Sunday, February 23, 2014

Dean Frank Wu: Law Remains Vital

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 am bullish on the legal profession.

I must offer a preface before I explain why law remains vital -- and how it will become paramount in an increasingly complex world. I have established my bona fides as a critic of the organized barthe standards of practicethe performance of law schools, and the preferences of legal academics. I have advocated for reforms: explaining the facts; pointing out inexorable trendssetting reasonable expectationsaddressing the high cost of training; and cutting enrollment in law schools.

All that said, I continue to come to work believing that my colleagues and I are engaged in a worthwhile endeavor.

Everything depends on the rule of law. That is true for a democracy. It is especially so for a diverse population.

The enforcement of contracts and the protection of civil rights depend on reliable legal systems. The expectation that contracts will be followed and rights will be respected is always implicit in the background, meaning that the rule of law operates even without formal recourse to the courts.

The technological advances that are enjoyed, and certainly the profits that flow from innovation, are enabled by a robust intellectual property regime. Entrepreneurs would invent and artists would create regardless, but the economic consequences of their ingenuity would be very different if there were insufficient protection for patents, trademarks, or copyrights.

The rule of law is possible only with lawyers who represent clients and causes, as well as a judiciary that is independent and not corrupt. These lawyers and the judges are produced by law schools. The progress of the law also is much influenced by scholars who cogitate on issues without being beholden to the interests of those who pay them.

Consider China. (Elsewhere, I've explained why I, as a Chinese American, am doomed if China is ascendant and America is relegated to second-class status: I've made my bets on this side of the Pacific.) Specifically, observe what happens when a Chinese citizen who is ambitious and intelligent makes some money. I don't mean they become superrich. I mean they attain a middle class status comparable to the average American.

The Chinese invest in the United States. They put their new-found wealth in American bonds, American stocks, and American real estate. They do so on a staggering scale that plays into the fears of Yellow Peril. More to the point, they transfer assets to the United States (including human capital in the form of children to be educated), notwithstanding the relative growth rates of the two nations. That is, they prefer the United States with its more modest returns.

I submit the reason is law. In American Treasury Bills, companies, land, or even plain bank deposits, the ordinary person can have confidence that, whatever partisan political changes take place and despite government shutdowns, there is an extraordinary high likelihood that nobody will steal one's possessions. An infrastructure has been built, imperfect though it may be, ensuring that. In China, there are not similar guarantees.

Yet law is experiencing a frightening reordering. Or perhaps not law itself; the law is stable or at least predictable. The means by which it is implemented are volatile.

Thus, the lawyer of the future must be different than the lawyer of the past. The professions adapt more slowly than other businesses. Few have been as resistant to change, however, than the members of the bar. The availability of information forces lawyers to demonstrate their social utility by means other than their exclusive technical knowledge, because their magic tricks have been disclosed.

The supply and the demand curve for lawyers with basic skills has become so skewed that their expertise can be purchased too easily. It is increasingly true for all types of education: The facts themselves are not what is valuable; the ability to apply them is. Even work that cannot be automated and that formerly seemed sophisticated can be reduced to a commodity. Look at the online coupons that are available for medical treatments.

The lawyers that are needed are those who do numbers and languages. They must be familiar with the industries they serve and aware of the basics of economics and finance. They are positioned to be problem solvers and leaders.

The best lawyers will always have a future.

February 23, 2014 | Permalink | Comments (0)

Sunday, February 16, 2014

Dean Frank Wu on What Threatens Law Firms

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.

As a law school dean, I spend quite a bit of time thinking about how to reinvent legal education. As I meet with our alumni, I realize that they spend an equal amount of time thinking about how to reinvent legal practice.

Lawyers -- and others in the professions -- recognize that they are only slightly better off than other workers in the modern economy. They cannot presume that their reliance on their brains, rather than their muscles, protects them against the vicissitudes of the marketplace.

Three trends have an adverse effect on law firms.

First and most importantly, corporate clients are smarter consumers than ever before. They have learned to commodify virtually all of the projects that they send to outside counsel. Whether they are deals or disputes, if they are not at the "bet the company" level, then it is possible to manage the risk presented by each matter in a reasonable manner.

The difference between the attorney who is good enough and the attorney who is the best is probably not sufficient in the overwhelming number of instances to justify the premium for the superlative choice. It may not even be possible to determine readily in advance who that happens to be other than by reputation.

