Tuesday, September 15, 2015
Many deans around the country have expressed concern that the National Conference of Bar Examiners is purposely gaming the MBE to reduce the number of lawyers entering the profession. While the NCBE has stated that declining credentials for entering law students has been the primary reason for a decline in bar passage rates in many jurisdictions, I have spoken to many deans who say that their entering credentials have remained flat, because they have reduced the size of their entering classes.
I find it interesting how many lawyers told me when I was dean that law schools are producing too many new lawyers. I heard the same sentiment about the booming population of Florida, when I lived there. Politicians and citizens advocated for limiting the numbers of people migrating to the state. Why do we naturally assume that the best solution for overpopulation of a state or a profession is barring (pun intended) the entry of new participants? Many senior members of the bar entered law school before there was an LSAT, and several states even admitted those lawyers through the diploma privilege. Maybe we should thin the profession by requiring a practice competence exam for lawyers every decade or so. Those who do not pass would lose their licenses, or be required to take special training to regain the skill necessary to practice law.
If there are too many lawyers, why do we assume that the best solution is to make it harder to enter the profession?
Monday, September 14, 2015
Robert W. Adler
S.J. Quinney College of Law, University of Utah
At the dedication of the new home for the University of Utah’s S.J. Quinney College of Law, I announced our new 100/100 Initiative, which establishes a firm goal of attaining 100% first-time bar passage and 100% full-time professional employment for our new graduates as quickly as possible.
Although our roles as law school administrators often diverge from our work as scholars, in this case my strong belief in the value of setting aspirational goals derives in part from my scholarship. I recently published an article on this issue in connection with the thirtieth anniversary of the Clean Water Act (CWA) (Robert W. Adler, The Decline and (Possible) Renewal of Aspiration in the Clean Water Act, 88 Wash. L. Rev. 759 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567451). The CWA is full of highly aspirational goals: full restoration of the chemical, physical and biological integrity of the Nation’s waters; “zero discharge” of pollutants; “fishable and swimmable waters” nationwide. Although we have not met those goals despite three decades of effort, our waters are far cleaner and healthier than when Congress adopted the law. One reason for that success is that we set the bar so high, and another is that Congress backed up the goals with concrete (although imperfect) implementing tools.
I fully expected mixed reactions to my announcement of the 100/100 Initiative, from praise to some serious skepticism. In his otherwise positive blog post, Professor Paul Caron referred to the 100/100 goals as “audacious.” I agree. They are bold, and intentionally so. We care about every one of our students, and we want every one of them to succeed.
Just as important, our goals are backed up by very concrete steps we will take to meet them as quickly and as aggressively as possible. For bar passage rates, those measures include better academic support to our second and third-year students; increased and enhanced formative assessments during core bar exam courses; and better predictive modeling of those students who face a higher risk of not passing the bar exam. For employment, they include more one-on-one mentoring; improved student-alumni networking; exploratory incubator programs; and rural job placement programs.
I am quite serious about our intent to meet these goals. And if we fail to meet the 100/100 goals, we will add and modify strategies with the intent of getting closer and closer. Every year. As aspirational goals, they prompt us to do better than we are now, and better than we would have otherwise. Thus, even as goals, they will serve a very useful purpose. In my CWA article, I labeled this phenomenon “aspiration as asymptote.” The goals prod us to get closer and closer, even if we never quite reach the end.
The alternative attitude, which I refer to in my CWA article as “the pathology of excessive aspiration,” is that we view such lofty goals as “so ambitious that they cannot possibly be met,” and therefore we simply stop trying. That unfortunate and pessimistic view, I fear, is how some in the legal community now view legal education today, particularly in light of declining applications and other challenges.
Our task is to shun the pathological view, and instead to set—and to use—lofty aspirations as challenges to push us to do better. Our students deserve no less.
Friday, September 11, 2015
Dean Dan Rodriguez and I have been sharing some thoughts about tuition discounting in legal education. In this post I would like to raise the possibility of ending or scaling back the destructive practice of merit scholarships.
To summarize and add to some of Dan’s points, among the negative attributes and effects of merit scholarships are these:
*”merit” is typically defined very narrowly in terms grades and standardized test scores;
*directing so much scholarship money toward merit aid has caused need based aid to shrink (at many schools, there is now effectively no need-based financial aid);
*the students who receive the most merit-based aid are often the least needy, because high test scores correspond with socio-economic advantage, and generally translate into higher law school grades and, consequently, employment opportunities;
*the need for large sums of merit-based aid has contributed significantly to the excessive rise in tuition.
