Friday, November 22, 2013

Wisdom From Monty Python

I thought a little pre-Thanksgiving humor might be in order, but I also think this clip (see link below) speaks to legal education. We all need to be true to our individual missions as educational institutions. I think we far too often react to, and emulate, what other schools are doing. We really do have to be different.

November 22, 2013 | Permalink | Comments (1)

Monday, November 18, 2013

A Lesson from a Different Profession

Law schools are not the first profession to suffer declining enrollments, and a changing profession. Dental schools experienced a similar decline over 2 decades ago. As a result of a shrinking job market, dental school applications dropped at an alarming rate. Accordingly, some universities decided to close their dental schools. A 1987 article in the New York Times reported:

Georgetown University's 86-year-old dental school has no first-year students this fall. Over the next three years the Washington school will be gradually shut down, unless students and faculty members win a lawsuit to block the move. Georgetown, formerly the nation's largest private dental school, decided to close after a Price Waterhouse study found that the school would have a $3.6 million deficit by 1992. In Atlanta, Emory University's dental school will be graduating its last class of dentists this spring, then converting itself into a postdoctoral and research institution… Many of the 57 other dental schools in the United States have cut back the size of their classes, unable to attract enough qualified applicants. According to the American Association of Dental Schools, applications have dropped by almost two-thirds since 1975. The academic quality of the applicants has declined, too. High Tuition and Debt And dental schools face other problems: Tuition that tops $15,000 a year at some private dental schools discourages many applicants, as does the fact that the average private dental school graduate has educational debts of $51,000.

What is interesting is that among the universities choosing to shut down their dental programs were prestigious schools like Georgetown and Emory. My understanding is that those universities determined that their dental schools no longer attracted the types of students they wanted to have at their institutions. Like law schools, the greatest decline in dental school applications occurred at the top end of standardized scores and undergraduate GPA’s. Emory and Georgetown were concerned that the students in their dental schools would not reflect the high credentials of students in their other programs, so they decided that it was better to close the doors, than to allow the dental school to “dumb down” the university.

The assumption seems to be that it will most likely be fourth-tier schools that will close, if law schools close. Based on what happened to dental schools in an almost identical atmosphere, I am not sure that assumption is correct.

November 18, 2013 | Permalink | Comments (0)

Thursday, November 14, 2013

Dean Frank Wu on Faculty Compensation

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post under the title "The Proverbial 'Elephant in the Room:' Faculty Compensation".

Everyone wants us to reduce faculty compensation. I am skeptical by nature, especially of those ideas that everyone else happens to like.

I am not sure that framing the issue as reducing faculty compensation is useful. By that, I do not intend to set up the matter to favor professors. Proceeding from the perspective of critics of legal education, the real issue is the cost of instruction more generally and not professorial salaries per se. Notwithstanding my doubt, I'd like to entertain the prospect that has been broached. (I have already discussed the difficulties of curtailing salaries and the countervailing demands that operate on law schools.)

Regardless of what observers might dictate, the decisions many of us law school deans have made also compel us to take apart our business model and rebuild it. We have chosen a course. Most law schools have shrunk. Reducing enrollment means reducing revenue.

Even for the handful of schools that are not tuition dependent, thanks either to a state subsidy or endowment earnings, the loss of income must be balanced by a corresponding cut to expenditures. Central administrations that are offering a temporary subvention, unless something quite strange has happened, will not maintain that indefinitely.

I am assuming that we can leave aside the arguments rooted in resentment of intellectuals, especially those reflecting prior ideological prejudices against critical inquiry. It is worth noting, however, that the bitter tonic being served us is not all medicinal; some is, intentionally, simply vitriol. (Elsewhere, I'll discuss the intrinsic value of legal scholarship and how we should respond to the demagogues who are trying to destroy the rule of law.)

At this point, we must take on this task. Law schools cannot enroll the same numbers they previously did; and law schools cannot continue to increase tuition as they have. It's simple math. Everything else being equal -- which they aren't, because of inflation -- law schools cannot spend as they would desire.