Accordingly, clients have decided they won't pay for training of junior lawyers or excessive overhead. While they didn't want to do that before either, they have the advantage in bargaining now -- and it will persist thanks to excess supply and slack demand.

Their refusal to allow recent graduates to handle their files might be short-sighted, because eventually there won't be anyone with sufficient experience in the pipeline. Clients will not be deterred from shifting the cost of radical restructuring of the business model. Somebody else will be forced to pay for the requisite mentoring.

The acknowledgment that high-quality services can be delivered without a fancy address is made all the easier by the ability to retain people over videoconferencing, email, and telephone. An impressive lobby ensures only that additional rent will be added to the bill. Nowadays, professional relationships can flourish without significant personal interaction. For all the client cares, the lawyer is performing excellent work at home in a bathrobe.

Outside counsel complain that they are being second-guessed by auditors, or, worse, computer programs, on how they spend their time. In-house counsel reply that as rates have surpassed the thousand dollar per hour mark, they would be foolish to be any less attentive to what exactly happened in any given six minutes that were charged to them. Through alternative fee arrangements, clients can transfer risks to their lawyers. Only a few can still recall, wistfully, the old-fashioned billing statement which said "services rendered" next to a sizable sum.

Second, technology is proving as revolutionary for the bar as it is for everyone else. A generation ago, a new litigator at a major law firm likely would be assigned early on to do pre-trial "discovery" -- specifically, "document review." That meant looking through boxes of paper for certain keywords such as the names of the parties. A squadron of associates would be sent from their nice offices to a windowless lower floor, where they would sit at desks for days, billing for every moment of their consciousness. The least lucky among them might have been shipped out to a warehouse archive that looked like that government storage facility at the end of the first Indiana Jones movie except there was no Ark of the Covenant to be found inside a dusty container.

Now, millions of email messages can be scanned, converted to text using OCR software, uploaded to a secure location in the cloud, and then searched in literally seconds. A responsible lawyer will be drafted to oversee the process. The labor (and the cost) of a dozen lawyers for a dozen weeks has been reduced to a single lawyer in a day. Even a modest-sized firm can afford the innovation.

What technology giveth, it taketh away. As digital search has become possible, the mass to be searched has increased to keep pace -- someone must have come up with a witty formula to express the relationship between our ability to organize data and the increase in its quantity, but ironically I am ignorant of it. Technology also has made legal practice more complex and faster- paced. The lawyer of today must be better than the lawyer of yesterday as the athlete of today must be better than the athlete of yesterday.

Third, legal process outsourcing has been proven feasible. It is transformative. "Outsourcing" is not even the right term. Outsourcing, sending tasks that were carried out by an employee inside a firm to an independent contractor beyond its formal structure (whether overseas or domestic), is symbolic of much else.

Legal services can be unbundled and repackaged and then performed by people of varying skill levels with permanent specializations and different career trajectories in multiple physical locations. As a consequence, the firm itself can be configured creatively. There is no necessity to set up a system that presents a linear path with lockstep compensation from associate to partner (meaning an actual owner of equity in the operation). Instead, it is possible to plug people into slots as needed.

Competition once was limited by guild rules masquerading as ethical norms -- no advertising, etc. There are no constraints anymore.

Even lawyers who have a credible claim to being at the top of their field are pitching for business constantly. Lawyers compete with accountants, consultants, and financial advisors, not to mention do-it-yourself manuals and websites. For high-end legal advice, Anglo-American firms still have an advantage, but there is no reason to suppose that it will be more durable than it has proven with, say, the manufacturing of luxury automobiles.

For the individuals willing to adapt, however, there could be no better time to reform the law firm. Boutiques and virtual firms are only the beginning of profound changes to come. There almost certainly always will be the legacy firms who by virtue of their prestige, earned or otherwise, serve the few who remain willing to pay their fees while offering opportunities to those who wish to play their tournament. For the bulk of the work to be done, a new type of lawyer will evolve to do it.

It is up to us in the academy to prepare our students for the future no matter what it holds.

February 16, 2014 | Permalink | Comments (0)

Friday, February 14, 2014

Conference Announcement: Assessment Across The Curriculum

Assessment Across The Curriculum
Institute for Law Teaching and Learning
Spring Conference 2014
Saturday, April 5, 2014
 
“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.
 
