The Law School's Young Faculty: Letting Their Ideas Do the Talking

Author: 
Lynn Safranek and Marsha Ferziger Nagorsky

The Law School has long pursued a strategy of hiring the most promising young academics, fresh stars who have turned into tremendous scholars and teachers. The Law School's culture of intense interaction, collaboration, non-hierarchical engagement, workshops and roundtables, and an aggressive ethic of publishing encourages the growth of these academics.

Never has this been more in evidence than today.

No other law school is better at identifying and nurturing talent. Chicago Law hires the most promising young faculty members, and then treats them as equal to their more senior peers in academic as well as administrative matters. Quality of ideas, rather than rank or age, is the overriding basis on which they are judged.

This should come as no surprise to alumni. Many of the Law School's most renowned faculty began their academic careers here, including greats such as Edward Levi, Walter Blum, Bernard Meltzer, David Currie, Geoffrey Stone, and David Strauss. In the past few years, the Law School has hired more than a dozen new faculty members who are invigorating the community with both their teaching and scholarship.

The recent growth at the younger end of the faculty is not only enviable but unusual. Out of 35 full-time academic faculty members, roughly one-third haven't reached their 40th birthdays. In the most recent statistical report compiled by the American Association of Law Schools, only 15 percent of law school faculty are 40 or younger.

Despite their ages, Chicago's young faculty lead their fields in both the quantity and quality of groundbreaking research and their influence in the academic community. The nine youngest faculty members who have been here more than two years (and therefore have had time to publish) are tornadoes of productivity. They have published an astounding 67 journal articles in the country's top law reviews. That extraordinary number understates their true productivity, as it does not include the scores of published book chapters, magazine articles, and journal articles they published in other venues. While at most law schools the typical number of articles published by faculty at promotion is three or four, over the past two or three years, Chicago faculty at promotion averaged more than 13 articles, many of which appeared in leading journals.

Chicago's young faculty members come to the Law School with a wealth of experience. They include three Supreme Court clerks, nine Court of Appeals clerks, four PhDs, a Fulbright Scholar, a Carnegie Scholar, three Bigelow Fellows, one Olin Fellow, eight top-tier law review editors, and one world debating champion, among their many other honors and experiences.

It is no wonder that they are coveted by law schools everywhere. Chicago's young faculty members have visited or have visiting offers from many of the nation's leading law schools.

"Chicago has had a long tradition of building a great faculty through entry-level as well as lateral hiring, and the current crop is no different. It's a terrific group, one of the best in the country," says Larry Kramer, '84, Dean of Stanford Law School and a junior faculty member here from 1986 to 1991.

Geoffrey Stone, who graduated from the Law School in 1971 and has been on the faculty since 1973, agrees with Kramer that the current group of young faculty stands out.

"I've seen an awful lot of young faculty members join our ranks over the past 40 years, and I can say without hesitation that this is the strongest group we've had in that time," Stone says. "They are exceptionally smart, talented, diverse, intellectually curious, dedicated to teaching, committed to the creation of knowledge, and, to top it all off, just plain nice. Saul Levmore, in particular, deserves enormous credit for having brought together such a stunning group of young faculty members. They are our future, and our future is very bright, indeed."

A New Strength in International Law

For the past two years, the Law School has gone on an international law hiring spree. While Chicago faculty members have always been interested in the international aspects of their fields, the school needed some true international law specialists. Professor Tom Ginsburg, who literally wrote the book on comparative constitutional law, anchored the new nexus of the faculty as a valuable lateral hire. The four most junior members of the faculty round out what is now one of the best-and most diverse-international law faculties anywhere.

Two of the young faculty arrived with not only international law expertise, but international degrees. Assistant Professor Rosalind Dixon hails from Australia, clerked for the chief justice of the Australian Supreme Court, and taught at the University of New South Wales. She shares with Ginsburg a passion for comparative constitutional law. She has been working recently on projects relating to constitutional amendment, both in the United States and abroad. Her most recent work in progress proposes that the Supreme Court treat failed amendments supported by a Congressional majority as "partial" constitutional amendments.

