Thursday, January 9, 2014
Taxprof has posted a link to Karen Sloan’s article in the National Law Journal describing a panel discussion at the AALS Annual Meeting. The discussion, which drew a huge crowd, was about the ABA proposal to eliminate its tenure requirement for law schools. http://taxprof.typepad.com/taxprof_blog/2014/01/law-profs-oppose.html
I was there, and was impressed that so many speakers were applauded for their stance that tenure should remain in the ABA Standards for Approval of Law Schools.
Currently, Standards 405(a) and (b) require:
(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.
(b) A law school shall have an established and announced policy with respect to academic freedom and tenure...
I did not speak that day, and probably would not have gotten any applause if I did. I do not think that accreditation standards should require a specific type of job security, and I believe that the ABA’s proposed changes should have very little impact, if any, on existing tenure systems. It is important to note that academic freedom and tenure are separate in the Standards, because they are separate things. Tenure is simply a contractual relationship between the institution and the faculty member. It does not guarantee academic freedom, and can mean different things at different schools. A private religious institution, or a for-profit law school, might define “cause for revocation of tenure” in a much more expansive way than a state university would.
Since law schools can and do define tenure in different ways, why should tenure itself be required in the Standards? Academic freedom for faculty is clearly a more important consideration, and the ABA will continue to require schools to have policies regarding academic freedom.
Furthermore, the proposed Standards do not prohibit tenure; they simply do not require tenure as the only way to create stability and security for faculty members. My university has no plans to move away from a tenure system, and I would bet that is the case for the vast majority of universities with law schools.
Maybe the real key to the discussion is Standard 405(a), which requires the school to create conditions to recruit and retain a competent faculty. When I was founding dean at the Charleston School of Law, my governing board did not want to have tenure. We were a stand-alone school, and they reasoned that they should be able to contract with our faculty in a way that best suited the goals of our institution. They argued that the Standards only required an announced policy regarding academic freedom and tenure, and that they could meet that Standard without actually granting tenure.
I fought hard to have a tenure system. It was the biggest fight I had with the board in my time there. Aside from the 405(b) considerations, my primary concern was that it was going to be extremely difficult to attract good faculty members if we did not have plans to offer tenure. In fact, before we came up for ABA approval we lost a great faculty member (who is now a dean), because the founding board said it did not want a tenure system. In the end, the board approved a tenure-track that is very much like the tenure-track at most law schools.
That being said, if a school can attract and retain competent faculty members, and it offers job security and academic freedom, why should it be required to offer tenure as a matter of accreditation? We talk a great deal about innovation in our profession. Why are we so resistant to allowing other schools to try new ways of doing things, even if we would not choose the same path for our own schools? The proposed Standards simply allow that opportunity.
Sunday, January 5, 2014
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
Law schools have changed. I know, I know: not fast enough. Law school deans are taking a beating in the popular culture. We're alleged to be con artists who, leading some sort of bizarre crew of hyper-theoretical professors, are enticing consumers to purchase a worthless product that ruins their lives.
Law schools must continue to change. Our technology-based culture has proven again and again and again that the only true constant is change. At the same time that Twitter, founded seven years ago, set up its headquarters a few blocks from our campus, the United States Postal Service, which predates the United States, announced it could no longer sustain Saturday service as a business proposition.
I would like to take a moment to talk about what is different now compared to a couple of generations ago. The senior leaders of the bench and the bar were just graduating from law school. They emerged in the era circa 1973 of the anxiety of "stagflation," the economic combination of stagnation and inflation, and the drama of the Watergate investigation.
A firm with 50 lawyers back then would have been a leading institution; partners did not move over to a rival; and compensation was a private matter and much more modest. Of course, fancy firms had only just ceased to be identifiable as Protestant, Catholic, or Jewish; the only people of color working there probably cleaned the offices; and if there was a single woman attorney she likely did trusts and estates.
I'd also like to lay out the budgetary effects of change in the academy -- and the tuition consequences. As we face demands for revolution, while implementing reform, it would be useful to consider the costs. (I won't even mention that back then public schools received the bulk of their budget from public sources.)