Conference Content:  Sessions will address topics such as
·         Formative Assessment in Large Classes
·         Classroom Assessment Techniques
·         Using Rubrics for Formative and Summative Assessment
·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork
·         Assessment Techniques for Statutory or Transactional Courses
 
By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.
 
Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.
 
Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 
 
Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).
 
Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.” 

February 14, 2014 | Permalink | Comments (0)

Thursday, February 13, 2014

ATL Post Was Simply Wrong

I typically do not respond to posts on ATL, but a recent post on that blog hurt students who were doing great work in support of Black History Month, and who were participating in a national movement to bring awareness of HIV/AIDS in African American and Black communities. http://www.edgemiami.com/health_fitness/hiv_aids/Features/155082/asos_observe_national_black_hiv_aids_awareness_day.

Apparently, Ellie Mystal was unaware of this national movement, and did not understand what the BLSA students at Ole Miss were doing.  The BLSA students are regularly engaged in community service, and this was just one of the many events they planned to make Black History month meaningful and impactful here. Those events included a panel on dispelling racial myths presented in conjunction with the William Winter Institute for Racial Reconciliation at Ole Miss. http://winterinstitute.org/. BLSA will also be sponsoring an expungement clinic at the law school, which is part of a national effort to alleviate poverty and reestablish voting rights.  http://law.olemiss.edu/expungement-clinic-to-be-held-at-university-of-mississippi-school-of-law/

Ole Miss does have a history of racial discrimination, and we are not proud of that history. Our university today is a much different place than Mr. Mystal imagines.  I invite him to come to Oxford, and see for himself the positive things happening here.

Mystal’s post can be found at: http://abovethelaw.com/2014/02/worst-minority-law-school-valentines-day-event-ever/

 

 

February 13, 2014 | Permalink | Comments (0)

Monday, February 10, 2014

ABA Standards Review Committee Recommendations

Mark Hansen of the ABA Journal reports that the ABA Standards Review Committee has backed off of recommending changes to the bar passage rate requirements for accreditation of law schools. The committee has also recommended keeping tenure as a requirement for accreditation, and has modified its recommendation for required experiential learning from 15 hours to 6 hours. It is clear to me that the committee caved under pressure by law schools to maintain the status quo.

Interestingly, the committee report would allow granting credit for paid externships. That might help reduce student debt, and would be a step forward.

February 10, 2014 | Permalink | Comments (0)

Sunday, February 9, 2014

Dean Frank Wu on the Pipeline into the Profession

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.

The current challenges to legal education are a result of the profound changes in the legal marketplace. They have not arisen in isolation. The problem is the pipeline into the profession. The traditional progression from student to associate to partner is no longer optimal for the client who is being served.

The expectations for the education of new lawyers are increasing, but the willingness to pay for the process is decreasing. The issue is who will pay for much-needed training. Either before the bar exam or shortly thereafter, a lawyer must learn basics such as how to draft a complaint and a contract, how to interview a witness, what a financial statement indicates, etc. Preferably well before matriculating in law school -- though this cannot be counted on -- she should know how to write competently in standard English.

Almost all of the responsibility for book learning has been accepted by schools. That's not the issue. It's the development of practical skills that's at dispute. More to the point, it's the price of that education that has become contentious.

The tab could be picked up by any of the following in combination: the clients, the firms, the students, or the public. The issues of who will impart the skills and how best to do it are not trivial, but it is the costs which are most controversial.

Clients with market power say emphatically that they will not pay for associates to learn the requisite skills.

The big firms historically had passed on the costs, in a manner that distributed them. A new associate was not worth her billing rate at the outset, but her time was tucked away on an invoice that would be paid because if you wanted a high-end firm doing your work then that was the cost.

The small firms and mid-size firms, which are much more the norm than the big firms, may have had less formal orientation programs but they have more side-by-side collegiality. They absorbed the cost themselves, in the form of lower compensation all around for partners and associates.

As firms of all types try to assign this instructional role to schools, the schools typically pass the burden on to the students. Thus the cost of the clinic is covered by an increase in tuition.

The alternative of public support likely will not appeal to the taxpayer. The government, however, could do more through robust state appropriations for the educational system, direct subsidies for post-graduate public service, or a Gideon right-to-counsel in civil cases that would create jobs.

To start addressing the problem, it is necessary to identify it. Here is an effort at a neutral description. We have a series of vicious cycles that interlock and ratchet.

Law firms have become much more business-like. They have raised their billing rates as high as they can.

