Sunday, December 29, 2013

Dean Frank Wu on "The Problem with Legal Education"

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.

I would like to offer a hypothesis as to why law professors have become obsessed with producing scholarly work that most members of the bench and the bar regard as by and large useless verging on absurd.

The lament has been heard before.

As early as 1936, Professor Fred Rodell wrote a farewell to law reviews. He said about everything that could be said about the matter, declaring there were only two things wrong with almost all legal writing: "One is its style. The other is its content."

Twenty years ago, the Honorable Harry T. Edwards of the D.C. Circuit Court of Appeals, a former professor himself, criticized the trend of law professors becoming more like professors in other academic disciplines and less like judges and lawyers. A symposium was convened to study his complaint.

Yet the disapproval has blossomed into resentment of late. Entire books have been published decrying the role of law professors as scholars. We are writers subsidized by our students.

Nowadays anyone who discusses legal education without urging the prompt destruction of law schools is said to deserve personal attacks. Thus I'd like to open with a disclaimer about my own background. I began my academic career as a clinical professor. For seven years, I supervised student attorneys who did the most practical work that made them ready to represent clients. Their case files were grandparents in child custody disputes, tenants in eviction cases, indigent individuals who nonetheless needed a will, and so on.

So I agree with critics. Almost all law schools have done much more than most observers would give them credit for, promoting skills training -- but there is still work to be done.

An additional caveat before proceeding. My intellectual interests are grounded in another sense as well. I'd rather describe the world as it is (from an original perspective), than prescribe how it ought to be. What follows is an attempt to do that, not a defense of the situation.

Here is what has happened. There is a sequence of steps. Each of them appears rational in isolation. But cumulatively they lead to consequences that no group of actors foresees much less intends.

Alumni and students, among others, want their school to be highly ranked. The value of their degree depends on it.

Deans and professors concur. Our career success and satisfaction is measured by progress in this regard. We move our school up, or we move ourselves up.

An important factor in rankings are peer surveys: you are only as good as other professors believe you to be.

To impress other professors, we aspire to be like them. Specifically, we as a collective body try to resemble the professors at the most prestigious schools. Either we imitate them or we hire them. Or, if we can't afford the famous names, we at least attempt to recruit as new colleagues the students whom they have mentored.

A digression. I'm reminded of an exchange that writers F. Scott Fitzgerald and Ernest Hemingway are reported to have had. Fitzgerald remarked, "The very rich are different than you and me."
Hemingway replied, "Yes, they have more money."

Colleagues at the most elite schools can afford to undertake whatever scholarship they deem worthwhile. They can do so because their schools are supported by endowments that allow them to pursue projects as they wish. They are in the position to set the standards. Thanks to their reputation and network, their students are sought after regardless of whether they are prepared well -- or at all -- for a service profession.

The desire to avoid being perceived as a "trade school" becomes a self-perpetuating cycle. Professors have invented a metric for themselves. We assess our influence by "citation count." It's akin to Googling yourself. We track the number of hits for our names (and our rivals') in the database of law reviews.

People are rewarded on this basis: promotion, tenure, chairs, prizes, and raises. The number becomes not only a measure for merit but the primary means of defining it.

There is a school that symbolizes all of this. Yale.

A handful of law schools produces the majority of law professors. But none more so than Yale.

Ironically, Yale was the home of "Legal Realism" long ago. That academic movement, as its name suggests, was all about the law as it operates in the "real world." Rodell was a member of that school of thought. He supposedly never became licensed as an attorney.

It isn't all the fault of one Ivy League institution. All of the selection mechanisms of faculty members favor geeks. (I know: I'm one of them.) These preferences coincide with, if they do not directly cause, a distinctly cerebral orientation of the resulting community. (The corresponding desire to produce the "best" law school by conventional metrics means admitting students who happen to possess the highest test scores and undergraduate grades.)

The effect ratchets. The more sophisticated the work, the more solipsistic it seems. To be sophisticated, one must know what "solipsistic" means. In this enclosed environment, they have an expert who has a Ph.D in addition to a J.D., and consequently we need a pair with credentials to match.

