Monday, March 17, 2014
The University of Florida has announced that the search for the next dean of the Levin College of Law has failed. http://www.gainesville.com/article/20140314/ARTICLES/140319713?p=1&tc=pg
While I have always felt that the only truly failed search is one in which the wrong person is hired, the Florida search is unique because so much information has been shared publicly. What causes a dean search like Florida's to fail, and how will a second search achieve better results, next year?
The reports surrounding the search clearly inidcate that the law school faculty found two of the candidates highly acceptable to lead them in the years ahead. They also voted another candidate acceptable, but had reservations about him. This raises the question of what the President found objectionable about these candidates. Was it merely the fact that he asked for four names, and only got three? Was the President's favorite candidate not among the three names sent forward as acceptable? Did the President tolerate the long and work-intensive process only to the extent it produced him the candidate he planned to appoint all along?
The answers to these questions will greatly impact the next search at Florida. I would bet that Florida's next dean will come from its own faculty (as is often the case following a failed search).
Sunday, March 16, 2014
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This essay was previoiusly published at Above The Law.
I was talking to a reporter the other day about changes within the legal profession. She had called me to ask what types of jobs were opening up. I disappointed her. She wanted specialties offering positions that were sexy, new, and numerous.
I explained there were indeed more jobs. But I did not know any of them that satisfied all of her criteria.
There were many possibilities for her article. None of them were everything she was looking for.
That would be true for the individuals obtaining those roles as well. I recall a former colleague who used to say in response to the extravagant expectations that young people express about their careers: “That’s why we call it ‘work.’” She meant that there isn’t any reason to believe it will be fun. It is more likely to be boring, stressful, or both boring and stressful by turns if not simultaneously.
By the journalist’s standards, unless it is sexy, new and numerous, it does not register at all. That isn’t the best understanding of the universe of possibilities. Law is not intrinsically sexy….
Some jobs that are not sexy are indeed new and numerous. Litigation support, performing e-discovery, or its transactional equivalent, analyzing terms and conditions of contracts, has been set up as its own track. Junior associates once took care of these tasks, eventually advancing to more meaningful functions. A category of lawyers now can be assigned to such labor on a more or less permanent basis, thanks to the combination of automation and outsourcing.
Other jobs are sexy and new but not numerous. A recent graduate of my law school conducted an intensive search and was hired to the government negotiating team addressing global climate change. That is about as exciting a position as possible for someone interested in environmental policy; it didn’t exist a generation ago. But it’s basically a one-off; there are few such opportunities.
Employers also need to recruit for jobs that are sexy and numerous though not new. There is increased demand for litigators who are interested in trusts and estates disputes: taking a side with families squabbling with one another about what the deceased has bequeathed descendants. If you want to gain trial experience, this is sexy — assuming you are able to argue accounting. The rivalry and resentment animating these cases is as ancient as humanity itself, meaning there is no end of intense interaction with opposing counsel and clients.
Yet the more significant story is that whole fields of law are developing. The insistence on sexy, new, and numerous frames the issues poorly.
Privacy, for example, is a concern of anyone with a credit card or who accesses the internet, which is to say everyone who is a consumer within the modern economy. We care about these issues. The rules are only starting to develop, subject to the most powerful political considerations and policy arguments.
Firms, both plaintiff’s side pursuing a contingency fee and the defense bar representing corporations, as well as government agencies, have set up privacy units. Yet privacy compliance is not necessarily legal practice in a traditional sense. It can be performed by professionals who work alongside lawyers. It is legal work though maybe not lawyer’s work.
I am not sure I have persuaded the press to orient coverage toward the realities beyond the headlines. The real issue is whether there is work to be done. Law is changing at a rate that the bench and the bar might not have anticipated, but it turns out to be the same in that regard as everything else in our accelerating reality.
Sunday, March 9, 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 must cut. Enrollment is down. The drop has no end in sight. It might be temporary; it might be permanent. Even if it is the former rather than the latter, there is much more to come: two-year JD programs, limited licenses, and various demands for reform.
Most law schools already have cut their enrollment. Unless the law school's dean has made a Faustian bargain, the cut to enrollment calls for a cut to the budget.
Many law schools are facing a structural deficit. It is important to explain what that means.
A deficit is a negative balance at the end of a given time period, typically a fiscal year (which may or may not correspond to a calendar year or to an academic year). The expenditures exceed the revenues.