Accordingly, I would like to analyze multiple means of bringing down the cost of instruction. Payroll is the primary component here. Other factors are more readily controllable.

There are four basic possibilities: pay the same number of professors less money; employ fewer professors who continue to earn the same amount; create different categories of teachers; or change the cost-benefit calculation not by decreasing the expenditure but increasing the return.

Lest I panic my colleagues, I should preface my comments by indicating that I am not advocating a wholesale attack on their salaries. To be clear, I am a pragmatist. I like to lay out the possibilities for action in order to consider proposals that otherwise are abstract. Considering how something might be done allows us to determine whether it should be done.

First, a school could attempt to reduce the salaries of those currently on the payroll. That is the most obvious initiative. It's also likely to be the least effective.

There likely would be litigation. Even if such a plan were voluntary, there then would be significant issues of recruitment and retention, which would lead to problems with reputation and rank; these would combine in a devastating feedback loop.

Second, a school could have fewer professors on the payroll. Many schools will benefit from a break demographically. Baby boomers are headed toward retirement age.

With minimal fuss, it is likely that non-trivial numbers will depart of their own accord. The catch is that they cannot be replaced, for their absence is to be a benefit in the form of salary savings.

Third, a school could be creative about who it puts into the classroom. A diversity of titles is possible.

The trends further much more than the balancing of budgets. The possibilities could transform legal training, so it becomes more skills oriented. The multiplicity of positions matches what has happened within law firms. They have realized that a traditional associate-to-partner track with a strict up or out doesn't serve clients or the business itself.

Thus we should see the promotion of adjuncts who are practicing lawyers and sitting judges; the introduction of practitioners in residence or lecturers, who may have retired from the bar and the bench into full-time educational roles; and the welcoming of every other type of professional who contributes to the pedagogical enterprise. There are disadvantages that cannot be glossed over, though: A community that idealizes egalitarianism but tends toward elitism will be multiplying distinctions.

Fourth, a school could change expectations about what even tenured/tenure-track faculty do on a daily basis. The teaching load and the service contribution could be upped. It need not be said that the standards for scholarly productivity would have to be dropped. These are not black and white dichotomies; they run along a spectrum. An extra class here, a committee assignment there, and the number of law review articles published will be fewer but not zero -- or, perhaps, some individuals who become busy will thereby become more efficient. Greater differentiation among faculty members is a probable consequence.

Any of these tactics could be combined. They also could be leveraged with technology that enables every type of professor to be more productive.

We must confront these choices. That is why I have laid them out as explicitly as possible.

We are always asking for more state funding and pursuing private philanthropy, but it is wishful thinking to suppose that either of them or even the combination of them will make our dilemma disappear. Government officials and generous alumni who would offer support are among those who want to know we have a model of legal education that is sustainable and successful.

I am committed the proposition that law is at the heart of our democracy.

November 14, 2013 | Permalink | Comments (0)

Wednesday, November 13, 2013

Dean Jim Rosenblatt

Today I learned that Jim Rosenblatt will be stepping down as Mississippi College's Dean in August 2014. That makes me sad. At some point, every dean has been touched  by Jim's positive and boundless energy. He has done amazing things at Mississippi College, and he has done his great work with a kind and giving spirit.

I will never forget my first experience as a new dean at Ole Miss. It was my first week on the job, and I went to the Mississippi Bar Convention in Destin, Florida. The first event I attended was the AT&T dinner for its outside counsel. The law school deans were invited to this dinner. What I didn't know was that this was the only event at the Bar Convention where men were expected to wear suit jackets or ties. I had assumed that a convention at the beach would be pretty casual, so I brought neither a jacket nor a tie. Not a great start to my new job!

Hearing of my plight, Jim Rosenblatt literally gave me the coat off of his back. Those of you who know Jim know that he always wears a coat and tie, so he said he could spare the jacket. I will never forget that simple act of kindness. As I have gotten to work in the same state with Jim over the last three plus years (as can be proven by his wonderful Deans Database) I can attest that his kindness was completely genuine, as was his dedication to his students and to legal education.


