Every now and then, one of my research areas crops up in other blogs.

See here.  Hat tip to original post (here) at Legal Ethics Forum.

Oh, and that whole thing about when conflicts counsel should or shouldn't be used?  See here, here, and here.

Having courts think clearly about conflicts of interest in bankruptcy cases?  Wonderful.

Someday reading a court opinion that cites one of my articles on the topic?  Priceless.

Best sign at a conference. Ever.

(Seen while walking through a hotel on the way to another conference.)  That is one enthusiastic registration desk....

More shameless self-promotion.

See here.

Told you so (Skilling conviction overturned).

See here.  Opinion is here.  My prior post is here.

Do law school grades mean anything?

This morning's New York Times has a front-page article (here) about law schools raising their curves to make their students more attractive as job applicants.  (Hat tip to Scott Unger and my dad.)

That change reminds me of Ellen Degeneres's routine about the difference between "upright" and "reclined" on airplane seats (here).  We can call something whatever we want, but that doesn't change the nature of the thing.  Even if the curve goes higher (say, a curve around a B+ instead of a B-), it's still an ordering of all of the people in the course.

Curved grades tell people how a given person did on a given exam on a given day, compared to the other people who took the exam that day.  It's rather like George Carlin's old joke about partial scores in sports ("Notre Dame, 6").  It's information, but it's not complete information.

Employers use grades and the U.S. News rankings of schools because they believe that those two data points are approximations of how "good" the job candidates are, even though grades are actually not such a good shadow variable.  Very few clients ask their lawyers to answer hypotheticals for three hours.  There are a lot of the intangibles that make a good lawyer good, such as common sense, emotional intelligence, and teamwork, and grades don't necessarily correlate with those characteristics.  I keep telling employers that taking a little more time on the front end (for example, by asking job candidates to talk about how they'd approach a particular situation) would pay off in the long run (retention of good candidates).

But until employers are willing to spend more time looking at more than mere transcripts, I can understand how tempting it is to raise a school's curve.

Why not go all the way, though?  Some schools make it downright difficult to get anything but As.  Playing with curves is just the start of something big--why not grade for mastery instead of for comparison purposes?  Instead of curving grades, establish clear standards for what performance would constitute an A, what lesser performance would earn a B, etc.  Then grades might actually be useful to the outside world.

In the meantime, folks might want to read Dan Keating's article on grades:  Daniel Keating, Ten Myths About Law School Grading, 76 Wash. U. L.Q. 171 (1998).  It's a fun read.

Update (6/25) (hat tip to my buddy Seymour Serebnick):  see the NYT's letters to the editor about the original story here.

Joe Nocera on the difference between two corporate cultures

See here.  This is a great illustration of why cultures can create crises or do their darnedest to prevent them.

Good commencement speeches...

Over at the New York Times (here).  My favorite?

Mike Moncrief
Mayor, Fort Worth, Tex.
Texas Christian University
Never be afraid to try something new. Remember: Noah had never built an ark, but it was a large group of professionals that built the Titanic.

For teachers everywhere....

(If you can't see the whole thing, click on the cartoon.)  Hat tip to comics.com.

Update on prior post: and a hat tip to Bankruptcy Law Network

Thanks to Russ DeMott for this great post (here).  I like Russ's bankruptcy posts so much that I'm going to add him to my iGoogle page.

Yet another good post by Michelle Harner over at Credit Slips

I've really been enjoying her posts--and this one's great (here)--and, of course I always enjoy the Credit Slips blog.

My new favorite list: MSN's 10 Companies We Love To Hate

Sprint, of course, is on the list (and has been for years)--see here.  The full Customer Service Hall of Shame is here.  Bravo, MSN! 

Sadly, Sirius isn't mentioned.  But there's always next year....

Marvelous distinction between "leaders" and "stewards" over at The Faculty Lounge.

See here.  Hat tip to The Faculty Lounge.

Worst customer service so far.

Sirius "wins."  I tried to cancel my Sirius over the phone.  (I now have an XM radio and foolishly thought that the transfer to XM would be seamless.  Wrong.)  After being on hold for 20 minutes, I gave up.  I've sent a cancellation letter, but we'll see if Sirius honors that letter.

Why is it that companies don't realize how easy it's become for customers to broadcast their complaints to the world?

I love my Kindle, but . . .

It keeps turning on by accident, draining the battery.  Does anyone have any suggestions about how to prevent the accidental "on"?  Thanks!

More on the shifting law firm paradigm.

From my buddy Gordon Goolsby (see here).  It's definitely time for a heads-up, folks.

R-rated, raunchy, and very funny.

Last night's MTV highlights:  here.  Loved it.

Glenn Reynolds is right about the higher education bubble.

See here.

Hey, when A-Rod is one of the largest unsecured creditors, A-Rod gets to be on the creditors' committee.

See here.  Hat tip to the Wall Street Journal's Bankruptcy Beat blog.

Jim Milles's ethics course sounds fabulous!

See here for his description.  It sounds like a great course!

Fun discussion about anonymity.

