Saturday, December 15, 2012

Take The Classroom Back

Newberry College in Columbia, South Carolina, will offer a major in social media.
The college, for its part, explains that this is one of the first interdisciplinary social media majors. It says it blends graphic design, communications, business, marketing, psychology, and statistics, and that social media is such a vital part of marketing and other business habits that it'll be a valuable qualification with a likely career path ahead of it. One way students will learn mobile marketing, the college says (via Fox 57), is by designing QR codes, "those little black and white scanners you use with your smartphone." Apparently this is the "hot new way" to do marketing with mobile phones.
So...last time we looked, the QR code was frowned upon by almost everyone, everywhere (though it does linger in the U.S.). And surely one worry is that by the time students graduate in 2017, with the course starting in 2013, the rocket-speed development of social media itself will have outpaced their education.
No, this isn't from the Onion, but from educators who are trying to become relevant in a young person's world by getting ahead of the curve, even though there is neither a chance of success nor a need to turn culture into coursework, and cater to the interests of children.

What teenager wouldn't be enticed by a major in Facebook with a minor in Pinterest?  Of course, if they offered this a decade ago, the major would have been Netscape and they would be working the counter at Dairy Queen today, if they were lucky.

What type of educator panders to youth culture in this way?  All types, actually.

Having taken lawprofs to task for the inexcusable failure rate on the bar exam, it's worthwhile to consider what has gone terribly wrong in the classroom. It's not that lawprofs aren't smart enough to adequately educate law students, though their interest in pedagogy as compared to indulgent scholarship is in question. But, from what I know of law professors in general, they want to teach students well, even if it's not their primary focus.

So if it isn't their capability to teach or knowledge of the law, then what? 

My surmise is that a core problem is that lawprofs have allowed the inmates to take over the asylum. Law students today have a very different perspective of their relative worth. They believe their opinions are important. Stemming from an excess of unwarranted self-esteem and entitlement, borne of years of coddling, they view themselves as peers of their professors.

They have questions, and demand not only prompt answers, but answers that validate them. The will not tolerate the Socratic Method, as it belittles them and reflects a lack of respect.  There are no longer wrong answers in law school, but just answers not as right as they could have been. And when a student disagrees, asserting that his answer is every bit as good as the one the professor "suggests," they have no qualms about informing the professor of her error.

What does not happen anymore is a professor informing a law student that they are wrong. Dead, completely wrong. Totally wrong. There is no Kingsfield to hand Hart a dime.  Any lawprof foolish enough to do so would learn that he was "condescending and disrespectful." 

And why, an old lawyer wonders, would any lawprof care what a law student thought of him? The dark side of empiricism, evaluations. I asked a lawprof for whom I have enormous respect what drives lawprofs to give a damn about evaluations. This is what I was told:
Deans probably give popular teachers a bit more money in salary, although it's hard to know for sure and varies Dean to Dean. Bad teaching evals can make a lateral move less likely and tenure harder, too, although that's probably only if the evaluations are really bad.   But I suspect the real reason professors care is that everyone wants to be popular, and to feel like their work is valued.  And for professors, evaluations are like their grades, and professors tend to be Type A people who are competitive and want to get high grades.
This is a shocking and deeply disturbing explanation.  A law professor cannot, by definition, be "condescending" to a law student. There is a reason why one is the teacher and the other the student. The teacher possesses superior knowledge. The student is an empty vessel, waiting to be filled with the teacher's knowledge.  At least that was the old concept, before they needed the permission and approval of students to teach them.
Plus, law students tend to be a pretty nice people, and it's natural to want the nice people you work with to like you back.
Law professors do not "work with" law students. They teach law students. Or at least they used to, and many of us thought that was still the job. 

Even though practicing lawyers may not know what happens in the classroom these days, we can see the attitude on blogs, Twitter, Facebook, etc., where law students are so bold as to school us on the law. One of my favorite examples was on Twitter, where a law student would twit her opinions on the law to me, which were ignorant and juvenile, and I told her so and explained why.  She was outraged that I didn't respect her views, at my snide, arrogant and condescending attitude.

I responded that the fact that I acknowledged her existence at all was a demonstration of respect far beyond what she deserved. In what universe does a law student get to demand the attention of an experienced lawyer?  In her universe, I was told. In her universe, she was entitled to demand my attention and respect, and my failure to comply with her demands, and in the manner she demanded, made me unworthy.

