CHS Cites ‘Shifting’ Standards in Fraud Allegation Settlement

Reuben Guttman Articles, Whistleblower News

This interview with Reuben Guttman, who practices law with Guttman, Buschner & Brooks PLLC in Washington DC. and who represented three Plaintiff-Relators in United States ex rel. Doghramji v. Community Health Systems Inc., was conducted by John Commins, Senior Editor with HealthLeaders Media. The interview was published online on August 6, 2014.

An attorney representing one of the whistleblowers alleging that Community Health Systems committed fraud says that as a nation, “we have a healthcare delivery system where doctors and individual decision making, to some degree, have been shoved to the side by corporate managers.”

Community Health Systems, Inc. and federal prosecutors have agreed to a $98.1 million payout to settle system-wide fraud allegations levelled by whistleblowers against the Franklin, TN-based for-profit hospital chain.

While they have agreed on a settlement, CHS and federal prosecutors disagree on what prompted 119 hospitals in the nation’s largest acute care hospital chain to allegedly overbill Medicare, Medicaid, and TRICARE from 2005-2010 for inpatient services for patients who may not have needed to be hospitalized.

CHS Chairman and CEO Wayne T. Smith said the hospital chain was struggling “to operate in a complex and everchanging regulatory environment.”

“The question of when a patient should be admitted to a hospital is, and always has been, a matter of medical judgment by the individual physician responsible for a patient’s care,” Smith said in a media release.

“Unfortunately, shifting and often ambiguous standards make it extremely difficult for physicians and hospitals to consistently comply with the regulations. We are committed to doing our best, despite these challenges. Because this is an industry-wide issue, we hope the government will work to devise sound and reasonable rules for the important decision about whether to admit an individual for inpatient care, and we appreciate the opportunity to engage in meaningful dialogue with the government over these incredibly complicated issues.”

A CHS spokesperson amplified Smith’s point by saying that the shifting standards, “such as the two-midnight rule, which has had numerous updates, clarifications, and additional guidance attached to it since it was issued in August 2013… make it difficult for ALL providers to consistently comply with regulations.”

Federal prosecutors said flatly that the fraud allegations stemmed from a “deliberate corporate-driven scheme.”

“Charging the government for higher-cost inpatient services that patients do not need wastes the country’s healthcare resources,” said Assistant Attorney General Stuart F. Delery for the Justice Department’s Civil Division. “In addition, providing physicians with financial incentives to refer patients compromises medical judgment and risks depriving patients of the most appropriate healthcare available.”

Even though the settlement terms don’t include a guilty plea, Daniel R. Levinson, inspector general of the Department of Health and Human Services said that “in an effort to ensure the company’s fraudulent past is not its future, CHS agreed to a rigorous multi-year Corporate Integrity Agreement requiring that the company commit to compliance with the law.”

CHS had already set aside $102 million to cover the settlements and legal bills.

The settlement also resolves several whistle-blower lawsuits levelled by CHS employees in hospitals in several states. The whistleblowers’ share of the settlement has yet to be determined, DOJ said.

Reuben Guttman, representing whistleblower James Doghramji, MD, a former emergency physician at CHS’s Chestnut Hill Hospital in Philadelphia, spoke with HealthLeaders Media about the settlement. The following is an edited transcript.

HLM: CHS CEO Wayne Smith says that the billing irregularities are due to complex and shifting federal requirements. Do you buy that?

RG: I don’t think he has a legitimate point. This is a company that is crying out for additional scrutiny and oversight and this is a poster child for a Congressional investigation. In theory, doctors are supposed to make decisions.

In practice, people like Mr. Smith and companies like CHS have set up a dynamic where individual patient medical necessity is secondary to marketing and money. We are at a point where we have a healthcare delivery system where doctors and individual decision making to some degree have been shoved to the side by corporate managers.

This is a story about a company that was gobbling up suburban hospitals for no medical rationale. It’s not that they can run them better or that they were providing significant expertise. It was just about extracting cash from the Medicare/Medicaid system.

CHS was designing its admissions criteria on a centralized basis. CHS in Nashville was tracking exactly what was going on in all of these hospitals. They knew the economics at a micro level. I don’t think plausible deniability exists here.

HLM: Do you have a sense of the value of the alleged fraud versus what CHS is paying for?

RG: If you actually look the cash flow for this company, this is a very significant amount of money that they have put off. It is probably not significant in relation to the actual cost to the United States government or individual payers or what the government could extract if they tried the case, but it is a number that pushed the edge of the envelop in terms of paying something that is significant but allows the company to go forward.