See here.  Hat tip to Brad Sims.

Should a lawyer withdraw at the first indication that the client wants to lie?

My buddy Marc Stern forwarded this blog post to me (here).  My first instinct was "What the hey? Of course a lawyer should withdraw immediately."  I liked the blogger's observation below:

In short, the lawyer needs to make sure the client knows what the lawyer knows: the lie will eventually be discovered.  The client needs to confront this fact and agree to be truthful to the court.  It is a rare client whose force of personality cannot be overcome by his or her lawyer’s carefully presented arguments, especially where the client is clearly wrong, and the client is committing a crime by refusing the lawyer’s advice.

My problem with this concept is that I don't think that people who lie intentionally are going to be persuaded to become honest.  (See an earlier article I wrote about this topic here.  The Kaye, Scholer lawyers thought that their client, OPM--which was an acronym for "Other People's Money," always a bad sign for a client--was going to reform after being caught in outrageously dishonest acts.  Kaye, Scholer's mistake in trusting the stubbornly dishonest client is an object lesson for all of us.) 

Although it's possible that a lawyer's "force of personality" may help a client whose honesty is wavering to see the light, I think it's equally possible for a lawyer to persuade herself (wrongly) that she has won over the obstinately lying client.  That lawyer may well find herself the product of a disciplinary action later.

The well-meaning and honest lawyer faces many pitfalls.  (Alan Childress, Mike Frisch, and I are working on a professional responsibility textbook for Aspen based on the premise that honest lawyers can find themselves in all sorts of trouble even though they aren't hell-bent on lying, cheating, or stealing.)  Persuading oneself that one's client is going to see the light based on the lawyer's moral suasion is one such pitfall.

Welcome back from your sabbatical, Joe Nocera!

I've missed you--and I enjoyed your column yesterday (here) immensely!

Sprint "customer service."

I've been trying to cancel my Sprint account for a while now.  It's almost impossible, but I think I've done it--at least until I continue to get those darn bills.  Anyone have any clue about how to kill a Sprint account?

Calling all pre-law advisors!

Please email me at nancy.rapoport@unlv.edu if you'd like a review copy of our Law School Survival Manual.

Best bankruptcy law headline in a long time.

Over at the Wall Street Journal's Bankruptcy Beat Blog (here).  I couldn't have come up w/that Kinkade one all by myself, but I sure love the sense of humor of that headline writer.

Interesting news over at Legal Ethics Forum

I cross-posted this story and the related hat tip here. 

We've learned nothing from Enron.

See today's Wall Street Journal article (here) about manipulating debt at ends of quarters to make debt "disappear."  We've learned nothing.

Shameless plug:  our latest Enron book (here) explores just why we never learn from prior corporate malfeasance.

Good law and ethics story of the day.

In today's Wall Street Journal (here).

"In" isn't a synonym for "during."

Today's New York Times has a story (here) about Richard Blumenthal's exaggerations about his military service.  He apparently didn't serve "in" Vietnam; he served "during" Vietnam.  The Times reports:

In 1970, with his last deferment in jeopardy, he landed a coveted spot in the Marine Reserve, which virtually guaranteed that he would not be sent to Vietnam. He joined a unit in Washington that conducted drills and other exercises and focused on local projects, like fixing a campground and organizing a Toys for Tots drive. 

 There's nothing wrong with serving in a military reserve unit; what's wrong is misstating what one's service record was, especially for personal gain. 

Words matter.

Want to vent? I have a forum for you!

Over at our other blog, Law School Survival Manual: From LSAT to Bar Exam, I'd like to take questions and comments from those of you who wonder why some students might behave the way that they do.  (For an egregious example, see here.)

So I'm looking for such things as

1. Question of the week.  Now's your chance to throw a question our way.  You can email me, or you can post a question by clicking here.  This is your chance to vent about behavior that puzzles you, frustrates you, or amuses you.  If the behavior horrifies you, then please send us . . .
2. Horror stories.  These can be from legal employers, from faculty members, OR from law students themselves.  (I have a few of my own from my law school days.)  We'll post the best horror stories (or should we say the worst ones?) on our blog.

Thanks, and Jeff & I both look forward to hearing from you!

Our Law School Survival Manual is now available for pre-order on Amazon.com.

See here for details.

Question for you Blogger programmers out there.

Do any of you know how to change the color of the banner background in our Law School Survival Manual blog from this:

to HTML color #335C33 or thereabouts?  I don't like the light green color, but I can't find a website that will teach me how to edit the HTML for the part of the blog that's above.  I'm officially out of my comfort zone.  Thanks!

Brava, Elena Kagan!

Some may disagree about the President's choice (see here), but there's no question that Solicitor General Kagan has a wealth of experience in different roles.

(Yes, I'm happy that the President chose a former law dean.)

We'll see what happens during her confirmation hearings.