November 13, 2013 | Permalink | Comments (0)

Sunday, November 10, 2013

Dean Frank Wu on Shrinking Law Schools

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

Law schools must reduce their J.D. class sizes. They should do so immediately and permanently.

The data are compelling. There are simply too many lawyers and too many law students in the United States nowadays. Only about half of recent graduates of law schools, of which there also are too many, are securing permanent full-time employment in the legal profession at this point.

There, I've said it. Indeed, my law school has taken action. Lest observers speculate, we announced our decision as part of comprehensive strategic planning, well in advance of seeing how the applicant pool looked for this academic year.

If anyone doesn't know the news, there were fewer people aspiring to join the bar in the admissions season that ended a month ago when we welcomed the one-L class -- again. This runs opposite to the previous pattern: When the economy slumps downward, law school applications spike upward. Worse, it appears that the supply of the strongest candidates is decreasing at the greatest rate.

The only issue is whether these trends are an anomaly, blip, or cycle. I'm convinced they signal a permanent and profound structural change.

Sure, the economy will recover. Yes, law firms will too.

But look at the law firms that already have come back. Many of the so-called BigLaw firms -- the most prestigious, constituting only a fraction of the bar -- are making more profits per partner than they ever have. The same is true of some of their mid-size counterparts and specialized boutiques.

Except those establishments are doing what they do after surviving a round of layoffs. They are not rushing to recall the people they showed the door.

A few of these thriving operations even have flat revenues. They have managed to adjust their model so they do more work with fewer people. Thanks to technology, outsourcing, and the commodification of service professions, as institutions they have come to resemble the corporate clients they serve.

I say all of that as a description of what has happened, not a judgment about it. We can lament the situation all we wish, but we are compelled to adapt in any event.

I'll go further. Law schools should have reduced their class sizes long ago. Or at a minimum, we ought to have done our part to set realistic expectations. Even in a boom economy, only a minority of graduates from a minority of law schools were competitive for the entry-level slots at the one hundred largest law firms.

There are hyperbolic claims from people who seem to have no greater desire than to burn down the law school from which they recently graduated. They cannot be ignored if only for public safety.

Some -- but not all -- of their concerns are about the economy more generally.

Young people feel they have been sold on a false promise. They are not wrong.

It's possible for a twenty-five year-old who has acquired a good education, displays a decent work ethic, and who is agreed to possess a solid character -- who has, by all accounts, done everything they were told to do -- to have, through no fault of her own, very bad job prospects and high levels of student loan debt.

This challenge is not limited to new lawyers. It's also true of architects, social workers, journalists, PhDs, and liberal arts majors from all but the fanciest schools. Law happens to receive the bad press, probably because anyone enrolling in a three-year M.Arch degree (which I once considered) has been warned well enough not to do it for the money.

Thus we confuse three arguments about legal education. Rational discussion depends on framing the issues properly.

The first argument is a useful provocation but absurd upon consideration: the allegation that legal education is an utter waste of effort for all involved. Rule of law is the foundation of our diverse democracy. The enforcement of contracts and the protection of civil rights depend on lawyers advancing causes and independent judges deciding cases. We promote that concept around the world even as we come to doubt it at home. So critics of legal education are inadvertently supporting an ideology that would destroy civil society.

There are degrees that are worthless to be sure, or worth much less than is charged for them. A degree in astrology is based

on a sham. That is a statement not without risks, given the high proportion of the population that takes the zodiac seriously. The Juris Doctor is not based on a hoax. The return on the investment may not be as high as the popular imagination would have had it, but legal education continues to have market value not to mention enduring intellectual content.

The second argument is the assertion that we have more than the optimal number of lawyers for our nation under law. This claim is better than plausible. The surplus of lawyers is about the absolute quantities as well as the proportions, as versus engineering and other fields.

The great irony in our shared predicament is that we actually have unmet legal needs. Prosecutors' offices, their public defender opponents, court systems requiring clerks, public interest organizations, and just ordinary folks looking to retain counsel all need competent, ethical attorneys -- including at the entry level. The trouble is they can't afford them and the lawyers can't afford to do that type of work on a sustained basis. The pipeline hasn't been built properly to bring the supply to the demand.