Dear Lawprofs:  Take back your classroom.  These are not your peers, your colleagues. Perhaps one day they will be, but not now. When you seek their approval, you forfeit your authority to teach them.  If they are wrong, someone must tell them they are wrong. If they lack the capacity to become a lawyer, someone must give them a dime and tell them to call their mother. 

But they won't like you?  Too bad. Your job is not to be liked, but to teach blobs of clay to become lawyers. You do not need any more permission than the fact they sit in your classroom.  They disagree with what you say? Too bad. They are students. They know nothing. That's why they're there.  Their feelings will be hurt if you don't apologize for anything less than glowing validation of their every thought, and they will take it out on you in their evaluations?

That's why they pay you the big bucks.

The expectation of students is that you will honor and respect them, no matter what.  They can be wrong, yet you will find something positive to say because they cannot handle the slightest hint of criticism. They are fragile. They are delicate. They are special.  And since you want them to like you, you pander to their demands. 

As the bar exam results prove, this hasn't helped them to meet the minimal level of competency to become a lawyer. As unemployment rates prove, they are about to learn what real disappointment means. And as their skill in the representation of clients proves, real life will not be nearly as kind to their fragile self-esteem as you were.

You have done them no favors. You have not done your job. Perhaps they are now your dearest pals, but they didn't need a friend. They needed a teacher.

As I pay attention to what lawprofs say and do, I also pay attention to what law students and new lawyers say and do. Some are remarkably astute. Some are mind-bogglingly misguided. They hate me for telling them when they are wrong. They call me snide, arrogant and condescending. And I don't give a damn. They are not my peers, but children in dire need of guidance that no one else is willing to give them. 

Of course, they won't listen to me. I don't coddle them and rub their little tummies. So as long as you concern yourselves more with sweet words on their evaluations, law students will continue to emerge from your classrooms incapable of the rigors of law and unsafe for clients. But who cares, as long as they like you. 

This is the pedagogy you've created and perpetuated. If you have any balls at all, take back your classroom and teach your students well.  Hurt their feelings whenever their feelings need to be hurt. That may be the most important lesson you can ever teach them.  And stop caring more about your validation than what these ignorant, entitled misfits will do to clients some day.

Cross posted at Simple Justice.

Monday, December 3, 2012

Time for universalizing international criminal justice

by Max du Plessis

It has become fashionable to criticize the International
Criminal Court (ICC) for its exclusive focus on African cases.  The critical perception of the ICC and its
work in Africa is a problem of history and international politics.  Developing nations, particularly from the
South, now repeatedly and rightly complain about the skewed power relations
reflected in the Security Council.  Those
power relations – and the imbalance of power within the Council – have come
sharply into focus in the case of the ICC. 
That is because of the role reserved for the Security Council, through
the Rome Statute that created the ICC, within the ICC regime.  After a decade of the ICC’s work, we have
witnessed as the Security Council referred two African situations to the ICC
(Sudan, and Libya) – but has repeatedly failed to do so in respect of equally
deserving situations (in relation to crimes committed by Israel, and most
recently in respect of the crimes unfolding before our eyes in Syria).  Geographically we now have ten years of the
ICC’s work, and the reality that all the cases opened by that Court are in

At a conference recently held in Nuremberg in early October
2012, the new Prosecutor of the Court, Ms Fatou Bensouda, correctly responded
to African critics by proclaiming powerfully, in her words, “that if you don’t
wish to be targeted by the ICC, then don’t commit the crimes”.  And Ms Bensouda is right to highlight that
there are good reasons for why each of the African situations are currently
before the Court, not least of all because the bulk of the cases being
investigated are on account of African governments “self-referring” cases to
the ICC. Furthermore, we might pause to note that African victims of the
heinous crimes committed against them in the DRC, or in Uganda, or in Cote d’
Ivoire, or in Kenya, or in Sudan, or in Libya, don’t particularly care that the
ICC’s focus is on African situations only – probably in their minds they are
only too satisfied that the ICC (somebody, anybody!), is attempting to deal
with the perpetrators of these crimes.  
It would be a double-tragedy to assume that their victims share the
self-serving criticisms of the ICC by African despots and powerful elites.  And self-serving criticisms they all too
often are – one cannot imagine African leaders or the African Union caring much
to criticize the ICC if it had decided to pursue a worthy case against the head
of state from, say, a South American country. 
We are closer to the truth if we accept the obvious – which is that African
criticisms of the ICC’s focus on President al-Bashir of Sudan arise precisely
because his case brings home to others geographically and graphically that they
may be next. 