Weekly tips over at our other blog:

We've started handing out some weekly tips for law students (this summer's theme is, not surprisingly, summer jobs) over at our Law School Survival Manual blog (see here and here).  Here's hoping that folks find them useful.  If you want to weigh in, either agreeing or disagreeing--or even adding ideas for us to consider--please take a moment to click over to the Law School Survival Manual blog.  I'd sure love your thoughts.

Darn it.

The Enron play is closing on Broadway, long before Jeff & I could go see it.  See here. 

More shameless self-promotion.

We now have a blog attached to the Law School Survival Manual (see here).  Our first post, about summer jobs, is here. 

A few updates about bankruptcy fees.

In yesterday's New York Times, Nelson Schwartz and Julie Creswell wrote a fascinating article about the magnitude of bankruptcy fees, especially in the Lehman case (see here). 

Look:  I know how hard lawyers work, and I also know how non-lawyers perceive many of us.  (As does Eric Van Horn--see a piece we wrote for the ABI Journal here or here about handling the misperceptions of bankruptcy lawyers in the media.)

In a world of still-rampant unemployment, we need to remember that we don't have a lot of friends on the "outside" (the world outside bankruptcy law).  If we're not careful, we'll lose the friends we have on the "inside," too.

Here's a plug for an article I'm publishing with the University of Maryland's Journal of Business and Technology Law, an up-and-coming journal with author-friendly editors and a great work ethic.  My new article's called Rethinking Professional Fees in Chapter 11 Cases, and it explores why there are so many problems with the moving parts that make up fee requests.

Shameless self-promotion.

See here.

You've got to love this noir-ish YouTube clip about law school life.

See here.  Hat tip to Bernie Burk.  C'est merveilleux!

Best comment about the Goldman Sachs brouhaha.

Take a look at Steven Pearlstein's column in yesterday's Washington Post (here):

There was a time when issuers would pay a premium to have Goldman Sachs underwrite their securities, just as there was a time when investors would pay a premium to buy into a Goldman-sponsored offering.

Today, Goldman has fully monetized the value of its reputation, and anyone who pays such a premium is a fool. 

No one's said it better.  Just because something might be legal (and we don't know enough yet to know whether Goldman's acts were legal here) doesn't make it ethical--and being unethical has ramifications all its own.

And I thought that financial fraud was porn.

But apparently I was mistaken:  see here.

Ah, so many jokes, so little time.  Let's start with:

I guess that the SEC didn't know financial fraud when it saw it.*  But porn, on the other hand, was obviously easy to identify....

Just amazing.


* Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) ("I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description] [of pornography; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.").

The answer to hateful speech is more speech.

And there's some very hateful speech going on in Denver right now, along with some counter-protests (see here).  I'm glad that there are people out there countering the Westboro Baptist Church speakers (see here). 

And when I say that the answer to hateful speech is more speech, I don't mean that the people answering the hateful speech have to acknowledge that the hateful speech is somehow equally morally equivalent to the non-hateful speech.  It's ok to tell people with whom you disagree that what they're saying is wrong, or even that you find what they're saying to be morally abhorent.  But it's not ok to prevent them from airing their views.

After I post this message, I'm going to join the Facebook page (here) mentioned in the articles.

VERY cool new publication....

Take a gander at what my buddy, Alan Childress, has done lately:  here.  Hat tip to ALL my buds at Legal Profession Blog!  Congrats, Alan!

Best presidential fund-raising video EVER.

Hat tip to the Chronicle of Higher Education.  Here it is:  enjoy!

A new social networking "first" for me....

So I'm taking a break from work by checking my Facebook page, and one of our Boyd law students IMs me to ask me to supervise his summer research paper.  I've got to say that's the fastest I've ever been asked (or have answered) such a request.

And it proves that our students are creative about finding ways to reach us.

A nice update about Nancy Temple's career

Legal Ethics Forum has posted an update on Nancy Temple's career (here).  Nancy Temple was the Arthur Andersen lawyer whom the jurors in the obstruction of justice case blamed (wrongly, I think) as the "corrupt persuader."  I remember how several of my in-house counsel friends shuddered when they read Ms. Temple's email warning David Duncan not to call a recurring expense a non-recurring one in a press release.  That's a normal email for a lawyer to send, but I think that the jury felt as if Ms. Temple was trying to do something other than clear up an accounting classification.  (I also think that the public's distaste for lawyers generally contributed to the verdict.)

I'm very glad that Ms. Temple's doing well.  I think she had gotten a raw deal.

Above The Law has an interesting post about the disconnect between what law schools do and what law firms want.

See here.

An intriguing choice to replace Justice Stevens

Sure, all of the folks who are front-runners are good replacements.  No one's arguing that.  But if President Obama wanted to pick someone who would be a superb Supreme Court justice and who would trigger no partisan blow-ups at confirmation, why not U.S. District Court Judge Lee Rosenthal (here)?  She's incredibly smart, well-educated, and well-respected.

Yes, I've known Judge Rosenthal for many years, and I know her parents, so (as we say in Texas) I have a dog in the hunt.  But even people who aren't as well-acquainted with her as I am think that she's a wonderful judge.

She's worth a look, Mr. President.