Clients have balked. They too are more savvy. Corporations have their own general counsel who has come from a law firm and knows its tricks. As the most senior partners charge more, in-house counsel have responded by agreeing to pay on the condition they actually receive the benefit of that specific person's expertise. The senior partners can command their rate of more than a thousand dollars per hour, but only by foregoing the the revenue of a half-dozen associates supporting them.

Law firms also have a new model. The pyramid structure is no longer stable. That system, with large numbers of associates being winnowed out to leave a few who would make partner at the seven year mark, was always a Ponzi scheme -- except there was no fraud because the arrangement is disclosed.

Law firms are trying different configurations. They have contract attorneys and others who will never own equity in the business. These individuals receive a level of training appropriate for their roles, but they don't expect the genuine mentoring that would be given to someone who will become an owner of the company.

Culture has evolved as well. Since Curt Flood challenged the feudal system of major league baseball two generations ago, every professional has become a "free agent." The most ambitious associates are smart enough to see their opportunities will be constrained if they remain in place for too long. Their very human reaction to the lack of loyalty shown to them as employees is to reciprocate, by becoming less loyal to employers in turn.

The most elite firms have a remedy. It is the recruitment of already experienced attorneys, in preference to new graduates.
But this approach only works for the firms at the top of the market and it will be effective only until the supply runs out.

Somebody has to hire new lawyers to ensure we have experienced lawyers. Eventually, thanks to the increasingly restricted access to the court system, there won't be many lawyers with real trial experience.

The more firms compete to attract laterals through compensation, the more internally stratified they become. The more stratified they become, the less they invest in growing their own juniors. And so on.

Finally, the preparation to be a lawyer is more difficult because the law is more complex. Fifty years ago, there were fewer statutes, regulations, and cases. A lawyer litigating a dispute did not worry about investigating email and social media. A lawyer drafting a contract gave no thought to whether it would be enforceable in China.

We collectively have become dependent on circumstances that will not last much longer. The crisis for legal education is a portent.

February 9, 2014 | Permalink | Comments (0)

Thursday, February 6, 2014

Call for Nominations: 2015 AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2015 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg, and in 2014 the award honored Catharine A. MacKinnon.  Both of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.
 
The 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.
 
The Section is now seeking nominations for this most prestigious award. The nominations from 2014 will be automatically included for consideration for the 2015 award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award.  As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2015 AALS Annual Meeting. 
 
Please submit your nomination by filling out this electronic form by March 3, 2014Please note that only nominations submitted via the electronic form by the deadline will be accepted.

February 6, 2014 | Permalink | Comments (0)

Wednesday, February 5, 2014

Congratulations to Mike Fitts and to Tulane

Penn's law dean, Mike Fitts, has just been appointed President of Tulane. Mike is a wonderful leader, and a truly great person. He will be an outstanding university president. http://www.upenn.edu/pennnews/news/penn-law-dean-michael-fitts-named-president-tulane-university

Congratulations, Mike. It will be good to have you just down the road in NOLA.

 

February 5, 2014 | Permalink | Comments (0)

Tuesday, February 4, 2014

Dean Frank Wu: "My Critics -- and Yours -- are Right"

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This essay also appears at LinkedIn.

I had lunch yesterday with a colleague, a peer; he also heads an institution of higher education. He asked me for my advice about responding to people who disagree. I don’t know that I am any wiser than anyone else in the role he and I both played, but I shared this thought: Agree with them. They probably have a point.

Anyone who leads is able to influence the lives of many others. With that power comes the price of accepting that numerous observers will have an opinion about one’s performance. Strangers freely offer one another speculation that has no basis. They may persuade themselves that they are able to infer intentions — which they are sure are not among the best.
 
Ever since Doris Kearns Goodwin published her group biography of Abraham Lincoln and his Cabinet, the title of which explains the theme, Team of Rivals, people have aspired to be like the melancholy, martyred President. During wartime, despite personal loss, he was always able to tell a story that would make his argument much better than any argument could have. 
 
When those whom he had appointed would disparage his intellect, he would respond as follows: “If [War Secretary] Stanton said I was a damn fool, then I must be one, for he is nearly always right and generally says what he means.” Lincoln would conclude calmly, “I will step over and see him.” .
 
He understood he had to heed especially his enemies. The Confederacy could not be ignored. It had to be considered on its own terms and ultimately confronted in the nation’s interest.
 
Well, nobody since has likely matched that model in any respect. It’s likely futile to try.
 