The greatest change has been the embrace of clinical legal education. By "greatest," I mean the most sizable and the most worthwhile. Similar to the model of clinical medical education, clinical legal education is the best means by which we prepare students for practice. It has been so successful we as a profession might well be on the cusp of requiring it for every graduate. No med student graduates without examining a few actual patients.
The expense of clinical legal education can be calculated in straightforward terms. A professor in a doctrinal class, such as the first-year required curriculum of civil procedure, criminal law, property, contracts, and torts, can lecture to a hundred students at once. That is not ideal, but it is not uncommon. A professor in a clinical class, supervising student attorneys who are representing real people in real cases, cannot train more than ten students at once. That's if she cares about her responsibilities both as a teacher and a lawyer.
It happens that the "podium" professor as they are called likely makes more money than her clinical counterpart, though not by much. Thus the difference is more than an order of magnitude. Once you count the overhead required for an actual legal office, the clinical course requires ten times as much money. There are new technological advances that will alleviate some of that.
Pause for a moment on this math. If we want clinical legal education, we will need to spend much more to provide it. As curmudgeons tell the young, this is called a choice.
Likewise with the student experience. The expectations for legal education in general have become so much higher. Traditionally there wasn't even lip service paid to "the student experience." Until recently, legal education has been miserable -- ritualistically, proudly so.
My predecessors really did say at orientation, "Look to your right, look to your left. One of you won't be here next year." Some of them said "two of you," and then they ensured it came true. Whether they flunked out or dropped out, they were not missed.
I say when I meet the assembled matriculants, "Look to your right, look to your left. These are your future colleagues and clients, the judges before whom you will appear, and, for some of you, your future spouse or partner." They want us to create a genuine sense of community; we want to do that too, not solely for competitive advantage.
None of this makes me better than those before me. We belong to different periods in history.
Over time, we have added dozens, literally dozens, of professionals for student services that would have been scoffed at.
Law school stressing you out? Back in the day, the response would have been, "Well, perhaps law isn't for you." Need a job? Then, you scanned a bulletin board with some index cards tacked onto it advertising openings. Deaf? No interpreter unless you paid yourself.
Today, we have counselors for students and numerous organizations they form for everything from patent law to running, advisors on careers and placement, specialists for disability accommodations, medical personnel for serious issues, and public safety officers. Many of them hold a law degree themselves.
Most recently, we added an office to compile data and address accreditation requirements. Everyone wants us to be transparent, while lowering our costs. Those goals, as is true of many human desires we feel simultaneously, are not highly compatible. Like elegant product design, transparency turns out to be pricey. Specifically it requires that we build an apparatus to find the information, organize it, verify it, submit it, and then track the trends that are revealed.
The other day, I spent the lunch hour in our cafe to chat with students. A nice fellow, a first-year student, came by to meet me. The only subject he wished to bring up was ice cream. He wanted to know if the cafe could install a machine as he recalled from his undergraduate days elsewhere, so he could enjoy soft-serve ice cream.
As I explained to him, I have nothing against ice cream. If we can make a profit as the vendor, then we would be delighted to offer ice cream. But if we cannot do so, then our strategic plan does not call for ice cream.
Our strategic plan is about high-quality legal education. The definition of every aspect of that phrase, "high-quality," "legal," and "education" is dynamic, not the same as it was two generations ago. Improvements to each facet require we make expenditures. That forces us to ponder what it is exactly as a society based on the rule of law we want to pay for our principles.
Sunday, December 29, 2013
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.
Sunday, December 22, 2013
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.
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.
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.
Monday, December 16, 2013
Congratulations to former Southwestern interim-dean and CEO, Austen Parrish, who has just been named dean of IU Maurer School of Law.
Thursday, December 5, 2013
Wednesday, December 4, 2013
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:
Friday, November 22, 2013
I thought a little pre-Thanksgiving humor might be in order, but I also think this clip (see link below) speaks to legal education. We all need to be true to our individual missions as educational institutions. I think we far too often react to, and emulate, what other schools are doing. We really do have to be different.