You can't make this stuff up, continued.

See here.  Hat tip to my buddy Kathleen Lyon for this one!

Why corporate boards need to designate one director each meeting as a nay-sayer.

A perfect example (here), by Andrew Ross Sorkin of the New York Times.

On the other hand, the secondary market for our SECOND edition of the Enron book is doing surprisingly well.

An above-market price on our second edition takes some of the sting out of the $2.18 price on the first edition.  And, thanks to Mythbusters (here), we can start a secondary market for our first edition.  Of course, the Mythbusters didn't try the test with OUR book....

We've made it to the small time!

Made it to the national market at last....

Couldn't make this up if I tried.

See over at Legal Profession Blog (here).  Hat tip to Scott Unger for this one!

Too much time, or not enough? The annual Peeps contest....

Who can't love the Peeps dioramas (here)?  Hat tip to my buddy Kathy Carpenter for sending this year's contest entries my way....

Update:  another hat tip to my buddy Kathleen Lyon for the Washington Post's Peeps contest (here).

Thanks to (sorry for the pun) MY "peeps" for forwarding these to me!

The sky's not falling, but law firm economics sure are changing.

See this article (here) in today's New York Times.  I keep saying that the numbers don't crunch--someday, law firms will have to rethink compensation AND billing from the ground up.

Why the title of an ad counts--a lot

Taken from a Craigslist ad -- verbatim.

Looking for Bad Faith Attorney (Las Vegas, NV)

Why Liz Warren rocks, part n

Story on front page of New York Times, just barely below the fold (here).

I've posted some videos of our 2010 Vegas Showdown competition.

You can see them on the right-hand side of the blog--Sergei & I had a ton of fun!

One of my friends, Meredith Duncan, has written a great op-ed.

Read it here.  You can check out some of her scholarly work here and here.  If Jeff & I had had kids, we'd have wanted them to be like Meredith and Curtis's kids.

Brava, Meredith!

Thanks, Super Shag, for the videos!

SuperShag did some on-the-dance-floor videos of our Vegas Showdown 2010 Silver Smooth Scholarship (here), Bronze Standard Scholarship (here), and Open B Rhythm Scholarship rounds.  (The two in the ballgowns are tango, which is why I look more serious in those clips.)  For the Rhythm videos, see here (although I managed to kick the floor in a rondé), here, and here.  (Thank goodness that SuperShag didn't catch the Coppertone moment after that part of our routine!)  For more tiny videos, check this blog after this weekend.

Thanks to my teacher, Sergei Shapoval, and to my coaches, Felipe and Carolina Telona.  Y'all ROCK!

Brian Leiter's latest letter to USNWR is a must-read.

See here.

A salute to master teacher Jaime Escalante

Apparently Mr. Escalante is battling cancer (here).  My thoughts go out to him, his friends and family, and the countless students whose lives he made better by pushing them to excellence.

Wrong. Wrong on so many levels....

Hat tip to UNLV's own Matthew Stafford for pointing me to this Above the Law post (here). 

I count 7 independent ethically (and grammatically) challenged errors in this one business card.  Anyone care to list them?

Fearless prediction and a shout-out to Loren Steffy of the Houston Chronicle

My buddy Jessica Gabel of Georgia State pointed out Loren Steffy's latest column about Jeff Skilling's appeal (here).  The column is quintessential Loren, and it's absolutely correct.

But I still think that the Supreme Court's going to reverse Skilling's conviction based on what the Court will call a misinterpretation of the "honest services" doctrine.  Let's see if I'm correct.

Rest in peace, Will Kohn

Will, who was delightful, warm, funny, and extremely smart (see here), passed away suddenly last week.  I'll really miss him.  I met him when I was still at Ohio State, and we worked together on the American Board of Certification.  He was a natural leader and modest as all get-out.  His obituary is here.

The former University of Maryland law dean's current troubles

I've been following the stories about Karen Rothenberg's current troubles over some payments made to her while she was Maryland's dean, and two particularly good posts are here and here.  I don't know Karen that well, but I certainly saw her in action, and I found her to be extremely energetic and committed behavior. 

Were the payments authorized?  I'll bet that they were.  Were they vetted thoroughly beforehand?  Who knows?  Should academics get those big salaries?  Maybe not, but as the Feminist Law Professors post points out, Karen probably found herself in the crosshairs of all of those folks who are angry at Wall Street bonuses as well.

All I know is that being in the public eye is sometimes really, really miserable, and that Karen has my sympathy right now.

Newsflash: small, newly established law schools not in National Law Journal's top 25

Thanks to my home Google page, I read TaxProf Blog regularly, so I clicked on the links (see here and here) to the National Law Journal's Law School Report (here).  The basic methodology:  "[NLJ has] ranked the top 50 law schools by the percentage of 2009 juris doctor graduates who snagged jobs at NLJ 250 firms by Sept. 30, 2009."

What I like:  the ranking at least gives users some useful information about the link between going to a particular school and how many of that school's grads go to BigLaw; my alma mater (Stanford) did well, even though many older grads (25th reunion this year!) are BigLaw refugees; and there are thoughtful articles that accompany the report (see Emily Spieler's thoughts here). 