Dixon is also collaborating on upcoming research with three Law School faculty members. She and Ginsburg are examining the political economy of socioeconomic rights and the political factors that explain why constitutions include certain kinds of rights, such as health, housing, education, and social welfare. With Eric Posner, she is studying constitutional convergence, using abortion law as a potential test. Dixon and Martha Nussbaum are working on a piece about comparative abortion law and the capabilities approach. Dixon also mentors students with interests in international law and helps them to pursue international careers.

For years, the Law School sought a scholar in European Union law, and Assistant Professor Anu Bradford, trained in Finland, more than fits the bill. Bradford, a former Fulbright Scholar, is an expert in international trade law. She served as an advisor to the Finnish parliament on economic policy and practiced antitrust and EU law before getting her SJD at Harvard. Bradford is currently bringing her international law expertise to a paper she is coauthoring with Professor Omri Ben-Shahar. Bradford and Ben-Shahar are using a game theoretic model to study the enforcement of climate treaties. They are developing a novel enforcement scheme that would induce more international compliance at a lower cost. The idea is to establish an enforcement "fund" that can be used to finance either rewards for compliance or sanctions for violations, thereby generating double the impact for any given cost.

Ben-Shahar strongly values this working relationship, saying "Anu has an impressive knowledge of her field, international law, but also the classic 'Chicago' temperament: a sharp instinct for novel theoretical insights, coupled with a relentless work routine."

Bradford maintains strong connections to her home country by serving on Sitra, an important and visionary independent public fund also known as the Finnish Innovation Fund. She travels to her native Finland six times a year to participate. "It's been extremely rewarding," Bradford says. "I get to be a part of important decisions and somehow still remain involved in the society."

Assistant Professor Daniel Abebe focuses on public international law as well as international relations theory and foreign relations law. Not to be outdone by his colleagues, he is currently pursuing his PhD in political science at the University. Abebe is working on questions regarding the appropriate level of judicial deference to the executive in foreign relations law and the promotion of international law in the domestic legal system. He posits that the stronger the external constraints on a state the greater the likelihood of judicial deference to the executive. He also is researching the evolution of universal jurisdiction as a norm of international law.

Abebe's insights have already assisted one of his esteemed senior colleagues. "His perceptive and rigorous questions have made me alter some major claims in a new book, for which I'm extremely grateful," says Nussbaum.

Abebe's interests have been a boon to the students interested in international law by adding to the curriculum. This year alone, Abebe is teaching courses on foreign relations law and public international law, as well as an already-popular seminar on international law and international relations theory.

The most recent addition to the faculty, Assistant Professor Aziz Huq, joined the faculty just this fall and has hit the ground running in true Chicago fashion. He is already an experienced national security law scholar, having come to the Law School straight from the directorship of the Liberty and National Security Project of the Brennan Center for Justice at NYU School of Law. He is currently working on a project about the on-the-ground effects of a recent Supreme Court decision in the national security area. His scholarship has already drawn praise.

"Aziz has already written a splendid article on the Supreme Court's 2009 decision in the Iqbal case. His piece, which will appear in the next volume of the Supreme Court Review, is an insightful and original analysis of the role of courts in times of national emergency," says Professor Geoffrey Stone.

Huq's experience and academic interests extend beyond national security into areas such as international human rights, comparative constitutional law, and legislation. He has served as a senior consultant analyst for the South Asia department of the International Crisis Group, a nonprofit, nonpartisan group that advises governments. He studied counterterrorism law as a Carnegie Scholars Fellow and has done human rights work in Afghanistan. This year he is coteaching a Greenberg seminar on the global financial crisis with Eric Posner. Of course, Huq is also well qualified for his interests beyond national security law, such as federal jurisdiction-he clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg.

The Chicago Law and Economics Tradition

In addition to branching out into new areas, the Law School has also hired young faculty with an eye to maintaining dominance in the world of law and economics.

While it remains as true as ever that virtually every Chicago faculty member is well versed in economics concepts and methods, several of the young faculty members have particular economic and corporate law expertise. Two of the younger faculty members, Anup Malani and Thomas Miles, have PhDs in economics.