The most significant thing about these cases is that they make the wrongdoing to some degree transparent as a catalyst perhaps for Congressional oversight. The reality is that unfortunately, many of these settlements are nothing more than the fee for a license to continue to break the law. What is apparent to us is that a lot of large companies are gaming the system and thinking ‘what is the likelihood of getting caught, and if we get caught what is the penalty?’ The penalty becomes part of the game.

We have to have a penalty system that is hard to calculate in advance and that will make it more difficult. But in reality you have to change the healthcare delivery system in the sense that we rely on the integrity of these types of corporations that have put medical decision making secondary to making money.

You can see when a train wreck is about to occur when you look at the debt service for a company. You are not going to create additional sick people. There are only a certain number of sick people. This is a situation that is going to be ripe for fraud.

HLM: Was there a smoking gun for prosecutors or whistleblowers in this case?

RG: In all of these cases, the complexity of the cases, you don’t find smoking guns. It requires you to find the smoke and the pieces to the gun and put it all together. Then, the trick for somebody who is doing lots of fraud cases is to look at the facts that aren’t there, or the rules that don’t exist, or to see what appears to be facially neutral practices are driving impropriety.

For example, if you have an innocuous practice that says when somebody comes into an emergency room and there is a rule that says they should be put on an IV, you can look at that and say that is not a smoking gun, putting someone on an IV.

But wait a second, when you put someone on an IV that means you are going to streamline them into an admissions situation as opposed to giving them bottles of water, maybe they will be OK, and we will send them home. You have to look at facially neutral practices and how they are driving an unlawful result. That is the trick to uncovering fraud. It’s extraordinarily complicated.

You have two things that are going on. One is you have companies engaged in these facially neutral practices that have an unlawful result for the purpose of deceiving regulators. Two, more significantly, it is a way of creating a cult and convincing people internally that they don’t have to worry about it because nobody internally is putting the pieces together. People who are paid well generally don’t want to do it.

This is the simple question you need to ask: What person or entity knowingly exposes somebody to infectious diseases in order to make a buck? That is the cutting question, because the reality is that while hospitals are places to get well they are also places that are dangerous because there are infectious diseases in hospitals. You don’t want to admit somebody unless it is medically necessary.

There are corporate executives who are knowingly and recklessly putting people at risk. That is unconscionable.

HLM: Do you feel this is a fairly widespread practice in the hospital sector?

RG: I wouldn’t be surprised.

A CHS spokesperson reached for comment late Tuesday said “This investigation was not about the quality of care provided or the location of the care that was provided for any patient–or even how long patients were in the hospital. It is about whether the hospital could rely on the physician’s signed orders in the medical chart to establish the patient status as inpatient–and then bill for the exact care that was provided. It is about the “status” of the patient–inpatient or observation–while that patient was in the hospital.

Does Government Really Have the Watchful Eyes to Privatize?

Reuben Guttman Articles, Whistleblowers Blog

Certain things in life are predictable. A kid tilts the gumball machine when the candy does not roll out. A soda machine is kicked when the pop gets stuck. A baseball manager is fired when a team fails to make the playoffs. And, oh yes, don’t forget this one: politicians threaten to give away government functions when they do not work right. In recent days, with word of veterans waiting in line to get health care services, the big boys on Capitol Hill were once again doing their own form of “soda machine kicking” with calls for the privatization of Veterans Administration Health care services.

The rational for outcries to privatize are traced to the purported justification that the private sector is more efficient and works better than government. Really? Do the names Tyco, WorldCom, Enron, and, more recently, General Motors mean anything? What about the hospital chains like Hospital Corporation of America or the drug companies like Pfizer, GlaxoSmithKline, Abbott, and Amgen that over the years engaged in conduct that drew the ire of the Department of Justice?

Setting aside the list of bad actors that could fill a few notebooks, maybe there is something to be said about the idea that the private sector does it better. But is that really true when the private sector contracts with the government, or is a government contract merely a license to steal? Consider this: once government services are contracted out and long term civil service employees are displaced with contractors, there is – as Eddie Murphy might say – “no going back.” And some contractors have such a grip on their relationship with government agencies, it is virtually impossible for the government to keep them in line through any form of adult supervision. Take the case of Lockheed Martin Corporation. It has approximately $37 billion in government contracts currently. In other words, at the same time the United States Department of Justice is pursing Lockheed for violations of the False Claims Act, it is rewarding it with hundreds of millions of dollars in government contracts.