The only drawback is that some newer schools (think Boyd) won't make the cut for a while, if ever:  we're still new-ish, as law schools go (in two more years, the school could have a Bar Mitzvah), and we don't have the benefit of having a plethora of branch offices of BigLaw firms in Nevada, although we do place graduates in many other states.

All in all, though, the Law School Report makes for juicy reading.

Will the crash in BigLaw hiring be a boon for lesser-"ranked" law schools?

We won't know for a while, but if some law schools didn't place a lot of their grads in BigLaw firms before the crash, and the graduates at those "lesser" schools find more jobs than those do who hail from "elite" schools, will we see a big change in the USNWR rankings in a couple of years, when the data from the placement crash play out?

You know you've been in legal education a long time when . . .

You remember being dean at Nebraska and helping to hire someone who is now the incoming dean at Nebraska.  Congrats to Susan Poser (see here)!

I get a kick out of this one (hat tip to PrawfsBlawg again)

See the commentary and the comments to How to Write an Incendiary Blog Post (here).  The post refers to the original full article in the Boston Globe (here), but I got a huge kick out of the comments to the post on PrawfsBlog.  Hat tip to that blog and to my buddy Bernie Burk, who sent me the original BG version a while back. 

My two favorite comments so far:

This sentence says that I know you won't publish this comment, but you neglected to consider a point that is not even germane to the post. This sentence makes it clear that I'm very angry because there is some trivial difference in our world-views.

Posted by: Bruce Boyden | Feb 17, 2010 1:39:22 PM

This sentence is not self-referential except to the extent that it is.

Posted by: Matthew Reid Krell | Feb 17, 2010 1:55:25 PM

Bravo to Paul Horwitz for the post!

I hate bullies--especially anonymous ones.

Just got a nastygram today from RoastMail (meaning that the sender wasn't brave enough to sign his or her own name to the email).  The person, in the guise of being concerned about professionalism, suggested that I was cluttering up everyone's inboxes with my congratulations when people at Boyd did something praiseworthy.

Here's the text:

Nancy,

Please read and heed the subject line.  Everyone at Boyd (especially because we are lawyers/law students) would probably like to throw in their two cents and congratulate whoever deserves congratulations, BUT can you imagine what a mess our inboxes would be if we all gave in to our desires.  Besides it being rude and unprofessional, it's just downright annoying to see a reply to every announcement regarding our school/faculty/students.

PLEASE, out of professional courtesy, keep your personal comments off the email server. 

Good day.

And here was my response:

Tell you what, anonymous roaster---let me put this up to the whole faculty. I'm happy to bow out of congratulatory emails, if my colleagues would prefer that. But I would have had more respect for you, whoever you are, if you'd had the courage to sign your name.
NBR

I'll let readers know which way the faculty goes on this issue.  If I'm really annoying people, then I'm happy to lay off the congrats, even though my guess is that most people feel underappreciated and could use some well-deserved congratulations.*  But I truly hate bullies and cowards, having had enough experience with those to last a lifetime.

Had this person had the courage to come into my office, shut the door, and express his or her view to me directly (or even in a private but signed email), I would have felt bad that I'd annoyed the person, I would have apologized to him or her, and I'd have gone to other colleagues to ask them if I really was irritating the crud out of my colleagues.  But that's not what the person did.

If it's important enough to send a nastygram, it's important enough to sign it.  And I'm going to assume that this person who sent it to me isn't a student, due to the salutation using my first name.

Readers:  are we at a point when praising others is a bad thing?

* See Kent Syverud, Three Principles of Effective Deaning, 31 U. Tol. L. Rev. 751 (2000).

Musings about an essay that I'm writing.

Posted at Voir Dire (here), where I'm guest-blogging this month.  Comments gratefully accepted.  Thanks!

One of the many reasons that my friend Bernie Burk ROCKS!

See Bernie's comment to Howard Wasserman's post (http://prawfsblawg.blogs.com/prawfsblawg/2010/02/being-sued-v-being-held-liable.html) about the difference between being sued and being held liable on PrawfsBlawg: 

It seems to me that the interesting question here is how this set of preconceptions differs, if at all, from the dynamics of blame in our culture more generally.

A lawsuit is, for most people not twisted by overexposure to our legal system, about blame. The plaintiff blames the defendant for something, and virtually every cause of action involves a duty (what you should do) and its breach (you didn't do it). Our system posits sanctions for starting an action--asserting blame--without some colorable basis, e.g., Rule 11; the tort of malicious prosecution. These present low thresholds to be sure, but all with the moral underpinnings of "don't blame somebody for something unless you've got the stuff to back it up." (And, interestingly, note how different the ground rules are for defending yourself. There is no tort of malicious defense.)

Blaming someone for something publicly is a serious thing. Just think of how surprised, upset and defensive you feel if someone accosts you at Starbucks and announces that you just cut in line.