Malani, who graduated from the Law School in 2000, brings his economic analysis to bear on issues of health law. His upcoming research will examine the effects of products liability litigation against drug companies on drug prices and safety; whether rules that require authors of articles in medical journals to disclose financial conflicts of interest affect readership; and whether direct-to-consumer advertising for drugs affects the physiological efficacy of advertised drugs. He also is developing new measures for gauging the efficiency of hospital markets.

A former clerk to Justice Sandra Day O'Connor, Malani came to the Law School with a few years of teaching at the University of Virginia Law School under his belt, and last year he visited at Harvard Law School. He teaches a wide variety of courses in the business curriculum, including Food and Drug Law, Bankruptcy and Reorganization, and first-year Contracts. Perhaps his most timely-and popular-course is Health Care Economics and Policy, which carefully examines both the economics of the health care industry and the myriad proposals for its reform.

After coming to the Law School as an Olin Fellow, Miles joined the faculty in 2005. He is known for his talent with empirical data and has applied these skills to areas as varied as labor law, felon disenfranchisement, Chevron deference, and discrimination law. He has received a great deal of attention for his study of the FBI's Most Wanted List that showed that as the FBI acquired responsibility to enforce a wider range of criminal activity, it increasingly used the list to communicate its priorities rather than to locate fugitives. His recent empirical study was the first study to show that federal prosecutors have systematically avoided asking African American judges to review wiretap applications, a tendency that cannot be explained based on the party of the president who appointed the judge, the judge's prior experience as a prosecutor, or other factors. Miles has also coauthored with Cass Sunstein a series of law articles on potential solutions to the increasingly political nature of judicial review of administrative agency actions and written two articles and coedited a book with University of Chicago economist Steven Levitt on the economic analysis of criminal law.

Miles's economic chops have already been recognized by the law and economics community. He is an editor of the Journal of Legal Studies and referees for more than a dozen elite peer-reviewed law and economics journals, as well as the University of Chicago Press. Miles recently received tenure and will be promoted to the rank of Professor in July.

Joining him in the tenured Professor ranks will be Assistant Professor M. Todd Henderson, who is rapidly making a name for himself as an insightful corporate law scholar. One of his current research projects is a paper considering whether corporate boards negotiate with executives about expected profits from insider trading. Henderson is also developing a counterargument to the widely held belief that credit derivatives are a form of insurance. He examines the policy reasons specially regulating insurance industries and determines that none of those reasons apply to credit derivatives markets.

Henderson's entrance into the legal academy was more circuitous than most. Before entering the Law School's Class of 1998, he was an engineer designing and building dams in California. His legal career took him from a Second Circuit clerkship to private law practice at Kirkland & Ellis and finally to McKinsey as a consultant on telecommunications. His path back to the Law School in 2004 was a comfortable step in the right direction, and others are noticing. The Federalist Society honored Henderson in February with the annual 2010 Paul M. Bator Award, which is presented to a young academic who embodies former Chicago and Harvard Law Professor Bator's excellence in legal scholarship, commitment to teaching, and concern for students, and who has made a significant public impact.

Nussbaum recalls Henderson's "intellectual courage" from his days as a student here, when she would see him plunge into something that went against his ideological priors with true openness to learning. "As one of our most conservative faculty members, he models superbly the values of mutual respect and friendly debate that are among our most cherished values, and makes students see that they are good values to live by," Nussbaum says.

Professor Lior Strahilevitz, described by a colleague as the "elder statesman" of the young faculty because he was the first of the group hired, is a nationally recognized expert on property law and information privacy law. He made waves after publishing his paper "How's My Driving? For Everyone (And Everything?)," which explained how enacting a program encouraging drivers to report each other's bad behavior could make roads safer. Strahilevitz has undertaken a comprehensive reexamination of the bundle of rights inherent in property ownership, culminating in important articles on the right to abandon, the right to exclude, and the right to destroy, published in the University of Pennsylvania Law Review, the Michigan Law Review, and the Yale Law Journal, respectively.

