Milan Markovic (@profmarkovic.bsky.social)
@ProfMarkovic
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Law professor interested in legal ethics, international politics, and miscellaneous topics. Retweets are not necessarily endorsements.
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Joined May 2014
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Pinned Tweet
Forthcoming article🚨. In Legal Market Decartelization,
@NGaroupa
and I question the creeping consensus that there is little downside to deregulating American legal markets. . We also offer a path forward to expanding access to justice. 1/3
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Let's hope that this is the most shameless law professor tweet of the day. California has the hardest bar exam in the country, and many fantastic lawyers have failed it. See, e.g., Kathleen Sullivan. Tweeting this a week before our students sit for the exam is especially galling.
Kamala Harris Failed The California Bar On Her First Try. In July 1989, UC Hastings Had A 81.4% Pass Rate.
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This is powerful evidence of how broken the clerking system is. Clerks' careers are tied to their Justices, so they resort to platitudes to defend the indefensible. Bonus points for including Eastman and Yoo.
Over 100 former clerks of Justice Thomas sign open letter defending his integrity, independence
#FoxNews
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I'll leave the substantive admin law commentary to the experts, but the SEC has been using administative enforcement proceedings for nearly 90 years. It takes hubris to believe that this practice is unconstitutional on THREE separate grounds, and everyone just missed it.
The 5th Circuit just dismantled the SEC's power to enforce securities law. This decision is beyond radical. It is nihilistic.
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@lee_kovarsky
"Better to [decline the case] and be thought a fool than to [preside over the case] and remove all doubt."
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Still gobsmacked by the moral clarity of this message vis a vis much of the legal professoriate's reaction.
Oh wow. The Lancet — one of the most prestigious medical journals in the world — is out with a forceful statement about Roe v. Wade *on the cover*.
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41% of new law professor hires are graduates of three law schools (HLS, YLS, NYU): . The number was 50% in 2014(!). I would love to see a cogent defense of this hiring practice.
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Can we please not do this? A defunct magazine's arbitrary ranking system should not influence real world reporting. For most of American history, lawyers did not attend law school.
Kamala Harris would be only the second lawyer-president with a law degree from a school not in the T-14.
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This story should be receiving more attention. AG Paxton wants the Supreme Court of Texas to hold that he cannot be disciplined by the State Bar because of sovereign immunity. He is supported in this effort by 20+ Republican AGs from other states. Pivotal moment for legal ethics.
Lawfare? Ken Paxton Accuses State Bar of Weaponizing Courts Against Him
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This is exactly right. I don't think anyone is prepared for the surveillance regimes that red states will create to police pregnancies post-Roe.
Folks are focused on doctrine but are Georgians prepared to charge women with murder for terminating a 6 week pregnancy? Investigating women with difficult pregnancies that do not come to term? Punishing those who help women get health care more than men who commit rape?
#gapol
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Justice Barrett practiced law for two years.
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Progressivism in legal education is apparently law schools falling in line behind Harvard and Yale's efforts to revise the US News formula to better accommodate elite law schools' advantages.
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We've had two Judge Duncan op-eds, multiple demands for expulsions and c & f inquiries, and now a boycott in response to disrupted remarks. And Dean Martinez has twice apologized on SLS's behalf. Perhaps it is time to stop treating Duncan, Ho, etc., as good faith actors?
"We will not hire any student who chooses to attend Stanford Law School in the future," Ho, who sits on the Fifth Circuit Court of Appeals, said Saturday evening in a speech to the Texas Review of Law and Politics, which you can read in its entirety here:
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I have very mixed feelings about the LSAT, but a system wherein elite law schools use whatever entrance metrics they wish and then not rank/grade students is rife for abuse. It will also make it more difficult to loosen the bar exam's chokehold over attorney admissions.
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I really really hate to defend
@elonmusk
, but he may have a point about Wachtell's billing. Twitter claims that Wachtell sought millions in fees for blank and block time entries, and $900/hr for doc review. Former GC apparently responded "oh my freaking God" to the final bill.
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@espinsegall
Roberts is the most political and calculating of the Justices. He wrote the opinion the way he did because he is anticipating that Trump will be President. He went as far as he could go without provoking a potential backlash at the polls.
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Possibly unpopular opinion: Legal academia is too clubby. Every article is "fascinating" and "important." Colleagues are always "thoughtful" even when we "might disagree." Collegiality is important (esp with untenured folks) but this politesse can border on anti-intellectualism.
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This is 100% correct. FWIW, the United States used cluster bombs in Kosovo and Iraq.