Nevertheless, it is time to accept that all these African
cases give rise to a perception problem, the sum of which can no longer be
ignored, and which threatens to undermine the credibility of the court.  Let me tell you why, for three reasons.

The first reason is because this exclusive African focus
undermines claims that the international criminal justice project is truly
universal in its justice aspirations; or free from the vicissitudes of
international politics.  At the same Nuremberg
conference at which Ms Bensouda spoke, Judge Song, the President of the ICC,
drew attention to the importance of the ICC being independent and universal in
its aspirations, and Judge Hans Peter-Kaul, also of the ICC, spoke about
equality before the law.  However, there
is a disconnect between these goals – laudable as they are – and the practice
of international criminal justice. 
Ultimately, it is a question that any first year law student is taught
to identify: being a question of fairness and equality.  So long as the Security Council and the ICC
ensure that the Court busies itself exclusively with African situations, and
ignore or evade dealing with the sins of Syria, or the plight of the
Palestinians, the Court will suffer from a credibility problem. 

We would all have seen in early September this year that
Archbishop Desmond Tutu refused to share the stage with Tony Blair at a
leadership conference in Johannesburg. 
His refusal was motivated by his concern about the double-standard of
international criminal justice.  The concern expressed by the revered
Archbishop symbolizes a powerful and morally profound view that the
international criminal justice project is shot-through with hypocrisy.  While it is easy to dismiss the self-serving
criticisms of the ICC by African despots and warlords, it is not possible to do
so in response to the criticisms of Archbishop Desmond Tutu.  Tutu while no friend of tyrants, is a firm
friend of equality and fairness.

That leads to a second reason why the ICC perception problem
can no longer be ignored.  Aside from the
justice principles of equality and fairness, this exclusive focus on Africa
affords the selfsame African tyrants and powerful elites a gift; an excuse; a
weapon.  It allows them to draw deserving
attention away from African crimes and the plight of African victims, by
insisting that the spotlight be kept trained on the skewed nature of
international criminal justice.  And
ironically, it allows them to do so with a straight face.  It gives them a stick with which to beat the
ICC and the international criminal justice project.  It is no coincidence that the African Union’s
resistance to the ICC reached its shrillest levels the moment the ICC, through
the Security Council’s referral of the Sudan situation to the Court, decided to
focus on the crimes allegedly committed by an African sitting head of state in
the form of President al-Bashir.  As the
net fell on him, it became clear in a flash to others similarly situated on the
continent, that his fate might be shared by other elites – that the net might
be extended to them. 

The backlash by the AU against the ICC is well
chronicled.  Whether out of a real
concern to ensure equal justice under law, or to shield powerful African
leaders, it is enough here to note that the AU has taken various steps to
reflect its deep displeasure with the work of the Court on the continent.  We know about the repeated requests by the AU
for the Security Council to defer the case against al-Bashir; about Resolutions
adopted by the AU commanding AU member states not to cooperate with the ICC in
arresting African heads of state; and about the invidious position that a
majority of African states have found themselves in, torn between fidelity to
their regional motherbody, the AU, and their commitments to the ICC as treaty
members of the Rome Statute.