I am not proud to participate in this system of allocating financial aid. Yet individual deans and schools are essentially helpless to resist. The process by which merit scholarships proliferated was very rational, even if the results are undesirable. When the first schools tried to move up in the US News rankings by discounting tuition for students with strong academic credentials, other schools had to copy them if they wished to remain competitive. It is tempting to believe that schools could ignore this trend, but that simply ignores reality. Our susceptibility to the influence of rankings is not admirable, but it is widespread in higher education, particularly in law. At almost all schools, a dean who refused to play this game would have been replaced by one who would play. These trends have been playing out throughout many segments of higher education, not just law, which demonstrates the stickiness of the problem.
The only real way to resist the logic and power of merit scholarships is through collective action. An agreement among schools that all aid will be need-based, if adhered to, would be a game-changer. The obvious questions are whether such an agreement among law schools is lawful and practical. Frank Wu has done some excellent research on the law pertaining to this. He will be posting on this site soon to explain. In essence, there is a federal statute that seems to offer protection from antitrust rules that otherwise might prohibit this. This is why the Ivy League schools can agree to offer only need-based aid.
If lawful, would such an agreement be attainable? Could law schools reach and abide by such a policy? Would it result in a lower tuition rate over time? I hope that we can start a conversation on these and other related questions.
The request has a very good memo summarizing some of the strengths and weaknesses of the UBE. Now that New York has signed on, I expect that the UBE will sweep much of the country, which will be a good thing.
Wednesday, September 9, 2015
[by Rick Bales]
Inspired by an email Michael Wolff shared several months back, I used the occasion of our hiring a new Clinic Director to write an op-ed for the local paper explaining the role of a law clinic. Here's an excerpt; the entire op-ed follows the break. Feel free to borrow freely for your own purposes.
... The ONU Law Clinic serves two critical purposes. First, it represents Lima residents who cannot afford to hire a private lawyer. ONU Law students represent Lima clients with domestic violence proceedings, divorces, expungements (sealing an arrest or conviction so it is not publicly available), wills and trusts, and many other types of cases. Unfortunately, the need for such services exceeds our ability to provide them, so we often have a waiting list even for residents who are income-eligible.
Second, our Clinic gives our students hands-on experience doing things that real lawyers do, such as interviewing clients, appearing in court, and drafting legal documents, under the close supervision of an experienced attorney. Because the Clinic’s clients tend to be from poor and marginalized communities, the Clinic helps ONU Law students understand that everyone deserves a voice and vigorous representation, and demonstrates to students why it’s important that they continue to serve the underserved later in their professional careers.
As dean of the Law School, I don’t choose the Clinic’s clients, and I don’t choose the clients’ cases. Sometimes, the Clinic represents unpopular clients, on unpopular cases. But so do real lawyers – and every once in a while, today’s unpopular legal cause becomes tomorrow’s groundbreaking legal advance. Civil rights is the perfect example. ...
We at ONU Law are proud of our Clinic. It gives us an opportunity to serve the Lima community while at the same time training law students to be better lawyers and, more importantly, better people. The French poet Anatole France famously said that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, beg in the streets, and steal bread. The ONU Law Clinic helps ensure that tomorrow’s lawyers understand that in the United States, justice is not the privilege of a wealthy few, but a right that all of us are entitled to.
Tuesday, September 8, 2015
Sunday, September 6, 2015
On behalf of Professor Lee Ann Lockridge from LSU Law Center:
Friday, September 4, 2015
With this fall's class at my law school, we reached an interesting milestone. Roughly half of the entering students are in programs other than the standard three-JD program. In our case, this is the result of several programs, including LLM for foreign lawyers, dual degree students, LLM Tax, a 2-year accelerated JD, and our next program, a Master of Science in Law for STEM professionals. Although this particular mix of programs is unique to us, I know that a growing number of other law schools have a combination of innovative programs that, too, bring in a sizeable cohort of "other" students.
An acute challenge is how best to integrate these students into the law school community. I should begin by articulating and defending the premise. The law school community benefits from the perspectives and backgrounds that students in what I will call, clumsily, non-core programs, provide. In our experience, JD students learn in important ways from non-US students sitting side-by-side with them in their courses; they also learn from students whose professional ambitions are sufficiently distinct that they are drawn to non-core programs (such as, for instance, a dual degree with a management or engineering school). Moreover, if a law school is deliberate about fostering teamwork and modalities of blended learning, then the diversity of the law school cohort is enormously advantageous. As in so many other walks of life, diversity = strength.