Using cluster bombs is a war crime. Those responsible for their use, even if following orders, will be held accountable. Russia's generals need to defy such orders.
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The notion that the Court's commitment to stare decisis will save Griswold, Lawrence, etc., is dubious, but even it weren't, precedents can quickly become "unworkable" when one of the two major political parties is committed to undermining them.
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With the bar exam mercifully concluded, a few words about why I have come around to
#AbolishtheBar
. As I argue in this article, , bar exams are historical anachronisms, don't measure minimum competence and have no causal relationship with discipline rates.
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@JHWeissmann
Yes, and Walz received the award from the Nebraska JUNIOR Chamber of Commerce. This is a nothingburger even by the GOP's recent standards. .
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Another embarrassment for the Supreme Court. Judge Smith's excellent 9th Circuit opinion warned the Court that Kennedy's lawyers had concocted a false narrative. Kennedy never had any intention of moving back from Florida to coach high school football part-time.
BREAKING: After winning a U.S. Supreme Court case to get his coaching job back and igniting a firestorm over praying in public schools, Joe Kennedy resigned Wednesday after only one football game with Bremerton High School.
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Curious if the law school deans who have announced that they will not cooperate with US News have instructed their hiring committees to stop using "strong" placements as a hiring criteria.
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I recommend this interesting analysis of law school entry-level hiring and JD / PhDs, (h/t
@sarahlawsky
). The big takeaway for me is that law schools still want to see a Yale JD next to your name, even if you have a PhD.
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Periodic reminder to not lionize Supreme Court Justices.
AP: Supreme Court Justice Sotomayor's staff prodded colleges and libraries to buy her books
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I would not call this a "diploma privilege." What DC is effectively doing is creating admission via apprenticeship for law school graduates.
@KarenSloanNLJ
I'm guessing I'm late on this news. Congrats to all who will be getting the privilege!
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@JakeMGrumbach
We are apparently supposed to respect her decision-making process even as she complains publicly about how taxing the work is:
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Reading the🧵s of
@jedshug
and
@jdmortenson
, I am once again reminded of the downsides to student-edited law reviews. It's way too easy to ignore arguments with which an expert would be familiar. And don't get me started on cites to sketchy sources and faux novelty claims. 1/2
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@steve_vladeck
Steve, any thoughts on the very short irreparable harm argument? Odd for Texas to argue that sb8 may never be enforced while simultaneously claiming that the injunction interferes irreperably with the enforcement of Texas law.
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I don't have data, but my guess is that new lawyers were better at finding relevant case law 15-20 years ago than they are now, despite improvements in technology. Old interfaces like Westlaw Classic were quite efficient; new interfaces are designed to maximize $$.
#lawtwitter
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Another key detail: A student reported Chua's comments in JUNE. And yet
@YaleLawSch
fell over itself to fawn over the
#Kavanaugh
nomination.
"The male student... said that when he approached Chua about his interest in clerking for Kavanaugh, the professor said it was “great”, but then added that Kavanaugh “tends to hire women who are generally attractive and then likes to send them to...Roberts”.
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The contrast between the intrepid reporting of student journalists and credulous stenography of nominal professionals could not be more stark.
“The NYPD cleared our campus only minutes before mass arrests because it wanted to prevent the press from bearing witness to the brutality police would enact against our peers,” Spectator’s editor in chief and managing editor write.
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We should reserve judgment until Justice Thomas's former clerks weigh in.
NEW: In 2018, Clarence Thomas flew to Palm Springs on a private jet and secretly attended a dinner for high-dollar Koch network donors.
The Koch network has brought multiple SCOTUS cases, including one of the biggest of the upcoming term.
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@HeathMayo
Doesn't anyone attending mind that his talking points 1) Inflation; 2) Securing the border; and 3) the "disastrous" Afghanistan withdrawal have nothing to do with Christmas?
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@AdHaque110
"They do not have the capabilities to establish their own homeland" may be worse than "too battle-minded." That type of sentiment was rarely expressed publicly even thirty years ago.
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This is a Professional Responsibility issue spotter.
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@DouthatNYT
With respect, you either didn't read or understand the study. The definition of "late-term" in the study is 20 weeks or later . . . not third trimester, which is what you're opining on. Third trimester abortions are rare and done for the health of the mother.
#VirginiaAbortion
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Thread. This is no way for the legal profession to treat its newest and most vulnerable members.
My sense is that a lot of practicing attorneys and legal academics have no idea just how bad the bar exam situation is for 2020 graduates right now. I want to share a bit about what's going on for me and my peers right now.
