Wednesday, April 5, 2017

On Judge Gorsuch's plagiarism

In fact, plagiarism is not, contrary to John Finnis, normal practice at Oxford.  This also is irrelevant to his nomination, but the Judge should acknowledge the error.

April 5, 2017 in Jurisprudence, Of Academic Interest | Permalink

Monday, April 3, 2017

Touchy originalists!

Mary Bilder (Boston College) wrote an opinion piece for the Boston Globe about originalism and Judge Gorsuch.  This elicited the following astonishing reply from originalist Larry Solum (Georgetown) on his usually benign and informative Legal Theory Blog.  Some of the questions might have made sense were Solum the referee for a scholarly article making some of these claims; as a response to an op-ed, they are almost comical overreactions.  Take just Solum's first intervention:

Question One: You wrote the following:

Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

What is the basis for the page count?  Which articles by which originalists scholars are you discussing?  I am very familiar with the theoretical literature on original public meaning, but if this claim is correct there is a large body of work that I have missed entirely.

The basis for the "page count"?  Seriously?  One can look just at Solum's own SSRN page to find at least 400 pages of writing on this topic.  And that's just one author.  Add in Randy Barnett, Keith Whittington, the late Justice Scalia, John McGinnis, Michael Rappaport, Larry Alexander, Will Baude, and Stephen Sachs, and "thousands" seems like a plausible off-the-cuff estimate.  But why quibble about nonsense like this?

I would advise Prof. Bilder to let these questions pass in silence.

UPDATE:  Prof. Solum replies here; I will give him the final word on this matter!

April 3, 2017 in Faculty News, Legal Humor, Of Academic Interest, Professional Advice | Permalink

Sunday, April 2, 2017

New York Times Reporter Elizabeth Olson Claims That Professors Earning Less than First Year Associates are Paid like Law Firm Partners (Michael Simkovic)

New York Times reporter Elizabeth Olson recently complained that the Dean of the University of Cincinnati College of Law was suspended after attempting to slash faculty compensation (“Cincinnati Law Dean Is Put on Leave After Proposing Ways to Cut Budget”).  According to Olson, “law schools like Cincinnati [pay hefty] six-figure professor salaries that are meant to match partner-level wages.” 

Olson goes on to cite the compensation of the current and former Dean of the law school.  This makes about as much sense as citing newspaper executive compensation in a discussion about reducing pay for beat reporters.

Data from 2015—the latest readily publicly available—shows that law professors at Cincinnati earned total compensation averaging $133,000.  A few professors earned less than six figures. Only one faculty member—a former dean and one of the most senior members of the faculty—earned more than $180,000.  Including only Full Professors—the most senior, accomplished faculty members who have obtained tenure and typically have between seven and forty years of work experience—brings average total compensation to $154,000 per year.

As Olson herself reported less than a year ago, first year associates at large law firms earn base salaries of $180,000 per year, not counting substantial bonuses and excellent benefits.  With a few years of experience, elite law firm associates’ total compensation including bonus can exceed $300,000.  Law firm partners at the largest 200 firms can earn hundreds of thousands to millions of dollars per year according to the American Lawyer, and often receive large pensions after retirement.

Continue reading

April 2, 2017 in Advice for Academic Job Seekers, Guest Blogger: Michael Simkovic, Legal Profession, Ludicrous Hyperbole Watch, Weblogs | Permalink

Friday, March 31, 2017

Bureau of Labor Statistics: another strong year for legal employment and incomes

Details here.

March 31, 2017 in Legal Profession, Of Academic Interest | Permalink

"Justifying Academic Freedom: John Stuart Mill and Herbert Marcuse Revisited"

A new draft paper that may be of interest to some readers; the abstract:

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics).

I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America.

Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address.

In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.

March 31, 2017 in Jurisprudence | Permalink

Thursday, March 30, 2017

Next Dean at Berkeley?

Candidates include (at least) Erwin Chemerinsky (UC Irvine), Laura Gomez (UCLA), and Kimberly Yuracko (Northwestern).

March 30, 2017 in Faculty News | Permalink

Wednesday, March 29, 2017

"Naturalism in Legal Philosophy" revised and updated at Stanford Encyclopedia of Philosophy (SEP)

It's also now co-authored with Max Etchemendy, our Law & Philosophy Fellow this year at Chicago.  SEP is a uniquely excellent on-line resource; I commend it to readers looking for high-level introductions to almost any topic in philosophy.

March 29, 2017 in Jurisprudence | Permalink

Tuesday, March 28, 2017

Who is paying the defense attorney fees for one of the accused in the Markel murder?

The state wants to know, the defense lawyers don't want to say.  Anyone know how unusual such requests are and what the rules are in Florida governing disclosure?

March 28, 2017 in Faculty News, Of Academic Interest | Permalink | Comments (0)

Saturday, March 18, 2017

"The Roles of Judges in Democracies: A Realistic View"

A new paper that might be of interest to some readers; the abstract:

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.

March 18, 2017 in Jurisprudence | Permalink

Thursday, March 16, 2017

Hemel & Herzig in the NY Times on efforts to repeal Obamacare (Michael Simkovic)

Daniel Hemel and David Herzig argue in the New York Times that a Republican plan to replace a tax penalty paid by the uninsured under the Affordable Care Act with a penalty paid directly to insurance companies after a gap in coverage could thwart Republican efforts to repeal Obamacare using budgetary reconciliation procedures.

March 16, 2017 in Guest Blogger: Michael Simkovic, Of Academic Interest, Weblogs | Permalink