That all said, integration provides significant challenges to the modern law school. For example, career services is bound up inextricably with the rather conventional job search by 2nd and 3rd year JD students. This group is high maintenance and rightly so. And the job search for law firm positions (especially for those law schools with a reasonably robust OCI scheme) are within the wheelhouse of career services pros. Students in non-core programs will face unique challenges and a law school needs to be fairly strategic and intentional about how they assist students in their employment objectives.
Students services presents another piece of this puzzle. Foreign students present unique challenges and, in my experience, only the most well-resourced schools have truly undertaken to provide special, purposive support -- beyond English language and immigration assistance -- to students who come to our U.S. law schools for a year. There are indeed a myriad of challenges and one of the most vexing ones is how to integrate a critical mass of foreign law students into a community of law students and faculty so as to capture for all community members the true benefits of an international diverse and engaged student body. Law schools are in dire need of attention to "best practices" in this space, for the challenges of integration are substantial.
Law faculties are experienced primarily with JD students. They were all JD students once upon a time, and most of them too were lawyers, thereby doing (even if briefly) the jobs to which the traditional JD students aspire. Calling upon them to teach and mentor a distinct cohort of non-core students presents some unique challenges. In the case of our new MSL program, we have elided this challenge somewhat by putting together a retinue of separate courses (more than thirty this year!) for which the faculty, a mix of full-time and adjunct, are very carefully selected. But, in reality, most of the work of teaching non-core students will fall on the shoulders of the core law faculty. We would do well to think strategically and structurally about how best to help faculty in tackling what are clearly unique challenges.
Last, but not least, there is the matter of the social. The strength of our respective student communities is in no small part tied to the lengths we go to be supportive of our students' well-being. Creating and nurturing a collaborative student culture is a part of this; designing mechanisms to deal with crises and difficulties (through counseling and such) is a part as well. Creative efforts are necessary to ensure that the integration of diverse students into the complex cohort of our omnibus student community is successful not only in bringing all students to graduation, but in shaping a community in which all of our law students thrive, professionally and socially.
This post is mainly a polemic, any way you slice it. But my plea is that we as deans think of new ways to share information and ideas to improve integration in our law student communities. As new non-core programs proliferate, the imperative of doing so can only grow.
Where you stand depends upon where you sit, as the saying goes. For eligible law students, tuition discounting provides an unalloyed good. Q.E.D. This a wealth transfer from law school general revenue, more often than not from tuition generated by other students who are providing this cross-subsidy. What's not to like?
How about this: The overall scheme redounds to the detriment of needy students in the aggregate. Students who collect the subsidy are not necessarily -- and I would suggest not especially -- in the pool for which financial support to address the gap between what they can afford and what the school charges. And, to make matters worse, law schools have a clear incentive to increase tuition precisely in order to pay for this cross-subsidy, the result of which is needy students are farther and farther from the shore. So, it would be a mistake to think of tuition discounting are "pro student" in some global sense. Rather, it is a way in which law schools (a) down the pecking order (and, except for Yale, we are all down the pecking order), and (b) who can afford to do so, maintain their competitive credentials and enrollment levels. That this benefits a few meritorious (lucky?) students at the top of the applicant food chain is a by-product of this strategy.
The systemic effects of the strategies are problematic in the long run. A large group of students are on the other side of the glass looking in, as they are paying a high sticker price to support the overall economic structure of the law school. A small group of students get a windfall. And for these group of students, they are making a choice that is not necessarily optimal in that they are eschewing prestige and the professional advantages that accompany it in order to reduce their financial burdens. To be clear, no one should judge the individual student who insists with evidence that they cannot afford higher tuition at [first choice school]. But we are back to the basic point: If it is need, not want, that is driving this enrollment decision by the high merit student at the margin, then a more ideal system would look more fundamentally at need-based financial aid in order to reduce debt.
A short digression here about debt load: Tuition discounting may indeed bring down aggregate debt load, but the devil here is in the details. Is the effect of this financial sorting to increase significantly the number of students who will leave with zero or modest debt (beneficiaries of the sort) while increasing by some measurable amount the students who will see their debt loads increase? The ABA furnishes us data about aggregate debt, and also about % of students who receive scholarships. We can certainly extrapolate tuition discount rates from extant data. But we don't typically know exactly how the benefits and burdens are distributed. Nor can we know what needs knowing, which are the employment & entry-level compensation profile of students who receive these discounts and at which level. Nuanced information about both the magnitude and the impact of this cross-subsidy requires such fine-grained information.
In a last post on this topic, I will offer some thoughts about discounting and professional school economics more generally. For now, I hope to have sparked at least a bit more thinking about the connection between aggressive discounting and student well-being. No clear conclusions or profound wisdom here, but just a modest suggestion that the matter is complex and controversial.
