Some great tips on writing.

See here.

An important report on how universities, private business, and the government can work together to improve research.

See here.  And Rice University's own Neal Lane was one of the co-chairs of the report.  (Go, Owls!)

If you're as opposed to the boycotts of Israel as I am, please read on.

From my friend Danny Sokol: 

Dear Colleagues:

The following statement is being circulated on numerous campuses to be released  in the next week or so.  We are trying to get signatures prior to it being posted, although people will also be able to sign up after it is posted.

If you are interested in singing, please drop a line indicating your approval to William Jacobson at Cornell Law, (waj24@cornell.edu) from your university/college email account. Note your title and affiliation. 

Also, feel free to share this with colleagues who might be interested.

The text of the statement cannot be changed at this point.  It is, by nature, a compromise statement intended to focus on core principles, not politics. I think it is very mild and broad. 

Here is the text of the statement:

We, the undersigned academics, vigorously support free speech and free debate but we oppose faculty or student boycotts of Israel’s academic institutions, scholars and students. 

 Our opposition is rooted in the following core principles. 

1.       Academic freedom:  The BDS (boycott, divestment and sanctions) movement discriminates against Israeli institutions, professors, and students for no other reason than their nationality and the policies of their government. Thus BDS violates the very principle of academic freedom.  Academic boycotts such as those promoted by BDS activists “are antithetical to the fundamental principles of the academy, where we will not hold intellectual exchange hostage to the political disagreements of the moment,”according to a statement signed by 300 university presidents in 2007, and additional statements written by over 250 university presidents last year in response to the ASA boycott of Israel. The American Association of University Professors, other academic organizations, and more than forty Nobel Laureates have opposed all academic boycotts for this reason. 

2.       Truth:   The factual record does not support the accusations and narratives of the BDS movement. Many are based on overstatements, cherry picked evidence, outright falsehood, or on disputed or highly biased data. 
3.       Peace: The two-state solution – which guarantees to both parties mutual recognition -- enjoys the endorsement of the United Nations, the United States, the European Union, and the Arab League. By demonizing and seeking to isolate one of the two parties to the peace process, the anti-Israel BDS movement sets itself apart from the global consensus for peace.

4.       Access to World-leading Scholarship:  BDS would have the practical impact of undermining academic cooperation and would deprive universities significant Israeli contributions in many academic areas, especially scientific research. It appears that such a loss is immaterial to the leaders in the BDS movement.

 This statement is not a response to any particular BDS effort on campus, but rather to the growing wave of such efforts by academic professional associations and so forth. The idea is to get out ahead of such efforts with a broadly subscribed statement.

Thank you.

Prof. Eugene Kontorovich

Northwestern University School of Law

Am I a bit OCD about writing? Why, yes. Yes, I am.

Proof?  My latest proofreading affidavit for my students (here).

Dear Apple: fool me once, shame on you; fool me EIGHT TIMES, shame on me.

I give up.  I have owned eight of your Airport Time Machines.  Eight.  And the number of them that have failed catastrophically?  EIGHT, including the replacement one that the Apple Genius gave me yesterday (w/o a receipt, even though I asked).  I have no way of returning it for credit now, so you've cost me a couple of hundred bucks--or over a thousand bucks, if you count ALL of the ones I've purchased.  NO MAS.

Bravo, Steven Lubet!

His post over at The Faculty Lounge is superb in its dissection of the Salaita issues.  My only tiny quibble is that I'm totally ok with Illinois's decision not to hire Salaita.

Academic freedom for folks who don't yet have jobs at an institution.

I've been reading the back-and-forth on Professor Steven Salaita, and I've just finished reading a piece on David Frakt in The Atlantic.  According to the article, Frakt was the person who was thrown out of his deanship interview at Florida Coastal (by the President!) for talking about Coastal's students' likely success rate and the relationship of the success rate to the students' debt load.

From what I've read about Salaita (including reading his own tweets myself--some of which made me physically ill), his "uncivil" comments are not merely "uncivil."  Some of his comments are extremely vicious, and I think that some of the comments are also anti-Semitic.  So this professor is not a hero to me, by any means.  

Salaita has a complete right to say what he wants, thanks to freedom of speech.  I don't have to like him.  I don't have to listen to him.  But he has every right to say what he wants to say, and to say it in the way that he chooses to say it, even if I perceive some of what he's saying as exceptionally nasty.  The First Amendment protects him, and I'm glad that it does.

Whether academic freedom does, though, is not as easy a question.  (I've written a little something on this:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544932, which reviews Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom.)  I think that the issue is complicated.  "Academic freedom" doesn't protect every outburst.  It protects statements that people make while teaching and writing in their fields, but (to take some extreme examples) it won't protect someone who insists on teaching that the world is flat or that babies come from storks.

The more I spend time on social media, the more I think that people show their real selves there, and they show their real selves yet more when they post anonymously (though, of course, it's impossible to track down who the anonymous posters are).  Salaita's "real self" seems to me to be that of a bully--and a bully who would make his Israeli and Jewish students very, very nervous about whether he could be fair to them.  I would be as nervous about hiring him as I would about hiring a professor who posted screeds against any other group:  Arabs, Catholics, Mormons, single mothers (the list goes on and on).

But what interests me more is the difference between the outcry about Salaita and the absence of much outcry about Frakt.  Both people were prevented from getting their jobs because certain people didn't like what they were saying.  Frakt was, from what I've been reading, saying some perfectly sensible things about law schools and should have--at the least--been allowed to finish his deanship interview.  Salaita was saying some horrible things, but because they were rants against Israelis and Jews, his statements were more "socially acceptable" to the people who are aghast that the University of Illinois didn't approve his hiring.  That's a pretty awful contrast, in my opinion.

So I have to wonder:  where was the anger about cutting off Frakt's interview, and what is the difference between the two stories?