Lest anyone wonder, I have nothing against Yale or its alumni. Some of my best friends are Yale graduates -- just kidding. (For the record, I went to the public law school down the road from where I grew up and wouldn't have considered any other place a rational choice back when "in-state tuition" was meaningful.)

My point is that Yale is Yale. Very few other law schools should try to become a pale Yale. They don't have the financial resources.

It's great to hire a smattering of their graduates, clutching a Ph.D with their J.D., who emerge into the market each year. But even in New Haven, they recognize the need to recruit people who were educated elsewhere.

There is another reason for the overwhelming mass of heavily-footnoted nonsense. Students at Yale and elsewhere are no less savvy than their teachers. They want to impress prospective employers. They know that a means of distinguishing themselves is that line on one's resume that says "Editorial Board" of XYZ journal. They have an incentive to found more journals.

Coupled to the boom in law schools (opening at a rate of more than one per year for a generation), the proliferation of student- edited publications, a true anomaly in academe, means an accelerating demand for material. Assuming the ratio of quality work to dreck has remained approximately constant throughout, the absolute quantity of lousy ideas mathematically must have increased. The signal is overwhelmed by the noise.

These dynamics are no accident. You want smart; we'll give you smart.

December 29, 2013 | Permalink | Comments (0)

Sunday, December 22, 2013

Dean Frank Wu: In Praise of Practical Legal Education

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.

Lately there has been much talk about silly electives in law school. Like much of the angry discussion of legal education, this conversation confuses the issues. The risk is that we will mistake the obscure for the impractical. To the contrary, so much of what lawyers must understand to be successful in representing actual clients with real problems, requires that they acquire technical expertise.

Let me be clear. I agree wholeheartedly that legal education, and legal educators, must be meaningfully engaged with the bench and the bar, to say nothing of the general public. My point is that a legal education with the greatest value to the student and society is a legal education that continually adapts to our world and that turns out a graduate who likewise is constantly adaptable.

What once might have seemed marginal has become mainstream. Health law was arcane, but that was the field of the most important case the Supreme Court decided last term. When the first Internet law courses were offered only a few years ago, people scoffed at them. Yet as quickly as technology progresses, the supposedly fanciful topic has become complex enough to deserve sub-specialties such as privacy.

Chinese Law, Japanese Law, Korean Law until recently would have been listed in only a few catalogs and would have attracted sparse attendance. Now there are not enough Americans studying these subjects, especially compared with the number of Asians who could be called expert in Anglo-American common law.

Entire practices come into existence, because a professor gives a name to a casebook. By doing so, the teacher brings together various pieces of law that looked as if they were separate, but which through an original organization are unified. Elder law, consisting of components each more obscure than the next, is about as practical as could be. Any law student who plans eventually to move back to her hometown to set up shop should sign up for elder law; she will not lack for work.

Other subjects are esoteric only to non-lawyers. A senior colleague of mine was lamenting that his insurance law class was not full. He thought it likely that students didn't see it as "sexy." Insurance, or even the lack of it, is a part of all litigation. Although it could be called subsidiary, a student who learns its intricacies is able to distinguish herself.

The profound change that is occurring is the demand for interdisciplinary, strategic thinking. A lawyer must understand law of course: their primary skill sets are concerned with the interpretation of precedent of prior cases from time immemorial as well as the array of statutes and regulations that make up the modern state. The ability to perform legal reasoning is necessary, but it is not by itself sufficient. The law student who develops only their strengths in analysis of doctrine will not lead the profession.

The obvious example is the lawyer who also boasts a STEM background, meaning science, technology, engineering, and math. Even with a glut of lawyers on the market, there are not enough people who blend training in law with training in STEM disciplines. They are sought after for more than the intellectual property disputes that dominate headlines. The formulation of public policies ought to be guided by real knowledge of law and science, not assumptions about both that are demonstrably wrong.

All of this is also true in regular day-to-day practice. The lawyer who succeeds as a solo practitioner is a lawyer who understands business. In addition to being able to cross-examine a witness and draft a will, a new graduate of law school should be able to, at a minimum, read a balance sheet. Even if their aspiration is to be a civil rights trial lawyer, they will not advance their cause if they cannot determine whether a venture is making money or losing it. After all, they themselves are in business -- whether in their own firm or as a member of a larger enterprise.