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The most important revelation imho is that the government has the contractual right to remove student loans from MOHELA's portfolio for any reason and at its sole discretion. SCOTUS may well enjoin the entire program based on the government exercising that right.
This is infuriating. Republicans argued before SCOTUS that student debt relief would "financially harm" a student loan servicer. A new
@strikedebt
+
@rooseveltinst
analysis shows that was utterly false.
SCOTUS essentially took their word that 2+2=5.
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@designingdallas
@DouthatNYT
Average gestational age in the study was 22 weeks- well off from the third trimester. The study doesn't support
@DouthatNYT
's claim, and he should retract it.
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Turley and Yoo. We are in the law professor version of the bad place.
#TrumpIndictment
.
John Yoo on Trump's fake electors scheme: "But other people thought that those might be thrown out by courts. And so they were thinking there's nothing wrong with appointing alternate slates of electors. They did it in good faith. They weren't trying to commit any criminal--"
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Taking a break from doom-posting to write a 🧵 on "writing your way up" and law school hiring. 1. Think hard about accepting an offer from a school if you can't see yourself there for long. The lateral market is inefficient, unpredictable, and vulnerable to economic conditions.
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Try squaring this with the comically lax view of standing Judges Ho et al adopted in the mifepristone case.
The run of CA5 standing opinions continues. The Court, 2-1, holds that a housing advocacy group lacks standing to sue about race and disability discrimination at a complex in Jefferson.
Judge Wilson writes the op,Judge Elrod dissents, Judge Ho concurs.
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Prof. Lawsky's report is an immense public service. One dismaying data point is the continued preference for YLS and HLS grads in the hiring market. 36% of new hires attended these schools. The rise of fellowships and advanced degrees has failed to change this dynamic.
First look, Lawsky Entry-Level Hiring Report 2024. *Not* a complete listing of hires. Reflects only hires who are entry-level tenure-track at U.S. law schools reported to me by May 14, 2024. Undercounts *actual* hires. Full report (w/updates over time)
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The authors neither note Eastman's vested interest nor explain how a President's decision to waive privilege could be unconstitutional. Shameful and embarrassing.
John Yoo and I have an article just published, describing the terrible and in our view unconstitutional decision by the Biden Justice Department to waive Trump's claims of executive privilege over confidential discussions had with his top advisors.
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I will be sharing this in Professional Responsibility next year.
OK - now the Chat GPT case, Mata v. Avianca, sanctions against the lawyer(s) who filed a brief with non-existent or hallucinated cases. Inner City Press is covering the case and will live tweet, thread below
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In eight months, we've gone from "SCOTUS won't overturn Roe, but it may chip away at it" to "Does a 10-year-old's rape qualify as a medical emergency under Ohio's abortion law?" Dark times.
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I disagree with
@JoshMBlackman
on this (and many other things), but what do his title and institution have to do with the merits of his piece?
The idea that John Roberts, Chief Justice of the Supreme Court for 15 years, should take court management instruction from a 35 year old associate professor at South Texas College of Law is frankly laughable.
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The person who sought to have
@Columbia
fire multiple professors has some thoughts about content moderation at for-profit businesses.
16. One of the accounts that rose to this level of scrutiny was
@libsoftiktok
—an account that was on the “Trends Blacklist” and was designated as “Do Not Take Action on User Without Consulting With SIP-PES.”
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.
@DavidLat
brought much needed transparency to the legal profession. He is tackling
#LivingWithCovid
with his customary candor and humor. Get better, David!
Folks, this
#CoronavirusOutbreak
is no joke. I’ll give you occasional updates, tweeting from “Above the Hospital Bed,” about how serious
#COVID19
aka
#coronavirus
can be. Think of this as
#LatsCovid19Journal
, my thoughts on
#LivingWithCovid
. [Thread]
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SG Prelogar outmatches Justice Alito every oral argument, and he seems oblivious to it.
#SCOTUS
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Biden started off poorly, gathered a bit of strength, and is now fatigued and speaking in non-sequiturs. Reminiscent of the debate alas.
#bidenpressconference
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New paper alert! The Gender Pay Gap and High-Achieving Women in the Legal Profession (with Gabriele Plickert): . We're particularly proud of this paper that will appear in its final form in Law and Social Inquiry. A brief (and somewhat depressing) thread.
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@EricLiptonNYT
Icahn's personal interest in this issue is well-known. Conflicts that have not been disclosed are a bigger problem.
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Lots of confusion on this point. The report is helpful only b/c it undermines Missouri's claim that MOHELA might not be able to meet its financial obligations. Standing aside, insane that we will have a decision in this case without any review of MOHELA's servicing agreement.