Monday, November 18, 2013
Law schools are not the first profession to suffer declining enrollments, and a changing profession. Dental schools experienced a similar decline over 2 decades ago. As a result of a shrinking job market, dental school applications dropped at an alarming rate. Accordingly, some universities decided to close their dental schools. A 1987 article in the New York Times reported:
Georgetown University's 86-year-old dental school has no first-year students this fall. Over the next three years the Washington school will be gradually shut down, unless students and faculty members win a lawsuit to block the move. Georgetown, formerly the nation's largest private dental school, decided to close after a Price Waterhouse study found that the school would have a $3.6 million deficit by 1992. In Atlanta, Emory University's dental school will be graduating its last class of dentists this spring, then converting itself into a postdoctoral and research institution… Many of the 57 other dental schools in the United States have cut back the size of their classes, unable to attract enough qualified applicants. According to the American Association of Dental Schools, applications have dropped by almost two-thirds since 1975. The academic quality of the applicants has declined, too. High Tuition and Debt And dental schools face other problems: Tuition that tops $15,000 a year at some private dental schools discourages many applicants, as does the fact that the average private dental school graduate has educational debts of $51,000.http://www.nytimes.com/1987/10/29/us/plagued-by-falling-enrollment-dental-schools-close-or-cut-back.html
What is interesting is that among the universities choosing to shut down their dental programs were prestigious schools like Georgetown and Emory. My understanding is that those universities determined that their dental schools no longer attracted the types of students they wanted to have at their institutions. Like law schools, the greatest decline in dental school applications occurred at the top end of standardized scores and undergraduate GPA’s. Emory and Georgetown were concerned that the students in their dental schools would not reflect the high credentials of students in their other programs, so they decided that it was better to close the doors, than to allow the dental school to “dumb down” the university.
The assumption seems to be that it will most likely be fourth-tier schools that will close, if law schools close. Based on what happened to dental schools in an almost identical atmosphere, I am not sure that assumption is correct.
Thursday, November 14, 2013
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post under the title "The Proverbial 'Elephant in the Room:' Faculty Compensation".
Everyone wants us to reduce faculty compensation. I am skeptical by nature, especially of those ideas that everyone else happens to like.
I am not sure that framing the issue as reducing faculty compensation is useful. By that, I do not intend to set up the matter to favor professors. Proceeding from the perspective of critics of legal education, the real issue is the cost of instruction more generally and not professorial salaries per se. Notwithstanding my doubt, I'd like to entertain the prospect that has been broached. (I have already discussed the difficulties of curtailing salaries and the countervailing demands that operate on law schools.)
Regardless of what observers might dictate, the decisions many of us law school deans have made also compel us to take apart our business model and rebuild it. We have chosen a course. Most law schools have shrunk. Reducing enrollment means reducing revenue.
Even for the handful of schools that are not tuition dependent, thanks either to a state subsidy or endowment earnings, the loss of income must be balanced by a corresponding cut to expenditures. Central administrations that are offering a temporary subvention, unless something quite strange has happened, will not maintain that indefinitely.
I am assuming that we can leave aside the arguments rooted in resentment of intellectuals, especially those reflecting prior ideological prejudices against critical inquiry. It is worth noting, however, that the bitter tonic being served us is not all medicinal; some is, intentionally, simply vitriol. (Elsewhere, I'll discuss the intrinsic value of legal scholarship and how we should respond to the demagogues who are trying to destroy the rule of law.)
At this point, we must take on this task. Law schools cannot enroll the same numbers they previously did; and law schools cannot continue to increase tuition as they have. It's simple math. Everything else being equal -- which they aren't, because of inflation -- law schools cannot spend as they would desire.
Accordingly, I would like to analyze multiple means of bringing down the cost of instruction. Payroll is the primary component here. Other factors are more readily controllable.
There are four basic possibilities: pay the same number of professors less money; employ fewer professors who continue to earn the same amount; create different categories of teachers; or change the cost-benefit calculation not by decreasing the expenditure but increasing the return.