No doubt it is unrealistic to advocate for the elimination of all government contracts. It is, however, reasonable to explore their extent and focus on means to hold contractors accountable. So let’s focus on their extent. Most Americans do not know that government contractors have been hired by agencies to provide guidance on the drafting of regulations that have the force and effect of law. Presumably when this occurs the government is monitoring these contractors for potential conflicts of interest. But sometimes things fall through the cracks, like when the Nuclear Regulatory Commission retained SAIC to work on a rule governing the “free release” into commerce of recycled radioactive metal. It turns out that the NRC did not realize that its trusted advisor stood to benefit from these rules because it had subcontract to aide in the recycling of radioactive nickel from Tennessee’s Oak Ridge K-25 nuclear weapons site. Nor do most Americans realize that the Centers for Medicare Service, a part of the Department of Health and Human Services, actually contracts with insurance companies to dole out government health care dollars. And as to prescription drugs, those insurance companies rely on private “compendia” publishers for guidance on whether the use of drugs for non-FDA-approved purposes is reasonable. Turns out that the compendia publishers rely on committees with doctors who are on the gravy train of the drug companies who stand to benefit from non-FDA-approved use of their drugs.

With all my grousing someone reading this might say “tell it to the judge.” But did I mention that our Supreme Court is pushing to privatize the judicial system through compulsory arbitration. The rent-a-judge movement is no minor anecdote. Arbitrators are not required to adhere to judicial precedent and their opinions — if they even write one — are not subject to review for non-adherence to law.

The privatization of America is a threat to anyone who is not the beneficiary of a government contract. I suppose, of course, that even government contractors have some worry; if they are actually placed in prison for misdeeds they may find themselves under the thoughtful oversight of a private prison company.

All of this goes to the point that on June 20 — at its annual convention in Washington — the American Constitution Society will convene a panel on the “Privatization of America.” It is the first of what will be many much needed dialogues about this subject.

Profiles in Justice: An Advocacy Masterclass

Paul Zwier Articles, Whistleblowers Blog

Emory University Law School is behind an innovative trial advocacy course equipping law students with trial expertise.

ATLANTA, GA – On a Saturday morning in early May, a second year Emory University Law School Law student from Southern China stands at her place in the school’s mock trial courtroom and announces that she is ready to proceed with her case on behalf of the United States Government. While many law schools teach trial advocacy, Emory Law School is the only school in the United States requiring students, as a condition of graduation, to participate in an eight-day intensive “learn-by-doing” trial advocacy program. And because Emory draws students from across the globe, it is not unusual to see students from China, Mexico, Korea or countries in Europe, work from case files placing them in roles as advocates for the United States of America. For me, it is my tenth year teaching in the program. Founded 32 years ago, it is officially known as the Kessler-Eidson Trial Techniques Program in recognition of a grant given by Emory Law Alumni Mike Eidson and Richard Kessler. Eidson, a former President of the American Trial lawyers Association (now known as the American Association of Justice), represented the Kessler family in litigation stemming from the crash of a ValuJet airliner carrying Mr. Kessler’s wife, Kathleen. Eidson and Kessler allocated part of the proceeds of a settlement to fund the program and several scholarships in advocacy.

Legal services demand grows

While job openings with big law firms may be scarce, the actual demand by individuals for legal services continues to grow. And in an era where a licensed lawyer with a computer can establish a virtual law office, the Emory program is designed to equip students with the skills to go to work, if necessary, on their own, once they pass the bar. JC Lore, a Clinical Professor who heads the Advocacy Program at New Jersey’s Rutgers’ Law School, has made the pilgrimage to Atlanta each May for the past six years. “I am not aware of any other place that assembles such an impressive teaching team in one location,” says Lore. Bill Hunt, a Boston area trial lawyer, who has been one of the nation’s leading teachers of trial advocacy, has taught at Emory each spring for more than two decades. For Hunt, the Emory program is “the premiere program in the United States.” Professor Zelda Harris who heads the Advocacy program at Chicago’s Loyola University School of Law also makes the May trek to Atlanta.

Over three decades, the ranks of those that have endured the rigors of Kessler-Eidson are impressive. When and if the Boston Marathon bombing case goes to trial, the lead counsel for the United States Government will not come from nearby Harvard Law School, but will be an Emory alumnus who may have called his first witness during the Kessler-Eidson program. Other trial program and Emory Law Alumni include federal and state court judges, federal prosecutors, and leading plaintiffs and defense lawyers.

