has the Smithsonian, so that decision makes sense.  But LA and NYC?  Not so much.

Seems like politics at its worst to me.

Monday, April 11, 2011


I fear for our profession when we allow behavior like this (here) to occur and we don't call "shenanigans" when we see it.

To me, it's simple.  We shouldn't let our egos get in the way of behaving like professionals.  Sure, lawyers and financial advisors work hard.  But so do people who get paid only a fraction of what lawyers and financial advisors make, and we don't read too many articles about them puffing up their chests over pizza.

We can behave better than this Wall Street Journal article indicates, and we should.

Friday, April 08, 2011

An open letter to Nevada's governor and legislature and to the Board of Regents.

I was hoping to be able to speak at today's special meeting of the Board of Regents, during the public comment session, but I had to leave to teach my class later this morning. Here's what I would have said:

You have a very difficult task in front of you, with Nevada's budget situation getting worse every day, and I don't envy you. I did want to give you a feel for how some of the research done at the Boyd School of Law contributes directly to Nevadans and to the country as a whole.

First, some bragging about our students. I'm one of the faculty advisors to the Gaming Law Journal and the Nevada Law Journal ( Those two magazines publish both faculty research (not just our faculty's research, but the research done by scholars elsewhere as well) and student research. The GLJ is still rather young, but the NLJ's research has been cited by courts here in Nevada, including the Nevada Supreme Court, and by other courts. One of the country's most famous and well-regarded judges, the Hon. Richard Posner of the United States Court of Appeals for the Seventh Circuit, has cited the NLJ more than once. By publishing useful and high quality research, our students are providing courts with the means to make good decisions.

Second, the research that I'm doing in terms of bankruptcy ethics (the behavior of bankruptcy lawyers) is part of my overall research agenda, which is geared to supporting the behavior of good lawyers and to getting bad lawyers out of the legal system. It's not every day that I see, on the front page of the Review-Journal, an article on the reasonableness of attorney fees in bankruptcy cases (here). Part of my own research involves developing ways to help bankruptcy courts determine whether attorneys fees are reasonable. Reasonableness is a balancing act. The fees must compensate good lawyers and other professionals for their work in helping a debtor reorganize, but they can't carry a lot of redundancies and inefficiency. Dollars saved by reviewing fees for reasonableness can inure to the benefit of unsecured creditors, who get paid after the professionals are compensated for their work. (Distribution of payments in bankruptcy is more complicated than this description, but this one will suffice here.) Based on my work in this area, I've been asked twice to assist a bankruptcy court in Fort Worth in reviewing fees of two large chapter 11 cases, and I'm currently assisting the bankruptcy court here in Nevada in a similar capacity. The Boyd students and graduates who help me in this work are learning about how large chapter 11 cases work, and about how lawyers and other professionals fit into that process. It's good hands-on learning that will serve them well in their careers.

My research in bankruptcy ethics has also enabled me to help out the Office of the U.S. Trustee (which is part of the Department of Justice) in ferreting out lawyers who may be violating the ethics rules about the unauthorized practice of law. My ability to be useful in such matters is directly tied to my research. In my view, teaching, research, and service are inextricably linked.

My research about legal education has also informed my teaching. I've been hearing for some time that law students are trained to write memoranda--not to advise clients. (Our clinic students, of course, get the training that comes with dealing with live clients.) That's one of the reasons that my upper-level Professional Responsibility students are doing presentations in class. It's also why those presentations require teamwork. Teaching students legal ethics in a way that forces them to construe statutes (the Model Rules of Professional Conduct and figure out how to convey information to people who don't already know it is part of their legal training. Again, it's a mix of teaching and research that lets me give students the opportunity to practice some of the skills that they'll need after graduation.

While I was waiting in line to speak this morning, I heard numerous examples of what the budget cuts will do to the educational system in Nevada. I couldn't help thinking about what a success story Boyd is. We're a young law school, and yet we're able to turn law students into skilled and ethical lawyers. We're doing a very good job on what amounts to a shoestring budget: we're understaffed, our students' tuition dollars are stretched to the breaking point, and we still do everything that a good law school must do in order to be relevant to legal education and to the public.

Several of us have had many opportunities to go elsewhere. I'm choosing to stay because I believe in the strength of our school, even in the face of this budget crisis, and because I value what my colleagues are doing to keep our school's trajectory moving in the right direction.

As you consider how to deal with the budget crisis, I would urge you to focus not just on how (and how much) we at UNLV teach but also on how our research benefits the state and the country (and, for some of my colleagues, the international community). Investing in education here in Nevada is crucial if our state is to survive. We can and should invest wisely--with all that "investing wisely" means-- but we have to invest.

Thursday, April 07, 2011

'Nuff said.

See Nicholas Kristof's column in today's New York Times (here), explaining why Congress will still get paid if the federal government shuts down. 

Let me get this straight:  military personnel may not get paid on time (here) unless Congress passes a special bill to exempt them, but members of Congress--who have failed to do their jobs by reaching some sort of budget consensus--will get paid?

For shame, Congress.  For shame.

ABA Journal's "Peeps(tm) in Law diorama" contest.

See here.  Go to the lower right-hand side to scroll through the entries.  Hat tip to Lowering the Bar for pointing the contest out (here).

Wednesday, April 06, 2011

Great post by Katie Porter at Credit Slips.

See here.

This just in: Skilling loses his appeal.

See here.

What do you get when you cross...

Twombly and Iqbal?

Wait for it....

Twiqbal.  I'm hoping that my combination word catches on.  If not, at least I can send you to this cartoon (here).

Lawyer humor.

Newest guilty pleasure (here).  Hat tip to Boyd School of Law student Jason Lather.

Wish I could be there!

Check out Paul Paton's conference at McGeorge this coming Friday:  Ethics 20/20 – Globalization, Technology and Transforming the Practice of Law (here).  Also, you might want to check out this paper on alternative business structures (here).  Hat tip to Legal Ethics Forum.

Friday, April 01, 2011

Intriguing development in Yucca Mountain.

See here.  Can't wait to see the responses.  But then again, I'm a Yucca Mountain supporter.