Report confirms that MOHELA makes more money servicing loans than it does from one time loan termination fees. That MOHELA revenues are going up for other reasons is irrelevant. Question for standing is the effect of loan forgiveness, not whether MOHELA is flush.
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Since nothing momentous is occurring currently, now seems like an opportune time to announce that I'll be visiting
@UofSCLaw
this spring semester as the Robert W. Foster Distinguished Professor. Looking forward to working with
@echambli
,
@EvidenceProf
,
@tess5724
and many others!
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Some law schools - not just conservative ones - seek to differentiate themselves by courting the Court. There is little evidence that this leads them to thrive, and legal education should be much broader than socializing students in SCOTUS's various orthodoxies.
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I write about hierarchies in the legal profession and even I can't believe how quickly the discussion shifted from Hawley and Cruz's contempt for democracy to the law schools they attended.
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Step 1 will be to require doctors, nurses, pharmacists, and others to report suspected cases of abortion, including abortions obtained out-of-state.
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The Justices are terrible historians, and it doesn't matter. At all.
No history; just vibes. South Carolina's 1868 Constitution protected the right to bear arms for "common defense" and duelers were banned from office. The Supreme Court cites a law criminalizing “all who go armed offensively, to the terror of the people" to support public carry.
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My takeaways: 1) ConLaw is predictably much too high; 2) most law professors do not know what corporate finance is.
Top 10 areas of law that law schools currently treat as central, according to a survey of law professors by
@kevin_tobia
and Martinez.
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Reminder that the Department of Education has forgiven millions of dollars of loans from graduates of Corinthian and other such institutions. We're not exactly in uncharted territory despite what SCOTUS would have you believe.
#studentloanforgiveness
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All this is harmless enough in the usual course, but some scholarship has outsized influence. And, at the end of the day, how much does it matter if scholarship is shoddy if it places well, and SCOTUS will cite to it? One can easily become cynical about the entire enterprise. 2/2
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When I was a law student in 2005, John Yoo spoke on campus. It was a standing-room only event. No protests. Just Yoo calmly answering softball questions that FedSoc leadership had screened. Law schools should strive for a middle ground between that and the Stanford/Duncan event.
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I am proud to announce my new law review article, "Must Stanford love Duncan?" Drawing on recent events, I argue that fiduciary duty obligates not-for-profit educational institutions to love invited guests. Law reviews, please contact me or the Fifth Circuit for an abstract.
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Why are so many legal futurists gleeful when the job market turns for new lawyers?
#lawtwitter
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New draft article🚨: "Deregulation and the Lawyers' Cartel," co-authored with the inimitable
@NGaroupa
. . A thread! 1/6
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Luck plays a massive and often unacknowledged role. Entry-level candidates with the same credentials, including fellowships and placements, will end up at law schools 50-100+ spots apart in the rankings, and there is very little correction subsequently via lateral recruiting.
1) elite law schools only hire from elite law schools
2) elite law reviews publish mostly from profs at elite schools
3) to move laterally (I never tried) one needs articles in elite reviews
4) but if you’re not at an elite school already, good luck
5) elite teaching the elite.
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This interview shows that Biden world was and is completely oblivious. Very bad judgment to even sit for this interview with Harris surging.
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6. Legal academia is a good gig. Write because you have something to convey. In the end, that will hopefully take you where you want to go. FIN.
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As reported by
@BrianLeiter
, health and insurance law guru
@BrendanSMaher
will be joining us
@TAMULawSchool
in 2020-2021. I might finally have to learn something about ERISA (but probably not).
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I am very proud to announce that the talented
@HBWHBWHBW
will be joining us
@TAMULawSchool
in the fall! . Her future colleagues look forward to welcoming her and learning more about
#lackofprivacy
law. cc:
@emptydoors
.
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@baseballcrank
By "Europe", you mean a handful of countries in Western Europe. Most European countries have done a far better job than the US, with fewer resources. You'd be hard pressed to find a comparison group that makes the US look good.
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I was fortunate to participate in a fall symposium
@TempleLaw
to commemorate the Freedman Fellow program. The topic: hierarchies in legal education. My essay, the Law Professor Pipeline, examines class and entry-level hiring using
@OppInsights
data: .
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For the record, most law professors don't go around speculating widely about whether public figures benefited from affirmative action. If Prof. Bernstein is serious about studying the effects of affirmative action programs, he might wish to collaborate with a social scientist.