An enterprise might run a one-time deficit because of an extraordinary expense. Say part of a building burns down in a particular year. It has to be rebuilt.
For an independent law school, such as UC Hastings, covering an extraordinary expense necessitates spending from the reserves that have been accumulated for just such a purpose. For the majority of law schools that are embedded within a larger university structure, it is possible the central administration will offer a temporary subsidy to make up for the loss.
A one-time deficit is not desirable, but it is not likely to be fatal. "One-time" is a crucial adjective. There is no reason to expect that another building will burn down the next year.
A structural deficit is something else altogether. It is inherent. Suppose the school has a payroll that is oversized relative to the money coming in. Human resources are what law schools buy; there is little raw material, as would be purchased by a manufacturing venture.
Unlike a building burning down, which one hopes occurs rarely, it is a certainty that employees will wish to be paid regularly. If the payroll cannot be met one year, and nothing is done to change the situation (either laying off some employees or reducing compensation for all employees or deploying some combination of measures), the deficit will repeat itself the following year. This will continue until the reserves are depleted or the outside source of funding is exhausted. The institution then is insolvent.
When any leader in higher education announces that there is a problem of this nature, there is a temptation to infer that the leader is the problem. If only the wrongdoeers were identified, all would be well. The administration must be incompetent, dishonest, or both.
Or sometimes observers assume that there is a hidden surplus in the system. They suppose that a thorough search will turn up excess that could take care of everything if it were eliminated. Yet one person's waste is another person's livelihood.
The extent of the crisis for legal education, however, cannot be denied. It is quite possible that in this application cycle, law schools--not any specific law school, but all accredited law schools taken together--will see a fifty percent reduction in the applicant pool since the recession set in. There have been thirteen consecutive LSAT sittings with fewer takers.
"Crisis" is the right term. Industries rarely see such negative change.
Law schools have been insulated from economic trends. They actually have been somewhat countercyclical, so an uptick in the economy might not help matters. (This description of the situation doesn't even take into account the tuition discounting that must be applied to attract the best students.)
With potential revenue at such a low point, expenditures must be brought into line. The alternative is bankruptcy.
People always hope to address the revenue side. There two common suggestions.
The first is to build out non-JD programs. LLM programs have multiplied. Over the past generation, LLM programs have enrolled primarily foreign students or the handful of Americans who took law degrees outside of the country. More recently, it also has included LLM programs for Americans looking to specialize or add prestige to their pedigree: what once was restricted to the specialty of tax has proliferated to various other fields. In an instant, it has begun to encompass non-professional degrees for individuals in cognate fields who could use legal skills to continue advancing in their current occupations.
The second is to raise more money from private sources. Even institutions that once depended on state subsidies for the bulk of their income have set up advancement operations. They chase their alumni for gifts and submit applications to foundations for grants.
These tactics are necessary and commendable. They can compensate for modest shortfalls, but they cannot cover up basic inadequacies with the business model.
Unless a law school wishes to transform itself out of the training of lawyers, its core will remain the JD program; it is wishful thinking to wager otherwise.
Non-JD students are not available in sufficient quantities, and they do not substitute on a one-to-one basis for JD students in monetary terms. They are at best a two-for-one proposition; speaking of them in that sense only exposes the troubling tendency to treat them as if they were a financial necessity and little more. If they are not similar in quality to the JD students, taking them in trades one set of worries for another.
Fundraising potential is routinely overestimated. An institution with thousands of alumni who have not been accustomed to giving will not become an institution with thousands of donors without a better pitch than its own imperilment. Contributions follow success. There are lawyers who appreciate what their teachers enabled them to do, but, contrary to what legal training might suggest, it is not generally possible to persuade someone they ought to feel generous.
Thus we come to this. Law schools must cut. I embrace radical transparency in making that declaration. What we see when we pull back the curtains is not necessarily pretty. The great and powerful Wizard of Oz asked us not to pay attention to the little man back there.
The challenge for us legal educators is to continue inspiring people to care about the law: students, benefactors, the bench and the bar, even the public at large. Inspiration will require innovation. It's time to step out from behind the curtains.
Thursday, March 6, 2014
The US News Law School Rankings will soon be released, and I am surprised there is not a betting pool on the outcome.