Also, more recently, we have seen how the AU’s discontent
with the ICC has fueled efforts to create a regional international criminal
chamber, grafted onto the extant African Court on Human and Peoples’
Rights.  In November 2011 a draft
protocol for the creation of such a chamber was rushed into existence under the
AU’s stewardship, and in May 2012 Ministers of Justice and Attorneys-General at
an AU meeting considered and adopted the draft protocol for the establishment of
international criminal jurisdiction for the African Court.  We are now at a stage where the Protocol has
been recommended for adoption by the AU Assembly, set for early in 2013.  Given the continent’s human rights
atrocities, some (again) with a straight face can claim that this is a laudable
development.  For my part, I’m not so
sure – as I’ve written in detail elsewhere. For one thing, the Protocol has been rushed
into existence with unseemly haste. 
While the AU has for some time been thinking about the creation of a
regional international criminal tribunal (particularly because of perceived
abuses of universal jurisdiction by European States), it is quaint to think
that the invigorated push for the African Court’s expansion has no connection
with the AU’s backlash against the ICC. 
The fact is that the protocol has been drafted with little or no
meaningful consultation with African governments or civil society – being
driven from the top-down by powerful players within the AU.  A second difficulty is the Court’s proposed
subject-matter jurisdiction.  Aside from
the African Court being asked to tackle the traditional international crimes of
genocide, crimes against humanity, and war crimes, the proposal is for the Court
to also tackle a raft of continental plagues – including terrorism, piracy,
mercenarism, corruption, money laundering, trafficking in humans and drugs, and
aggression.  Again, these no doubt are
crimes that deserve a response, but the obvious question is whether a
meaningful one could ever be expected from the African Court, which to date has
struggled even to fulfill its human rights aspirations.  That the Court struggles is hardly the fault
of its judges.  The fault lies with the
continent’s politicians and their fudging and obfuscating within the AU,
including their poor grasp of finances. 
The risk now facing the Court is that it is expected to do too much,
with too little.  Certainly there is no
realistic prospect of doing justice to this wide panoply of offences that are
to be included on the Court’s docket. 
Aside from the difficulty of complementing the Court’s judicial role
with fully capacitated prosecutorial and investigatory bodies that can
meaningfully pursue cases against the accused, there is the little problem of
money.  A single unit cost in 2009 for an
international criminal trial was estimated to be in the region of US $ 20
million, nearly double the approved 2009 budgets for the African Commission and
African Court combined.  Put differently,
the ICC budget for 2012 – for investigating just three of these international
crimes – is just about double the entire budget of the African Union as a whole
for the same year!  The question must
therefore be asked: where is the money to come from?  The answers to the question are vital.  Without money the AU can’t capacitate the
African Court to do the type of international criminal justice work that the
ICC is already doing on the continent, in the service of African victims.  It is just as well to reiterate that the
African Court in its more modest role as a human rights court is already
struggling (discussions with African Court judges confirm this to be the case,
including their complaints about resource constraints).  To over-expand the Court might be a headshot
to a body that is already kneecapped. 

The short point is that serious questions arise about the
effectiveness, desirability and impartiality of an international criminal
chamber within the African Court.  Given
these and other difficulties associated with the AU’s recent rush to capacitate
the African Court with international criminal jurisdiction, a fair argument
might be made that the AU’s decision to embark upon this expansion is less
about regional justice, and more about regional obfuscation.  Isn’t the real motive behind this push by
powerful AU figures aimed at throwing sand in the ICC’s gearbox, by placing
speed-bumps in the path of African states that are already party to the ICC,
and by sending confusing signals to those thinking of ratifying the Rome
Statute?   Are we not witnessing what
might be called cynical complementarity? 
Of course, one does not want to be read as unduly negative about the
prospects for an African regional criminal chamber; or worse, as an
Afro-pessimist.  So let me say conclude
this portion of the paper by saying the following: if in due course the African
Union were to unveil a sufficiently funded, meaningfully resourced, legally
sound, and capacitated African criminal court that would fearlessly and
independently prosecute the likes of President al-Bashir or Hissen Habre, or
other African warlords, while simultaneously performing without compromise the Court’s
parallel mandate of protecting African human and peoples’ rights … then we
should all applaud, and I would clap loudest.

That brings me almost to the end of this short piece.  Allow me now to focus on the positives.

The first is to herald, despite all the AU’s naysaying, the
leadership role that Africa has taken in respect of the ICC.  We have the world’s first examples of
self-referrals from this continent (whereby African leaders invited the ICC to
open investigations into crimes committed in Uganda, and the DRC), most
recently continued in the case of Mali calling for the Court’s intervention in
respect of atrocities committed in that country.  This is smart politics too: while African
states contribute a relatively small amount to the overall budget of the ICC,
they receive disproportionality high levels of the ICC’s service in the form of
highly paid professional investigators, prosecutors and judges focusing
attention on solving and prosecuting crimes committed in African states. 

The second is to celebrate the important role that
complementarity has played – positively – in the work of civil society and
domestic institutions in responding to African crimes.  Again, despite the AU’s bitter contestation
with the ICC at the political level, on the ground domestic investigations and
prosecutions of international crimes have shown promising signs of a home-grown
form of international criminal justice that should serve as an example beyond

In this respect, there is an important judgment recently
handed down by the South African High Court confirming that South African
authorities are under an obligation to act as a complement to the ICC in
investigating – through the use of South Africa’s universal jurisdiction
provisions in South Africa’s ICC implementation legislation – purported acts of
torture committed in Zimbabwe by Zimbabwean police officials against Zimbabwean

