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Lewyn Addresses America

A little politics, a little urbanism- I also blog 100 percent on urbanism at and

I just finished the AALS conference, a conference of law professors from all areas (both geographic and subject-matter).  I thought it might be nice to blog about what I learned, since this means I at least have some written record that I can look at after I’ve forgotten everything.

I started on Thurs. with the AALS’s Jewish Law section, listening to a discussion about Nathan Isaacs, a Jewish professor at Harvard in the 20s.  Major takeaway point: Mark Rosen of Chicago-Kent spoke about Isaac’s interest in something called “cycle theory”, which held that law went through a cycle of codification/glosses/equitable changes/new codification. 

Then came a panel on property.  Peter Byrne of Georgetown spoke on historic preservation, trying to defend historic preservation law against the charge that it limited urban infill and thus raised housing prices by constricting supply.  Byrne argued that in Washington, DC, perhaps the most preservation-limited city in the country, only 20% of housing is affected at all by preservation, and that some new infill is allowable even in those areas, and moreover that the city had been able to gain population in the past decade despite preservation.  It certainly makes sense to me that preservation doesn’t make a huge difference in housing supply, but I am not knowledgeable enough to have a truly informed opinion.

David Dana and Dan Rodrieguz of Northwestern spoke about something called “agglomeration economies”- the idea that urban density leads to economic growth.   (By “urban” I mean “metro area” as opposed to rural- not the differences between car-oriented densities and pedestrian-oriented densities; it might be the case that once you get to suburban densities of 1000 or 2000 people per square mile there is a point of diminishing returns to density- then again it might not be).  They spoke about  “market depth” – the idea that where people are clustered together there is more of a market that people can choose from.  So for example, if thousands of actors are clustered in Los Angeles it is a lot easier for movie studios to get qualified actors there than in, say, Des Moines (or for that matter for actors to choose movie studios where the studios are clustered in LA).  This concept also applies to goods- for example where lots of diamond dealers are clustered in New York’s Diamond District, buyers can comparison shop more easily).

They then raised an interesting example of a close call: at 14th and U in DC, there is a rule that no more than 25% of storefronts could be bars or restaurants (or maybe its a proposal, I can’t remember which).  Advantages of rule are that neighbors are protected from clustering of drunks.  Downside: loss of market depth from restaurants clustering together, reducing ability of diners to comparison shop which in turn makes area less attractive.  (I couldn’t help comparing distribution of kosher Bukharan restaurants in Rego Park- 108th Street has market depth but other blocks with just one restaurant don’t).

At the end of Thursday I went to a panel on the future of legal education.  Because I came in near the end and people did not have nameplates I could not figure out who said what.  But one person spoke about the costs of legal education and argued it was impossible to cut anything.  He noted that 30 years ago, legal education was cheaper but much worse in a variety of ways: course offerings were more sparse, clinical offerings were virtually nonexistent, classes were more likely to be larger (100+ students say; by contrast I teach 54 students in property and I know someone at another school with just 40). I am not sure I agree; it may be that smaller classes etc are nice but not worth the cost.  To put it another way: I don’t think it is that hard to make legal education cheaper– just have each faculty member teach more classes with more students, or (to be even more radical) have adjuncts do so.  The question that matters is:  is the reduced quality from returning to the “bad old days” worth the lower tuition? And more importantly, should the ABA allow schools to make this kind of experiment, or should it impose a high standard of perceived quality on everyone?   I’m not taking a position, just suggesting a possible debate.

Another speaker discussed for-profit schools: I learned that there are only six of them (which surprised me).  I have taught at two (Florida Coastal and John Marshall in Atlanta) , and most of the rest were or are owned by the owners of one of the schools I have taught at.   The speaker was focused (correctly) on the similarities between these schools and others.  Biggest difference is of course no need to raise  funds from alumni!

I spent most of Friday at another hotel going to the Federalist Society mini-conference.

The first panel (which I only caught the last 20 minutes of) was on public sector unions.  John McGinnis of Northwestern argued that public employees’ interest differed from those of taxpayers in two ways.  First, taxpayers obviously will prefer getting more for less, while public employees favor higher pay.  Second, taxpayers (in their role of recipients of government services) might prefer more innovation, while employees might not for a variety of reasons (including but not limited to job security).   Joseph Slater of Toledo emphasized that there is a public interest in well-paid employees, since (for example) people are going to be less interested in being teachers if the pay stinks. He also seemed to think there was not a strong correlation between union strength and quality of public services such as schools.

Samuel Estreicher of NYU addressed a variety of less polarizing issues.  He mentioned that one reason unions defend employees’ more frivolous claims of wrongful discharge is that they were afraid of being sued by employees for violating their duty of fair representation. (I think he was for some sort of immunity but am not sure). 

Then I saw a variety of very short presentations on papers.  The one that was easiest for me to follow was William Baude’s presentation on DOMA (Defense of Marriage Act) and conflict of law rules.  DOMA sets out a rule that for purposes of federal law, the only valid marriages are man/woman marriage.  But what if DOMA is invalidated by the courts?  Which law do courts and federal agencies apply in deciding whether a gay couple are married for purposes of federal law of various sorts (say, a tax deduction related to marriage)? Do you apply state law rules?  But what happens if relationships cross state lines (e.g. if couple marries in Mass. then moves to Texas and wants a divorce).

 Baude said courts have resolved this issue in other contexts in a variety of ways: (1) create a conflicts of law rule such as applying law of forum state (in other words, if case is in Mass. apply Mass. law, if case in Texas apply Texas law), 2) focus on the specific federal statute involved and create a rule for that federal statute, and (3) apply the substantive domestic relations rule they like best.  Rule (1) works for litigation but doesn’t work if there is no lawsuit (for example if a federal administrative agency is making the decision in a less adversarial context).    

I think Baude favored a variant of (1), applying the law of the parties’ domicile; I don’t know enough about “domicile” to know how clear a rule this would be.

The last panel, on Sunday, was the most interesting for me.  This one was on “Busting Out In Scholarship” and discussed unconventional forms of scholarship such as blogging, grant-supported research outside the law review context, and even conventional law review articles on unconventional topics (e.g. rural sociology).  The most distressing part was the view of some of the panelists that at their schools, anything that wasn’t likely to make it to a top 20 journal or get lots of citations from other professors (and in particular anything practical, empirical or non-theoretical) had to be reserved for post-tenure work; one said her tenure committee would look less favorably on her interests in law and rural life than on scholarship on feminist legal theory. 

For once, I was thankful that I have taught at John Marshall and Florida Coastal, where if you publish anything at all (or at least any law review article) your bosses will be very happy (or at least if they are unhappy it will be for other reasons!)

I am sure I have misunderstood some of what I heard; I apologize in advance for what I misunderstood.


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