Lest I panic my colleagues, I should preface my comments by indicating that I am not advocating a wholesale attack on their salaries. To be clear, I am a pragmatist. I like to lay out the possibilities for action in order to consider proposals that otherwise are abstract. Considering how something might be done allows us to determine whether it should be done.
First, a school could attempt to reduce the salaries of those currently on the payroll. That is the most obvious initiative. It's also likely to be the least effective.
There likely would be litigation. Even if such a plan were voluntary, there then would be significant issues of recruitment and retention, which would lead to problems with reputation and rank; these would combine in a devastating feedback loop.
Second, a school could have fewer professors on the payroll. Many schools will benefit from a break demographically. Baby boomers are headed toward retirement age.
With minimal fuss, it is likely that non-trivial numbers will depart of their own accord. The catch is that they cannot be replaced, for their absence is to be a benefit in the form of salary savings.
Third, a school could be creative about who it puts into the classroom. A diversity of titles is possible.
The trends further much more than the balancing of budgets. The possibilities could transform legal training, so it becomes more skills oriented. The multiplicity of positions matches what has happened within law firms. They have realized that a traditional associate-to-partner track with a strict up or out doesn't serve clients or the business itself.
Thus we should see the promotion of adjuncts who are practicing lawyers and sitting judges; the introduction of practitioners in residence or lecturers, who may have retired from the bar and the bench into full-time educational roles; and the welcoming of every other type of professional who contributes to the pedagogical enterprise. There are disadvantages that cannot be glossed over, though: A community that idealizes egalitarianism but tends toward elitism will be multiplying distinctions.
Fourth, a school could change expectations about what even tenured/tenure-track faculty do on a daily basis. The teaching load and the service contribution could be upped. It need not be said that the standards for scholarly productivity would have to be dropped. These are not black and white dichotomies; they run along a spectrum. An extra class here, a committee assignment there, and the number of law review articles published will be fewer but not zero -- or, perhaps, some individuals who become busy will thereby become more efficient. Greater differentiation among faculty members is a probable consequence.
Any of these tactics could be combined. They also could be leveraged with technology that enables every type of professor to be more productive.
We must confront these choices. That is why I have laid them out as explicitly as possible.
We are always asking for more state funding and pursuing private philanthropy, but it is wishful thinking to suppose that either of them or even the combination of them will make our dilemma disappear. Government officials and generous alumni who would offer support are among those who want to know we have a model of legal education that is sustainable and successful.
I am committed the proposition that law is at the heart of our democracy.
Wednesday, November 13, 2013
Today I learned that Jim Rosenblatt will be stepping down as Mississippi College's Dean in August 2014. That makes me sad. At some point, every dean has been touched by Jim's positive and boundless energy. He has done amazing things at Mississippi College, and he has done his great work with a kind and giving spirit.
I will never forget my first experience as a new dean at Ole Miss. It was my first week on the job, and I went to the Mississippi Bar Convention in Destin, Florida. The first event I attended was the AT&T dinner for its outside counsel. The law school deans were invited to this dinner. What I didn't know was that this was the only event at the Bar Convention where men were expected to wear suit jackets or ties. I had assumed that a convention at the beach would be pretty casual, so I brought neither a jacket nor a tie. Not a great start to my new job!
Hearing of my plight, Jim Rosenblatt literally gave me the coat off of his back. Those of you who know Jim know that he always wears a coat and tie, so he said he could spare the jacket. I will never forget that simple act of kindness. As I have gotten to work in the same state with Jim over the last three plus years (as can be proven by his wonderful Deans Database) I can attest that his kindness was completely genuine, as was his dedication to his students and to legal education.
Sunday, November 10, 2013
Law schools must reduce their J.D. class sizes. They should do so immediately and permanently.
The data are compelling. There are simply too many lawyers and too many law students in the United States nowadays. Only about half of recent graduates of law schools, of which there also are too many, are securing permanent full-time employment in the legal profession at this point.
There, I've said it. Indeed, my law school has taken action. Lest observers speculate, we announced our decision as part of comprehensive strategic planning, well in advance of seeing how the applicant pool looked for this academic year.