Who’s who

As for faculty, the program draws a stunning “who’s who” list of judges and trial lawyers including Cynthia Stephens, Emory Law alumnus Class of 1976 and a Michigan First District Court of Appeals Judge; Michael Washington, a California Superior Court Judge in San Diego County; Jack Nevin, a Washington State Superior Court Judge and a retired Brigadier General in the Army Jag Corps; Matt Williams, a Washington state District Court Judge; Betty Butchko, a judge of the 11th Judicial Circuit Court in Florida; Craig Iscoe, a District of Columbia Superior Court Judge; and George Hanks, a Federal Magistrate Judge from the Southern District of Texas. Bringing judges to the program allows students to see the practice of law from “the bench” as they learned during one discussion panel on ethics and professionalism in the court room. http://www.youtube.com/watch?v=tnjr__4r-LQ

A melting pot

The melting pot of faculty includes civil and criminal litigators and on the criminal side ranges from those who prosecute death penalty cases, like Emory Law alum and Delaware’s Deputy Attorney General Steve Wood, to Michigan attorney Roosevelt Thomas and Emory Law alum John Mauldin of South Carolina who have defended accused murders. While the faculty has always been geographically diverse, including Idaho Chief Federal Defender Dick Rubin, and Oakland County, Michigan Homicide Chief Prosecutor, Barbara Morrison, recent years have brought international faculty to the mix. With Emory Advocacy Center programs partnering with universities in Mexico and China, the Kessler-Eidson program, has added faculty from foreign jurisdictions. This step has marked a recognition that advocates must be trained to work in a global economy.

Students are divided into ten teams led by team leaders many of whom — like practitioners Bob VanderLaan, Bill Hunt, and federal prosecutor and Emory law alum Joe Newman — have taught generations of Emory law students. Others, like Emory Alums Matt McCoyd, a former prosecutor, and Liz Markowitz, a prominent Atlanta public defender, have tried several hundred cases to verdict between them.

Emory Law Professor Paul Zwier, who heads the Program and is the Director of the Law School’s Center for Advocacy and Dispute Resolution, presides over 8 AM faculty meetings where up to 60 practitioners and judges are briefed on the day’s teaching assignments. Zwier, former Director of Public Programs for the National Institute for Trial Advocacy has taught in hundreds of trial programs in the US and around the world. He has a global reputation in trial advocacy, and is an advocate for the importance of the teaching-by-doing approach and the need to “get students up on their feet,” so they can learn both what to do, and also how to deal with the emotions and adrenaline that often gets in the way of the lawyer’s advocacy.

Working off of case files, students study fact patterns and prepare their case from openings to closings. They play the role of advocate but they also take turns as witnesses.

For students coming off of final exams and who are used to studying law through the case method, the Kessler-Eidson program is a bit of culture shock. Students focus on the facts first and then match facts to law through oral advocacy. They practice direct examinations, cross examinations and opening and closings and receive critique from faculty members. While they have taken “Evidence” in the classroom, their hands on experience forces them to understand the real life application of the Rules. Video cameras are used to tape presentations and faculty members sit with students and evaluate performances during “video reviews.”

Classes begin before 9 AM each morning and end each day with a demonstration by faculty members. http://www.youtube.com/watch?v=JIw0MBaDx_Y With rare exceptions, Zwier warns faculty to keep to teaching and not to tell war stories, which are reserved for breaks, (or discussions each evening when faculty convene for dinner).

Three days into the program, the students are ready for their first bench trial. Once that is over they are given a new file to learn with only 48 hours to prepare the case for a jury. Local high school students are brought in to sit in as jurors. By the end of the week, Emory Law students will have collectively tried 150 bench and jury trials. They will be bleary eyed from lack of sleep but with a taste for trial work, many of them will have “caught the bug,” says Zwier, and will want to try cases after graduation.

As for what they have learned, Professor Zwier has these tips for students and practitioners:

Tip #1: Remember the lesson learned by the lawyer who represented a man, with a goat, accused of letting his goat get out to eat his neighbor’s cabbages. He argues, “First, my client doesn’t have a goat, but if he did, he didn’t let it get out, but if he did have a goat, and it got out, it would not have gone in the direction of the neighbor’s cabbage patch, because it doesn’t like cabbages.” The jury took almost no time to rule in favor of the neighbor with the cabbage patch. Defendants should focus on one factual theory when they are in front of a fact finder. Otherwise the implication of arguing multiple theories is to lose your credibility where you are weak, and admit the legitimacy of them all. In other words, pick a theory, unless you can unite your multiple theories under a unified theory: like “Rush to Judgment.”