The third argument is over whether law school is right for you in particular. Law school is for people who want to be lawyers. Or persons who have the seriousness of purpose and a definite plan for using the training to good effect: they want to be an entrepreneur, join a family business, enter public life, and so on.

Law school isn't a good bet at current tuition rates for the one third of the class that we have usually seen: the bright college senior who isn't ready for "the real world" but tests well. Too many people take up three years of Socratic method based on what they've watched on television or in the movies. They will be disappointed if not embittered by the real world of document review and legal research in an environment that is an exquisite combination of the very boring and very stressful.

Yet we live in a cynical era. When my school, University of California Hastings College of the Law in San Francisco, announced it would strategically downsize the incoming J.D. class by twenty percent at once, some wondered if we were having trouble filling our seats or insisted that we had a secret self-serving purpose. We typically receive 5000 applications and accept only a quarter of the contenders (we're slightly down and somewhat up, respectively); there isn't any problem in that regard. We do have reasons for our decision that are to our advantage (as is true of rational decisions in general) -- to become a stronger school by every metric.

Angry individuals are demanding that law schools simply close their doors. Some institutions may well be compelled to do so. But law schools that are responsible about shrinking will be able to keep their doors open to justice. That would be in the best interests of the schools themselves, and, more importantly, their students and society.

None of us will be able to reform the system of legal education by ourselves. If we compete during this market failure instead of cooperate to reform the rules, we will regret it.

November 10, 2013 | Permalink | Comments (0)

Tuesday, November 5, 2013

In Defense of New LL.M. Programs

Even if we do not like what they have to say, the bloggers and journalists critical of legal education have helped to foster some necessary reforms. For example, ABA Standard 509 requires greater transparency in the consumer information provided by law schools, and websites such as Law School Transparency had a role in exposing questionable reporting of employment data, and conditional scholarships.

There are times, on the other hand, that the critics reflexively say negative things about new programs or innovations, without really knowing anything about them. That is not surprising, since most of the critics of legal education seem to assume that they know everything there is to know about legal education, simply because they went to law school for three years. One area of reflexive criticism has come in response to the creation of new LL.M. programs.

The assumption the critics make is that law schools need to replace revenues lost by declining enrollments. Accordingly, law schools have created a costly new degree that will sucker unsuspecting students into more debt, without really enhancing their employment prospects. If that assumption is true, then the LL.M. programs should be scoffed at.

A close examination and understanding of many of the new LL.M. programs, on the other hand, will show that they are exactly the type of innovative programs critics have been calling for. For example, the Air and Space Law LL.M.[1] at the Ole Miss draws on the existing expertise and resources of the National Center for Remote Sensing, Air, and Space Law housed at the law school. That center has offered a certificate program for over a decade, and has built a strong pipeline for employment of its students in a rapidly growing air and space industry.  The director of the program has an international reputation, and has helped to write the aviation laws of many nations. For years, lawyers in the United States and abroad have been asking for the creation of an LL.M. degree. Those lawyers already work in the industry, and want to enhance their credentials. In fact, some of the students who attend the program will have their costs paid for by their governments, and will continue their employment while they pursue the degree. Because the LL.M. programs require ABA acquiescence, rather than ABA approval, schools can make extensive use of distance technology, which is not available for a JD degree. Of the six students in the program’s initial year, five are taking classes through distance education, meaning that they have no additional living expenses.

The Ole Miss LL.M. is obviously not alone in offering a degree for practicing lawyers on a distance basis. For example, Stetson Law School was an innovator in this field, with their LL.M. in Elderlaw Stetson has been a leader in Elderlaw since the 1980’s. The LL.M. program was one of the first to offer a distance option for practicing attorneys who want the degree to enhance their existing practices, in a growing area of the law. Employment statistics are truly meaningless for these programs, because most of the students are already employed.

If we are providing a degree for lawyers who are already employed, and who have asked us to offer that degree, and we make full use of available technologies, and existing resources to keep their costs of attendance down, isn’t that a good thing?