For many years, applicants have relied heavily on the rankings when they were choosing between law schools. These choices were often made with disregard to the individual student’s cost of attendance. That is, a student would attend the school ranked 75th, rather than a school ranked 125th, even though the tuition at the 75th ranked school might be significantly higher.
A positive change that seems to be occurring is that the many law schools and students realize that educational cost can have a bigger impact on long-term career choices than the rankings. Students with lower debt leaving law school have many more options in the job market. Conversely, a student with large debt must find a job with a large enough salary to pay that debt and have enough left over to live on.
There is little doubt that the top students at top law schools have a better chance of being hired by the top 250 law firms. The NLJ grid found at the link below, therefore, is not surprising:
Each of the schools listed on the NLJ chart would be considered an elite law school. It is important to note that even at Berkeley and Cornell 55% of the graduates are hired in jobs other than big law jobs, or are unemployed and still looking.
The question applicants need to ask if they are not going to an elite school is what is the cost versus benefit of my education? I assert that there is very little real difference between, for example, a law school ranked 75th and one ranked 125th.
I admit it is true that the 75th ranked school will have better median LSAT and GPA profiles than the 125th ranked school. Because of that fact, some would argue that the applicant will be in class with “better” students at the 75th ranked school. I disagree with that position, because I am not convinced that a student with a 157 LSAT is truly “better” than a student with a 154. Furthermore a student with a 157 LSAT at a school with a 157 median is less likely to earn a high dollar scholarship than a student with a 157 LSAT at a school with a 154 median. If the LSAT numbers have some value as predictors of first-year success, the student would arguably be better off at the lower ranked school, where she is predicted to be at the top of the class, rather than at the higher ranked school where she is predicted to be in the middle. That is especially true, if her cost of education is greatly reduced by being at the lower ranked school. The rankings give applicants the sense that they are making a rational decision by picking a school higher up on a list, even if that decision is economically irrational.
Wouldn’t it be nice if a magazine like Consumer Reports could create a reliable and useful ranking system for law schools. Until then, we will have to endure the impacts of March Madness in legal education.
Sunday, March 2, 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 Above The Law.
Legal education does not suffer from a problem. It suffers from multiple problems.
In law school, before students learn anything else, they must understand the importance of issue spotting. One cannot analyze a case or a line of cases, without being able to see the multiple potential issues that are raised and then recognizing which warrant consideration. In actual practice, this skill remains a pre-requisite for offering an opinion or fashioning an argument. It becomes a matter of course.
Legal education faces at least three problems. They are related but not the same. What might help with respect to one problem might hurt with respect to another problem….
First, there is a glut of lawyers on the market. There are simply too many people out there who hold JDs and wish to work as lawyers. The oversupply may be overstated, but the number of seats in law school should be — and is being — reduced.
This particular issue extends beyond law school; there are too many lawyers at virtually every level, including the most prestigious. Even if this surplus is temporary, its negative consequences may be so significant as to outweigh everything else. (There is the irony, for another day, of a lack of lawyers available to represent ordinary people.)
There are various possible remedies. Some lawyers will, as they always have, perform other types of work. That encompasses occupations that are as fulfilling, intellectually and materially, as the role of an attorney; it does not mean dispensing fancy coffee. Other lawyers might migrate overseas, where demand is relatively strong and likely to remain so.
Second, legal education costs too much. (I’ll discuss the hyperinflation of tuition further later.)
Third, the skills that are imparted through the traditional program of training are not suited to the demands of employers, and, ultimately, clients.
The Dean of Georgetown, William Treanor, gave a talk recently for the Lawyers Club of San Francisco. He observed that the possibility of a shortened curriculum, meant to address the second problem (high cost), would worsen the third problem (inadequate skills). There is another means of changing the cost-benefit calculation: instead of decreasing the former, increase the latter. (Incidentally, for economies as a whole, deflation presents worse risks than inflation.)
In the background, however, there is a problem bigger than all of the ones mentioned above. We are living through a period of profound economic restructuring in general. It isn’t merely the pervasive effects of globalization and the speed of technological advance; it’s the constancy of change and the volatility of society. Almost all of us are unsettled by uncertainty, even if we would like to be avant-garde. For those of us who have felt assured of the American Dream, it is about as demoralizing as it could be to realize that our reasonable expectations might not be matched by economic realities — never mind unreasonable expectations that are held dear.
The only hope, for institutions as well as individuals, is to adapt. That has always been true. It hasn’t always been acknowledged. We do not live in the best of all possible worlds; that is yet to come.