Even those classes with the ampersand serve a social good, the "Law &" elective that is subjected to regular ridicule. For instance, the single school of thought that arguably has dominated academic discourse in the past generation, whether one agrees or disagrees with its tenets, is law and economics. Its descriptive insight is that much of law is explained by economics, and its normative claim is that all of law should serve economics. A lawyer cannot be called well-educated in our era if she isn't aware of the core concepts of law and economics, especially if she wishes to oppose them.

A member of the bar appearing before the Supreme Court would be ready only if she had better than a modicum of background in legal history. Justice Antonin Scalia is the most forceful proponent of an "originalist" interpretation of the Constitution. If he is to be believed, and appealed to, an advocate should research history. And if the project is to be honest, rather than an amateur effort to grab whatever bit of the past serves a purpose in the present, perhaps the student who aspires to be that advocate could benefit from a seminar in history.

The framing of the first-year curriculum defines what counts as the "basics" and as a corollary what may be dismissed as the unnecessary. The first-year curriculum, however, has been constructed upon the parsing of appellate decisions. The case method is venerable. It has virtues.

Among them is not correspondence to the realities of what lawyers do. Almost all lawyers do something other than appear in court. Of the lawyers who do appear in court on a regular basis, almost none of them do so at the appellate level. A legal education that prepared students well is a legal education that, to a non-lawyer (and, more precisely, to a non-appellate lawyer) looks little like what non-lawyers (or appellate lawyers) do.

Legal education must be reformed. But in order to take on the challenge, it is necessary to identify the issues in accurate terms.

December 22, 2013 | Permalink | Comments (0)

Friday, December 20, 2013

Catharine A. MacKinnon to Receive AALS Section on Legal Education Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to announce that the recipient of the 2014 Ruth Bader Ginsburg Lifetime Achievement Award is Professor Catharine A. MacKinnon. Professor MacKinnon is the Elizabeth A. Long Professor of Law at the University of Michigan Law School, long-term James Barr Ames Visiting Professor of Law at Harvard Law School, and an internationally acclaimed scholar and lawyer.

The award will be presented at the Section Luncheon on January 3 at 12:15 p.m. at the New York Hilton Midtown, 1335 Avenue of the Americas, New York, New York.  Advance ticket purchase is necessary.  Tickets may be purchased by conference registrants only at on-site registration until 9:00 p.m. on Thursday, January 2.  The price is $85.  The award will also be announced at the Section’s Business Meeting to be held on January 3, 2013 at 6:30 p.m. at the same hotel.  There is no cost to attend the Business Meeting.

 According to the award criteria, “[T]he purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.”  Justice Ruth Bader Ginsburg was the first recipient of the award that is now named in her honor.  This is the second time the AALS Section on Women in Legal Education is making its most prestigious award.

Professor MacKinnon’s nominators cited her groundbreaking scholarship and her legal activism that has made it possible to address sexual harassment and violence against women as forms of sex inequality.  Professor MacKinnon will also be recognized for her inspiration of several generations of law students toward creative careers in a variety of legal and policy pursuits.  As one nominator said, “No one in our field has had more impact on women's rights, possibilities, and self-respect.  Professor MacKinnon's leadership and co-operation with peers has opened doors and inspired hope in women everywhere.”

Please join us at the AALS Section on Women in Legal Education to honor Professor Catharine A. MacKinnon’s outstanding career of law teaching, scholarship, and service.

December 20, 2013 | Permalink | Comments (0)

After the Announcement

 This is the time of year when law schools begin announcing the appointment of new deans. For example, Jean Holloway was just named dean of Hamline law school http://www.startribune.com/local/east/236615541.html, and SMU http://www.dallasnews.com/business/headlines/20131217-smu-selects-new-law-school-dean.ece, and IU Maurer http://info.law.indiana.edu/releases/iu/2013/12/maurer-school-dean-appointment.shtml have made announcements over the last few days.