His book Information and Exclusion will be published this fall by Yale University Press. The book pulls together Strahilevitz's work examining the relationship between privacy and antidiscrimination law and his scholarship on exclusivity in property.

Strahilevitz's current research includes an article that argues for the reunification of information privacy law via a return to its Warren and Brandeis origins; a paper examining the circumstances under which the courts ought to let parties litigate pseudonymously; and a randomized controlled experiment studying the effectiveness of "How's My Driving?" programs. Dean Michael Schill recently appointed Strahilevitz as Deputy Dean of the Law School, a role that will place Strahilevitz on the front lines of faculty issues, program initiatives, and the Law School's intellectual life.

A Balanced and Well-Rounded Faculty

Even as the school's appointments committee worked to augment the international law and law and economics faculty, it never took its eyes off maintaining a crucial diversity and balance across all areas of law. The Law School seeks to hire truly excellent scholars and teachers in any subject area, and has hired young faculty members to add to existing strength in legal history, intellectual property, constitutional law, voting rights, and political science.

Professor Adam Cox thought his undergraduate degree in mechanical and aerospace engineering coupled with a law degree would lead to a career in environmental law. But after graduating from law school he clerked for civil liberties champion Judge Steven Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and then joined the American Civil Liberties Union, where he worked on racial profiling cases. Cox briefly worked at a law firm before joining the Law School faculty in 2004 after a Bigelow Fellowship.

Cox has a number of projects in progress related to voting rights, immigration law, and more generally, to the legal rules that set the scope of the polity and the structure of democracy. He is especially interested in the relationship between migrants and their new governments. He recently published a paper in the University of Pennsylvania Law Review on the false dichotomy in immigration laws between "selection" rules (choosing who may immigrate) and "regulation" rules (governing the behavior of immigrants), arguing that all immigration laws are both selective and regulatory. He is also pursuing a project with Eric Posner to tease out the bundle of rights that attaches to citizenship and to see how the desires of both states and migrants in relation to each other might be advanced by portions of that suite of rights. Cox and Posner argue that the "optimal contract" between migrants and states must reflect the desires of both parties and thus include both flexibility and commitment.

Assistant Professor Jacob Gersen, who has already published more than ten major articles in leading law journals, received his PhD in political science from the University of Chicago in 2001 and graduated from the Law School in 2004. After a clerkship on the DC Circuit, he joined the faculty in 2005. He is particularly interested in administrative law and legislation. Gersen has two ongoing research projects with Christopher R. Berry of the Harris School of Public Policy. One focuses on the distribution of federal funds by administrative agencies. The other examines how the timing of local government elections affects turnout and public policy.

Gersen is also working on a project with Eric Posner on "soft law"-rules issued by law-making bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless may influence the behavior of other law-making bodies and of the public. Gersen and Posner examine the as-yet-unstudied area of Congressional soft law, such as Congressional resolutions, which informs the public and political institutions about the intentions and policy preferences of Congress. These "soft" laws are, in turn, informative about future hard law. In recognition of his exceptional scholarship and teaching, Gersen will be promoted to full professor in July.

On any given day, it is not unusual for colleagues to pop into Assistant Professor Alison LaCroix's office to ask her what the Founding Fathers would have thought about a particular issue. With both a law degree and a PhD in history, LaCroix is sought after for her legal history expertise, particularly on the constitutional thought of the Revolutionary and early Republican periods, an area of expertise with important consequences for modern constitutional law scholarship. Her just-published book, The Ideological Origins of American Federalism, traces the history of American federal thought from its colonial beginnings. Next, she will focus on two topics: the legal and political origins of federal question jurisdiction in the antebellum period and the Supreme Court's treatment of issues of time and change in its decisions from the late 18th century through the modern era.

"One of our law school's liveliest and most versatile minds, Alison is interdisciplinary not only as a legal historian but also as a lover of literature and someone who sees many ways of bringing literature to bear on legal history," Nussbaum says.

Professor Adam Samaha is rapidly becoming one of the nation's leading constitutional law scholars. His current research includes the implications of District of Columbia v. Heller for gun policy, theories and mechanisms of legal change, and the concept of "tiebreakers" in law and the rest of social life.