I agreed to try my hand as a guest on this blog because of my interest in offering a dissent. I am frustrated by how the media has framed a one-perspective, evil, legal education monolith. In my perhaps distorted dean mind, I am imagining The Death Star of Star Wars fame somehow viewed only in one dimension.
I make no promises about my ability to successfully ingratiate an alternative narrative, and I worry that blogging might humble me in the way athletics did when I was younger. But I will try this one time, see how it goes, and, with luck, I will get feedback that guides me (and the editors of this blog) as to whether I should ever blog again.
Today, I hope to tell a story that adds a second dimension, our students. This dimension might be headlined, “Law Students Provide Critical Value to Our Communities.”
Students serve our communities through our public service externships (working for judges, government agencies, prosecutors, public defenders, and non-profits), our legal clinics, and our pro bono programs. I recently calculated an estimate of the number of hours students attending my law school, the University of Arkansas at Little Rock, William H Bowen School of Law, contributed between August 1, 2014, and July 31, 2015. The number: more than 20,000 hours. In one year. Multiply that number by 205 law schools, and you can estimate that law students provided more than 4,000,000 hours of public service last year.
According to Independent Sector, the latest estimated hourly value of volunteer time is $23.07 per hour. Surely, law students volunteering their time in legal settings cannot be worth less per hour. At $23.07 per hour, UALR Bowen’s students contributed an estimated $461,400 worth of volunteer service to Arkansas last year, and all law schools contributed an estimated $92,280,000 worth of volunteer service throughout this country.
The service our students provide has become critical to our underfunded legal system. For example, in Arkansas, judges, prosecutors and public defenders in areas near the state’s two law schools have plenty of access to research support for their work. For all the other judges, prosecutors, and public defenders, particularly those who work in rural parts of the state, support is uneven at best and non-existent most commonly. UALR Bowen recently created new practica courses in which our students will work for the underserved judges, prosecutors, and public defenders using distance technologies and under the supervision of a judicial clerk, prosecutor, or public defender here in Little Rock. This change allows us to ensure that all our students, even our night students, are able to complete our experiential learning requirement while also serving the state. How many judges, prosecutors, and public defenders are law students supporting nationally? I would be excited to know.
Tuesday, September 1, 2015
Not the panacea, that is, to the economic woes facing U.S. law schools and the debt predicament of our students. As noted in my earlier post, the key dilemma for law schools engaged in heavy discounting is how to pay for this subsidy. For schools using existing tuition revenue, rather than external sources of cash, they have two choices: Increase student enrollment in order to pay for the discount (assuming here that such discounting is being used as merit aid) or increase tuition. There is a fair amount of research (e.g., Hillman, Research in Higher Educ. 2012 and Martin, Econ. of Educ. Rev. 2002 are two good surveys of the evidence & literature) which points to diminishing marginal returns to schools that engage in discounting. The Hobson's choice looms squarely before law schools who engage in aggressive discounting.
What is interesting, but ultimately unsustainable, is the apparent strategy in recent years of discounting without augmented student enrollment on the JD side and without accelerating tuition (at least in the last few years). So where is the $$ coming from? Augmentations in non-JD enrollments is one clear answer. The question here -- and hence the title of this post -- is whether such strategies are sustainable in the intermediate & long-run. I predict that the answer will be no, for reasons that warrant a separate, more nuanced, analysis. However, even if and insofar things on the LLM & Masters degree front continue to look rosy, law schools will need to take a hard look at how these enrollment strategies jibe with the overall objectives of the law school and, critically, the complex, dynamic marketplace that is implicated by moving headlong into the non-JD space.
I suppose little should be said here about the tactic of increasing tuition, except to say that it is a fairly bad option, for all sorts of reasons. What is scary is that the perceived imperative of steeply discounting tuition imposes pressure on law schools not to engage in substantial tuition reductions, reductions which we would expect would redound to the benefit of a wider cohort of students -- that is to say, all of them! David Yellen's observation at the end of his post that tuition discounting improves well-being of students by lowering their debt load begs the question: Compared to what? Compared to meaningful reductions in tuition? Debt load is calculated as an average. Wouldn't we want to know whether and to what extent debt load on the part of students least able to afford it is decreasing?
One other skeptical comment about the relationship between tuition discounting and student well-being: Such strategies will usually mean ("usually" meaning for all but the wealthiest schools) a reduction in resources being devoted to other worthwhile endeavors within the law school. If we assume that faculty costs are essentially fixed (not a wholly accurate assumption to be sure, but plausible when you factor in the politics of the matter, and also the competitive instinct toward relentless competition among law schools to recruit and retain faculty talent), then what will be shaken loose will be variable costs for, say, student services and other mechanisms of support. It is not that simple, of course. But my small point here is just this: The wealth transfer from the law school budgets to the "best and brightest" has more complicated impacts on overall student well-being than meets the eye.