With various caveats and perhaps a general reservation about rushing to judgment, we also generally assume that people don't make accusations of any kind without some colorable basis for doing so, even though daily experience provides counterexamples without number. These somehow prove the rule by exciting our outrage at levelling a false accusation, however trivial: exCUSE me, I was standing here in line when I saw you walk in the door over there.

Law students walk into torts class lay people. Small wonder they share the general culture's views about the dynamics of blame and vindication as they play out in the very public forum of litigation. The dissection of claim from liability (with all the slips between the cup of one and the lip of the other) is one of the innumerable counterintuitive wisdoms we internalize in learning to think like a lawyer.
And by the way, a principal challenge of the trial lawyer is learning to think like a person again.

(The writer is a longtime practitioner who is transitioning into law teaching. He welcomes your thoughts, and any news of available positions. References available on request.)

Posted by: Bernie Burk | Feb 15, 2010 2:10:01 PM

Bernie's got that great combo of intellectual gravitas and real-world, law-at-a-high-level experience.  He also has a killer sense of humor.  (See?  Three other reasons why Bernie ROCKS!)

More kudos for David Dow.

Check out this book review (here).

I'm sad about the NASA budget cuts.

And I'm not the only one (see here).  There is not enough space on any blog to list all of the gifts that NASA's research and mission has given us throughout the years.  I'll be eternally grateful for all that NASA has done so far, and I just hope that NASA will get the opportunity to thrive in the future.

Another subscriber to the Van Niel mortgage proposal.

A while back, I described the Van Niel mortgage proposal (here).  In today's column by John L. Smith (here), he's endorsing that proposal.  It's not a groundswell for the proposal (yet), but perhaps, someday, we'll see more people recognizing that modifying the principal amounts and giving the banks a share in any short-term profits on resale is the right way to go. 

Does higher education have some explaining to do?

I was reading the op-ed page this morning, and I came across Glenn Cook's A Few Questions for Carson City (here).   Among the questions that he asked, two in particular caught my eye:

-- Why are higher education officials and lawmakers giving a moment's thought to closing Nevada State College at Henderson when its students actually make progress toward degrees and graduate in large numbers, while most UNLV undergraduates drop out? 

-- How much research at UNLV and UNR is funded by taxpayers to explore professors' personal interests, when those professors could be teaching classes instead? In this economy, and with the sacrifices UNLV and UNR face, is it really that unreasonable to ask faculty to suspend all research that isn't self-funded?

Let's take these two questions together.  Assuming that Mr. Cook's stats are correct--and I have no independent info, one way or another, about the graduation rates of either Nevada State College or UNLV--his questions actually illustrate why we need a strong community college system and a strong research university system.  Community colleges and research universities serve different purposes.

In my mind, the mission of community colleges is access.  Excellent community colleges give their students the ability to build a solid foundation for the careers that they choose.  Take a look at Nevada State College's mission statement (here):  "Through student-centered learning, Nevada State College emphasizes and values: exceptional teaching, mentoring, advisement;* scholarship; career and personal advancement; continuing education; and service to our community." 

The mission of research universities is discovery.  Excellent research universities don't just disseminate already-discovered knowledge well; they build upon that knowledge with new discoveries.  And these discoveries aren't the same as the important discoveries that industry produces.  Industry-funded discoveries are intended, by definition, to develop industry objectives and bottom lines.  University-based discovery advances our knowledge in the arts and sciences, and that discovery activity makes our teaching better.  We can talk with our students about what our discoveries mean for our fields, and we can have our students participate with us in those discoveries.** We are changing the fields in which we teach.

So, in response to Mr. Cook's two questions:

(1)  Good for community colleges with good graduation rates!  Those high graduation rates are helping our economy recover from this deep recession by putting better-prepared employees in our workforce.

(2)  If UNLV's graduation rate is too low, let's figure out why.  Is it that UNLV faculty members aren't doing their jobs well, or is it that, with the budget cuts that UNLV has already suffered, UNLV has had to cut back on how often it offers certain core courses?  I know that the latter point is true, and I also know that many of us are picking up larger teaching loads than we used to have. 

I quit private practice in large part because I enjoy teaching students, and I know that my colleagues take pride in their teaching, too. 

But the idea that we should quit researching, unless someone else besides Nevada taxpayers foots the bill, means that we would quit making those discoveries that move our fields forward and enable us to give our students a different experience than they could get at schools without a research mission.  Sure, I'm all for funded research--that research adds to a university's bottom line, thanks to the surcharge that the funding agency pays to the university for overhead.  But not every field has the same access to funding sources, and we shouldn't stifle discoveries in the other fields.  Advances in music, art, and dance will eventually find their way to Nevada's tourism industry.  Advances in the liberal arts will make Nevadans better writers and thinkers. 

If we say, "make UNLV into a teaching institution," then we're creating a massive redundancy in the system and wasting money.  We can have great institutions that have, as their primary mission, a teaching focus, and others that have, as their primary mission, a research function.  Nevada needs both--and now, it needs both more than ever.