Samaha embodies the famed Chicago interdisciplinary tradition. He has teamed up with two empiricists-Jens Ludwig, McCormick Foundation Professor of Social Service Administration, Law, and Public Policy; and Philip J. Cook of Duke's Sanford School of Public Policy-to examine effects of the landmark Supreme Court case District of Columbia v. Heller. Their article "Gun Control after Heller: Threats and Sideshows from a Social Welfare Perspective" was recently published in the UCLA Law Review.

Samaha, a former trial and appellate lawyer who clerked for Justice John Paul Stevens, maintains a keen interest in legal practice, regularly serving on mooting panels for major cases. In addition to teaching first-year civil procedure and a course on the religion clauses, he is teaching an innovative two-quarter course on "fundamental legal change" this year. His students will examine the meaning of fundamental legal change and whether it leads to social change by creating and presenting a large case study.

Described by a colleague as "brimming over with energy and ideas," Assistant Professor Jonathan Masur's degree in physics led to an interest in patent law. He is currently researching the ways in which the interaction between the Patent and Trademark Office and the Court of Appeals for the Federal Circuit leads to distortions in patent law. Masur will have a productive year of journal articles in top publications. In 2010 alone, he will publish in the Georgetown Law Journal, NYU Law Review, Virginia Journal of International Law, and University of Chicago Law Review.

In addition to his influential patent work, Masur is also pursuing a long-term project in another of his major interests-the interaction of psychology and law. Masur and his coauthors are applying the groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law and policy, including criminal punishment, the use of law to improve human welfare, and probabilities of settlement in civil litigation.

Before joining the faculty, Masur served as a Bigelow Fellow and clerked at the federal district and appellate court levels, the latter for Judge Richard Posner. Posner encouraged Masur to join the Law School faculty.

"He thought it was the only worthwhile law school in America," Masur recalls.

Fertile Ground in Which to Grow

Hiring extraordinarily promising young scholars is crucial to the future of the Law School, but it is only the first step. Young faculty, especially the ones willing to immerse themselves in the intense Chicago environment, thrive in a community that blends support, challenge, and respect. Relationships with senior faculty and with each other can have tremendous impact on a new academic's path.

Chicago is known for genuine discourse across disciplines and both formal and informal collaboration between colleagues with disparate interests. The young faculty members have especially taken this to heart and have found real kindred spirits in each other. Their overlapping research areas have not only led to collaboration but to their individual freedom from having their work pigeonholed. Many of the young professors say the Law School's relatively small faculty, in comparison to other elite law schools, means no cliques form and everyone takes an interest in everyone else's work.

"I'm constantly asking Jake [Gersen] for advice about my administrative law course or my research, and I find myself constantly talking to Adam [Cox] and Alison [LaCroix], who are right down the hall, about everything under the sun," Masur explains.

One example involves collaboration between Cox and Miles. In Miles's first month as a professor, Cox approached him with a research idea about judicial decision making in voting rights cases. The conversation led to a four-year collaboration, which exposed the first persuasive evidence that the race of a judge correlates with the likelihood the judge will find a civil rights violation in a voting rights case.
Cox lent his expertise in the structure of voting rights jurisprudence while Miles contributed his "unbelievable econometric skills," as Cox describes it, to design empirical tests. "I don't think this sort of collaboration would have been possible at another Law School," Miles recalls.

The cross-pollination of ideas has taught the young faculty that they can explore research topics beyond their areas of expertise. Malani, described by one colleague as a "hardcore economist," is most closely associated with law and economics or health law policy, but also has written on habeas corpus rights, statutory interpretation, and charities. "I write in a lot of different fields, both within and outside law," he says. "I also like to use different methodologies: game theory, statistics, medical trials, behavioral experiments, surveys, doctrinal work. It keeps research interesting."