Tip #2: When arguing for money damages, don’t ask for an award. You are not seeking to win the lottery, you are asking for money to compensate or make up for what has been done to the person harmed. By analogy, “the defendant has pushed the plaintiff under water, and held him under until he is almost drowned. Members of the jury, the question for you is whether it is time to compensate the plaintiff to not only bring him up to the surface but put him back in the race at a place where he was before the defendant’s wrongful act?”

Tip #3: When following a stirring opening statement take back the offensive. Use the technique of Ed Stein, famous medical malpractice defense trial lawyer from Michigan and say, “Wow that was quite a speech from the plaintiff’s counsel. But now I’m going to talk to you about what the evidence shows in this case. And the evidence will show that despite the plaintiff’s fancy words …” and then point out the strongest facts in favor of the defendant, that the plaintiff neglected to mention in the opening.

Tip #4: Front your bad facts. For example, if your client had a drink before getting in an accident, tell the jury about it in jury selection, [or the fact finder, early in your opening]. That way they will know you are not hiding it, or being defensive about it, and give you credit for trusting them to know about it. Often jurors are forgiving once they hear about the bad fact. If prospective jurors are asked if they can still be fair, and promise to wait and hear all the evidence, they can better focus their attention on the other parts of the defense, for example, that there was no proof of speeding, or any causal connection between the drinking and what happened in the accident.

Tip #5: Remember to Show and Ask, Don’t Demand and Conclude. Jurors will hold much more dearly to conclusions they reach for themselves, than any demands made on them by the lawyers.

Profiles in Justice: The Art of Labour Relations

Reuben Guttman Articles, Whistleblowers Blog

Trade Union general counsel Maria Ludkin tells Reuben Guttman about the connections between life as an art lawyer and her current role as general counsel of the GMB. This blog written by Reuben Guttman who practices at of Guttman, Buschner & Brooks PLLC and was published in the Global Legal Post on May 12, 2014.

Maria Ludkin knows a lot about art. As counsel to Christie’s for over 12 years, the UK solicitor spent seven years in London as head of litigation and a further five in New York. These days Ludkin is back in the UK – in a different, albeit equally creative role. As General Counsel of the GMB, the UK’s third largest and fastest growing trade union with 635 thousand members, she and her team design campaigns to focus attention on the wages and working conditions for its members who are low wage earners in the public, retail, and utilities sectors. Talking to Ludkin about the GMB’s campaigns, the idea of them being an art form is not so far-fetched. For Ludkin, her artistic “mediums” are the press, the legislature and the courts. She has an acute understanding of how efforts that utilise these three forums lead to results.

Background

Shortly after her graduation from Brunel University with a degree in law and international relations, Ms Ludkin found herself representing 3000 elderly home owners on the verge of losing their homes through mortgage fraud. She orchestrated a media and political strategy that brought her clients relief and led to tightening of UK’s rules governing the selling of endowment securities. This “triumph in the face of a difficult situation” has inspired some of her more recent campaigns.

Private equity campaign

Keeping pace with efforts by multinationals and private equity investors to skim more profits by suppressing wages and eliminating benefits is undoubtedly a challenge which demands creative solutions, much persistence and a solid knowledge of corporate law and finance.

In 2007, Leicester University Professor of Labour Relations Ian Clark worked with Ms Ludkin and Paul Malloney of the GMB on its submission to the Treasury Select Committee inquiry into private equity. In his account of the experience, Clark said that it established that private equity investors often break implicit contracts with the workforce and that “these investors are largely unregulated by the government.” Ms Ludkin added that while private equity investors “may be good for short term investors, it is usually a disaster for employees and the long term health of the company.”

In this campaign, Ms Ludkin broke out of traditional campaigning models and utilised not only press, politicians, and stunts, but also identified activist shareholders whose interests aligned with the campaign and even reached out to rival firms and competitors to comment on her campaign. She successfully had what was usually the opposition press telling her story of cleaners paying more taxes than the private equity partners whose offices they were cleaning. Such tactics ensured that Ludkin won the moral high-ground and successfully brought about changes in regulations of private equity firms.

The Amazon workers

The GMB’s campaign to communicate the plight of Amazon’s 20,000 UK warehouse workers who are paid low wages with minimal benefits is another case in point. “We had to create a visual image of these contract employees who work 10.5 hour shifts walking over 15 miles a day,” says Ms Ludkin. “The warehouses are massive and workers must record fifteen miles on their feet or face termination.”

