Tag: law school

The Ford Foundation and the Modern American Law School

As much as any other institution, the Ford Foundation has shaped the modern American law school, having provided key backing for developments such as clinical legal education, public interest law, identity-based legal studies, and transnational law. Whether you agree or disagree with Ford’s ideological thrust—and as a libertarian, I regularly disagree—it’s a pretty remarkable set of accomplishments. I give an overview and brief history in this new article for the Capital Research Center’s Foundation Watch, adapted from my book Schools for Misrule.

Cash Rewards For Failing Schools, the Lawsuit Way

I see the editorialists of the New York Times have rhapsodically hailed last week’s 3-2 New Jersey Supreme Court opinion striking down the budget-trimming plans of Gov. Chris Christie. As the press reported, the court ordered instead that an extra $500 million in state funds be allocated to some of the state’s poorest-performing school districts – the so-called Abbott districts, named after the three-decade-running New Jersey school finance litigation, Abbott v. Burke.

It’s too bad the editorial said nothing about the report five years ago in which one leading newspaper surveyed the wreckage done by the then-25-year-old litigation, which it called an “ambitious court-ordered social experiment.” (At that point, $35 billion in state tax money had already been lavished on the Abbott districts.) The paper’s reporting made a convincing case that the orders had squandered billions on mismanaged districts that were already far outspending most others in the state and region, as with Asbury Park, which was spending 70 percent more than the typical New Jersey district. Indeed, “the highest-spending districts were making the fewest gains” in student performance. It’s especially unfortunate because the newspaper that reported all this was the New York Times itself.

As I argue at greater length in my new book, school reform lawsuits like Abbott are much more than just vehicles for inefficiency and waste of tax dollars: they’re examples of an alternative method of governance, accomplished through what is sometimes called institutional reform litigation, and quite remote from the channels of lawmaking and appropriations familiar from civics books. Typically, successful litigation of this sort transfers control over an important issue like school funding from branches of government that are accountable to taxpayers and voters to a cluster of private litigators, expert witnesses, special masters, consultants, law professors, backers in liberal foundations, and so forth. The legal basis for the power grab is often flimsy in the extreme; in the Garden State, for example, the state constitution vaguely mandates that there be a “thorough and efficient” system of public education, and “educational equity” lawyers have prevailed on the courts to erect the whole thirty-year edifice of Abbott orders on a filling in of those mysterious blanks, a process that Gov. Christie has accurately described as “legislating from the bench”. (Our friend Hans Bader at CEI has more here and here.) In New Jersey, as in many other states and cities subject to these suits, governors and legislators may come and go, but the permanent government of court orders and negotiated consent decrees grinds on and on, conferring a curiously unaccountable power on the lawyers who manage and advance the litigation and their circle of allies.

It’s worth noting that since the U.S. Supreme Court’s 1973 decision in San Antonio v. Rodriguez, the federal courts have stayed out of most school finance litigation, leaving it to state courts. For decades, outspoken voices in the law schools have been calling for Rodriguez to be overturned or at least end-run so as to confer an Abbott-like charter for social experimentation on the federal courts, which could then proceed to issue orders equalizing school finance, ordering “Robin Hood” aid to underperforming districts, and so forth. The most prominent advocate of this view in recent years has been a Berkeley law professor named Goodwin Liu – his views are summarized by admirers here and here – which may explain in part why Liu’s recent Ninth Circuit nomination raised such strong feelings.

Upcoming Debates on Obamacare, Use of Foreign Law

Last year I hit about 35 states on various lecture/debate tours.  To round that out – and further reduce the states I’ve never visited (though Alaska, Iowa, Nebraska, and the Dakotas will stubbornly remain untrodden by my feet) – this winter I have a schedule that’s eventful but not insane like my fall was.  Here are the rest of my public events in January (all sponsored by the Federalist Society):

  • Jan. 18 at noon — Debate on the Constitutionality of Obamacare — University of Colorado-Boulder Law School 
  • Jan.19 at noon — Debate on the Constitutionality of Obamacre — University of Wyoming Law School
  • Jan.20 at 11am — Debate on the Constitutionality of Obamacare – BYU Law School 
  • Jan.24 at 12:15pm — Debate on the Use of Foreign Law in Constitutional Interpretation – University of Utah Law School 
  • Jan.26 at 5pm — Debate on the Constitutionality of Obamacare – Widener University Law School (Wilmington, DE campus) 

As always, if you attend any of these events, please do come up and introduce yourself. You can also follow me on Twitter at @ishapiro.

Law Professor Confesses ‘I’m a Criminal’

Law Professor Michelle Alexander:

Lately, I’ve been telling people that I’m a criminal. This shocks most people, since I don’t “look like” one. I’m a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I’m a law professor and I once clerked for a U.S. Supreme Court Justice – not the sort of thing you’d expect a criminal to do.

What’d you get convicted of? people ask. Nothing, I say. Well, then why do you say you’re a criminal? Because I am a criminal, I say, just like you.

Read the whole thing. (H/T Sentencing Law and Policy).  Judge Alex Kozinski and Misha Tseytlin make a similar point in an essay in my book entitled, “You’re (Probably) a Federal Criminal.”

More here and here.

Kagan on Military Recruitment

Elena Kagan has been getting a lot of flak  from the right for her position on military recruitment at Harvard. While the military’s don’t ask don’t tell policy is unjust, Harvard’s position on recruitment was also misplaced—and, were the question ever presented to my faculty, I’d vote against barring the military from recruiting at my law school for the same reasons as Ilya Somin.

But, although Harvard made the wrong call on recruitment (albeit one that, in fairness, is not attributable just to Kagan, but, reportedly, to an overwhelming majority of the Harvard law faculty), Kagan’s opposition to the Solomon Amendment, which conditioned federal funding on JAG recruiters’ access to campus, has much to recommend it from a libertarian standpoint, for the reasons put forward in Cato’s amicus brief  in Rumsfeld v. FAIR, the case challenging the Solomon Amendment (which you can download here). (Disclosure: I co-wrote the brief when I was at Cato. As I recall, this was a controversial position within Cato, and I’d guess that remains true today. Cato’s current legal shop might well take a different view were the question presented to it now.)

True, the Supreme Court rejected our position 8-0. But it’s not the first time, and will be not be the last, that the Court musters eight votes for what some libertarians think is a questionable outcome.

And for the record, my view on Kagan—while she’s, as Kagan would say, “not my people,” she’s a top-notch scholar, a great Dean (who was very fair to faculty conservatives and libertarians), by all accounts an outstanding teacher, and likely to fall somewhere on the liberal continuum to the left of Breyer and to the right of Stevens.  Could be worse!