*I'm assuming that "advisement" is a typo and that the College means "advising."
** The relative teaching loads in community colleges and research universities means that it's just that much more difficult for professors in community colleges to have time to conduct extensive research in their areas.

How to render a Contracts professor speechless in class.

Give her samples of "UCC Coffee" and "UCC Tea" at the beginning of class.  OK, I wasn't rendered entirely speechless,* but I did get a huge kick out of this surprise. I am really enjoying this semester's Contracts section!

*As if I could ever be rendered entirely speechless. 

Schadenfreude.

Schadenfreude is, by definition, rather satisfying.  See this Above the Law post (here), which also contains a nifty Marine Corps reference ("Welcome to the suck.")

Elizabeth Warren on Wall Street's Race to the Bottom

Read Prof. Warren's wonderful op-ed in today's Wall Street Journal here.  BRAVA!

Hat tip to The Faculty Lounge for highlighting The Autobiography of an Execution

See here for the post.  I bought my first two copies (one for me and one for my dad) at Amazon (here).  You can hear David Dow on NPR's Fresh Air here. 

BRAVO, David!

Cute blog--linked to the classic I Can Has Cheezburger

See here.

One of the many examples of how nice Jeff Yates is!

Jeff, thanks for the post welcoming my guest-blogging stint (here) on your wonderful blog, Voir Dire.  I'm looking forward to hanging out with you in your slice of the virtual universe!

And here's my first post (here).

An 11 on the 10-point scale of stupidity.

Normally, I give all Marines a great deal of respect and deference.  I love those Marines I know well:  that group includes my husband, my father-in-law, my brother-in-law, and many friends.  So I get especially irked when I come across an op-ed by a Marine who has managed to put his foot, his leg, and that part of his behind in which his head is not firmly inserted in his mouth.  That Marine is Mackubin Thomas Owens, and his op-ed this morning in the Wall Street Journal (here) just made my blood boil.  The thesis of this ridiculous essay is that we can't have gays serve in the military because "[t]he presence of open homosexuals in the close confines of ships or military units opens the possibility that eros—which unlike philia is sexual, and therefore individual and exclusive—will be unleashed into the environment."

Right.  No eros is in the military now with opposite-sex couples.  That would never occur.   [If I liked the "sarc mark," I'd insert it here.]

Owens ties together his hogwash with fancy-sounding words, but it's still hogwash.  Just insert "women" everywhere he discusses "gays," and you get a sense of what he's really saying.

I know many Marines (and many conservatives) who would gladly disassociate themselves from Owens's remarks in this op-ed.  So, when you read his hogwash, just know this:  Owens stands apart.  "Stupid" is not a hallmark of Marines or conservatives.  He's giving both a bad name.

Roger Williams University's latest study of faculty productivity outside the USNWR top "40"

See here for the whole study.  My favorite part is reproduced below (hat tip to Brian Leiter and to Paul Caron):
THE TOP 40 SCHOOLS [AFTER USNWR'S TOP 40] 
1. University of San Diego (13.85)
2. Florida State University (13.30)
3. University of Richmond (9.56)
4. University of Missouri - Columbia (8.82)
5. Illinois Institute of Technology (Chicago-Kent) (8.71)
6. University of Nevada - Las Vegas (8.54)
    Case Western Reserve University (8.51)
8. University of Cincinnati (8.15)
9. Brooklyn Law School (8.00)
10. Pepperdine University (7.45)
11. Roger Williams University (6.76)
      University of Florida (6.73)
13. Hofstra University (6.56)
14. Arizona State University (6.44)
15. University of Pittsburgh (6.25)
16. Seattle University (6.10)
      Temple University (6.06)
18. Seton Hall University (5.92)
19. University of Houston (5.84)
      Loyola Law School - Los Angeles (5.82)
21. DePaul University (5.78)
      Rutgers (State University of New Jersey) - Newark (5.78)
23. University of Tennessee (5.47)
      University of Kentucky (5.42)
      University of Miami (5.41)
26. Villanova University (5.19)
      University of Louisville (5.14)
28. Rutgers (State University of New Jersey) - Camden (5.06)
29. Loyola University Chicago(4.97)
30. Capital University (4.61)
      Indiana University - Indianapolis (4.56)
32. Pennsylvania State University (4.52)
33. Willamette University (4.35)
      Wayne State University (4.33)
35. University of Connecticut (4.29)
36. Santa Clara University (4.14)
      University of Oregon (4.13)
      St. John’s University (4.13)
      Michigan State University (4.11)
40. Marquette University (4.00)

It's nice to see that folks recognize how prolific our faculty's scholarship has been.  Our faculty productivity is one of many reasons I love it here.

New fun blog: Mark Osler's blog

I was visiting w/Mark recently, and he reminded me about his blog (here), which I've been enjoying.

Liz Warren's coolest moment ever (and she's had a ton already)!

See Liz Warren on -- wait for it!--The Daily Show (here). Best explanation of what went wrong with our financial system and how to fix it.

I would be terribly jealous of her if I didn't like her so very much. BRAVA!!!!!