UPDATE:  I really liked this commentary.

Thanks, Above the Law, for the shout-out!

We were tickled pink to see this mention of our Law School Survival Manual today (check under "Books"). 

Best parody EVER.

Here.

Shameless self-promotion, part n.

We're touting our book, Law Firm Job Survival Manual, as part of this interview (here).

One of many reasons that I like Mark Yudof.

Here.

My article on incentives and default rules in law firms is out at last!

See here.

LexisNexis must not want me to use its services.

I have changed my password seven times in two days.  It doesn't matter what password I use--LexisNexis will not let me log in.  I give up--I will never use that service again.

Um, not a great group to have as "friends"....

See here.

Leave it to TaxProf Blog to show that law profs can be cool. Or at least funny.

Here.  Seriously, this video is worth watching.  ROFL.

OK, it's throwback MONDAY today.

I was talking about the Rice T.W.I.N.K.I.E.S. Project with some colleagues today and thought I'd share it with all of you.  My favorite test, of course, was the Turing test.

Two of my newest favorite things, both from my buddy Walter Effross.

Walter always finds me interesting and valuable things to read (and now I can thank you publicly, Walter!)--and here are two of my favorites.  One's a commencement address, and the other is a story about how the Rolling Stones refused to boycott Israel.  Both involve a discussion of courage.  (And, for what it's worth, both stories illustrate the power of standing for something bigger than yourself, rather than the cowardice of lobbing anonymous hateful comments across the Internet.)

Shame on you, anonymous commenters.

I read Above the Law pretty regularly, and I have to say that I'm saddened by the tenor of the comments overall.  I know that the comments are unmoderated, and I don't blame Above the Law for them (or any blogs that allow anonymous, unmoderated comments).  What I don't understand is the mentality of people who write hurtful, anonymous things about people they don't know (or, for that matter, people they do know).  What is it about anonymous commenting that gives people the license to be so horrible?  (I'm guessing that the commenters have never been on the receiving end of any of the drivel that they're posting.  I have been, and it's an awful experience.)

R.I.P., Bob Faiss.

See here, here, here, and here.  Bob was a giant in his field and a true gentleman.  I will miss him.

Bravo, Mayor (well, former mayor) Bloomberg--well done!

This whole idea of students protesting commencement speakers because they don't like the proposed speakers' politics bothers me, which is why I appreciated Mayor Bloomberg's commencement address so much.  I've experienced commencement speaker protests myself.  (Sarah Weddington was our commencement speaker during my first year of dean at the University of Houston Law Center, and I invited her because she was someone who was effective as a lawyer, in the Texas Legislature, and in the Carter Administration--and I consider her a friend.)

Law graduates who didn't appreciate her work as the lawyer in Roe v. Wade protested.  She had to worry about death threats at graduation.  (So did I.)  Even though she had recently been diagnosed with cancer, she came through and did a superb job at graduation.  The protesting students limited themselves to wearing gold lapel pins symbolizing baby feet, which was a perfectly legitimate and respectful form of protest.  I was proud of them.

Another commencement speaker at UHLC triggered a one-person protest by a student who believed that the speaker had insulted his family at a trial.  That particularlized protest, based on a personal interaction and not on a difference of philosophy, was different in kind.  We excused the student from commencement and gave him his diploma in a separate ceremony.

I know that there is a limit to the idea that students' protests shouldn't be taken into account when a university invites a controversial speaker--there are some speakers who are so reprehensible that giving them a public forum just seems wrong.  But for the life of me, I can't come up with the line-drawing that would make it clear when a speaker should be disinvited. Although I would likely know it when I saw it ("it" being the case for disinviting someone), my instincts aren't so superior that I would be comfortable using my own judgment as the appropriate benchmark.

Overall, though, universities can't be places where students learn to listen to others' viewpoints and learn to debate ideas respectfully, then where will they learn how to do that?

Airline inconvenience insurance? Count me in.

The Wall Street Journal gave me the heads-up on this new insurance (here). I can't find the insurance on the company's website yet, but I'm intrigued.

I can't decide if this story is more ridiculous or horrifying.

I was going to make some flip remark about the events reported in this story, like how I'm too busy controlling the banks and Hollywood to control academia as well, but frankly I'm just tired of the coded anti-Semitism that so few people are condemning.

Life lessons for all of us--from the Navy SEALS and TaxProf Blog.

See here.  Worth reading all the way through.

Dear Mr. Whelan of the National Review:

Wow.  Our faculty letter and our Dean's letter must have really struck a nerve with you.  (See also here and here.)

Before I respond to you, here's some background on me:  I'm a moderate--not liberal, not conservative.  Moderate.  I married into a military family (husband/father-in-law/brother-in-law are former Marines; sister-in-law was career Air Force; late mother-in-law was Army).  I interviewed for a Rehnquist clerkship.  I'm probably not what you envision when you think about liberal faculty members in law schools. 

I signed the faculty letter because I believe that it's important to remind the profession that we can have meaningful conversations about controversial issues--issues about which good-hearted and smart people can disagree--in a civil manner. Here's what our letter said:

RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.

What we were trying to convey in the letter is that it is perfectly legitimate to express disagreement--passionately but still politely--with our attorney general's position, but that we wanted to keep the discourse civil.  Our dean's letter, too, was respectful in its approach.  Your column?  Not so much, frankly, with its sneer about us being a "fourth-tier school" (not true, and also not very nice of you).

I'm not a "delicate flower," as your column suggests.  I'm happy to engage with you on this issue, publicly or privately.  Maybe we could come away from a conversation with a better appreciation of each other's point of view.