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I was frankly thrilled that some members teach at non-elite law schools. Commission would have benefited from more social scientists- law professors tend to have an unhealthy reverence for the Supreme Court, but a good mix of folks overall imo.
Roughly 80% of the Biden Commission to study expanding the Supreme Court either graduated from Harvard or Yale or have taught there. Other seven all went to law school at NYU, Columbia, Chicago or Stanford
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@AnthonyMKreis
It's all a hoax, Anthony. Burly military men with tears in their eyes thanked President Trump for paying their tabs that day. No President in the history of the United States has ever picked up as many tabs as TRUMP.
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The shift from "AI will replace lawyers" to "We always anticipated that lawyers would monitor AI" on the part of
#legaltech
folks is . . . Interesting.
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@tomginsburg
@DianeDesierto
@sujit_choudhry
@scottjshapiro
@WilliamBaude
"He's basically Ross from friends when he gets on his paleontology high horse."
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These are very fair complaints, but Democrats are also very bad at politics. How in the world did they think that
#Mueller
was going to make the impeachment case for them?
DEAR MEDIA: The Questioning after the break has gone MUCH BETTER FOR DEMOCRATS than before the break. PLEASE UPDATE your initial hot-takes accordingly! I know it's hard. I know it's hard to CONTINUE listening, but PLEASE TRY.
#MuellerHearings
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I defer to constitutional law scholars on Trump v. U.S, but I do have a legal ethics thought. Traditionally, if a President were unsure whether a certain act were illegal, he would seek an opinion from the OLC or perhaps his own counsel. What is the incentive to do that now? 1/3
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Alas, Professional Responsibility is often an afterthought at many law schools. A banner year for PR hiring is maybe one or two entry-level hires nationwide. It's not a shock that students sometimes take it less seriously than other required courses.
My professional ethics class at a school that produced MANY insurrectionists (
@Harvard_Law
👀) instead addressed topics like “should I report my indigent client if I suspect welfare fraud?” & “is 1 hour of pro bono enough for every 1,000 hours of making rich people richer?”
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Just a reminder to law students that lawyers should not commence proceedings that lack a basis in law and fact. Even if your client demands it!
#Election2020
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This is unconscionable advice from Professor Emeritus. An inquiry can turn into a criminal investigation very quickly. Clerks are lowly paid assistants to political functionaries despite the "perks." They need to protect themselves and their careers.
This unsolicited advice from
@mjs_DC
is worth what the law clerks paid for it. This isn't a criminal investigation, and any law clerk who values his or her job at the Court and the perks that job carries with it going forward would be smart to cooperate with this inquiry.
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@espinsegall
I feel like it's a bigger problem that the President apparently can't be held to a higher standard than the Klan.
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Countrywide mortgage was similarly committed to the highest loan underwriting standards.
Chief Justice John Roberts said Tuesday evening he is committed to making sure that the U.S. Supreme Court adheres to the highest conduct standards.
#SCOTUS
#ethics
#legalethics
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My nightmare as a legal ethics professor. Thread 👇
Yesterday, the Dallas Court of Appeals affirmed a conviction for aggravated sexual assault. No surprise there.
What makes it noteworthy is that there was a dissent.
Strap in,
#appellatetwitter
, this one is wild.
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I haven't been an active
@Columbia
alum, but how much longer can the Board of Trustees tolerate such incompetence and obliviousness? This crisis didn't start because of a lack of "dialogue" and "listening." It started because Shafik called in the NYPD a day after testifying.
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Could not agree more with this thread. Less conlaw, more private law in law schools!
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The notion that universities indoctrinate students is not new and has been debunked again and again. Higher education's critics are not evil, but it's hard to find common ground with them when their accounts of higher ed are largely untethered from reality.
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I appreciate
@lawprofblawg
noting my work. Sadly, I suspect we are going in the wrong direction, and
@TheAALS
has largely been AWOL on hiring post-pandemic.
Wonder what effect this has on views of access to justice, labor issues, and mingling of the uber rich with SCOTUS justices.
(same paper)
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Biden is going to have a major problem with younger voters in 2024 if SCOTUS strikes down student loan forgiveness as loan payments are set resume.
Very glad to have coauthored this
@jainfamilyinst
report "The Repayment Pause and the Continuing Crisis of Non-repayment" with my colleagues
@laura_bmw
,
@sergiotpinto
, &
@Edi_Nilaj
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Kudos to the brave "progressive" law professors who attested to the brilliance of former fellow's SCOTUS nominees.
I can’t believe I’m sitting here waiting to see if the SCOTUS is just gonna straight overturn Roe without so much as a peep
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