Hellooooooo, Disney Board--you need me!

This article in today's Wall Street Journal (here) proves it.

Richard Thaler's mortgage proposal--it makes sense!

Here's Richard Thaler's mortgage proposal in today's New York Times (here). Reminds me of another good mortgage proposal (here). Hmmmm....

Great law firm ads

Bravo to the law firm of Trolman, Glaser & Lichtman for these ads (here and here), which are funny as all get-out and ethical. Hat tip to Andrew Adam Newman of the New York Times for his article calling attention to these ads, here.

Rachel Anderson's post over at The Conglomerate on advice for newly hired beginning law professors....

Her very useful post is here. To her advice, I'd only add one thing: if salary's non-negotiable, often some other perks are (e.g., more research assistant money, different travel allotments), so be creative.

Meditation on the first day of spring semester classes--and an idea for our dysfunctional Congress

It's the first day of Spring Semester, and I'm going to meet my Contracts students for the first time this afternoon. Aside from the usual OMG moments (the bookstore ran out of our textbook, and I found out just this morning--thank goodness for Nettie, who PDF'd the first two assignments for us!), there's good excitement in the air.

I love the first day of classes. There's the adrenaline of preparing for class; the welcome sight of my colleagues coming back to school; and the sense of a fresh start for everyone.

Speaking of fresh starts (and no, not the one in the Bankruptcy Code), I was reading about Speaker Pelosi this morning and her comments about the Republicans stymieing health care. What tires me about all of Congress is this constant name-calling across party lines, which I find wholly unproductive.

There are two possibilities: (1) no matter to which party you belong, the other party is composed of demons; or (2) there are good and bad people in both parties. My guess is that the second possibility is more likely.

What Congress needs is a mental reset--a new semester of sorts. I don't see enough people in Congress saying, "Wait a minute! Maybe it's possible that people who are different from me politically have some good ideas--perhaps I should listen." And I certainly don't see anyone in Congress taking personal responsibility for the massive ill-will that exists now among its members.

This is where one of my favorite books comes in: Robert Kegan & Lisa Laskow Lahey, How the Way We Talk Can Change the Way We Work: Seven Languages for Transformation (Jossey-Bass 2002).

That book forces people to see why they're afraid to change and how they've contributed to their own frustration. By presuming (correctly) that people complain only about that which matters to them, Kegan and Lahey give advice on how to deal with, e.g., long-term beliefs about others' reasons for behavior. It's a masterful book.

Grow up, Congress. We don't have time for your games any more. (And my contribution to the problem? Not voting out of office those folks who stick to the same-old, same-old behavior.) See? Kegan & Lahey's theory works!

My buddy Rachel Anderson's guest-blogging over at The Conglomerate!

See her first post here. Yay, Rachel!

Hat tip to my buddy Kathleen Lyon for finding this gem!

See here on writing. Thanks, KEL!

Sharon Davies has a great new book out (Oxford U. Press)!

One of the best things about the AALS Annual Meeting is getting to see old friends, and when I ran into Sharon Davies last week, her new book, Rising Road: A True Tale of Love, Race, and Religion in America (Oxford University Press 2010), was hot off the presses. I can't wait to get my own copy, and you can click on this link (here) if you want a copy. Brava, Sharon!

More foolishness coming about because of the USNWR rankings

This story's been brewing for a while now: the rankings are costing law students in terms of higher tuition. See this link from the TaxProf Blog here and Robert Morse's point of view here.

Great questions to ask the bankers

See Andrew Ross Sorkin's New York Times column, What the Financial Crisis Commission Should Ask, here.

Former UNLV-Boyd Prof gets national acclaim--BRAVO, PAVEL!

See the post on the Wall Street Journal's Law Blog here. Bravo, Pavel--now everyone can find out how great you are!

Andy Winchell wins PR link of the week!

Andy beat me to the punch by announcing our ABI Annual Spring Meeting panel on lawyering with the new social networking tools--see here. Thanks to the efforts of my co-chair, Ray Warner, and the amazing team of ABI Staffers (shout-out to Maggie Bradshaw), the panel features

• Andy Winchell, who writes the A Clean Slate Bankruptcy Blog;
• Steve Sather, who writes the A Texas Bankruptcy Lawyer's Blog; and
  
• Karim Guirguis, media and internet guru of the ABI.

It should be quite a fun panel--hope that some of you out there can make it!

My newest guilty pleasure: Female Science Professor Blog

See here. I stumbled upon this blog thanks to an article that Female Science Professor wrote for the Chronicle of Higher Education, here. And here's my favorite part of that article:

10. For students and postdocs: If you are paid a salary, you should do the work.

. . . .

12. For students visiting professors, even outside of office hours: If the professor is dining al desco, an activity typically done to save time on a busy day, don't ask, "Are you busy?" The answer is yes. Ask instead, "Do you have a few minutes to talk, or should I come back at a better time?"

As someone who almost always eats "al desco" (what a great phrase), I loved that last bit. Brava, Female Science Professor!