Not only that, but for all the AU’s attempts to coordinate
an “African” response to the ICC, various examples have undermined the attempts
at a homogenous continental position. For example, South African civil society
mobilized in 2009, after reports that al-Bashir (by then sought by the ICC) had
been invited to attend the inauguration of President Zuma in Pretoria.  Civil society threatened to seek a court
order for the arrest of al-Bashir if he attended the inauguration, and
ultimately the Government publicly stated that it was committed to the Rome
Statute and undertook to arrest al-Bashir if he did arrive in the country.  Al-Bashir chose not to visit South Africa on
that occasion – and hasn’t attempted to visit since. In respect of Kenya,
al-Bashir tried his chances on one occasion, turning up as a guest at the country’s
celebration of its new Constitution in August 2010.  In response to varied criticism of its
decision to host al-Bashir, and in reaction to a reported follow-up visit by
al-Bashir to attend a summit in Kenya two months later, Kenyan civil society went
to court and obtained a court order for the provisional arrest of al-Bashir
should he enter Kenya’s territory.  He
hasn’t been back there since.

These positive examples are but a few amongst many – more
fully explored in a recent paper published by the Institute for Security

Ultimately, in closing, it remains for the international
community to take seriously the call by Archbishop Desmond Tutu for less
double-speak and hypocrisy when it comes to international criminal
justice.  While it is so that the
Security Council is often singled out as the source of this skewed unfairness,
that would be to miss the full picture. 
It is also vital to recognize missed opportunities – and to learn from
them – when it comes to the ICC and its various organs.  Most notably in this regard has been the
decision of the Office of the Prosecutor, under the leadership of the former
Prosecutor, Luis Moreno Ocampo, effectively to avoid investigating the crimes
committed by Israel during Operation Cast Lead. 
In April 2012, Ocampo indicated, in an official statement , that he was
not competent to decide whether Palestine is a State such that
it can accept the jurisdiction of the ICC under Article 12(3) of the ICC
Statute. As a result, the ICC Prosecutor took the view that he could not
take any action as a result of the January 2009 declaration made by the
Palestinian National Authority, accepting the jurisdiction of the ICC over
crimes committed on the territory of Palestine.

In that statement, the Prosecutor decided that “competence
for determining the term “State” within the meaning of article 12 rests, in the
first instance, with the United Nations Secretary General who, in case of
doubt, will defer to the guidance of General Assembly. The Assembly of States
Parties of the Rome Statute could also in due course decide to address the
matter in accordance with article 112(2)(g) of the Statute.”

A group of eminent international law scholars took up the
Prosecutor’s suggestion and wrote to the President of the Assembly of States
Parties to the Rome Statute to urge her to place the question of the Statehood
of Palestine, for the purposes of Article 12(3) of the Statute, on the agenda
of the next meeting of the ASP – just recently held in The Hague.  While the President of the ASP declined to do
so, it is notable that in their letter to the President the academics,
including Professors John Dugard and William Schabas, highlighted what they
believed is really in issue.  The
professors wrote that “[w]e believe it is in the interests of international
criminal justice and the reputation of the ICC that the question of the
statehood of Palestine for purposes of Article 12(3) of the Rome Statute be
properly resolved as soon as possible”.

That question of the statehood of Palestine, in my view,
might be recast more broadly.  I think it
is in the interests of justice of the reputation of the ICC that the Court
stretch its work beyond Africa.  By doing
so the Court will deny the powerful African elites the stick which they so
easily and distractingly wave at the ICC. 
It will also – where the evidence shows a need for the Court’s intervention
– be a means by which to pay homage to the principle of equal justice under
law.  At the same time we should embrace
and encourage the existing work that is being done by the ICC in Africa. 

There is then, a potential for a win-win situation.  For the ICC to do justice as it should to the
African victims of the cases that are rightly before it and to do justice to the victims of such crimes outside of Africa
who equally deserve the Court’s and the international community’s

Sunday, December 2, 2012

National Jurist's 25 most influential people in legal education

The National Jurist has named its 25 finalists for the title of the most influential person in legal education. I am honored and humbled to have been named as a finalist.