Instead, I try to remember the character of Dogberry from Shakespeare’s Much Ado About Nothing. A self-appointed constable, the equivalent of a modern captain of the neighborhood watch, he is a fool’s fool. Nothing he says makes any sense, the observation of which only invigorates him further in his pompous malapropism. 
 
Notwithstanding his superlative incompetence, he and his crew in fact manage to apprehend the villains of the story. When the miscreants who cannot believe his luck and theirs’ attempt to put down his capacities, he is perfectly impervious to insult. If anything, he demonstrates the vanity of humility.
 
Puffing himself up with pride that must be forgiven, he tells his deputy that it ought be writ down in the record how he, Dogberry, is “an ass” and has been proclaimed such. None is to forget.
 
“I am a wise fellow,” he continues, “and which is more, an officer, and which is more, a householder, and, which is more, as pretty a piece of flesh as any is in Messina, and one that knows the law — go to — and a rich fellow enough — go to — and a fellow that hath had losses, and one that hath two gowns and everything handsome about him.”
 
Dogberry is not oblivious. His peroration shows him to be more sensible than his words suggest, more sensitive than his reaction reveals. That makes him the better of those who would insist he remember his place. He is more memorable than the bland young couple about to be wed, whom he saves however inadvertently.
 
There are fantastic portrayals by Michael Keaton, unshaven and enunciating well while seeming unable to control his spittle, in the sumptuous Kenneth Branagh movie adaptation, as well as Nathan Fillion, as earnest as he is deliberate, in the elegant Joss Whedon version. Each in his own manner is perfect. They are admirable for their actions whatever others might say.
 
I have moral failings of which my critics are not aware. So I urge myself to remember I am made all the better by listening to their attacks with care.

February 4, 2014 | Permalink | Comments (0)

Sunday, February 2, 2014

Dean Frank Wu on "The Importance of Beetles, or Why the Curriculum Looks Like it Does"

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.

Critics claim the law school course catalog contains too many specialized seminars. They sneer at offerings that seem especially obscure. Their contentions are wrong. They are dangerous.

To begin with, laypeople likely misunderstand the usefulness of technical subjects not only within law but also throughout academe. The extraordinary biologist J.B.S. Haldane, asked what he had learned about religious faith from his scientific investigations, remarked that God seemed to be inordinately fond of beetles.

He was at least half serious. There are thousands of species of beetle.

A research university that strives to rank among the best will feature much more than an introductory survey course in biology. It may well boast an upper-level class on beetles.

An observer who wonders why the school is so devoted to the order coleoptera of the animal kingdom mistakes what the institution is about.

Everyone realizes that very few students will become professional entomologists. A few may be inspired, and that is well and good.

But a course about beetles in name is about much else as well. Students who are not enamored with bugs will take away research techniques applicable to other specimens.

And a course about beetles is the beginning of the campus commitment. The teacher who is fascinated with the weevil deserves support in order to advance knowledge on behalf of humankind -- that is a perforce hyperbolic corrective to the contempt directed at professors nowadays.

It is easy enough and perhaps tempting to make fun of these intellectual pursuits and the intellectuals too. Any observer can beat up the egghead who wants funding to dedicate a lifetime to looking at insects. Everything that has happened since high school should persuade reasonable people that bullying nerds is not commendable.

We need information about insects to control pestilence. Theorists even propose we can comprehend our own behavior from ants and bees if not beetles. These zoological matters come back to law eventually in the form of sociobiology and evolutionary psychology, which, it is argued, generate recommendations for regulating personal conduct and passing public policy.

On top of that, classes turn out to be practical to a greater extent than people expect. Internet law is the latest example of a field that when it was initially identified was ridiculed as more or less a joke or at best an indulgence. The details of jurisdiction on the web, dispute resolution, privacy, and the other issues that would hardly have been recognized much less deciphered a generation ago are doubtless worth studying now and have exploded into glorious complexity. It isn't clear a lawyer would even be competent, whatever their practice, if they were unaware that commerce on the internet has its own characteristics.

Many of these "crazy" classes are the direct result of student demands. People want choices. They judge the quality of a school by the breadth of its curriculum. They compare it to competitors.

Some students, or earlier generations of them anyway, sought exactly what other students, or their successors, then disclaim as worthless.