The young faculty have also taken their cue from their more senior colleagues in placing great importance on their teaching. Young faculty who accept offers at Chicago often do so precisely because of the emphasis on the classroom experience and the opportunity to work closely with students in both first-year classes and small seminars. Samaha says Chicago's strong emphasis on teaching skills and on producing good lawyers sets it apart from other elite law schools. He is constantly refining his teaching skills, and one of his colleagues says the effort is apparent-Samaha's classes are heavily subscribed by students, who often find that his style of the Socratic method pushes their knowledge to a deeper level.

"After Adam taught his very first class here," Strahilevitz recalls, "the students broke into spontaneous applause." Both Samaha and Miles have been recipients of the Graduating Students Award for Teaching Excellence, which is given to only one law professor each year.

Professor Douglas Baird, who has been a member of the Chicago faculty since 1980, says the strong intellect and productivity of the younger faculty has motivated him in the best possible sense.

"When you want to follow the model of a Bernie Meltzer or a Walter Blum and maintain a high level of commitment and energy to the law, you find that the best way to do it is to be around a group of brilliant young scholars like we have at the Law School, people who are always there to remind you that you are only as good as your next article or your next class," he says.

Age Is Just a Number

When it comes to fitting in at the Law School, the young faculty all insist that age has played no factor in their quick acceptance by older colleagues. They say they have been judged in true Chicago form-on their ideas, not their age-and have been treated as full participants in the Law School as soon as they set foot inside the doors.

"From day one, you're treated as a full citizen, not a second-class citizen," Strahilevitz says. "Admittedly, we do make the most recent rookie hire take the minutes at faculty meetings. But I think we do that so they'll have a strong incentive to help us recruit the next year's superstar prospect."

Junior faculty members vote on tenure, as well as lateral and entry-level hiring decisions, and gave input on the recent search for a new dean. They teach core classes, like Constitutional Law, Torts, Corporations, Elements, Contracts, Civil Procedure, Criminal Law, and Property. Their offices aren't relegated to a dark corner of the D'Angelo Law Library; rather, they are placed among their most celebrated colleagues, a move that encourages frequent contact and mentoring opportunities.
Each one describes this as a feature that is unique to Chicago-a law school with a non-hierarchical culture that "cares about the quality of the idea rather than its source," Gersen says, whether they are debating the most controversial topics of the day during their thrice-weekly roundtable lunches or giving input at almost daily faculty workshops.

Senior faculty members' names often can be found alongside names of their junior colleagues on journal articles and papers. Eric Posner, for example, has already published articles coauthored with Cox, Gersen, and Malani and is working on articles with Bradford, Dixon, and Huq.

For his part, Posner says age and experience make no difference. "The only question for me is whether we come up with an interesting idea together through discussions," Posner explains. "If so, I'm happy to collaborate."

But does he see a difference between working with juniors rather than his experienced colleagues?

"Junior faculty work harder!" Posner says.

Of course, the young faculty soak in all the lessons they can from their senior faculty, the ones who are imparting through words and action just how "the Chicago way" works. Cox, for one, says he has learned that you should be able to communicate great ideas simply, focusing papers on one core claim. "It's reflected in our work," he explains. "We tend to write papers that are shorter and have fewer moving parts."

LaCroix says she is constantly impressed by how so many of her senior colleagues have routines of writing every day. "They love it and they make it their priority," she says. "All of our senior faculty are the most productive, not just in quantity but in quality and import. There's a push to make sure junior people understand that quality matters."

It is perhaps the atmosphere of mutual respect that the young faculty value most. Dixon credits David Strauss for helping her in her first year teaching Elements of Law by recommending materials and suggesting how to shape the syllabus and course. "One of the things I loved about it is he's incredibly generous and gave great instructions," Dixon recalls, "but he also treated me from the outset as having full autonomy on how to make my own decisions."

The best pitch Samaha received for joining the Law School was from Albert Alschuler, now professor emeritus, who said, "You'll learn more here." A young academic might make the mistake of concentrating too much on what they want to tell to the exclusion of what they need to learn, Samaha says, but Chicago's senior faculty prove that learning should never end.

"No one I know is in semi retirement. It's a group of people who want to be continuously engaged with ideas at the highest level," Samaha says. "The people who fit best at Chicago are the people who are, in one sense, forever young."

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