These are the finalists, in alphabetical order:

  • Catherine Carpenter, Professor, Southwestern Law School
  • Paul Campos, Professor, University of Colorado Law School
  • Erwin Chemerinsky, Dean, University of California Irvine School of Law
  • Jim Chen
  • Hiram Chodosh, Dean, University of Utah S.J. Quinney College of Law
  • The Faculty of Washington and Lee School of Law
  • Bryant Garth, Dean Emeritus and Professor, Southwestern Law School
  • John Garvey, Professor, University of New Hampshire School of Law
  • Claudio Grossman, Dean, American University Washington College of Law
  • Phoebe Haddon, Dean, University of Maryland Francis King Carey School of Law
  • William Henderson, Professor, Indiana University Maurer School of Law – Bloomington
  • Kevin Johnson, Dean, University of California Davis School of Law
  • David Levi, Dean, Duke University School of Law
  • Lizabeth Moody, Professor and Dean Emeritus, Stetson University College of Law
  • Jerry Organ, Professor, University of St. Thomas School of Law — Minneapolis
  • John O'Brien, Dean, New England Law Boston
  • Sophie Sparrow, Professor, University of New Hampshire School of Law
  • Richard Sander, Professor, University of California at Los Angeles School of Law
  • Brian Tamanaha, Professor, Washington University School of Law
  • William Treanor, Dean and Executive VP, Georgetown University Law Center
  • Kyle McEntee, Co-founder, Law School Transparency
  • Blake Morant, Dean, Wake Forest University School of Law
  • Patricia White, Dean, University of Miami School of Law
  • Philip Weiser, Dean, University of Colorado Law School
  • Frank H. Wu, Chancellor & Dean, University of California, Hastings College of the Law

Update: Paul Caron of the Tax Law Prof Blog has provided coverage of this list. For me, the honor of being named to this list closes a circle that began when the National Jurist quoted me in an article on change in legal education — like its glacial equivalent, slow to progress but inexorable and epochal in its eventual effect. I do hope to live long enough to see the triumph of reform over reaction.

Wednesday, November 21, 2012

New ISS Paper: 'African efforts to close the impunity gap'

The Institute for Security Studies have published a paper on 'African efforts to close the impunity gap: Lessons for complementarity from national and regional actions'. Max du Plessis is the lead author of the paper, which was launched last week in The Hague at the 11th Assembly of States Parties of the ICC. According to the authors: 

"The position taken by the African Union towards the ICC creates the impression that African states are resistant to international criminal justice. This paper demonstrates that the reality is quite different. Many African countries are committed to ending impunity: a majority have ratified the Rome Statute, four have referred situations to the ICC, and most comply with the Court’s requests for cooperation. The continent provides various examples of international justice in practice, either in the form of ICC complementarity or a wider array of justice processes driven by governments and civil society aimed at closing the impunity gap. The paper considers these developments and what they mean for our understanding of complementarity."

The paper is available here

Thursday, November 8, 2012

Say sayonara to "Spidey sense"

A CBS News profile of Nate Silver, author of 538.

Not that we should expect law professors, a group whose political sensitivities vastly exceed its collective quantitative talent, to have taken close note, but the 2012 election staged "a pitched battle between two self-assured rivals: those who relied on an unscientific mixture of experience, anecdotal details and 'Spidey sense,'and those who stuck to cold, hard numbers." Quite unsurprisingly, the quants won.

In MoneyLaw terms, the lesson for legal education should be obvious. Law as a purely instinctive enterprise is giving way — in many respects, it has already given way — to law as a branch of engineering and the quantitative arts. This forum will have many future occasions to demonstrate exactly why this is true. For now, sit back and just enjoy the show.

Tuesday, October 30, 2012

Upcoming Hague Seminar: African efforts to close the impunity gap

The Institute for Security Studies and The Hague Institute for Global Studies are hosting a seminar on 'African efforts to close the impunity gap: Lessons for complementarity from national and regional actions' on the sidelines of the upcoming ASP in The Hague. The ICC Prosecutor Fatou Bensouda, Dire Tladi (South African Mission to the UN in New York) and Prof Max du Plessis will speak at the event. According to the invite:

The position taken by the African Union towards the ICC creates the impression that African states are resistant to international criminal justice. The reality is quite different. Many African countries are committed to ending impunity: a majority have ratified the Rome Statute, four have referred situations to the ICC, and most comply with the Court’s requests for cooperation. The continent provides various examples of international justice in practice, either in the form of ICC complementarity or a wider array of justice processes driven by governments and civil society aimed at closing the impunity gap. This seminar will consider these developments and what they mean for our understanding of complementarity.

The seminar will take place on Friday 16 November 2012 from 13.15 – 15.00, at the Oceania Lounge, World Forum Centre, The Hague. Those wishing to attend should contact Ms Myrte Klaasman (

Monday, October 22, 2012

Money Law Question?

I can provide a reason for why it is appropriate to ask this of moneylaw readers but let's just assume I have and get right to the question.

Many schools have increased their number of transfer students. We all know why. Typically when they enter their slates are clean as far a GPA and their final GPA and class rank will be based on the last two years.