If anyone doesn't know the news, there were fewer people aspiring to join the bar in the admissions season that ended a month ago when we welcomed the one-L class -- again. This runs opposite to the previous pattern: When the economy slumps downward, law school applications spike upward. Worse, it appears that the supply of the strongest candidates is decreasing at the greatest rate.
The only issue is whether these trends are an anomaly, blip, or cycle. I'm convinced they signal a permanent and profound structural change.
Sure, the economy will recover. Yes, law firms will too.
But look at the law firms that already have come back. Many of the so-called BigLaw firms -- the most prestigious, constituting only a fraction of the bar -- are making more profits per partner than they ever have. The same is true of some of their mid-size counterparts and specialized boutiques.
Except those establishments are doing what they do after surviving a round of layoffs. They are not rushing to recall the people they showed the door.
A few of these thriving operations even have flat revenues. They have managed to adjust their model so they do more work with fewer people. Thanks to technology, outsourcing, and the commodification of service professions, as institutions they have come to resemble the corporate clients they serve.
I say all of that as a description of what has happened, not a judgment about it. We can lament the situation all we wish, but we are compelled to adapt in any event.
I'll go further. Law schools should have reduced their class sizes long ago. Or at a minimum, we ought to have done our part to set realistic expectations. Even in a boom economy, only a minority of graduates from a minority of law schools were competitive for the entry-level slots at the one hundred largest law firms.
There are hyperbolic claims from people who seem to have no greater desire than to burn down the law school from which they recently graduated. They cannot be ignored if only for public safety.
Some -- but not all -- of their concerns are about the economy more generally.
Young people feel they have been sold on a false promise. They are not wrong.
It's possible for a twenty-five year-old who has acquired a good education, displays a decent work ethic, and who is agreed to possess a solid character -- who has, by all accounts, done everything they were told to do -- to have, through no fault of her own, very bad job prospects and high levels of student loan debt.
This challenge is not limited to new lawyers. It's also true of architects, social workers, journalists, PhDs, and liberal arts majors from all but the fanciest schools. Law happens to receive the bad press, probably because anyone enrolling in a three-year M.Arch degree (which I once considered) has been warned well enough not to do it for the money.
Thus we confuse three arguments about legal education. Rational discussion depends on framing the issues properly.
The first argument is a useful provocation but absurd upon consideration: the allegation that legal education is an utter waste of effort for all involved. Rule of law is the foundation of our diverse democracy. The enforcement of contracts and the protection of civil rights depend on lawyers advancing causes and independent judges deciding cases. We promote that concept around the world even as we come to doubt it at home. So critics of legal education are inadvertently supporting an ideology that would destroy civil society.
on a sham. That is a statement not without risks, given the high proportion of the population that takes the zodiac seriously. The Juris Doctor is not based on a hoax. The return on the investment may not be as high as the popular imagination would have had it, but legal education continues to have market value not to mention enduring intellectual content.
The second argument is the assertion that we have more than the optimal number of lawyers for our nation under law. This claim is better than plausible. The surplus of lawyers is about the absolute quantities as well as the proportions, as versus engineering and other fields.
The great irony in our shared predicament is that we actually have unmet legal needs. Prosecutors' offices, their public defender opponents, court systems requiring clerks, public interest organizations, and just ordinary folks looking to retain counsel all need competent, ethical attorneys -- including at the entry level. The trouble is they can't afford them and the lawyers can't afford to do that type of work on a sustained basis. The pipeline hasn't been built properly to bring the supply to the demand.
The third argument is over whether law school is right for you in particular. Law school is for people who want to be lawyers. Or persons who have the seriousness of purpose and a definite plan for using the training to good effect: they want to be an entrepreneur, join a family business, enter public life, and so on.
Law school isn't a good bet at current tuition rates for the one third of the class that we have usually seen: the bright college senior who isn't ready for "the real world" but tests well. Too many people take up three years of Socratic method based on what they've watched on television or in the movies. They will be disappointed if not embittered by the real world of document review and legal research in an environment that is an exquisite combination of the very boring and very stressful.