Oh, and your reference to "one well-informed source [who conveyed to you that]: 'Even by the standards of the modern American law school, the Boyd School of Law’s faculty is remarkably intolerant of dissent. Opponents to the Orthodoxy are either evil or ignorant, take your pick'"?  That's not been my experience.  I've found my colleagues to be exceptionally civil in their discourse, even when they disagree with each other (and including when they disagree with me).  So we have your anonymous person who blasted our school, and we have me, with a completely different take on Boyd's atmosphere.  That's an n of two, which is too small a sample size for an outsider to form an opinion. 

Let's see if you and I can engage in a sincere conversation that rests on a basic assumption:  you've thought long and hard about your views, and you have good reasons for holding them, and I've thought long and hard about mine, and I have good reasons for holding them, too.  Maybe a conversation might give each of us more fodder for thought.

Thank you, Dan Filler and Faculty Lounge !

What a lovely, lovely post (here)!

I am having a very good day.

Cox Cable Customer Service--sigh....

So far today, I've spent almost two hours on the phone, on the web, and in live chat with Cox.  Things that went wrong today:

1. The "plug-and-play" new wireless router didn't plug.  Or play.  At least not until I bounced my complaint up to a manager.  That took 40 minutes.
2. The Cox salesperson who sold me the router said, "You can talk with Netgear and rename your router and change the password."  Netgear, on the other hand, said that I should talk with Cox.  Cox said that I should talk with Netgear.  Maybe the two of them have some sort of bet going as to which one can drive me crazy first.  Hint:  It's a tie.
3. We're switching to Contour on Wednesday.  We were planning to watch the old DVR'ed shows before Wednesday, when suddenly the DVR said that we didn't have a DVR plan.  (Oh, and we don't have any cable channels, either, right now.)  We've rebooted, to no avail.  Ah, but I've been listening to beautiful classical music for, oh, 16:35 so far.

So all of the other services about which I've complained over the years?  I think that Cox has all of you beat cold.

Well done, Clark County Republican Party!

You dropped the definition of marriage as between one man and one woman; you dropped your pro-life stance; you added sexual orientation to the list of protected categories.  I'm not all the way to your side of political philosophy yet, but I'm a lot closer than I was.

Your turn, national GOP.  Let's see you do what the Clark County Republican Party did.

President Karen Gross on ten ways to make colleges more friendly to veterans.

It's just marvelous (here).

UNLV's Psychology and Lawyering Conference webcasts are posted.

Here's the site, and here's our panel's session. 

The Akron Law Review ethics symposium issue is out.

See here.  I was there for the symposium, and it was wonderful from start to finish.  My article, The Client Who Did Too Much, is here.

Normally, Southwest Airlines is awesome at customer service (UPDATED).

Not this time, though:

UPDATE:  Verity Kugelmann at Southwest reached out to me, investigated, and gave me a much better feeling about Southwest in general.  Thanks, Verity, and thanks, Southwest!

My salute to George Carlin's partial score schtick, in light of the upcoming USNWR rankings.

This obit describes Carlin's joke about partial scores.  And in a salute to Brian Leiter's open letter requesting that deans not report overall ranks, plus the fact that I'm not a dean and I don't have early access to the rankings, here's mine:

Boyd School of Law:  ____.

The Dewey indictments and cognitive biases (updated).

This morning's NYT brings the story of the criminal indictments of some of the people at Dewey & LeBeouf (here).  If the emails referenced in the story are real, then the downfall of Dewey is even more Enronesque than I'd originally thought.  Here's an example:

In another exchange in June 2009, Mr. Sanders and Mr. Canellas joke about the law firm’s outside auditor, who was fired by his company for reasons unrelated to his auditing assignments. Mr. Sanders remarks to Mr. Canellas, “Can you find another clueless auditor for next year?” Mr. Canellas responded: “That’s the plan. Worked perfect this year.”

Today's WSJ brings more news of the emails (here):  

According to the complaint, Mr. Sanders emailed Dewey's then chief operating officer on Dec. 4, 2008, expressing concern about the firm's cash-flow problems. "I don't want to cook the books anymore," Mr. Sanders allegedly wrote in the message. "We need to stop doing that."

Why lawyers (and, for that matter, law professors) persist in emailing proof of unsavory words or deeds is a matter involving social science as much as it involves issues of character.  Why might partners at a law firm (1) decide to doctor the books or (2) ignore some clear signs of economic distress?  

I don't know the people who were indicted.  But I do know that there are a variety of cognitive biases that can cause very smart people to talk themselves into very dumb decisions.  The partners who may have been involved in a fraud and its cover up could have talked themselves into their actions because of a misguided belief that they were protecting the firm (cognitive dissonance).  The partners who could have put 2 + 2 together to ask some sharp questions of the law firm management ("why are we paying all of this money to get these laterals, and how can we afford this?") could have been waylaid by both social pressure and the diffusion of responsibility phenomenon.*  My point is that we need to watch cases like Dewey to study not the venality of people but the way in which cognitive biases affect their actions.


UPDATE (3/10/14):  Bernie Burk has a great post over at The Faculty Lounge about the indictments (here).
_________________
* I discuss Enron and Dewey in a forthcoming article, Nancy B. Rapoport, “Nudging” Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, 4 St. Mary’s J. L. Ethics & Malpractice ___ (forthcoming 2014).

My latest piece came out in Green Bag.

See here.  The essay links the original plans for NYU's law school with current issues in legal education.

My husband's Heisenberg Uncertainty Principle experience with his U.S. Bank/REI card.

So my hubby and I are fine with credit cards monitoring suspicious activity and putting freezes on our accounts when something looks fishy.  That's great customer service.

What isn't great customer service is when a bank freezes transactions that shouldn't be frozen after specific instructions from the customer himself.

Jeff regularly flings himself out of perfectly good airplanes for fun.  He does this once a month, at the same place--and he has done so since Memorial Day Weekend.