At many schools there is a lower curve in the first year than in selected second year courses. For example, small sections and seminars may have a higher curve -- 3.6 as opposed to 3.2.  For all practical purposes this means the average curve in upper level coures is higher than the first year curve. The outcome is that transfer students are ranked and recieve  honors based on a higher curve than non transfer students who are saddled with their first semester grades that are on average lower than upper level grades.

The perception is that transfer students then have an advantage as far a class rank, honor, GAP, etc.

I am asking if  your school or any school you know of has reacted to this by normalizing grades or creating two rankings or eliminating the dual curve or at all? Thanks.

Saturday, October 20, 2012

ARM-twisting "A Degree of Practical Wisdom": A one-year readjustment of legal education's debt-based stress test

Golden mean

Roughly a year ago, I posted what was then the preliminary version of A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, 38 Wm. Mitchell L. Rev. 1185 (2012) (available online at or After a year of summarizing and presenting A Degree of Practical Wisdom before multiple audiences and subjecting its model to the test of actual, real-world applications, I have decided to propose some modifications in my model. Think of it as the annual ARM-twisting that accompanies any adjustable-rate mortgage.

A Degree of Practical Wisdom argued that law schools should subject themselves to one form of stress-testing: measuring the ratio of their students’ educational debt to those students’ post-graduation incomes. My original analysis used mortgage lending policies, as developed by private lenders and by the Federal Home Administration, to identify three ratios of monthly debt service to monthly gross income:

  1. Marginal: 0.12
  2. Adequate: 0.08
  3. Good: 0.04

On the assumption that the most affordable loan terms allow law school graduates to amortize their loans at 6 percent interest over 25 years, the foregoing versions of the “educational back-end ratio” correspond to the following ratios of (law school) educational debt to (gross) annual income:

  1. Good: 0.5
  2. Adequate: 1.0
  3. Marginal: 1.5

In the year since I first posted A Degree of Practical Wisdom and invited commentary on it, I have had the benefit of "field testing." Drawing upon efforts of my own and by others to apply my stress tests, I now propose a modest readjustment of my approach for assessing recent law school graduates' economic viability. I will restate ratios of debt to income as their reciprocals — as ratios of income to debt — in order to focus attention on the different salary outcomes achieved by recent law school graduates. I will also relax the stringency of my original stress tests. It turns out that almost no law school graduates begin with an annual income double their level of law school debt. A 2:1 ratio of annual gross income to law school debt is the reciprocal of the “good” 0.5 ratio of debt to income. I will readjust this highest level of economic attainment to a ratio of 3:2. I will also rename the three levels of economic attainment:

  1. Excellent: A 3:2 ratio of annual gross income to total law school debt
  2. Healthy: A 1:1 ratio
  3. Viable: A 2:3 ratio

Multiplying by 1.5 (or 3:2) closes the gap between the viable and healthy levels, or the healthy and excellent levels. Relative to my original level of "good" economic performance, the new "excellent" category actually reflects a slightly higher debt burden. The reciprocal of an "excellent" 3:2 ratio of annual income to total debt means that the ratio of law school debt to annual income is 2:3. The corresponding ratio of law school debt service to gross annual income is approximately 5.33 percent.

Golden ratio

The new ratios sacrifice some of my original model's elegance for real-world utility in a legal services market where very, very few entrants can expect to win an annual salary whose face value is double their level of law school debt. Then again, the 1.5 (or 3:2) ratio that describes the transition between each of the new categories — from viable to healthy and again from healthy to excellent — has an elegance all of its own. A 1.5 ratio is reasonably close to (1 + √5)/2 (approximately 1.618) or φ, the celebrated golden ratio of Pythagorean mathematics. In an age when grades and tuition rates have inflated faster than salaries and the gross domestic product, we may take solace in the legal academy's own version of the "Aurea mediocritas."

Editor's note: For the images in this post, I tip my hat to Scottish artist Judith I. Bridgland.

Friday, October 19, 2012

Big law firm suicide

In The better angels of our profession, I sorted law professors into three camps according to their reaction to recession and industry-wide restructuring in the legal profession. Because the revolution in legal education and law practice has not abated, I believe that the time has come to perform a little triage.