Yet we live in a cynical era. When my school, University of California Hastings College of the Law in San Francisco, announced it would strategically downsize the incoming J.D. class by twenty percent at once, some wondered if we were having trouble filling our seats or insisted that we had a secret self-serving purpose. We typically receive 5000 applications and accept only a quarter of the contenders (we're slightly down and somewhat up, respectively); there isn't any problem in that regard. We do have reasons for our decision that are to our advantage (as is true of rational decisions in general) -- to become a stronger school by every metric.
Angry individuals are demanding that law schools simply close their doors. Some institutions may well be compelled to do so. But law schools that are responsible about shrinking will be able to keep their doors open to justice. That would be in the best interests of the schools themselves, and, more importantly, their students and society.
None of us will be able to reform the system of legal education by ourselves. If we compete during this market failure instead of cooperate to reform the rules, we will regret it.
Tuesday, November 5, 2013
Even if we do not like what they have to say, the bloggers and journalists critical of legal education have helped to foster some necessary reforms. For example, ABA Standard 509 requires greater transparency in the consumer information provided by law schools, and websites such as Law School Transparency had a role in exposing questionable reporting of employment data, and conditional scholarships.
There are times, on the other hand, that the critics reflexively say negative things about new programs or innovations, without really knowing anything about them. That is not surprising, since most of the critics of legal education seem to assume that they know everything there is to know about legal education, simply because they went to law school for three years. One area of reflexive criticism has come in response to the creation of new LL.M. programs.
The assumption the critics make is that law schools need to replace revenues lost by declining enrollments. Accordingly, law schools have created a costly new degree that will sucker unsuspecting students into more debt, without really enhancing their employment prospects. If that assumption is true, then the LL.M. programs should be scoffed at.
A close examination and understanding of many of the new LL.M. programs, on the other hand, will show that they are exactly the type of innovative programs critics have been calling for. For example, the Air and Space Law LL.M. http://law.olemiss.edu/prospective-students/llm-applications/ at the Ole Miss draws on the existing expertise and resources of the National Center for Remote Sensing, Air, and Space Law housed at the law school. That center has offered a certificate program for over a decade, and has built a strong pipeline for employment of its students in a rapidly growing air and space industry. The director of the program has an international reputation, and has helped to write the aviation laws of many nations. For years, lawyers in the United States and abroad have been asking for the creation of an LL.M. degree. Those lawyers already work in the industry, and want to enhance their credentials. In fact, some of the students who attend the program will have their costs paid for by their governments, and will continue their employment while they pursue the degree. Because the LL.M. programs require ABA acquiescence, rather than ABA approval, schools can make extensive use of distance technology, which is not available for a JD degree. Of the six students in the program’s initial year, five are taking classes through distance education, meaning that they have no additional living expenses.
The Ole Miss LL.M. is obviously not alone in offering a degree for practicing lawyers on a distance basis. For example, Stetson Law School was an innovator in this field, with their LL.M. in Elderlaw http://www.stetson.edu/law/academics/elder/llm/. Stetson has been a leader in Elderlaw since the 1980’s. The LL.M. program was one of the first to offer a distance option for practicing attorneys who want the degree to enhance their existing practices, in a growing area of the law. Employment statistics are truly meaningless for these programs, because most of the students are already employed.
If we are providing a degree for lawyers who are already employed, and who have asked us to offer that degree, and we make full use of available technologies, and existing resources to keep their costs of attendance down, isn’t that a good thing?
 I know some will laugh at Air and Space Law, and I would have, too, 20 years ago. I also laughed at Intellectual Property when I was in law school. Air and space is a growing field, and firms like Jones Day have even developed space law departments. The military in the United States and other countries have expressed an interest in establishing a partnership with the LL.M. program.
Saturday, November 2, 2013
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Above The Law.
People ask me all the time, “Isn’t it all a cycle?” They want to know if the legal marketplace will come back, with legal education then following.
My answer is, “No.”
A better answer, like most law professor’s answers to simple questions, would be, “It depends on what you mean.”
Yes, law as a business will rebound. It has already done so by some measures. However, it won’t come back in the same form. Nothing ever does.