Lately, US Bank/REI has decided that, wherever Jeff is, his credit shouldn't come with him--the Heisenberg Uncertainty Principle of Bad Customer Service.  Every month, he tries to charge something at the jump site.  Every month, his account is blocked.  He calls the bank and explains the situation; the bank agrees that the charges shouldn't be blocked; Jeff goes home.  (Of course, when he goes home and tries to pay for parking, the same bank blocks his credit there, too.)

This cycle of folly continues each month:

• Jeff calls the bank to explain that there's no fraud on charges from these two particular sites.
• The bank says that it understands and won't block the charges again.
• Jeff goes to the jump site, charges something, and finds out that the charge was blocked.
• Jeff calls the bank.
• The bank promises not to block the charge.
• Jeff comes home and tries to pay for parking.
• The bank blocks the charge.
• Jeff calls the bank.
• The bank promises not to block the charge.
• Repeat ad nauseum.

The cycle of folly has now ended after the bank, yet again, blocked the charges and then explained to Jeff that Jeff must call the bank ahead of time to explain that he is traveling and to ask--basically, with a "pretty, pretty please"--let his charges go through.

No more.  Now Jeff has a card with a different bank.  And we wonder why banks have such a bad rap.

An update for editors everywhere.

From my buddy Kathleen Lyon, some thoughts about editing (here) in response to my frustrated screed (here). 

Thanks, Conglomerate!

For the shout-out (here).

Serious customer service problems at Premium Media Design.

Tried to order some software.  My tale begins thus:

1. Clicked on website. 
2. Put software in cart.
3. Chose PayPal option.
4. Logged on to PayPal.
5. Paid for software.
6. Returned to site to find nothing in my cart.
7. Repeated steps 2-6.
8. Nada.
9. Wrote to Customer Service.
10. Nada.
11. Called the phone number, which referred me to Live Chat.
12. Clicked on Live Chat.
13. Nada.
14. Wrote this blog post.
15. Am sending a link of this blog post to Premium Media Design.

The best part?  I've figured out what the company means by "we will give you the best service POSSIBLE."

It's not possible.

Mixed thoughts about this post on Above the Law.

I do get what Above the Law is saying here, and I also take the point of Anonymous's comment about my screed against bad law review editing, but I've also seen the difficulty that some law students have in transitioning from college to professional school.  There has to be a good way to teach them that the little things matter.

And I'm now, after 20+ years on the job, at the point at which I require those who write papers for me to execute this affidavit.

Am I a curmudgeon?  Yep.  Do I think that some clear expectations might help students become more professional?  I sure hope so.

UPDATE (2/11/14):  Thanks, Above the Law, for including me in your non-sequiturs yesterday!

Brava, Scarlett Johansson!

I'm so glad you spoke up against the boycott!

Thanks, Above the Law!

Appreciated the shout-out!

Dear law review editors everywhere--a few words of advice.

I'm in the process of reading page proofs from two different journals, both involving symposia, and I want to explain why one journal did a superb job of editing my work and one didn't.  If you're a law review editor who follows this advice, you're likely to have very happy authors.  If you don't, you might end up being the focus of comments like this one.

1. Respect the author's voice.  You're not the author.  The person whose article you accepted is the author, and every author has his or her own style of writing.  Don't futz with that style.  It's one thing to tell an author that something that she wrote is unclear, or that a transition doesn't make sense, or that you see a hole in her argument.  Those are wonderful things to do, and telling an author those things makes the article stronger.  Deciding to "fix" the way that the author writes because you don't like her style is not a wonderful thing to do.  (We're just going to change back all of your "fixes" anyway, so both of us will end up feeling frustrated.)
2. If you do make changes, make sure that the changes are obvious when you return the revisions to the author.  It's annoying to see an article that's been revised so many times by various editors that the "track changes" feature has become worthless.  The failure to indicate what language was changed from the author's original language just delays your editorial process because it slows down the author's review of your edits.  Oh, and mere formatting changes?  Those are different--go ahead and "accept" those changes so that we don't have to spend time doing that ourselves.*  I doubt that any of us care how you format your footnotes or what font you use, as long as the substance of the article is correct.
3. If you make changes, get them right.  Please don't "fix" the author's writing by inserting language that changes the author's meaning, or by mis-citing things, or by making mistakes in spelling or grammar.  Although it's possible that you write more clearly than does your author,  it's not probable.  We write for a living; you're learning how to write as lawyers.  The odds are in our favor that we were right the first time.
4. Be timely.  If you need a revision turned around by a specific date, work backwards from that date and give the author plenty of time to look at your proposed changes--and make sure that the author has actually received your revisions.  If you don't hear from an author by, say, a week after you've sent out a draft, follow up.  Email glitches can happen.
5. Be accurate.  Don't make mistakes in cite-checking.  One of the best things that law reviews do is train students to be anal-retentive about certain things.  We want you to obsess over whether cross-references match.  We want you to be disturbed when a quotation mark is missing or a parenthetical statement has an open parenthesis but not a closed one.  We want you to check to see if every footnote is internally consistent.  We want you to be master proofreaders.  Talent at obsessing over tiny details will serve you well as a lawyer.  If, though, you miss obvious things, or if you alter things that actually were correct, we lose confidence in your abilities.
6. Help the author "plug" the final version.  Some law reviews tweet about their issues; some go so far as to send copies to other professors whose work figured prominently in the article itself.  These creative ideas go a long way toward making an author so happy with your work that he or she looks forward to placing another article with your law review.

When the collaborative process between an author and her editors results in a better article than the one that the author had originally drafted, everyone wins. 

____________________
* Better yet:  give us two versions.  One should be the "track changes" version with the formatting changes already accepted, and one should be the version that shows every single thing that you changed from the author's own draft.

Check out the cool stuff that my buddy Marketa Trimble has been doing as an IP scholar!