One deeply cynical camp refuses to change business as usual. To comfort themselves, members of this camp have their sinecures and the self-satisfaction drawn from academic achievements as irrelevant as they are ancient. At their worst, this camp's partisans gleefully trash critics who have been insightful and courageous enough to identify serious flaws in law schools and law firms. Once upon a time, I took umbrage at people this petty and this selfish. With age comes wisdom — These days I just remind myself: "[It] [d]oesn't mean that much to me / To mean that much to you." Live and learn; live and let live. All it took to rediscover the the right motivation was to remember this bit of sound advice: we should strive "to make a positive difference in the world, not to win popularity contests among people we don't respect."

I will therefore devote the bulk of my efforts to persuading a second group: that "less angry cohort [that] fervently wants to believe that tough times in the legal profession are merely cyclical." Their wish appears to be this: "Wait a year or two or five, . . . and things will be back to the way they always were."

The Nile

More than just a river in Egypt.

No, they won't. We have ever stronger reason to believe that the legal profession and the academy that feeds it have both undergone permanent, structural change. Adapt or die.

This, at any rate, is my position. This view, I believe, commands a meaningful fraction among lawyers, judges, and law professors. The latest evidence of permanent, structural change comes via Bruce MacEwen of Adam Smith, Esq., with a further hat tip to Debra Cassens Weiss. MacEwen points to the prevalence of economically suicidal, cut-rate fees among law firms as evidence of "excess capacity" and "enormous pricing pressure just to cover fixed costs." Those firms have the thinnest of margins for error: "A law firm cannot really lose money for even one year and remain viable . . . because that’s what they pay their partners with."

I speak with greatest urgency to fellow legal academics and to law firm partners who fit the life stage that David Bowie once described as "[t]oo old to lose it, too young to choose it." It's sad to watch these law firms, some at the pinnacle of the profession, cannibalize themselves and their employees. The clock waits so patiently on their song. They walk past a café, but they don't eat when they've lived too long. Oh no no no: We may be witnessing big law firm suicide.

Sunday, October 7, 2012

ISS Seminar: ICC Prosecutor responds to African Concerns

This coming week the Institute for Security Studies will
host the ICC Prosecutor, Fatou Bensouda, in Pretoria for a seminar on ‘Setting the
Record Straight: the ICC’s New Prosecutor Responds to African Concerns’. According to the seminar invite:

Archbishop Emeritus Desmond Tutu recently declined to share
a public platform with Tony Blair out of concern that some leaders evade
justice for atrocities like the 2003 invasion of Iraq, while their African
peers are ‘made to answer for their actions in The Hague’. A vocal supporter of
the International Criminal Court, Tutu’s comments nevertheless reflect concerns
about the double standards that characterize international criminal justice, as
well as the ICC’s perceived focus only on Africa. The court is not responsible
for the international political world in which it works but questions about
prosecutorial discretion can be asked of the ICC. These questions relate to
which leaders are targeted by the ICC as well as the timing of indictments
during armed conflicts.

The ICC’s new chief prosecutor … is visiting South Africa
for the first time since her appointment. She will discuss these concerns and
the future of the court’s work in Africa.

The Prosecutor will be speaking with Max du Plessis, who will be discussing South Africa’s position on the ICC in the context of
African concerns. The seminar invitation can be found here. If you are in
Pretoria and surrounds this week this event is not to be missed. 

Tuesday, September 11, 2012

Cranes and skyhooks

Cranes and skyhooks

In his latest contribution to MoneyLaw, Jeff Harrison minces no words in expressing disdain for legal skyhooks:

Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. . . . In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas [of legal scholarship].

Jeff's rightful condemnation of skyhooks reminds me of Daniel C. Dennett's 1995 masterpiece on the philosophy of science, Darwin's Dangerous Idea: Evolution and the Meanings of Life. Dennett says this of skyhooks: ""Skyhooks would be wonderful things to have, great for lifting unwieldy objects out of difficult circumstances, and speeding up all sorts of construction projects." Id. at 74. Alas, skyhooks not only don't exist; they can't ever exist.

Biology lab

An unhealthy reliance on skyhooks is fatal to any scientific enterprise. That includes law. Dennett's prescription for biology is one that we lawyers would be well served to embrace. For every skyhook on which we have wagered our professional lives, we must strive to build a genuine crane. In biology, that means finding molecular building blocks for every process. Nothing quite that concrete drives legal science. But we would be remiss if we did not seek, in every act of pedagogy and scholarship, (1) to affirmatively propel the enterprise of subjecting human behavior to the governance of rules, (2) by means of a crane real enough to be falsified by empirical tools at the hands of an independent and politically honest broker. In law as in any other scientific discipline, skyhooks have no place. We're too busy building things to accommodate such idle indulgences.