[1] I know some will laugh at Air and Space Law, and I would have, too, 20 years ago. I also laughed at Intellectual Property when I was in law school. Air and space is a growing field, and firms like Jones Day have even developed space law departments.  The military in the United States and other countries have expressed an interest in establishing a partnership with the LL.M. program.

November 5, 2013 | Permalink | Comments (0)

Saturday, November 2, 2013

Dean Frank Wu: We're Never Coming Back

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Above The Law.

People ask me all the time, “Isn’t it all a cycle?” They want to know if the legal marketplace will come back, with legal education then following.

My answer is, “No.”

A better answer, like most law professor’s answers to simple questions, would be, “It depends on what you mean.”

Yes, law as a business will rebound. It has already done so by some measures. However, it won’t come back in the same form. Nothing ever does.

We all are the products of our backgrounds. For me, that means Detroit.

The American automakers, which gave the Motor City its nickname, once enjoyed 99% market share. You can look it up or ask your grandfather, who likely was a “Ford man” or a “Chevy man,” identifying with a brand as marketing gurus wish for. That was transformed by the oil shocks of the 1970s.

Despite the challenge from overseas, “Big Four” car companies always believed that the domestic consumer would be patriotic and prefer their products. It is true, as gas prices dropped intermittently, shoppers demanded land yachts again. But the recovery was always to a point lower than before; there also was realignment underway that cannot be reversed.

There is an even more pertinent example for legal education. It is so-called “BigLaw.” I should insert the caveat that the giant law firms, whether they are high-end or mid-market, have always constituted a minority of the bar, even in economic boom times. They serve as an excellent example, however, of how these two phenomena should not be confused.

Alongside the normal business cycle on the one hand is profound market restructuring on the other hand. The cycle should not obscure the trend.

While many law firms, those that remain, are enjoying profits per partner at levels that exceed the bullish figures before the Great Recession, they are doing it by different means than before. Assuming business picks up, which it has in some specialties and a few regions (but ought not be counted on more generally), law firms that have come to terms with this environment are not likely to revert to their former selves. They altered their cultures permanently, even if they were motivated by circumstances that were temporary. Unlike an automobile factory, a law firm does not recall laid off employees.

The structure of successful law firms is different now. They have bounced but to a different place.

The guaranteed means of ensuring increased profitability with flat revenue, not to mention decreasing demand, is to share the money with fewer people. This is hardly a sustainable model of growth. It does highlight the point that there are different configurations of the business model that may be more efficient, and those are increasingly the norm. Firms have revised the length of the partnership track, the amount of leverage, the requirements of equity, stratification of compensation, calculations of realization rates, and roles within the organization.

All enterprises must confront global competition (for law firms, including especially from accounting firms), technological advances, and outsourcing. They will continue to use every available technique to raise the premiums they can charge and lower the cost of doing business.

Client expectations control, and they are not the same as before. In-house counsel have a sophistication they did not a generation ago, enabled by big data. They can analyze even significant levels of risk, turning complex problems into commodity work.

Thus prospective entrants into legal practice have adjusted. They are free agents who care about work-life balance. They give no more loyalty than they believe they will receive.

Yet I remain an optimist about the rule of law. The reason is legal services are still needed. The very economic factors that are disruptive necessitate new legal responses.

Our economy is about constant change. The tech sector depends on innovation. But everywhere else too that has become the norm. Ford, GM, and Chrysler are even offering exciting products.

As the head of a law school, I am not waiting to see whether applications come back as a natural progression. Even if they eventually do, I have to adapt before then — and ceaselessly. I believe we have to reinvent more than the law school curriculum. We have to restructure our institutions.

November 2, 2013 | Permalink | Comments (0)

Friday, November 1, 2013

NLJ on the Decline in October LSAT Takers

The National Law Journal posted an article about the declining numbers of LSAT takers, focusing on the 11% decline from October 2012 to October 2013. The article, LSAT Numbers Decline for Fourth Straight Year, quotes our own co-blogger Dean Paul McGreal:

University of Dayton School of Law Dean Paul McGreal said he entered the summer with virtually no idea where the application trend would go, particularly since many of last year’s applicants waited longer than usual in the cycle to apply.