See here and here.  Brava, Marketa!!!!

Post Office website glitches continue.

Dear Post Office:  What a clever way to get people to buy stamps at the increased price!  Refusing to let us "select format" really does help us to appreciate how important it is to give the Post Office more money so that it can hire someone to fix a glitch that has existed for a while now.  Well played, Post Office.  Well played.

Our newest book just got cited.

Our Law Firm Job Survival Manual just got cited in an article.  Thanks, Prof. David Grenardo!

Post on Law Firm Job Survival Manual blog on cognitive biases.

We combined four different pieces (three from the Financial Times and one from TaxProf Blog) that relate to cognitive biases and the immense pressure that we put on ourselves--and that our jobs encourage) (here). 

Shameless self-promotion--ABA Webinar edition....

See here.  Ever since Enron fell, I've been fascinated with the issue of why people do, well, what they do.  This webinar is an offshoot of my study of this area, although I'm speaking for only about 10 mins or so of the whole thing.

Good practice pointers from Bankruptcy Judge Michael Williamson.

Here, courtesy of the NACTT.

In addition to taking UNLV's president as its president, UNT is bringing aboard some pretty high-powered faculty members to its law school..

See here.  I've known David Epstein a long time and have enjoyed his BAR/BRI lectures (in my apparent quest to make multijurisdictional practice history).  I've also known Ellen Pryor for a long time, and she's impressive as well.  It'll be interesting to see who else comes aboard. 

A timeless essay on writing by George Orwell.

Here.  It's just marvelous.

Bravo to each university on this list.

Here.  And here's an opinion piece worth reading.

Long overdue but very happy news.

Alan Turing has finally been given a posthumous pardon (here).  Too many wonderful people have been punished for being gay--just for BEING gay.  Very happy to see this news.

Bravo, Brandeis and Penn State Harrisburg!

Both universities said no to the boycott (here). 

Bravo, Michael Roth (President of Wesleyan U)!

For his response to the American Studies boycott of Israeli universities (here).

Bravo, Robert Brown (President of BU)!

For his response to the American Studies boycott (here). 

Bravo, Jonathan Marks!

His take on the ridiculous American Studies Association boycott of Israel (here).  Where is the American Studies Association's boycott of China and other nations that make academic freedom a myth? 

I'm sorry, but I can't help but believe that anti-Semitism is at the root of this boycott. 

Bravo, Larry Summers!

For speaking up about the academic boycott of Israel (here).

Something funny, on this eve before grading exams.

From the NYT (here). 

Boyd School of Law's upcoming Conference on Psychology and Lawyering is coming up early next year.

Info here.  Should be excellent.

A feel-good donation opportunity for you from The Bloggess.

See here.

Really? An academic boycott of Israel? Why the leaders of the American Studies Association are misguided.

Here's the news story.  Rather than either (1) trying to learn about the nuances of what's going on in the Middle East or (2) trying to engage their Israeli counterparts in a real discussion of the issues, the American Studies Association has voted in favor of an academic boycott.

What on earth IS an academic boycott?  Will the American Studies folks stop reading scholarship produced by Israel academics?  Will they stop teaching things that are based on Israel academics' research?  (Even though there are some typos, this listing of Israeli contributions gives a flavor of what Israelis have contributed to the world.)

I'm willing to admit that good-hearted people on both sides of the Israeli-Palestinian issue have important and valuable things to say, and I'm willing to listen.  I'm not willing to listen to academics who prefer to turn their backs, shut their eyes, and plug their ears in a grown-up version of "I'm not listening to you" behavior.

Geez.

New to practicing bankruptcy law? Where to begin, where to begin....

So I received a copy of PLI's Financially Distressed Companies Answer Book 2013, and it's been waiting for me since June.  For folks who have no background in bankruptcy law, it's a nice way to spot the issues and get some citations.  It gives enough of a forest-trees look to be a good intro to the field.  It's one of several books that provide good intros to bankruptcy law, like Charles Tabb's Bankruptcy Anthology, Michael Bernstein & Jack Ayer's Bankruptcy In Practice, and similar good overviews.

I'd be remiss in not pointing out that there are great treatises out there, too, including an upcoming one from Bloomberg....

Today's Throw Grammar From the Train is about "utilize"--yay!

See here.  I've been riding this particular hobbyhorse for a long time.  My guess is that people use "utilize" to sound "educated." 

If I can get lawyers to realize that they write more clearly when they write as simply as possible, I will have done something useful.

Yes, I believe that our law students at Boyd are cooler than your law students.

Proof here.  (These are students in my small section of Contracts.  They have Thom Main for Civ Pro.)

Some thoughts on anti-Semitism.

This New York Times article on anti-Semitism brought back some painful memories.  Growing up in the Bible Belt meant that I met more people than I'd have liked who really did believe that the Jews killed Jesus and that Jews were devils.  Yes, I heard "show me your [devil's] horns--I know you have them."  Yes, I was beaten up regularly (until I learned how to defend myself) for being Jewish.  Yes, even my "friends" would say unkind things about my religion.  The fact that anti-Semitism hasn't declined, and may in fact be on the rise again, is horrifying to me.  But kids learn what their elders teach them, and--like every other type of prejudice--knowing that one of their friends is Jewish, or gay, or otherwise "different" from them may not be enough to help erase all of those years of teaching that "others" are evil.

Yep, I'm bragging about Boyd.

See here--and this is my favorite quote: 

Three schools accredited in the past two decades -- the  University of St. Thomas, Nevada–Las Vegas, and Chapman -- "have already made a scholarly impact that dramatically outpaces their present academic reputations."

Congratulations to Brian Shapiro's FEES program!

The 4th graders in this video did a great job of demonstrating the type of financial knowledge that Brian Shapiro's course teaches.  What a great program!