In the end, I do not mean all of this to be a screed against tuition discounting. Engaging in calculated efforts, through aid, for top students is a common strategy, and increasingly so in this rankings-sensitive environment. And there are in fact some positive aspects for students facing difficult economic conditions and tough choices. But the unintended consequences of such rapid run ups in these discounting strategies -- especially on the part of law schools which can scarcely afford to be making such expensive investments in this turbulent environment -- warrants more careful analysis, based upon theory and data, and perhaps a bit more caution.
Monday, August 31, 2015
I had lunch today with someone who aspires to my job of heading an institution of higher education. That's terrific. I have encouraged him. He possesses the competencies and the interest; it is possible to have one without the other.
These are not easy roles. Every day, I read about a university system president, campus chancellor, or law school dean who has announced a resignation.
I have entered my sixth year of service as Chancellor & Dean of University of California Hastings College of the Law; my tenth with the decanal title. (I have an unusual position, because we are among the few "stand alone" law schools, meaning the institution offers only that single discipline of study.)
Here is a bit of data that depresses me. Based on the numbers, I rank in the top third of my profession for seniority in my current office and top sixth for seniority cumulatively.
That is not to praise myself; it's to deplore the turnover rate. Recently, the tenure of law school deans reached a record low. The median hit 2.78 years — less time than it takes one of our students to graduate with the J.D. (To be precise, as one should with statistics, this is the median rather than the mean, which likely is a better representation of longevity; it also presents a moment in time, not the length of service when it ends, which would be greater.)
It is unlikely that any leader, however competent, can bring about positive change in that short a time. Even if they come from inside the place and have performed similar functions, they would barely have established themselves and figured out what had to be done.
There are various reasons for this instability. Law schools are an extreme example. But what is true of law schools also is true to a significant extent of liberal arts colleges and of almost all other segments of higher education. Most of what a comprehensive campus enrolling 25,000 must do, a “special focus” school enrolling 1000 also must do. The same norms are applied across the board.
Higher education brings together multiple constituencies with conflicting goals. Students, faculty, alumni, staff, and the many members of the public who regard themselves as stakeholders have dissimilar notions of what a school should be doing. Some perceive its purpose of the advancement of knowledge in a classic, timeless sense. Others see it as a credentialing authority, a job placement agency, the freedom of moving away from home, a parent in absentia, a child care provider, an employer, a landlord, an investor, a neighbor, and a public space.
Even within a constituency, the expectations are contradictory and rising. Schools are to do more for less, either receiving a decreased state subsidy or holding constant tuition. They are to feature renowned faculty whose scholarship has the best reputation, without being involved in controversy. They are to have winning athletic teams on television, while graduating significant numbers of players and avoiding abuse of them or by them. They are charged with enforcing laws about immigration and new norms of sexual conduct, responding to regulations and improving in rankings.
Yet schools also have relatively high fixed costs. There are few incentives to offer for performance (and limited disincentives for the lack of it). Competition has become significant even as differentiation has become more difficult.
These causes tend to ratchet. That is, they make themselves worse. The more churning in the executive suite, the more uncertainty throughout; the more uncertainty throughout, the greater the risk to performance measures; the greater the risk to performance measures, the more likely churning in the executive suite.
When I left the practice of law and entered academe, I had no aspiration toward administration. I thought it would mean giving up the opportunity to develop my own ideas and train students as advocates. That was the point of pursuing an academic career. It was all about thinking. Very few of us are paid to think for a living, much less to think about what we want to think about, and, furthermore, to tell people what we have thought.
I had the privilege, however, of serving as Trustee at Gallaudet University, the school for the deaf and hard-of-hearing. I saw what a great college president, Dr. I. King Jordan, whose selection was the culmination of the "Deaf President Now!" civil rights movement, could do to transform a community.
I was inspired. My goal is to improve higher education, to ensure it continues to be the engine of the American Dream. I would not be here, in a literal sense, if it were not for higher education in America. My parents came as scholarship students, and they were able to do what so many have done: to better their own lot in life even as they contributed as productive citizens in our diverse democracy.
We once believed in higher education as a public good. It benefited society as a whole and deserved support, even from individuals and families who might not attend any particular school.