For the new dean designate, the time after the announcement can be a bit awkward. I remember how I felt in high school when I asked someone on Wednesday to go out on a date on Saturday. In the rare instance when the answer was “yes,” I would always hope that I wouldn’t see her again until Saturday, because I had no idea what to say to her in that awkward time in between. Being a dean designate can feel a little like that.

Despite the awkwardness, the time between the announcement and the first day on the job can be a useful period for an outside dean to learn more about their new law school. New deans should ask to be put on the law school listserv, or other email lists immediately, so that they can be connected with their new communities, as soon as possible. It is also important for the dean designate to receive copies of faculty meeting minutes, and information about important law school events that occur during that time. This is helpful, because there is no way that outside dean candidates can learn everything they need to know about a new school during the interview process. Faculty meeting minutes, events, and daily email exchanges are invaluable in helping the new dean assess strengths, weaknesses, and opportunities. They can also be useful tools in helping to understand the many different people who will soon be their colleagues.

Congratulations to everyone who has just been appointed, and best wishes in your new endeavors.

 

December 20, 2013 | Permalink | Comments (0)

Monday, December 16, 2013

IU Maurer Names Austen Parrish Dean

Congratulations to former Southwestern interim-dean and CEO, Austen Parrish, who has just been named dean of IU Maurer School of Law.

http://info.law.indiana.edu/releases/iu/2013/12/maurer-school-dean-appointment.shtml

December 16, 2013 | Permalink | Comments (0)

Thursday, December 5, 2013

Dean Frank Wu on The Problem of Tuition

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.
 
American higher education has a problem. It costs too much.
 
The hyper-inflation of tuition is well documented. By any measure, the cost of college attendance has increased dramatically. Higher education tends to be debt financed. The student loan bubble may well be like the subprime mortgage bubble -- only worse.
 
People favor stories. We like our explanations of the world around us to come in the form of narratives rather than analyses. The tuition issue has us hoping for a hero and looking for a villain. We prefer to identify the parties who are held to blame. It is preferable to an explanation that involves abstract patterns, structures, and forces. But thoughtful consideration may lead to the conclusion that college tuition is just like everything else; it is only a more extreme example.
 
For a long time, the leaders of schools believed in the "Chivas Regal effect." The brand of blended scotch was regarded as classy back in the day when it was advertised in men's magazines such as Playboy -- which also were regarded as classy. The concept was that consumers assumed products that were expensive were superior, because they accepted the opposite was true. Any product that was priced at less than a premium was perceived as inferior -- reflecting a lovely confidence in the mechanisms of the market.
 
The story that the owners of the actual Chivas Regal doubled their price and thus doubled their sales turns out, like most such stories, to be an urban myth.
 
Nonetheless, people dubbed this dynamic the "Chivas Regal effect." College presidents, believe it or not, referred to it by that name.
 
I doubt that more than a few administrators continue to believe they should promote that "Chivas Regal effect." It cannot justify the escalation of the costs of higher education. The public is protesting. The only people who continue to be willing to pay without hesitation are well-to-do foreigners who are enamored of American labels.
 
The trouble is we are human beings. We respond to clever sales tactics despite reason.
 
Here is what happens. We see a product with a regular price of $50,000, discounted to $25,000 thanks to a sale. We see an alternative with a regular price of $20,000, available at that price at all times. Everybody wants a deal; nobody pays retail.
 
Even if the decision is about commodities that are essentially the same, virtually every potential purchaser considers the $50,000 option with the $25,000 break better than the $20,000 option. It is easy to overlook the fact that the $50,000 option still costs $25,000, while the $20,000 option is cheaper -- "just look at how much we're saving!"
 
Applied to higher education, this phenomenon compels every school to raise tuition while offsetting it with the discount rate. Besides, almost all students pay less than the stated rate of tuition.
 
The ploy is to package financial aid so each individual feels special. An applicant looks at School X with tuition of $50,000, offering her a "merit" scholarship worth $25,000, compared with School Y with tuition of $20,000, refusing to provide enticements.
 
