Is There a Correlation between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study

This empirical study attempts to answer an age-old debate in legal academia: whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and creates an index for teaching effectiveness. This index was then correlated against five different measures of research productivity. The first three measure each professor\u27s productivity for the years 2000-03. These productivity measures include a raw count of publications and two weighted counts. The scholarly productivity measure weights scholarly books and top-20 or peer reviewed law review articles above casebooks, treatises or other publications. By comparison, the practice-oriented productivity measure weights casebooks, treatises and practitioner articles at the top of the scale. There are also two measures of scholarly influence. One is a lifetime citation count, and the other is a count of citations per year. These five measures of research productivity cover virtually any definition of research productivity. Combined with four years of teaching evaluation data the study provides a powerful measure of both sides of the teaching versus scholarship debate. The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust

An Empirical Study of Supreme Court Justice Pre-Appointment Experience

This Article compares the years of experience that preceded each Justice‘s appointment to the United States Supreme Court. This Article seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from those of earlier Supreme Court Justices and to persuade the reader that this is harmful. To determine how the current Justices compare to their historical peers, the study gathered a database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C., than any previous Supreme Court Justices. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time spent elsewhere; the Roberts Court Justices have spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. Having demonstrated that the Roberts Justices are outliers across multiple studied experiences, this Article argues that the change is regrettable for multiple normative reasons

Economists on Deregulation of the American Legal Profession: Praise and Critique

Article published in the Michigan State Law Review

The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons

In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers\u27 ethical and moral standards through professionalism and other non-mandatory efforts. These bisected goals clash in several notable ways. First, separating the mandatory from the hortatory creates cynicism about both projects. Second, theorists have long argued that criminal prohibitions are most effective when they overlap with commonly held morality, because people tend to obey those laws regardless of enforcement. As lawyer regulators have eliminated the broadly moral from the Rules of Professional Conduct they have greatly decreased the odds of compliance, since lawyers will not feel ethically bound to obey, and lawyer regulations are notoriously under-enforced. Lastly, black-letter rules trigger a particular lawyer heuristic I call boundary seeking. Lawyers are trained to find the border between the legal and the illegal, and this heuristic replaces any broader ethical consideration. I suggest eliminating these inconsistencies by returning to the original, unitary goal of legal ethics, and redrafting a general statement of ethical, moral, and practical principles to govern the legal profession, i.e. we should return to the approach of the ABA\u27s 1908 Canons of Professional Ethics

Harry Potter and the Half-Crazed Bureaucracy

What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying; designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful. go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? You might assume that the above list is the work of some despotic central African nation, but it is actually the product of the Ministry of Magic, the magicians\u27 government in J.K. Rowling\u27s Harry Potter series. When Harry Potter and the Half-Blood Prince was released this summer, I, along with many others, bought and read it on the day of its release. I was immediately struck by Rowling\u27s unsparingly negative portrait of the Ministry of Magic and its bureaucrats. I decided to sit down and reread each of the Harry Potter books with an eye toward discerning what exactly J.K. Rowling\u27s most recent novel tells us about the nature, societal role, and legitimacy of government

Deborah L. Rhode in Memoriam: Three Stories and Ten Life Lessons

In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession

An Article I Theory of the Inherent Powers of the Federal Courts

A proper understanding of the nature of the inherent powers begins with separating whether the judiciary has any constitutional power to overrule Congress from the judiciary’s power to act in the absence of congressional action, i.e. in the interstices of federal statutes and rules. Separating out these two very different types of powers helps clarify that the inherent powers of federal courts are actually both broader and shallower than have been previously thought: Congress has near plenary authority in this area, but the courts have a great deal of leeway to act when Congress has not. An examination of the history and text of the Constitution, the ratification debates, and the earliest cases establishes that it is Article I’s necessary and proper clause, not Article III’s “judicial power” or “courts,” which controls any inherent judicial authority. As such, Congress has near plenary authority over the structure and procedure of the federal courts. With the power of Congress in mind, however, the judiciary has substantial authority to act when Congress has not. The Framers created a remarkably flexible judicial branch based upon the way common law courts operated in the late-18th century. Those courts regularly acted in the absence of legislative authority in a multitude of ways, bound by the common law and current practice, but not by legislative silence. Thus, as long as a federal court’s use of the inherent power has not been foreclosed by an existing Act of Congress and is reflective of the judicial power – i.e. helpful to the deciding of cases – courts are empowered to act, as long as they understand that Congress can always fix what it does not like. This analysis also best explains what courts have done since the framing. While the Supreme Court has repeatedly claimed an inherent power strong enough to invalidate a congressional act in dicta, it has never actually invalidated one, even in situations where Congress has substantially impinged upon traditional areas of inherent power like rule making or contempt. This understanding of congressional and judicial power thus offers an elegant solution to the thorny problem of inherent powers and squares the circle by fitting a unified theory to the history, language and structure of the Constitution and the more modern, pro-judiciary case law