Now, whatever our politics, the consensus has shifted toward higher education as a private good. It is for the person who desires it, as a consumer good to be marketed, sold, and in turn bought. Then, essentially, it can be resold in the form of a worker who has the requisite stamp of approval. That person bears the burden of paying for it, typically through debt financing. (Given this scheme, I do not for a moment begrudge our students. Paying the tuition they are charged, of course they call themselves “consumers.” In a forthcoming post, I will offer an alternative conception of the relationship that would serve their interests better.)
Managing a college means being a generalist and being practical. A college encompasses its core academic functions, but it also has to perform well in everything from labor relations and information technology to marketing and fundraising to student health and housing. When I was a professor, I did not need to be concerned about any of that. Now there isn't any single person at the school other than me, who has to have a hand in or at least keep an eye on the complete range of issues. I have had to acquire practical knowledge and skills, even as I strive to delegate appropriately and effectively. The challenge surpasses any scholarly project I have undertaken.
For my colleague who wanted to know more about how he should prepare for this job, I have been as open as possible.
I wish him luck. He needs it less in applying than he will once he has been hired.
This essay originally appeared at Linked In through the Influencer program.
I love to welcome students to law school. There is such enthusiasm this time of the year. Here is what I shared with our incoming 1Ls at UC Hastings.
When I was a kid growing up in Detroit in the 1970s, I was a stutterer. Back then, the treatment for a stammer included forcing you to do speech and debate.
That explains how I ended up in law school. But if I can stand in front of an audience, then anybody can. There are always moments of anxiety and self-doubt in an intense experience such as what you have signed up for. It's important to know that others have done fine and made it through.
Law professors usually make three points.
First, you are joining a profession. It is customary to say that happens when you matriculate, not when you graduate. But there is another aspect that was not once uttered to me when I was a student, twenty-five years ago. It's about the nature of the profession.
Law is a service profession. You serve others. That's the meaning of representation. You act on behalf of your clients and not yourself.
You also are an officer of the court. That requires that you advance justice.
I always thought when I finished my education, I would be an expert: I would be entitled to tell people what to do.
As soon as I was working as a lawyer, I was disabused of that notion; it's the other way around. Someone else's interests are always above your own self-interest.
There are no hermit lawyers.
You are joining a community. That is what makes a law school great. More than the research and the teaching, it is the sense of belonging. Look to your right, look to your left. These are future clients, law partners, the judges before whom you will appear. For some, the individual seated there is your future spouse or partner.
Second, you get out of this what you put into it. Education requires engagement, It is not a product to be purchased, but a process to participate in.
When I work out -- you heard I'm preparing for another half-marathon -- I always end up a bit more lackadaisical than I intended when I requested a session at the gym. As the trainer tells me, I need to exert effort on my own initiative. She is there to encourage. But it has to be me expending energy.
Third, I will say what I say every year. Students always ask for advice. Here is what I will say: "Sell your television."
When I started teaching -- to my chagrin, I am no longer mistaken for a student -- it was enough to say that. Now, I have to add due to technological change, cancel your streaming services, digital subscriptions, and so on: Netflix, Hulu Premium, however you receive video content.
I say that not because I dislike television. Just the opposite. I'm waiting, like many around the world, to binge watch the next season of Sherlock. That's why.
It's too tempting to have a program running in the background. It'll distract you. My suggestion is a test of your commitment. I'm not talking about giving up your favorite show forever -- it'll still be there when the semester is over. My colleagues point out the need for balance; I agree -- I just recommend what is active rather than passive.
I envy new law students. I am reminded of the 1999 blockbuster The Matrix. (Never mind the sequels.) When Mr. Anderson becomes Neo, he sees the code that makes up the reality around him. That's what law school will do. You'll wake up and say, "I know kung fu." You will perceive the law that constitutes society around you.
If you have ever enjoyed arguing, there is nothing like the exhilaration of starting law school.
For the benefit of first-year law students, I have written a series of blog entries on starting to think like a lawyer, the "trick" to law school, how to answer any legal question, the concept of "meta," and why numbers matter.
This essay originally appeared on Huffington Post.
We recently hired a professor to teach public policy advocacy at our law school. This is a great example of the value of expanding the conception of what a lawyer does. UC Hastings is unusual, because it is a "stand alone" law school. Although affiliated with the world-class UC system, our campus offers exclusively legal training. In the "Carnegie classification" of institutions of higher education, we are designated as special focus.
Even though we are more concentrated on law, we have been reaching out as much as possible to promote interdisciplinary training. We have partnerships with business schools and medical schools.
Public policy is a natural addition, because it is so closely related to law. It is indistinguishable in many respects, as the United States becomes increasingly a system of statutory law, from its roots in English common law. A lawyer who wishes to be as much as possible a conventional lawyer needs to know how the law is made. Whenever Congress or a state legislature promulgates a new policy, it does so by passing a statute. It creates "positive" law.