Ethnic studies, for example, has typically been established thanks to protest movements. Ethnics studies would be unnecessary if the experiences of everyone in this great democracy had been integrated into its history, but that has not happened without struggle. Animal law similarly is a student favorite. It is not as if university administrators have been eager either to open centers dedicated to empowering minority communities or to liberating laboratory test subjects.

The same element of student interest is often what motivates the addition of Indian law and Islamic finance. Both of those classes lead to areas of practice where supply is not sufficient for demand. It also is true of sports and entertainment law. Neither of those classes lead to realities of practice that will satisfy the expressions of interest.

But some students -- as anyone else would -- react angrily to administrators who want to dissuade them from their dreams. They may perceive advice about maximizing their job prospects, however well-meaning or based on fact, as both disagreeable and patronizing.

The expansionist tendencies are not necessarily restricted in political terms. There can be agitation to bring on courses about the economic analysis of law or the history of gun rights. The reading of the classics has been encouraged to justify the war against terrorism. Western philosophy has been asserted to be the basis for battlefield victory.

Other classes are the indirect consequence of student expectations. People want renowned scholars on the faculty of their school. A customary negotiating point in recruiting a professor is the teaching assignment.

The big names usually want to teach less and to concentrate on what they are expert in. Almost all professors whose research has a specific emphasis are quite capable of teaching a class that is general in scope if they must do so. So to fill the endowed chair in criminal law requires accommodating the occasional class on the culture of dueling.

Ultimately what is at risk in the hue and cry is the idea that has made American higher education the envy of the world. The Johns Hopkins University, the first modern research university in the nation when it opened in 1876, was based on its German peers, which themselves had only been set up as such.

The model emphasized, above all, the value of original research in an academic context. It was formal, organized by department, with a hierarchy of credentials. The core of the concept is as vital as ever: practically by definition, developing societies must foster the development of new ideas or at a minimum the new application of old ideas. Education is deficient if it consists solely of the memorization, recitation, and re-interpretation of old ideas; it does not deserve to be designated as "education."

From its inception, the ideal of the research institution included mentoring. Professors were supposed to share their findings with their pupils. They were expected to enlist them in their endeavors.

American success in this regard is unrivaled. The most prestigious English institutions, Oxford and Cambridge, collectively "Oxbridge," were not as enthusiastic about the grimy work of natural philosophers ("scientists" in our modern terminology). The finest Chinese schools, like those throughout Asia, have sought to copy our spirit of free thought and the resulting innovation (ignoring the irony of trying to copy these traits).

What came out of the quantitative fields has inspired the liberal arts. In law, academic research ascended along the lines of two movements. The realists who sought to describe the law as it functioned in society were applying the insights of social scientists. The positivists who drafted restatements of doctrine were relying on the scientific method.

The threat to legal education extends beyond an attack on legal educators. It constitutes nothing less than an ideological challenge to the promise of the research university.

February 2, 2014 | Permalink | Comments (0)

Dean Rachel Van Cleave on "The Courage of Law Students"

Dean Rachel Van Cleave (Golden Gate University School of Law) has published an essay entitled "The Courage of Law Students."  The abstract states: 

"The beginning of a new year is a time for resolutions, resolve and optimism. Thus, it is fitting that the annual meeting of the Association of American Law Schools meets at the beginning of the year. This year, law school deans, faculty and staff gathered to discuss the theme "Looking Forward: Legal Education in the 21st Century." Given the significant challenges facing law schools and the legal profession, many of the sessions focused on how law schools can better support, train and prepare students to ensure that they have fulfilling careers. Many sessions explored at a deeper level how our students are addressing the current situation."

This paragraph sums up how many of us feel about our students and the kind of courage and optimism we--as legal educators--need to display in meeting the challenges that face us in this changing legal landscape: 

"Current students and recent graduates are exceptionally brave and optimistic. They are coming to law school because they really want a legal education. In the face of a difficult job market, a profession that is in a period of dramatic transformation, and even with the prospect of incurring significant debt, they want to study law, become lawyers, and have fulfilling careers. They are going against the grain, against the advice of commentators, some pre-law advisors, and probably friends and family. That takes a lot of courage, real courage. Amelia Earhart said, "The most difficult thing is to act, the rest is merely tenacity ... You can act to change and control your life, and the procedure, the process is its own reward." The decision to act also takes optimism. Do those of us in legal education have that kind of courage? What must we do to honor that kind of courage and optimism?"

February 2, 2014 | Permalink | Comments (0)