Sunday, February 23, 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.
I am bullish on the legal profession.
I must offer a preface before I explain why law remains vital -- and how it will become paramount in an increasingly complex world. I have established my bona fides as a critic of the organized bar, the standards of practice, the performance of law schools, and the preferences of legal academics. I have advocated for reforms: explaining the facts; pointing out inexorable trends; setting reasonable expectations; addressing the high cost of training; and cutting enrollment in law schools.
All that said, I continue to come to work believing that my colleagues and I are engaged in a worthwhile endeavor.
Everything depends on the rule of law. That is true for a democracy. It is especially so for a diverse population.
The enforcement of contracts and the protection of civil rights depend on reliable legal systems. The expectation that contracts will be followed and rights will be respected is always implicit in the background, meaning that the rule of law operates even without formal recourse to the courts.
The technological advances that are enjoyed, and certainly the profits that flow from innovation, are enabled by a robust intellectual property regime. Entrepreneurs would invent and artists would create regardless, but the economic consequences of their ingenuity would be very different if there were insufficient protection for patents, trademarks, or copyrights.
The rule of law is possible only with lawyers who represent clients and causes, as well as a judiciary that is independent and not corrupt. These lawyers and the judges are produced by law schools. The progress of the law also is much influenced by scholars who cogitate on issues without being beholden to the interests of those who pay them.
Consider China. (Elsewhere, I've explained why I, as a Chinese American, am doomed if China is ascendant and America is relegated to second-class status: I've made my bets on this side of the Pacific.) Specifically, observe what happens when a Chinese citizen who is ambitious and intelligent makes some money. I don't mean they become superrich. I mean they attain a middle class status comparable to the average American.
The Chinese invest in the United States. They put their new-found wealth in American bonds, American stocks, and American real estate. They do so on a staggering scale that plays into the fears of Yellow Peril. More to the point, they transfer assets to the United States (including human capital in the form of children to be educated), notwithstanding the relative growth rates of the two nations. That is, they prefer the United States with its more modest returns.
I submit the reason is law. In American Treasury Bills, companies, land, or even plain bank deposits, the ordinary person can have confidence that, whatever partisan political changes take place and despite government shutdowns, there is an extraordinary high likelihood that nobody will steal one's possessions. An infrastructure has been built, imperfect though it may be, ensuring that. In China, there are not similar guarantees.
Yet law is experiencing a frightening reordering. Or perhaps not law itself; the law is stable or at least predictable. The means by which it is implemented are volatile.
Thus, the lawyer of the future must be different than the lawyer of the past. The professions adapt more slowly than other businesses. Few have been as resistant to change, however, than the members of the bar. The availability of information forces lawyers to demonstrate their social utility by means other than their exclusive technical knowledge, because their magic tricks have been disclosed.
The supply and the demand curve for lawyers with basic skills has become so skewed that their expertise can be purchased too easily. It is increasingly true for all types of education: The facts themselves are not what is valuable; the ability to apply them is. Even work that cannot be automated and that formerly seemed sophisticated can be reduced to a commodity. Look at the online coupons that are available for medical treatments.
The lawyers that are needed are those who do numbers and languages. They must be familiar with the industries they serve and aware of the basics of economics and finance. They are positioned to be problem solvers and leaders.
The best lawyers will always have a future.
Sunday, February 16, 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.
As a law school dean, I spend quite a bit of time thinking about how to reinvent legal education. As I meet with our alumni, I realize that they spend an equal amount of time thinking about how to reinvent legal practice.
Lawyers -- and others in the professions -- recognize that they are only slightly better off than other workers in the modern economy. They cannot presume that their reliance on their brains, rather than their muscles, protects them against the vicissitudes of the marketplace.
Three trends have an adverse effect on law firms.
First and most importantly, corporate clients are smarter consumers than ever before. They have learned to commodify virtually all of the projects that they send to outside counsel. Whether they are deals or disputes, if they are not at the "bet the company" level, then it is possible to manage the risk presented by each matter in a reasonable manner.
The difference between the attorney who is good enough and the attorney who is the best is probably not sufficient in the overwhelming number of instances to justify the premium for the superlative choice. It may not even be possible to determine readily in advance who that happens to be other than by reputation.