A lawyer also is expected to be able to advance a cause through multiple means. The best lawyer understands that for the typical client, law is a means to an end rather than an end in itself. The lawyer competes with accountants, financial advisors, business consultants, and even other authority figures such as social scientists or clergy, in giving advice and counsel and resolving disputes. A person who retains a lawyer for a project wants the tasks done, done well, and, presumably, done in an appropriate manner — but most people would accept another type of professional if she could offer the same capabilities and deliver similar results.
The most thoughtful lawyers also realize their own self-interest is bound up with public policy. Whole areas of law are created and destroyed by public policy: an executive order, a bill, or even an administrative agency "dear colleague" letter can ruin a lawyer's living or open up altogether new possibilities or both.
Trial lawyers, for example, have always been aware of these risks. They are the most lawyerly of lawyers. They do what laypeople rightly perceive as the crux of what a member of the bar does — appearing in court. Prosecutors, criminal defense lawyers, and every other type of litigator have associations to ensure access to the courts.
That means they educate the public and lobby government officials. They have no choice. They want to protect their vocation. It is highly regulated. (For that matter, I encourage business schools, medical schools, and every other type of professional school to consider bringing on someone expert in law and public policy.)
The more we improve law schools, the better we will prepare law students to be leaders. That is what service is all about.
Sunday, August 30, 2015
In a post last week, Dean Yellen acutely raises the important issue of tuition discounting in law schools. It is an extraordinarily important issue in the modern law school world, even as it flies somewhat under the radar screen in the current debates about law school economics, student debt, and educational strategy.
Let's first be clear about what we don't know: Law schools are not required to distribute exact discount rates nor scholarship distribution across credential levels (or, for that matter, other student profile data). So, while we have, through ABA reporting requirements and such, data about student debt levels and (more or less) overall financial aid, we do not have readily available the kind of information that would truly enable to get to the heart of the issues Yellen raises: what is the impact of tuition discounting on student debt? How is it distributed across students, across schools, across time? And what does it tell us about the prospects and progress of law schools in tackling the "cost" issue.
That all said, my intuition is much the same as Yellen's and that is that tuition discounting has skyrocketed in recent years. Law schools have put significant resources into aid for students at the high LSAT/GPA levels -- "merit" aid versus "need" -- this in an effort to protect their LSAT/GPA medians in a period of applicant decline. No compulsion underlies these choices; these are deliberate choices made by deans & admissions officers at the margin. Yet, from the perspective of the law schools writ large (or, perhaps more accurately, law schools in particular competitive cohorts), there is a rather sharp collective action problem at the heart of the strategy. It would very much be in the interest of competitor law schools to limit such aid, but hardly anyone has the incentive to unilaterally disarm.
I want to explore this important topic in future posts, but, for now, just three quick observations:
First, as Dean Yellen notes, it is obvious that this expanded tuition discounting benefits students by reducing aggregate student debt. From this perspective, the tension is between the economic well-being of the law school qua law school and the interest of the students in paying less than the sticker price -- and, in some cases, much less so.
Second, less clear is the distributional impact of this discounting across the student profile spectrum. Tuition discounting in the modern law school world is mostly, I might say almost entirely, about merit aid. Merit aid goes to the high-end applicants; the strategy of law schools who can and will significantly discount tuition is to pull these applicants from higher stature law schools with the promise of money. The best available evidence suggests that these students will do well in these schools and will thereby have comparatively better job opportunities. All told, we are using merit aid to assist students who are less in need of aid than the the students who are paying sticker price. The rich get richer, as the saying goes. So, there is a distributional issue at the heart of this phenomenon and one that raises some difficult ethical issues. (In this regard, tuition discounting in law schools raises some rather different issues than the move toward need-blind or need-aware admissions in well-resourced undergraduate students, a key part of the driver toward high rates of discounting in that space).
Third, tuition discounting will be more fruitful and durable as an economic strategy for those law schools who can look in large part to non-tuition sources of revenue to foot this bill. Alum giving that is targeted to such spending strategies is at least a stopgap; depending upon the magnitude, it is a terrific fix. But it is, of course, less "terrific" for those law schools whose fundraising portfolio is more modest or, in any event, is being deployed in directions (clinics? need-based scholarship? space enhancements? public interest fellowships?) other than the hand-to-hand combat over high-end students.
I simply highlight these issues to show that the phenomenon of tuition discounting, accelerating and ubiquitous, raises important issues as we think hard about law school economics and educational outcomes.