We all are the products of our backgrounds. For me, that means Detroit.
The American automakers, which gave the Motor City its nickname, once enjoyed 99% market share. You can look it up or ask your grandfather, who likely was a “Ford man” or a “Chevy man,” identifying with a brand as marketing gurus wish for. That was transformed by the oil shocks of the 1970s.
Despite the challenge from overseas, “Big Four” car companies always believed that the domestic consumer would be patriotic and prefer their products. It is true, as gas prices dropped intermittently, shoppers demanded land yachts again. But the recovery was always to a point lower than before; there also was realignment underway that cannot be reversed.
There is an even more pertinent example for legal education. It is so-called “BigLaw.” I should insert the caveat that the giant law firms, whether they are high-end or mid-market, have always constituted a minority of the bar, even in economic boom times. They serve as an excellent example, however, of how these two phenomena should not be confused.
Alongside the normal business cycle on the one hand is profound market restructuring on the other hand. The cycle should not obscure the trend.
While many law firms, those that remain, are enjoying profits per partner at levels that exceed the bullish figures before the Great Recession, they are doing it by different means than before. Assuming business picks up, which it has in some specialties and a few regions (but ought not be counted on more generally), law firms that have come to terms with this environment are not likely to revert to their former selves. They altered their cultures permanently, even if they were motivated by circumstances that were temporary. Unlike an automobile factory, a law firm does not recall laid off employees.
The structure of successful law firms is different now. They have bounced but to a different place.
The guaranteed means of ensuring increased profitability with flat revenue, not to mention decreasing demand, is to share the money with fewer people. This is hardly a sustainable model of growth. It does highlight the point that there are different configurations of the business model that may be more efficient, and those are increasingly the norm. Firms have revised the length of the partnership track, the amount of leverage, the requirements of equity, stratification of compensation, calculations of realization rates, and roles within the organization.
All enterprises must confront global competition (for law firms, including especially from accounting firms), technological advances, and outsourcing. They will continue to use every available technique to raise the premiums they can charge and lower the cost of doing business.
Client expectations control, and they are not the same as before. In-house counsel have a sophistication they did not a generation ago, enabled by big data. They can analyze even significant levels of risk, turning complex problems into commodity work.
Thus prospective entrants into legal practice have adjusted. They are free agents who care about work-life balance. They give no more loyalty than they believe they will receive.
Yet I remain an optimist about the rule of law. The reason is legal services are still needed. The very economic factors that are disruptive necessitate new legal responses.
Our economy is about constant change. The tech sector depends on innovation. But everywhere else too that has become the norm. Ford, GM, and Chrysler are even offering exciting products.
As the head of a law school, I am not waiting to see whether applications come back as a natural progression. Even if they eventually do, I have to adapt before then — and ceaselessly. I believe we have to reinvent more than the law school curriculum. We have to restructure our institutions.
Friday, November 1, 2013
The National Law Journal posted an article about the declining numbers of LSAT takers, focusing on the 11% decline from October 2012 to October 2013. The article, LSAT Numbers Decline for Fourth Straight Year, quotes our own co-blogger Dean Paul McGreal:
University of Dayton School of Law Dean Paul McGreal said he entered the summer with virtually no idea where the application trend would go, particularly since many of last year’s applicants waited longer than usual in the cycle to apply.
"There is a great degree of uncertainty, and the data we do have show it will be another decline," McGreal said. "But we’ll have a better idea of where applications are at the beginning of . This clearly is something that’s on everyone’s radar screen."
Decreases in enrollments naturally mean decreases in revenues. The question is how will law schools adjust their budgets to deal with the loss of income? One strategy that some law schools are using is to lay off faculty and staff. http://chronicle.com/blogs/ticker/jp/amid-sharp-enrollment-declines-law-schools-shed-faculty
While personnel costs account for approximately 66-75% of most law school budgets, cutting personnel might not be the best approach to the problem of declining revenues. Educating students, and helping them secure employment have to be our first priorities. Any decisions we make must support those priorities. Firing faculty or administrative personnel will cut expenses, but I think the detriment to our students might outweigh the savings from those cuts.