I agree with a lot of the points in this post about law reviews.

Here.  Law reviews are good for giving students more experience with good and bad writing (and good and bad analysis).  But law students are still novices and can't be expected to have the same level of understanding of a given field that tenured professors have.  (I seem to recall the wonderful Jack Ayer having written once about the irony of someone who couldn't get a C in a course telling an author that the author didn't understand the subject, but I can't find the quote.)  We really should rethink the law review system.

UPDATE:  Found the quote.  John D. Ayer, Aliens Are Coming! Drain the Pool!, 88 Mich. L. Rev. 1584, 1587 n. 15 (1990) ("If you have never tried it, imagine what it is like to encounter the mixture of incredulity and greed that you inspire when you, as a law professor, tell a professor of English (say) that we let students make publication decisions. Surely, it is an exquisite form of humiliation to have some infant who can't earn a C in criminal law tell you that you really don't grasp the contours of mens rea. But for anyone who has suffered under the vengefulness and pomposity of a peer review system, the regime of the law review must look like a sinful indulgence.)

Another great post from LawProfBlog.

Here.  ROFL.

Impressively bad customer service from Republic Services of Henderson, NV

All we want is to know our new dates for trash pickup.  Seems easy, right?  Go to the website, search by address, get info.

Nope.  We can get info on recycling (but we know our recycling dates).  We can't get info from Republic Services about our trash pickup dates.  We tried emailing.  The first time, we got a very polite response saying "we'll be back in touch."  That was on 10/15.  Radio silence since then.

I followed up and got this: 

So responding to the email saying "we'll be in touch" leads to a bounceback saying, essentially, n'il exist pas.

Interesting approach.  Want to place a bet on when (sorry, if) Republic Services cares to tell us when to put our trash cans out?  Or should we just try the 1/7 chance and guess?

Boyd School of Law's Conference on Psychology and Lawyering (Feb. 21-22, 2014)

Information here.

I hate disagreeing with so many smart people, many of whom are friends of mine, but I really do disagree with the 500-law-professor letter to the ABA.

Many good people signed this letter to the ABA (hat tip to TaxProf Blog) suggesting that the proposed change to Standard 405 (there are two different alternatives being proposed) would "cause a negative impact on academic freedom, the creation of safe space for dissenting voices, and recruitment and retention of minority law professors."  I'm not convinced that those statements are accurate.

Here's a description of the proposed changes:

Alternative 1 requires, in 405(d), that all full-time faculty have a form of security of position sufficient to ensure academic freedom and to attract and retain a competent full-

time faculty. It does not require that all full-time faculty have the same form of security of position, and it does not require tenure. Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-harbor for satisfying the security of position required in Standard 405(d). For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

Alternative 2 requires a law school to maintain conditions adequate to attract and retain a

competent full-time faculty sufficient to permit the law school to comply with the Standards. It requires policies to protect academic freedom of its faculty and provide for meaningful participation of full-time faculty in the governance of the school. Alternative 2 does not require tenure or security of position for any full-time faculty.

Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-

harbor [sic] for satisfying the attract and retain provision and the academic freedom provision of Alternative 2.  For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

The egalitarian in me doesn't particularly like the fact that Alternative 1 "does not require that all full-time faculty have the same form of security of position," but that's an issue for another day.  

I'm trying to figure out why I'm so bothered by the 500-professor letter.  I think part of the reason stems from statements like this:

• "[C]reativity and innovation in the classroom will be stifled if a teacher is overly concerned that her job may be jeopardized if she asks her students to tackle provocative topics."
• "Without the protections of tenure and its underlying value of academic freedom, the ability to write about potentially controversial subjects, such as racial and intersectional discrimination, civil rights, criminal justice, affirmative action, structural inequities in the tax system, and the role of corporations in public life, without fear of reprisal will be threatened."
• "Without a system of tenure, these teachers and scholars [who "engage in advocacy on behalf of unpopular causes"] could become subject to dismissal based solely on their views.
• "[Without the protection of tenure, s]tudents will go through law school without exposure to diverse, exciting, and enlightening ideas."
• "Quite apart from the diversity of voices that tenure has promoted, it protects minority
  professors in another fundamental way: it makes the perpetuation of discrimination more
  difficult. Discriminatory discharge is the most frequently litigated claim under federal
  workplace antidiscrimination laws."

I think that these statements, and many others in the letter, go too far.  Many, many pre-tenured people and people on long-term contracts challenge their students, write on controversial issues, and engage in advocacy.  Maybe those without tenure are holding their breath and hoping that they don't get fired for challenging conventional wisdom, but they're still out there, challenging it.  So it can't be the case that tenure is the magic wand that suddenly gives someone permission to have independent and challenging ideas. 

Yes, I know that tenure provides all sorts of freedom for those who hold it, and I realize that I benefit from having tenure.  Tenure protects everyone, not just people of color (another problem that I have with the letter), from being fired for exploring controversial ideas--or at least from being fired without plenty of due process first.  But there are all sorts of non-tenure-based protections against discrimination.  I'm no employment lawyer, but I'm pretty sure that a contract that spells out someone's job duties provides some protection for a person hell-bent on performing those selfsame duties to the best of his abilities.

And tenure has its costs, too.  There's an inherent contradiction between the desire to keep the costs of law school down in order to increase access (a good thing--setting aside the issue of whether the job market for graduates will rebound) and the insistence on maintaining a system that is responsible for much of a school's fixed costs.  We are in a time where demand for law school has dropped precipitously, and we are merely tinkering around the edges of adapting to the new normal.