Wednesday, August 26, 2015
According to this new survey, tuition discounting at private colleges and universities reached an average of 48% for freshman last year. That is up from 38% in 2004.
How does this compare to what has been happening in legal education? Back around 2004 I surveyed a range of private schools and the average discount rate was around 20%, about half of what it was then at colleges. This year, based on what I know about my school and a handful of others, the average private law school discount rate is close to the college rate of 48%, maybe even somewhat higher. This enormous increase reflects the intense competition for a much smaller number of applicants. Most of this increased spending has occurred since 2010. Nominal tuition rates have gone up during this time, but for many schools the rate of increase is smaller than in the past and much lower than the increase in scholarship spending. Put these factors together, and it reveals the massive hits our budgets have taken.
Of course there is good news for students in these numbers. Lower enrollment means a better match between graduates and jobs. And larger scholarships, perverse as our system of merit based aid is, means less debt. In fact, I won't be surprised if debt loads at graduation soon start to decline.
Tuesday, August 25, 2015
I was very fortunate to serve as dean of the University of Mississippi School of Law from July 1, 2010 until June 30 of this year. I appreciate that my co-bloggers on this blog are allowing me to continue to post, even though I am no longer a member of their ranks.
There are things I miss about being a dean, among them is the opportunity to spend time with US Supreme Court Justices, and other dignitaries. I will also miss working directly with alumni who care about the law school, and give generously of their time and talent, while asking for very little in return. Maybe what I will miss the most is the close working relationship I had with the other university deans and administrators, and the law school administrators and staff. I really enjoyed those daily interactions. I am not sure that most faculty members understand how much law school associate deans, administrators, and staff do every day. As a dean, I knew I could have never survived without their collective dedication, support, and sense of humor.
On the other hand, after 13 years as a dean at three law schools, there are things I definitely won't miss, now that I am teaching full-time, again. My colleagues here have all said I look happier, and even a little younger, now that I have stepped down. I must admit it feels great to be able to have a much more regular work-out routine. Exercise has been my go to drug for most of my adult life, and being a dean makes regular exercise much more difficult, because of the demands of time and travel.
I truly like every member of the Ole Miss Law faculty, and being a dean means that it is hard to have lunch with colleagues or to socialize with them on a daily basis. There is a natural separation between deans and faculty members that I will not miss. Similarly, being in the classroom regularly allows me to get to know our wonderful students much better, and in a different capacity.
Additionally, I am happy not to be the person conducting faculty meetings, and I certainly like the way my email inbox has thinned out. It is also nice not to have to deal with personnel issues, or all of the administrative paper work and e-forms that fill up so much of any day.
Maybe the best part of not being dean is not having to deal with the "Don't You Know Who I Am" and "I Will Never Give Another Penny to this Law School" attitude I encountered on occasion. For example, one alum wrote me a nasty email because I had invited Congressman John Lewis to speak at our law graduation in 2014 (his speech was fantastic, by the way). The alum said that he would never give a penny to the law school, because of my choice of speaker. Of course, I checked his giving history since he graduated decades ago, and he has never donated one cent to the law school. As dean, I had to spend far too much time dealing with negative people like that, and had to do so diplomatically.
As California considers whether to require 15 credit hours of experiential learning prior to admission to the bar, the executive committee of the AALS Section of Clinical Legal Education and the AALS’s Deans Steering Committee have lined up on opposite sides of the issue.
Setting aside the merits of the argument, it is good to see the Steering Committee weighing in on a policy question affecting law schools. Deans have previously been unable to organize in a way that allows us to have a collective voice in the ABA accreditation process, AALS policies, state bar issues, etc. Clinical faculty have been admirably diligent about monitoring and expressing views about these matters. Deans are an important voice on legal education issues, and should be heard. Even where there is not widespread agreement among deans on important questions, policy makers should be informed about what deans think and why. More on this later.
Thursday, August 20, 2015
Washington State has now licensed its first LLLT's. After meeting a variety of educational and training requirements, these individuals will now be able to deliver certain family law services. Other practice areas, and other states, are likely to follow. The Illinois Bar Journal has published a good article featuring voices in support of, and opposing, the LLLT concept.
I first studied this concept while serving on the ABA's Task Force on the Future of Legal Education (Paula Littlewood, who is featured in the IBJ story, was also on the Task Force). I tend to think that authorizing some form of limited licence practitioners is a positive way to extend legal services to those who cannot afford them, much as nurse practitioners function in the medical field. However, I am not convinced that Washington has required enough training of LLLT's (far less than nurse practitioners receive).
note: I have edited this post to remove an inaccurate statement about Washington's LLLT requirements and to include a link to that program. Thanks to Andrew Perlman.