Accordingly, clients have decided they won't pay for training of junior lawyers or excessive overhead. While they didn't want to do that before either, they have the advantage in bargaining now -- and it will persist thanks to excess supply and slack demand.
Their refusal to allow recent graduates to handle their files might be short-sighted, because eventually there won't be anyone with sufficient experience in the pipeline. Clients will not be deterred from shifting the cost of radical restructuring of the business model. Somebody else will be forced to pay for the requisite mentoring.
The acknowledgment that high-quality services can be delivered without a fancy address is made all the easier by the ability to retain people over videoconferencing, email, and telephone. An impressive lobby ensures only that additional rent will be added to the bill. Nowadays, professional relationships can flourish without significant personal interaction. For all the client cares, the lawyer is performing excellent work at home in a bathrobe.
Outside counsel complain that they are being second-guessed by auditors, or, worse, computer programs, on how they spend their time. In-house counsel reply that as rates have surpassed the thousand dollar per hour mark, they would be foolish to be any less attentive to what exactly happened in any given six minutes that were charged to them. Through alternative fee arrangements, clients can transfer risks to their lawyers. Only a few can still recall, wistfully, the old-fashioned billing statement which said "services rendered" next to a sizable sum.
Second, technology is proving as revolutionary for the bar as it is for everyone else. A generation ago, a new litigator at a major law firm likely would be assigned early on to do pre-trial "discovery" -- specifically, "document review." That meant looking through boxes of paper for certain keywords such as the names of the parties. A squadron of associates would be sent from their nice offices to a windowless lower floor, where they would sit at desks for days, billing for every moment of their consciousness. The least lucky among them might have been shipped out to a warehouse archive that looked like that government storage facility at the end of the first Indiana Jones movie except there was no Ark of the Covenant to be found inside a dusty container.
Now, millions of email messages can be scanned, converted to text using OCR software, uploaded to a secure location in the cloud, and then searched in literally seconds. A responsible lawyer will be drafted to oversee the process. The labor (and the cost) of a dozen lawyers for a dozen weeks has been reduced to a single lawyer in a day. Even a modest-sized firm can afford the innovation.
What technology giveth, it taketh away. As digital search has become possible, the mass to be searched has increased to keep pace -- someone must have come up with a witty formula to express the relationship between our ability to organize data and the increase in its quantity, but ironically I am ignorant of it. Technology also has made legal practice more complex and faster- paced. The lawyer of today must be better than the lawyer of yesterday as the athlete of today must be better than the athlete of yesterday.
Third, legal process outsourcing has been proven feasible. It is transformative. "Outsourcing" is not even the right term. Outsourcing, sending tasks that were carried out by an employee inside a firm to an independent contractor beyond its formal structure (whether overseas or domestic), is symbolic of much else.
Legal services can be unbundled and repackaged and then performed by people of varying skill levels with permanent specializations and different career trajectories in multiple physical locations. As a consequence, the firm itself can be configured creatively. There is no necessity to set up a system that presents a linear path with lockstep compensation from associate to partner (meaning an actual owner of equity in the operation). Instead, it is possible to plug people into slots as needed.
Competition once was limited by guild rules masquerading as ethical norms -- no advertising, etc. There are no constraints anymore.
Even lawyers who have a credible claim to being at the top of their field are pitching for business constantly. Lawyers compete with accountants, consultants, and financial advisors, not to mention do-it-yourself manuals and websites. For high-end legal advice, Anglo-American firms still have an advantage, but there is no reason to suppose that it will be more durable than it has proven with, say, the manufacturing of luxury automobiles.
For the individuals willing to adapt, however, there could be no better time to reform the law firm. Boutiques and virtual firms are only the beginning of profound changes to come. There almost certainly always will be the legacy firms who by virtue of their prestige, earned or otherwise, serve the few who remain willing to pay their fees while offering opportunities to those who wish to play their tournament. For the bulk of the work to be done, a new type of lawyer will evolve to do it.
It is up to us in the academy to prepare our students for the future no matter what it holds.
Friday, February 14, 2014
Thursday, February 13, 2014
I typically do not respond to posts on ATL, but a recent post on that blog hurt students who were doing great work in support of Black History Month, and who were participating in a national movement to bring awareness of HIV/AIDS in African American and Black communities. http://www.edgemiami.com/health_fitness/hiv_aids/Features/155082/asos_observe_national_black_hiv_aids_awareness_day.