"There is a great degree of uncertainty, and the data we do have show it will be another decline," McGreal said. "But we’ll have a better idea of where applications are at the beginning of [2014]. This clearly is something that’s on everyone’s radar screen."


November 1, 2013 | Permalink | Comments (0)

NY Times Story on College "Value" Rankings

This New York Times article covers the emergence of "value" rankings of undergraduate institutions.  While brief, the discussion does a good job raising the tricky question of measuring value in higher education.  Apropos of this article, National Jurist magazine has published a "best value" ranking of law schools using a combination of tuition, average student debt, bar pass rate, and employment rate as the criteria.  The topic of value overlaps with the topic of productivity in higher education, covered in prior posts here and here, in that both ask how we ought to measure the output of colleges and universities.

November 1, 2013 | Permalink | Comments (0)

The Evolving Law School, Part I: What Should Be the Role of the Law Library?

Decreases in enrollments naturally mean decreases in revenues. The question is how will law schools adjust their budgets to deal with the loss of income? One strategy that some law schools are using is to lay off faculty and staff.

While personnel costs account for approximately 66-75% of most law school budgets, cutting personnel might not be the best approach to the problem of declining revenues. Educating students, and helping them secure employment have to be our first priorities. Any decisions we make must support those priorities. Firing faculty or administrative personnel will cut expenses, but I think the detriment to our students might outweigh the savings from those cuts.

If we don’t layoff faculty or staff, how can we reduce our budgets? The answer could be different for each law school, but every expense must be scrutinized. We have to ask how each expense supports the educational mission of the law school. From time to time I will post my thoughts on the various law school expenses, and ask how those expenses support the educational mission. In that regard, my first post on the subject examines the role of the law library in legal education.

Library budgets represent a large portion of overall law school expenses, and libraries require a substantial amount of the law school’s usable space. That is not surprising, considering that the ABA Standards for Approval of Law Schools require that libraries have adequate space and resources.

Additionally, Standard 606 states:

 (a) The law library shall provide a core collection of essential materials accessible in the law library.

(b) In addition to the core collection of essential materials, a law library shall also provide a collection that, through ownership or reliable access,

        (1) meets the research needs of the law school’s students, satisfies the  demands of the law school curriculum, and facilitates the education of its  students;

        (2) supports the teaching, scholarship, research, and service interests of the  faculty; and

        (3) serves the law school’s special teaching, scholarship, research, and service  objectives.

(c) A law library shall formulate and periodically update a written plan for development of the collection.

Because the standard does not specifically enumerate what schools should collect (I am definitely not advocating for such specific requirements), schools typically err on the side of maintaining very large collections. This collection plan has added greatly to the annual expenses of many law school budgets, without truly enhancing the education of the students, or the scholarly productivity of the faculty. In plain terms, we buy or subscribe to a whole bunch of stuff that we will never use. I want to make sure that the students and faculty have the materials they need, when they need them, but I am concerned about purchasing materials to have, just in case someone might need them, but probably won’t.

Our collection plans remind me of the common law Rule Against Perpetuities. The plan seems to be based upon the question: "what if the fertile octogenarian comes into the law library wishing to do research on an obscure area of the law?" We have been purchasing resources, in case that happens.

Furthermore, when we purchase print materials, we have to find a place to shelve those materials. The result is that we have established beautiful book museums, when our students and faculty rarely use those materials, and the legal profession moved away from print a decade ago. It is quaint that Standard 606 requires the core collection to be accessible in the library itself, and that we still have to report the amount of linear shelving space used by our libraries in our annual ABA questionnaires. Is that really still a relevant measure of a library collection in a non-linear, digital age?

Of course, our students, faculty, and other constituents need quiet, as well as collaborative study space, and the library serves that need well. I would argue that the square footage used to house books could be repurposed to expand greatly the space available for quiet and collaborative work.

In my opinion, it is definitely time to reevaluate the role of the law library in legal education.


November 1, 2013 | Permalink | Comments (1)