Posts Tagged ‘Schools for Misrule’

NYT front-pager: law schools don’t teach how to be a lawyer

The story, by David Segal, is here, and yes, I did get there first earlier this year in chapter 3 of my book Schools for Misrule (which you can now take a closer look at through Amazon’s “Look Inside the Book” feature). Reaction from legal academia to Segal’s piece has been largely negative (Matt Bodie/Prawfs, Adler roundup), but Orin Kerr argues:

there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

And here is John Steele in the comments section at Prawfs:

Guys, lighten up. The article goes a little overboard here and there but for a general audience readership covers a lot of ground accurately. If “man bites dog” is what makes for news, the fact that students rack up $150,000 in debt and have no clue about mergers get done is news. It’s not news for those of us in practice or law schools or an in-house law departments, but it’s certainly news for the general audience.

Gideon Kanner sees an ideological angle.

P.S. So does Hans Bader. And John Steele amplifies his comments, while Rick Garnett weighs in on the anti-Segal side. Further: Erik Gerding.

By reader acclaim: “PETA Sues SeaWorld for ‘Enslaving’ Killer Whales”

“People for the Ethical Treatment of Animals is accusing the SeaWorld parks of keeping five star-performer whales in conditions that violate the 13th Amendment ban on slavery. SeaWorld depicted the suit as baseless.” The action may further an “ongoing, intense debate at America’s law schools over expansion of animal rights.” [AP; related on that academic background, including the role of star lawprofs like Cass Sunstein and Larry Tribe, here, here, here, and here]

August 12 roundup

  • More reviews of Schools for Misrule: Counterpoint (U. of Chicago), Wilson Trivino at;
  • “Cops Collar 12 Year Old for “Walking Alone” in Downtown Toronto” [Free-Range Kids] Cop tells mom kids under ten “by law are not allowed outside unsupervised except in their parents’ yard.” [western Maryland, same]
  • As lawmakers seek budget cuts, school finance litigators are on the march to counter their plans [WSJ Law Blog]
  • Wouldn’t waive regs: “U.S. blocks $1 million Italian supercar” [CNN Money]
  • You see, entrepreneurial suit-filing does create jobs: “Hike in Wage-and-Hour Litigation Spurs Demand for Calif. Employment Law Associates” [ABA Journal] How U.S. Congress devastated American Samoa through minimum wage hikes [Mark Perry]
  • CCAF objects in Sirius class action settlement [PoL, earlier]
  • “The Phantom Menace of Sleep Deprived Doctors” [Darshak Sanghavi, NY Times Magazine]

SCOTUS approves Ninth Circuit prisoner-overcrowding order

Alas, my chapter on institutional reform litigation in Schools for Misrule has proved only too relevant to the headlines: In today’s 5-4 Brown v. Plata decision, the Supreme Court approved a Ninth Circuit panel’s order that 46,000 California prisoners be freed to relieve overcrowding (opinion PDF via Josh Blackman). Alito (with Roberts) dissented on the grounds that the Prisoner Litigation Reform Act requires nothing of the sort, and in fact was drafted with a mind to discourage such outcomes:

Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses. Members of Congress were well aware of this experience.

Scalia (with Thomas) dissented on the grounds that, PLRA aside, the orders go far beyond the federal courts’ prescribed role and institutional competence:

It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.

But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.

Concur: Ted Frank, Hans Bader. A contrasting view: Tim Lynch at Cato. Background: podcast with Sarah Hart, Federalist Society. And Jason Mazzone asks whether the majority’s inclusion of a photo of crowded prisoners really helps or hurts its case with the public.