What Are the Most Useful Law School Courses?

Nathan Koppel, One View on the Most Useful Courses in Law School (August 25, 2011):

Over at The Volokh Conspiracy [a blog], George Washington Law School professor Orin Kerr has written this useful item about a George Washington Law School survey that asked alumni which elective courses had proven the most useful to them and which electives they wish they had taken.

Here are the top 3 ranked courses on the usefulness scale:

1. evidence —  (27% of respondents)

2. administrative law — (21%)

3. corporations — (18%)

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Evidence marshaling software MarshalPlan

It's here: the law of evidence on Spindle Law. See also this post and this post.

Supreme Court Takes Eyewitness Identification Case

The Supreme Court granted certiorari in an eyewitness identification case, Perry v. New Hampshire, No. 10-8974. The petitioner's brief states the issue thus:



QUESTION PRESENTED
Do the due process safeguards against the State’s use of unreliable eyewitness identification evidence at trial apply to all identifications which arise from impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of “improper state action”?
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The American Psychological Association submitted an amicus brief.


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Evidence marshaling software MarshalPlan

It's here: the law of evidence on Spindle Law. See also this post and this post.

New Jersey Revises Its Procedures for the Handling of Eyewitness Identifications in Criminal Cases

The opinion of the New Jersey Supreme Court is here.



The opinion in State v. Larry R. Henderson (A-8-08)(062218) (August 24, 2011) reviews a wide swath of literature and research about eyewitness identifications and lays down new rules governing judicial assessment and regulation of eyewitness identifications in criminal cases.

This long opinion requires careful study.

The decision, said to be pathbreakng, will probably prove to be pathbreaking only if it proves to be persuasive. The legal grounds for the decision seem to apply only to New Jersey. The New Jersey Supreme Court wrote:

10 We have no authority, of course, to modify Manson [v. Brathwaite, 432 U.S. 98 (1977) [a United States Supreme Court decision dealing with the the implications of the federal due process guarantee for the handling of eyewitness identification evidence in criminal cases]. The expanded protections stem from the due process rights guaranteed under the State Constitution. Compare N.J. Const. art. I, § 1 (“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”), with U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”); see Jamgochian v.N.J. State Parole Bd., 196 N.J. 222, 239 (2008) (“[W]e have, from time to time, construed Article 1, Paragraph 1 [of the New Jersey Constitution] to provide more due process protections than those afforded under the United States Constitution.”); see also State v. Reid, 194 N.J. 386, 396-97 (2008) (recognizing greater protection of individual rights under New Jersey Constitution).

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Evidence marshaling software MarshalPlan

It's here: the law of evidence on Spindle Law. See also this post and this post.

Reflections on Campos v. Leiter: The Purpose(s) of Legal Education and Legal Scholarship

In the grand scheme of things, it is not very important whether one "likes" Professor Campos more than Professor Leiter, or vice-versa. But the question of what ought to be taught in law schools is important.


Although I (now) personally prefer to pursue scholarship that makes some difference to the practice and administration of the law, in my preferred scheme of things there would be no single answer to the question of how law should be studied and taught at law schools. "All other things being equal," I would make scholarly & pedagogical diversity an important value; "all other things being equal," I would let different law schools pursue different pedagogical and scholarly objectives.
But if law schools are to be given the latitude to decide how their faculty members are to study and teach law, it is critical that law schools be up front about what they do and do not do for their students. Then students who have no interest in Rorty and similar matters could avoid law schools where Rorty's philosophy or whatnot is emphasized. But the hooker is the phrase "all other things being equal." For example, it is fair to ask if law schools are capable of transparency about what their faculty members do and do not do. And it is fair to wonder how prospective students are to judge the importance of Rorty and similar matters to the study of law before they know much of anything about Rorty, similar matters, or the law.
I also put to one side the important and troublesome question of whether publicly-funded law schools fall into a special category -- whether, because (and if) they receive (large amounts of) public money, such law schools cannot go whichever way they please and must do whatever (someone thinks, but who?) best prepares their students for work as legal professionals -- as practicing lawyers, judges, legislators, and so on.

• N.B. The word "best" adds a inherently tricky wrinkle to the stated hypothesis about the obligations of state-funded law schools: "best" in what sense(s)?

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Evidence marshaling software MarshalPlan

It's here: the law of evidence on Spindle Law. See also this post and this post.