If we don’t layoff faculty or staff, how can we reduce our budgets? The answer could be different for each law school, but every expense must be scrutinized. We have to ask how each expense supports the educational mission of the law school. From time to time I will post my thoughts on the various law school expenses, and ask how those expenses support the educational mission. In that regard, my first post on the subject examines the role of the law library in legal education.
Library budgets represent a large portion of overall law school expenses, and libraries require a substantial amount of the law school’s usable space. That is not surprising, considering that the ABA Standards for Approval of Law Schools require that libraries have adequate space and resources.
Additionally, Standard 606 states:
(a) The law library shall provide a core collection of essential materials accessible in the law library.
(b) In addition to the core collection of essential materials, a law library shall also provide a collection that, through ownership or reliable access,
(1) meets the research needs of the law school’s students, satisfies the demands of the law school curriculum, and facilitates the education of its students;
(2) supports the teaching, scholarship, research, and service interests of the faculty; and
(3) serves the law school’s special teaching, scholarship, research, and service objectives.
(c) A law library shall formulate and periodically update a written plan for development of the collection.
Because the standard does not specifically enumerate what schools should collect (I am definitely not advocating for such specific requirements), schools typically err on the side of maintaining very large collections. This collection plan has added greatly to the annual expenses of many law school budgets, without truly enhancing the education of the students, or the scholarly productivity of the faculty. In plain terms, we buy or subscribe to a whole bunch of stuff that we will never use. I want to make sure that the students and faculty have the materials they need, when they need them, but I am concerned about purchasing materials to have, just in case someone might need them, but probably won’t.
Our collection plans remind me of the common law Rule Against Perpetuities. The plan seems to be based upon the question: "what if the fertile octogenarian comes into the law library wishing to do research on an obscure area of the law?" We have been purchasing resources, in case that happens.
Furthermore, when we purchase print materials, we have to find a place to shelve those materials. The result is that we have established beautiful book museums, when our students and faculty rarely use those materials, and the legal profession moved away from print a decade ago. It is quaint that Standard 606 requires the core collection to be accessible in the library itself, and that we still have to report the amount of linear shelving space used by our libraries in our annual ABA questionnaires. Is that really still a relevant measure of a library collection in a non-linear, digital age?
Of course, our students, faculty, and other constituents need quiet, as well as collaborative study space, and the library serves that need well. I would argue that the square footage used to house books could be repurposed to expand greatly the space available for quiet and collaborative work.
In my opinion, it is definitely time to reevaluate the role of the law library in legal education.
Thursday, October 31, 2013
Professors Ronald W. Staudt and Andrew P. Medeiros (both Chicago Kent College of Law) posted on SSRN an article, entitled Access to Justice and Technology Clinics: A 4% Solution, that proposes engaging students in clinical experiences to build law practice skills that use technology to better serve the needs of clients, particularly low income clients.
The abstract states:
This article is targeted at the criticisms of the quality of legal education, criticisms that law schools fail to prepare graduates to succeed in the profession. We propose a modest improvement to the law school curriculum that may make graduates more capable to serve their clients. We propose that law schools add a new type of clinical course that teaches law students how to use and deploy technology to assist law practice. The changes we propose will affect about four percent of the average law school curriculum. If widely adopted, the changes we propose will help law students to learn core competencies needed in an increasingly technological profession, while they build tools and write content to help low-income, self-represented litigants overcome serious barriers in their pursuit of justice.
Specifically, we propose that law schools offer a new clinical experience — the Access to Justice Technology Clinic, or A2J Clinic for short. The Center for Computer-Assisted Legal Instruction (CALI), in partnership with IIT Chicago-Kent College of Law, has launched its Access to Justice Clinical Course Project to develop and refine A2J Clinics. In these courses law students build web tools and other interactive content to help low-income people achieve their justice goals. Courses of this type have been taught by several law schools during the past decade. This CALI initiative builds on those efforts, organizes faculty across the country into a team of collaborators, and establishes a structured process to share new insights, tools and curricula with all law schools.