Apparently, Ellie Mystal was unaware of this national movement, and did not understand what the BLSA students at Ole Miss were doing. The BLSA students are regularly engaged in community service, and this was just one of the many events they planned to make Black History month meaningful and impactful here. Those events included a panel on dispelling racial myths presented in conjunction with the William Winter Institute for Racial Reconciliation at Ole Miss. http://winterinstitute.org/. BLSA will also be sponsoring an expungement clinic at the law school, which is part of a national effort to alleviate poverty and reestablish voting rights. http://law.olemiss.edu/expungement-clinic-to-be-held-at-university-of-mississippi-school-of-law/
Ole Miss does have a history of racial discrimination, and we are not proud of that history. Our university today is a much different place than Mr. Mystal imagines. I invite him to come to Oxford, and see for himself the positive things happening here.
Mystal’s post can be found at: http://abovethelaw.com/2014/02/worst-minority-law-school-valentines-day-event-ever/
Monday, February 10, 2014
Mark Hansen of the ABA Journal reports that the ABA Standards Review Committee has backed off of recommending changes to the bar passage rate requirements for accreditation of law schools. The committee has also recommended keeping tenure as a requirement for accreditation, and has modified its recommendation for required experiential learning from 15 hours to 6 hours. It is clear to me that the committee caved under pressure by law schools to maintain the status quo.
Interestingly, the committee report would allow granting credit for paid externships. That might help reduce student debt, and would be a step forward.
Sunday, February 9, 2014
The current challenges to legal education are a result of the profound changes in the legal marketplace. They have not arisen in isolation. The problem is the pipeline into the profession. The traditional progression from student to associate to partner is no longer optimal for the client who is being served.
The expectations for the education of new lawyers are increasing, but the willingness to pay for the process is decreasing. The issue is who will pay for much-needed training. Either before the bar exam or shortly thereafter, a lawyer must learn basics such as how to draft a complaint and a contract, how to interview a witness, what a financial statement indicates, etc. Preferably well before matriculating in law school -- though this cannot be counted on -- she should know how to write competently in standard English.
Almost all of the responsibility for book learning has been accepted by schools. That's not the issue. It's the development of practical skills that's at dispute. More to the point, it's the price of that education that has become contentious.
The tab could be picked up by any of the following in combination: the clients, the firms, the students, or the public. The issues of who will impart the skills and how best to do it are not trivial, but it is the costs which are most controversial.
Clients with market power say emphatically that they will not pay for associates to learn the requisite skills.
The big firms historically had passed on the costs, in a manner that distributed them. A new associate was not worth her billing rate at the outset, but her time was tucked away on an invoice that would be paid because if you wanted a high-end firm doing your work then that was the cost.
The small firms and mid-size firms, which are much more the norm than the big firms, may have had less formal orientation programs but they have more side-by-side collegiality. They absorbed the cost themselves, in the form of lower compensation all around for partners and associates.
As firms of all types try to assign this instructional role to schools, the schools typically pass the burden on to the students. Thus the cost of the clinic is covered by an increase in tuition.
The alternative of public support likely will not appeal to the taxpayer. The government, however, could do more through robust state appropriations for the educational system, direct subsidies for post-graduate public service, or a Gideon right-to-counsel in civil cases that would create jobs.
To start addressing the problem, it is necessary to identify it. Here is an effort at a neutral description. We have a series of vicious cycles that interlock and ratchet.
Law firms have become much more business-like. They have raised their billing rates as high as they can.
Clients have balked. They too are more savvy. Corporations have their own general counsel who has come from a law firm and knows its tricks. As the most senior partners charge more, in-house counsel have responded by agreeing to pay on the condition they actually receive the benefit of that specific person's expertise. The senior partners can command their rate of more than a thousand dollars per hour, but only by foregoing the the revenue of a half-dozen associates supporting them.
Law firms also have a new model. The pyramid structure is no longer stable. That system, with large numbers of associates being winnowed out to leave a few who would make partner at the seven year mark, was always a Ponzi scheme -- except there was no fraud because the arrangement is disclosed.
Law firms are trying different configurations. They have contract attorneys and others who will never own equity in the business. These individuals receive a level of training appropriate for their roles, but they don't expect the genuine mentoring that would be given to someone who will become an owner of the company.