Let's explore those costs of tenure.  I happen to be blessed by being in a school in which pretty much everyone is fully engaged in good teaching and research.  Like Harold Koh's well-known story about being able to point to each Yale professor's office door and identify what "idea" that person has contributed to legal scholarship,* I can walk down our halls and identify what each of my colleagues is writing about (some just by general topic area and some in more detail).  Because I'm in a school where we really do value teaching and scholarship, I think that what I'm about to say isn't sour grapes.**

Tenure protects the good and sincere, but it also protects those who are just "phoning it in"--who haven't written in decades, or who produce bad scholarship that has no hope of moving our understanding of law or the legal system forward,*** or who don't think of new ways to convey their knowledge to students.  Barring meaningful post-tenure review, we are one of the few enterprises without any repercussions for malfeasance or non-feasance. 

I guess I just don't see why 10- or 12-year contracts with a presumption of renewal are so much worse than lifetime tenure, and what bothers me about the 500-professor letter the most is that I wanted to read arguments that were nuanced.   Instead, I read lines like this:  "Every school that grants tenure currently has the ability to reduce its fixed costs by curtailing hiring or declaring a financial exigency, among other options."  Really?  The way to solve the problem of fixed costs is to declare academic bankruptcy?  That's just not a realistic option.

So I'm disappointed and frustrated by the letter, in much the same way that I was disappointed and frustrated by some of the points made by the recent Task Force on the Future of Legal Education (also a subject for another day).  I think that the people who wrote the letter are frustrated and scared that the inroads we've made in legal education risk being subverted if their schools end up with deans who don't treat the academic enterprise with respect.  The solution likely comes with some hard thinking about how governance should work.  The only good news I have is that folks on both side of these debates are coming to the debates with good intentions.  That's not a bad start.


*  When I first heard Harold Koh tell this story, I spent a fair amount of time during the rest of his speech asking myself, "Do I even have an idea?"  It took me a while to be able to identify mine (which, if you're curious, involves the intersection of lawyer behavior with a variety of topics), but then I was able to tune back into what he was saying.

** Of course, I write about cognitive biases, too, so the irony here isn't lost on me.

***  And by "bad scholarship," I don't mean "scholarship that doesn't agree with my own world view."  At every school at which I've worked, there have been people whose scholarship I didn't really understand (and there have been people who didn't understand mine).  Most of the time, what I see is a general and accepting attitude of "well, it's not MY thing, but it seems well-reasoned and, in that person's field, I think it's moving the discussion forward."  (And those few times at conferences when I do hear professors discuss some scholarship in derogatory terms, I more often hear them call it "doctrinal"--as if doctrinal analysis is worthless--or critique it for not being "inclusive" enough.  I'm not particularly conservative, but I worry that some of the diverse voices that we're missing in the academy are conservative ones.  If it's true that we tend only to hire people who are most like us, shouldn't we be worried that there seem to be way more liberals than conservatives on our faculties?)  So I don't think that "writing controversial scholarship" is at risk with the ABA's proposal.  Writing doctrinal or conservative pieces might be, if a school's governance structure is intolerant of the diversity of viewpoints.

Our latest book, Law Firm Job Survival Manual, is out now!

We're happy with it, and we hope that you will be, too.  You can get it here, and our blog accompanying the book is here. 

Newest guilty pleasure.

Here.  Hat tip to The Faculty Lounge and Michelle Meyer. 

Just one day after the anniversary of JFK's speech at Rice, this great news from NASA.

Here.  For JFK's speech, see here.

Congrats to my buddy Sherri Wattenbarger!

She's receiving the 2013 Michael R. Roser Excellence in Bankruptcy Award from the Commercial Law Committee of the Missouri Bar, which recognizes an attorney who manifests the highest standards of excellence in bankruptcy practice, who contributes distinctively to the development and appreciation of bankruptcy law, and who has made an outstanding contribution in the field of bankruptcy practice or administration.  The award is named in honor of the late Michael R. Roser, a prominent Kansas City bankruptcy lawyer.

Congrats, Sherri!

Well, THIS was a nice surprise about my latest Connecticut piece.

See here.  In case that link is hinky, here's the text:

Article of the Month

August 2013

Nancy Rapoport, Rethinking U.S. Legal Education: No More Same Old Same Old, 45 Connecticut Law Review 1409 (2013).

Professor Rapoport begins this article with the well-supported premise that, "Teaching students how to think about the law is no longer-and probably never was-enough." But she doesn't stop there. The article presents a well thought out, empirically supportable, alternative to the current, typical (and empirically unsupportable) law school curriculum.

Law School, according to Professor Rapoport, should be divided into three distinct phases, each with a specific outcome in mind. This outcome based curriculum provides lawyers with the actual skills they need to be practicing lawyers rather than the very limited skill of gleaning fine details from court opinions honed by the Socratic Method."
The aim of the first year of law school should be dedicated to "Creating the Skilled Novice." The second year of law school should result in students becoming "Novice Problem Solvers." Finally, the third year of law school should be devoted to "Creating a Novice Professional with Basic Judgment." Professor Rapaport describes in detail the aspect, aims, and characteristics of this three-phased law school curriculum.
The empirical bases of Professor Rapoport's suggestions are well documented in detailed and comprehensive studies such as Best Practices, Carnegie, and McCrate (which most of legal academia has blatantly ignored thus far). Professor Rapoport suggests the following reasons why legal academia continues to ignore solid education:

1. "Law Professors have a cushy life." In our current, high-salaried jobs, "we get to study what we want" and we don't have to worry about putting "the client's interest first."
2. Most law professors are blissfully ignorant of education theory and research.
3. Law schools reward the production of scholarship rather than the "painstaking amount of time it takes to think seriously about the curriculum, develop new courses that reflect the building of skill sets over time, determine better ways to evaluate whether a student is actually developing those skills, and recalibrate the curriculum," if outcomes are not being achieved.