For Ludkin and her team, focusing on the 15 mile figure was the essential element in creating a visual image of worker mistreatment. “We have an incredible team with incredible researchers and I love it when ideas gel,” says Ludkin. In the case of Amazon, Ludkin’s GMB team wanted to show that workers were “being treated like robots.”

Looking back on her career path, Ludkin reflects that while she “loved working with the extraordinary colleagues in the art world,” she wanted to work on issues with a bigger impact than “just solving rich peoples’ problems.” As for her current work, she points out that “the working poor need good lawyers.”

Tips for lawyers

What advice would this lawyer give other practitioners? Ms Ludkin has the following tips:

• In choosing a practice area, decide what makes you happy, otherwise you will get frustrated and ultimately bored.
• Being able to tell a good story is the key to delivering a message.
• Try to create visual images of the problem and raise issues that will make the listener continue to think about what you said.
• Stretch outside your comfort zone and work with a diverse group of people, not just people like you; the best messages come after testing them out with people who have diverse personalities and skills and sharpening your arguments by listening to people who have completely opposing views to your own.

Benchmarking Law Schools

Reuben Guttman Articles, Whistleblowers Blog

How should law schools be judged? Reuben Guttman questions the current law school rankings and urges law school professors to follow suit.

In the United States, law school deans have now had more than a few weeks to digest the latest rankings by US News and World Report.

Setting aside whatever specific criteria US News employs to rank law schools, by any account the true quality of a law school is a function of only two variables: the students who attend the school and the faculty that does the teaching.

As law schools strive to climb the US News ranks, much attention is given to enrolling students with high college grade point averages and high Law School Admissions Test (LSAT) scores.  These are two of the key criteria that US News factors in its ratings. Curiously, diversity is not one of those criteria and while employment is considered a factor, the specific type of employment is not a consideration in the rankings.

Do these criteria yield those who will have the most potential for being great lawyers, judges, legislators or scholars?  Who knows?  They are simply the criteria that US News analyzes when it ranks law schools.  By this standard a student with a near perfect grade point average who never took a single math or science course would be favored for admission over a chemical engineering major with a B or B plus average.  Or the criteria might favor a student with a near perfect undergraduate grade point average who never learned to write.

The larger point is that a third party – a publication whose interest is in generating advertising revenue and not in the first instance producing great legal minds – is influencing who will be the next generation of judges, advocates for those who cannot advocate for themselves, and counsel who advise multinationals on regulatory compliance.  Really?  A third party is affecting the choice of individuals who will determine how our world will be governed and compliance enforced.

Does this make sense?  In an era where legal interpretation often depends on mathematical or scientific analysis, do we really want to overlook students who endured the rigors of an undergraduate math and science education at the cost of a perfect GPA?  Do we want to place inordinate value on test scores as an indicator of the ability to write coherently or to assimilate information and express a view?  These days admissions officers use these criteria – with unwavering allegiance – simply because they are the criteria established by US News and not necessarily – at least in the first instance – because it is the only way to find students with potential.

While these criteria could very well be an indicator for potential as a great legal mind, the unwavering use of the criteria simply to achieve a for-profit publication’s approval undoubtedly hamstrings admissions officers in selecting entrants to the legal professions that may have valuable skills.

As to the faculty, US News appears to put some premium on scholarship.  This means law schools are urged to hire those teachers that publish.  But publish what?  Do faculties of law schools have to publish books and articles that are useful to practitioners, judges, or legislators or, at least, indirectly impact the lives of people?  No.  They just have to publish.  And as they are urged to publish, they strive to publish about things that no one has written about.  Consider these articles: Postmodernism and Dworkin: The View from Half-Court, 17 Nova L. Rev. 799 (1993); South Park & The Law, 14 Tex. Rev. Ent. & Sports L. 47 (2012); Professor Kingsfield: The Most Misunderstood Character in Literature, 33 Hofstra L. Rev. 955 (2005); and Capital: Conferring with the Flowers: History and Class Consciousness in L. Frank Baum’s Land of Oz, a General Theory of Magic and Law, 20 S. Cal. Interdis. L. J. 67 (2010).

Does the focus on the esoteric advance the profession or prepare students for the practice?  Even Justice Roberts recognizes the irrelevance of this type of scholarship.  During the Fourth Circuit Judicial Conference, Justice Roberts stated, “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

Somewhere there must be a group of law professors and Deans who are willing to blow the whistle and say the system needs to change.  Maybe at least someone will take the hint.

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