To the average student and her family, School X looks better. They cannot be faulted for their reasoning. It must be better, because others are willing to fork over $50,000 -- only a few really do that, but they aren't aware of the facts. They can brag to their neighbors that the more prestigious school -- more expensive ergo more prestigious -- seems to want them. Thus they feel good about spending more.
 
School X also usually has made capital investments. Its buildings with all the amenities further the illusion.
 
It is all a charade. In most instances, the "merit" scholarship is handed out for credentials -- predictors of future performance -- rather than performance itself.
 
What's more, if we want to be even more skeptical about this recruitment trick, it is not offered to the most meritorious students, meaning the most highly credentialed; in most cases, it is offered to those persons who are relatively meritorious, so they can be lured away not from the best schools (which the truly meritorious would not turn down) but only away from somewhat stronger schools. People fall for the deal when the choice is between the school ranked number 67 of 100 and the school ranked number 52, but many of them would walk away from both for the school listed as number 3 no matter the bill.
 
Each school enhances its institutional metrics slightly by stealing away from its near peers. Their own students are means to an end. None can afford to break out of what economists call a "prisoner's dilemma."
 
The irony is that exposing all of this doesn't improve the situation. People succumb to potent advertising even when they know that they are being pitched. Hype retains its power.
 
Our choices are complicated by the rankings of institutions of higher education. Suppose that the rankings were based on criteria that made no sense -- a supposition that may not be too much off of the existing reality. It wouldn't matter.
 
Here is an example. The rankings could be based on the average height of the faculty: the taller the faculty, the higher the ranking. Probably everyone would agree that this basis for assessing quality, though indisputably "objective," would have no correlation to anything that matters. (It also has a disparate effect in terms of gender.)
 
Yet soon enough, the perception could create its own reality. The school that had the tallest professors would attract the most highly-credentialed students, while boosting its reputation among observers in a feedback loop. As a consequence, it would eventually approach the best school. It wouldn't matter anymore that the origin of the reputation was dubious, exactly as we forget how the rich acquired their wealth.
 
The other factor is public funding that built systems envied the world over. There was a time when our shared ideals held up higher education as an opportunity rather than a reward. In a participatory democracy, it was said, it should be available to the many rather than the few. It benefits all citizens through the contribution to the economy, even if they are not themselves students within the system. Consistent with such idealism, campuses were given substantial funding, ensuring people who were strivers would be deservedly subsidized.
 
The disruptive idea for higher education must be the equivalent of the technological "killer app." Such ideas are not successful because they are better than the competition. They prevail because they redefine the rules of the competition, so they are never playing the conventional game. A school that is unique does that. It offers something not available elsewhere. As it is copied in turn, it innovates again

December 5, 2013 | Permalink | Comments (0)

Wednesday, December 4, 2013

The Evolving Law School, Part II: Can We Stop Using Casebooks?

Once upon a time, cases were only available from case reporters in the law library, and each student had to use those materials to learn the law. The library books were getting worn with use, and book publishers realized that they could compile those cases along with other textual materials and sell them to law students. That was how the casebook was born.

 It is 2013, and I decided not to use a casebook when I taught Wills and Estates this semester. The casebook I had used for over two decades had come out in yet another new edition, which had a price tag of around $200. The difference between the newest edition and the older editions was pretty marginal.  The authors added some new cases and moved some old materials to different parts of the book. I could have used an older edition, and supplemented my own materials to reduce student costs, but I decided to create and post my own materials on TWEN, instead.

While I did have to spend more time putting the materials together than I would have, had I used a book, the effort was definitely worth it. Posting materials for students is easy, and I was able to use the cases that I thought best fit the doctrine I was covering. I added my own problems and PowerPoints.

When you consider that a student will take approximately 20 classes in law school, and that casebooks cost around $200 each, doesn’t it make sense to move away from using casebooks for our classes?

Alternatively, doesn’t it make sense to use freely available materials from a source like CALI?  CALI has been a leader in this effort with their eLangdell initiative. More information can be found at:

http://www.cali.org/elangdell

and at:

http://www.youtube.com/watch?v=vuFqdoYaVRo

 

 

December 4, 2013 | Permalink | Comments (1)