The larger and more troubling question is whether perpetuating the inertia driven Socratic, legal education charade has now become an ethically questionable endeavor in light of the sound and copious educational research compiled against it. A colleague of mine suggested that the real reason for the adherence to discredited methodology in legal education is laziness. Surely that can't be right, even though I have not heard a more credible alternative for the resistance to change.
[Read fulltext at Connecticut Law Review website (1.2 MB PDF)]

Submitted by: Rory Bahadur
Washburn University School of Law

Interesting new blog....

Here.

A short interview about bankruptcy fees on Morning Marketplace.

Here.  Thanks, Ann Heppermann!

Some great new tools by my buddy Walter Effross.

Here and here.  I think they're both "must reads" for law bloggers.  Bravo, Walter!

A shout-out to a wonderful lawyer.

Patrick Driscoll took on a case that I feared was hopeless, thanks to the client's former lawyer.  Patrick stepped in, fixed the multiple mistakes that the prior lawyer had made, and got the client's plan confirmed.  BRAVO, Patrick, and thank you!

Robin Roberts is one classy person.

See here.

An answer to those of you who make fun of my email signature on my UNLV email.

Here.  Hat tip to MoneyLaw and Jeffrey Harrison. 

Awesome promo w/my buddy Larry "Bubbles" Brown!

Here. 

And thank you for the shout-out, TaxProf Blog!

Here.

Thanks for the shout-out, Law Librarian Blog!

Here.

The more things change, the more they stay the same.

There are lots of stories about the DLA Piper partner who has been charged (not yet adjudicated, though--just charged) with charging clients for unusual expenses while he was a partner at Sidley Austin (see here, here, and here).  They remind me of the dynamic surrounding John Gellene at Milbank (see my paper reviewing Mitt Regan's book, Eat What You Kill, here). 

All organizations get the behavior that they reward. 

New studies on rate increases at law firms--UPDATED

The Wall Street Journal's Jennifer Smith reports that law firms are increasing rates again (here).  I'd love to see those studies mentioned in her article.  The issue of raising rates is, of course, tied to whether those higher rates are collectible.  I could raise my rate to $10,000/hour, but I don't think I could collect any fees at that rate.  And in those practice areas in which rates are reviewed by courts (like my own area of bankruptcy law), raised rates are not a slam dunk.  I'm looking forward to following this story.

Now compare that story to the one that just broke about Weil, Gotshal & Manges laying off sixty associates (here).   That leads credence to my suspicion that, although rates may be going up, the ability of any law firm to collect 100% of the bills based on those new rates may not be going up. 

Best Practices for Working with Fee Examiners

Lois Lupica and I just published an article in the ABI Journal on how best to work with fee examiners in chapter 11 cases (here).  Given the recent publication of the new USTP fee guidelines in larger cases, we think that our article is particularly timely.  We hope that you do, too.

Hey, thank you, Credit Slips!

Lois and I had a blast guest-blogging (and Lois did all of the heavy lifting). 

Today's post on Credit Slips--the ABI National Ethics Task Force's Report on compensation via section 328

Here.

This morning's Wall Street Journal article on the costs and benefits of bankruptcy examiners.

Here.  Among the article's points is that the cost of an examiner has to be compared to the benefits.  That's different, I hope, from demanding that the examiner find enough "bad things" to completely offset his costs.  The idea of "funding by bounty" creates a bad incentive to look at trees instead of forests.

But I've seen good examiners (and good fee examiners) in action.  The ability to figure out what went wrong is a necessary part of a reorganization that's successful in the long term.  And to do that, someone needs to be tasked with taking a good, hard look at what happened to create the need for a bankruptcy filing.

I particularly enjoyed the quotes from William Snyder, now at Deloitte, who's been one of the best CROs I've seen over the years.  His common-sense approach, and his ability to deflect what is often very nasty and personal comments as he's working out causes and solutions, is what makes him good.

But back to costs and benefits.  I'm an occasional fee examiner (yes, and a law professor who studies fees, among other things).  I don't think of myself as saving a lot of monetary costs.  Do I find things that should be cut or reduced?  Sure.  Professionals make mistakes, either clerical or in judgment, and typically they're comfortable fixing those mistakes themselves before I have to bring them to the court's attention.  What I do save is time--the amount of time that my team and I spend going over fee applications is time that a busy and understaffed court really can't devote to the same line-by-line review.

That time savings is also true of examiners generally.  If they do their job well, and if they're mindful of what they are costing the estate, then they can get to the bottom of things in a way that other players in a bankruptcy case just won't have the time or financial resources to do.  There is a law of diminishing marginal returns, of course, and examiners who chase down rabbit holes for too long are overspending other people's money.  But a court can take a gander at interim reports versus fees to see whether an examiner is getting out of line.  (And yes, fee examiners can chat with examiners about their bills, too.)

Bottom line?  Look at the need for an examiner and figure out in advance what goals you want that examiner to achieve.  Make sure that those goals are in the order authorizing employment, and monitor the progress of the examiner's work.  And make sure those goals are aligned with the incentives for compensating the examiner.  Avoid a bounty approach, and you're likely to get what you need to get from your examiners.

A law firm that has given up on hourly billing.

I thought that this post might raise some eyebrows (in a good way).  The law firm that announced its rejection of hourly billing is Juan R. Gonzalez PLLC. 

National Ethics Task Force Report--Duties of Counsel for the DIP (up on Credit Slips)

Here.

This mock deanship application letter cracked me up.

Here.

ABI National Ethics Task Force Report--Limited Scope of Representation (up on Credit Slips).

Here.

My Conn. L. Rev. piece on legal education is out.

Here.

ABI National Ethics Task Force's Report -- post on Credit Slips about new proposed rule 2014

Here. 

Lois Lupica and I are guest-blogging at Credit Slips about the ABI's National Ethics Task Force Final Report.

Here's the first post, and here's Bob Lawless's very kind intro.