An Academic Donnybrook: Professor Campos v. Professor Leiter

It has now been made public (by Professor Campos) that Professor Paul Campos is the author of the blog Inside the Law School Scam. Professor Campos has used that blog and other outlets to attack alleged scams and frauds by law schools. These attacks have apparently aroused the ire of Professor Brian Leiter (but I have no personal knowledge of this). Professor Campos replied thus to Professor Leiter's presumed positions:

It is thus with a certain sadness that I note one of the leading lights of contemporary legal academia, Professor Brian Leiter, the Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Value, at the University of Chicago Law School, has, I have been told, chosen to point out to the world that, in comparison to himself, I am a poor scholar and have reprehensible work habits, rather than responding to any of my arguments about the state of the contemporary law school. This is unfortunate, as who could doubt that someone with Professor Leiter's extensive training in the analytic philosophical tradition would not have many valuable contributions to make regarding such questions as precisely why law school costs have increased exponentially, even as the job prospects of law school graduates have declined? (When I was doing background research for this piece I was reminded that the law faculty on which Professor Leiter currently serves includes several legal academics whose own professional work is in every sense admirable. I can only imagine how pleased they are to have acquired someone with Professor Leiter's unique set of talents). Nor can anyone doubt that Professor Leiter would add a valuable voice to the debate regarding how much contemporary legal academic scholarship is actually worth the remarkably high price students are required to pay for it. One must admit that it would be unrealistic to expect someone as busy as Professor Leiter to take time away from the rest of his many professional obligations to note the substance of this blog, let alone that he should be expected to put in the effort necessary to evaluate the academic talents and personal character of its author. Professor Leiter already makes a significant sacrifice of his time and talents by maintaining a blog that catalogs in exquisite detail the professional comings and goings of legal academics and professors of philosophy. He also devotes his remarkably wide-ranging abilities to constructing and maintaining a set of law school rankings (as well as another one for philosophy faculties), that does a far more rigorous job of determining the precise academic quality -- or at least prestige -- of the publications of law school faculty than the rightly-reviled set published by U.S. News & World Report. Without Professor Leiter's exemplary work on the subject, legal academics and the world at large would both find it much more difficult to determine whether, for example, the faculties of the NYU and Columbia law schools have had the fifth and sixth greatest scholarly impact on their fields over the past five years, or vice versa. (Professor Leiter's deans and faculty colleagues must find it especially gratifying that his rankings consistently discover that whatever school currently employs him deserves a a higher spot in the legal academic hierarchy than is assigned to it in the USNWR rankings). Nor can anyone blame Professor Leiter for refusing to bring his expertise and experience to bear on such matters as the extent to which law schools actually train students to engage in some aspect of the practice of law, given that he has never held any professional position for which a law degree (let alone bar admission) is a requirement. On this subject, his silence reflects a becoming and characteristic modesty. I am hardly in a position to dispute Professor Leiter's evaluation of the quality of my scholarship, both because I haven't seen it, and because, as I believe Freidrich Nietzsche observed (or perhaps it was Lord Coke), no man should be a judge in his own case. That Professor Leiter's scholarship, touching on such complex and important subjects as those explored in "Rorty and the Philosophical Tradition: Comment on Professor Szubka." 25 Diametros 159 (2010)," and in "Explaining Theoretical Disagreement." 76 University of Chicago Law Review 1215 (2009) (also published in Spanish in Analisis y Derecho), neither of which I have read, but which I plan to give my full attention as soon as time permits, is of both the highest quality and the deepest relevance to the mission of the contemporary law school is a proposition that surely no one qualified to evaluate the question would bother to dispute. As for a comparison of our work habits and moral character, I have never met, let alone worked with, Professor Leiter, so I must regretfully leave such comparisons to the tools employed by others. 

All of which is to say that I welcome substantive discussion and disagreement about the issues raised on this blog, but have no interest in pursuing evaluations of personal character and the like. No reasonable person can deny that, in the course of what to all outward appearances is a brilliant career, Professor Leiter has played the legal academic game superbly well, and I wish him the best of luck in his future endeavors (assuming, of course, that those endeavors do not involve any actionable statements regarding the targets of his ire). For the moment, it is enough to note that the kind of work he does has its rewards, and that which I do has others.

 
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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

46,656 Varieties of Bayesianism (at least)

Legal theorists sometimes speak of "the" Bayesian interpretation of evidence, inference, proof, and probability. However, see Sharon Bertsch McGrayne, The Theory That Would Not Die 129 (Yale 2011):

Bayesian theories mushroomed in glorious profusion during the 1960s, and Jack Good claimed he counted "at least 46656 different interpretations," far more than the world had statisticians.1 [1. I.J. Good, "46656 Varieties of Bayesianism," Letter to the Editor, 25 American Statistician 62-63 (1971).] Version included subjective, personalist, objective, empirical Bayes (EB for short), semi-EB, semi-Bayes, epistemic, intuitionist, logical, fuzzy, hierarchical, pseudo, quasi, compound, parametric, nonparametric, hyperparametric, and non-hyperparametric Bayes. ... When asked how to differentiate one Bayesian from another, a biostatistician cracked, "Ye shall know them by their posteriors."

Australia's High Court on Difficulties with Conditionally Admitted Expert Evidence

Dasreef Pty Ltd v. Hawchar,  No. S313/2010, 2011 HCA 21 (High Court of Australia, June 22, 2011) (unreported judgment):

[¶ 121] Procedural advantages of a proof of assumption rule. A construction of s 79 which does not require establishment at the time of tender that there either has been, or will be, evidence admitted capable of proving the assumed facts permits more expert opinion evidence to be received. It permits postponement of the difficulties by seeking to solve them as questions of weight at a later time -- even as late as the end of the trial. 167 But increasing the amount of this type of evidence is not necessarily valuable. It may be unfair to the opposing party. It is indecisive. Its indecisiveness inflicts uncertainties on the parties. The additional evidence received may have a cloud over it for the rest of the trial.

[¶ 122] In contrast, a proof of assumption rule diminishes the risk of clouds. It encourages early and decisive rulings. Early and decisive rulings are important, both for the party opposing tender and for the tendering party. 

[¶ 123] From the point of view of the party opposing tender, it is vitally important to know what evidence is or is not in, and how much utility expert opinion evidence is likely to have. That knowledge affects decisions about cross-examining the witnesses called by the tendering party; decisions by defendants whether or not to submit that there is no case to answer; decisions whether or not to call particular categories of evidence; and, if rulings are delayed until after the close of the trial, decisions about what is to be said in address. A practice of deciding whether a proof of assumption rule has been complied with at the time when expert opinion evidence is tendered avoids a dilemma for cross-examiners. One horn of the dilemma is that to cross-examine a witness about expert evidence which may later be rejected or treated as useless carries the risk of giving it a foothold in the record which it lacked at the time of the tender. The other horn of the dilemma is that, if the opposing party avoids that danger by not cross-examining on the expert evidence, there is a risk that it will be accepted despite its feebleness. It is a dilemma which cross-examiners should not have to face. 

[¶ 124] From the point of view of the tendering party, it is desirable that the admissibility of expert opinion evidence tendered by that party be clear by the moment when the case for that party closes. It is undesirable that expert opinion evidence admitted in that party's case should later be held -- perhaps as late as the time of judgment -- to be subject to such doubts about its weight that it lacks utility. It is undesirable that its admissibility be in suspense until a time after the tendering party's case has closed. If the admissibility of expert opinion evidence which is tendered and conditionally admitted is not finally ruled on until after the case for the tendering party is closed, and the evidence is then rejected, or its weight has become so questionable that it is useless, the tendering party may have lost an opportunity to repair the position before its case closed, either by calling further witnesses or tendering further documents, or by recalling witnesses who had already been in the box. The capacity of tendering parties who are the prosecution or the plaintiff to reopen their cases rests on a discretion in the court which may not be favourably exercised; their capacity to tender evidence in reply is constricted by fairly strict rules, particularly in criminal cases. 

[¶ 125] Jury trials. There are yet further difficulties in relation to jury trials. If evidence is rejected when tendered, the jurors are not confused by it, for they will ordinarily be absent during the debate about the tender: s 189(4) of the Act. If circumstances change and evidence once rejected becomes admissible, it can be re-tendered successfully. Again there is no risk of jury confusion. However, considerable confusion can flow where, although opinion evidence is admitted conditionally, later it becomes apparent that the condition is not satisfied. The evidence must be removed from the record, otherwise there would be no difference between conditional and unconditional admission. The same problems arise where opinion evidence is admitted, not on any formal condition, but simply in the expectation that at some time after the tender of the opinion evidence, witnesses will be called to establish the factual assumptions on which the opinion was pronounced, but that expectation is disappointed. In either event the jury will have heard evidence which is inadmissible. Should it be struck out? Should it be withdrawn from the jury? Should the jury be directed that the issue to which the expert's evidence was directed no longer arises? Should the jury be told not to consider the expert's evidence? Should the jury be told to disregard the expert's evidence on the ground that the factual basis has not been proved? 168 (168. See Wigmore, Evidence in Trials at Common Law, Tillers rev (1983), Vol 1 at 702-731 [Sections] 14 - 14.1 and 847-855 [Section] 19.) All these courses are possible. Each course is less attractive than a regime having a proof of assumption rule and a practice of rejecting the tender until it has been satisfied. 

[¶ 126] And what is to be done with any evidence that was called in relation to that conditionally admitted but inadmissible evidence, whether it was elicited by the cross-examination of the party opposing tender or tendered by that party in its own case? That problem is reduced if decisive rulings about compliance with a proof of assumption rule are made. 

[¶ 127] Conclusion. A construction of s 79 which holds that there is no proof of assumption rule in relation to s 79 tenders is difficult to reconcile with the practical exigencies pursuant to which parties conduct their cases. It is necessary for trials to be conducted in a businesslike and efficient way. That is a matter of context pointing to the view that there is a proof of assumption rule with which those tendering expert opinion evidence must comply by reason of ss 55, 56 and 79 read against the background of the common law.

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It's here: the law of evidence on Spindle Law. See also this post and this post.