Culture has evolved as well. Since Curt Flood challenged the feudal system of major league baseball two generations ago, every professional has become a "free agent." The most ambitious associates are smart enough to see their opportunities will be constrained if they remain in place for too long. Their very human reaction to the lack of loyalty shown to them as employees is to reciprocate, by becoming less loyal to employers in turn.
The most elite firms have a remedy. It is the recruitment of already experienced attorneys, in preference to new graduates.
But this approach only works for the firms at the top of the market and it will be effective only until the supply runs out.
Somebody has to hire new lawyers to ensure we have experienced lawyers. Eventually, thanks to the increasingly restricted access to the court system, there won't be many lawyers with real trial experience.
The more firms compete to attract laterals through compensation, the more internally stratified they become. The more stratified they become, the less they invest in growing their own juniors. And so on.
Finally, the preparation to be a lawyer is more difficult because the law is more complex. Fifty years ago, there were fewer statutes, regulations, and cases. A lawyer litigating a dispute did not worry about investigating email and social media. A lawyer drafting a contract gave no thought to whether it would be enforceable in China.
We collectively have become dependent on circumstances that will not last much longer. The crisis for legal education is a portent.
Thursday, February 6, 2014
Call for Nominations: 2015 AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award
Wednesday, February 5, 2014
Penn's law dean, Mike Fitts, has just been appointed President of Tulane. Mike is a wonderful leader, and a truly great person. He will be an outstanding university president. http://www.upenn.edu/pennnews/news/penn-law-dean-michael-fitts-named-president-tulane-university
Congratulations, Mike. It will be good to have you just down the road in NOLA.
Tuesday, February 4, 2014
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This essay also appears at LinkedIn.
I had lunch yesterday with a colleague, a peer; he also heads an institution of higher education. He asked me for my advice about responding to people who disagree. I don’t know that I am any wiser than anyone else in the role he and I both played, but I shared this thought: Agree with them. They probably have a point.
Sunday, February 2, 2014
Critics claim the law school course catalog contains too many specialized seminars. They sneer at offerings that seem especially obscure. Their contentions are wrong. They are dangerous.
To begin with, laypeople likely misunderstand the usefulness of technical subjects not only within law but also throughout academe. The extraordinary biologist J.B.S. Haldane, asked what he had learned about religious faith from his scientific investigations, remarked that God seemed to be inordinately fond of beetles.
He was at least half serious. There are thousands of species of beetle.
A research university that strives to rank among the best will feature much more than an introductory survey course in biology. It may well boast an upper-level class on beetles.
An observer who wonders why the school is so devoted to the order coleoptera of the animal kingdom mistakes what the institution is about.
Everyone realizes that very few students will become professional entomologists. A few may be inspired, and that is well and good.
But a course about beetles in name is about much else as well. Students who are not enamored with bugs will take away research techniques applicable to other specimens.
And a course about beetles is the beginning of the campus commitment. The teacher who is fascinated with the weevil deserves support in order to advance knowledge on behalf of humankind -- that is a perforce hyperbolic corrective to the contempt directed at professors nowadays.
It is easy enough and perhaps tempting to make fun of these intellectual pursuits and the intellectuals too. Any observer can beat up the egghead who wants funding to dedicate a lifetime to looking at insects. Everything that has happened since high school should persuade reasonable people that bullying nerds is not commendable.
We need information about insects to control pestilence. Theorists even propose we can comprehend our own behavior from ants and bees if not beetles. These zoological matters come back to law eventually in the form of sociobiology and evolutionary psychology, which, it is argued, generate recommendations for regulating personal conduct and passing public policy.
On top of that, classes turn out to be practical to a greater extent than people expect. Internet law is the latest example of a field that when it was initially identified was ridiculed as more or less a joke or at best an indulgence. The details of jurisdiction on the web, dispute resolution, privacy, and the other issues that would hardly have been recognized much less deciphered a generation ago are doubtless worth studying now and have exploded into glorious complexity. It isn't clear a lawyer would even be competent, whatever their practice, if they were unaware that commerce on the internet has its own characteristics.
Many of these "crazy" classes are the direct result of student demands. People want choices. They judge the quality of a school by the breadth of its curriculum. They compare it to competitors.
Some students, or earlier generations of them anyway, sought exactly what other students, or their successors, then disclaim as worthless.
Ethnic studies, for example, has typically been established thanks to protest movements. Ethnics studies would be unnecessary if the experiences of everyone in this great democracy had been integrated into its history, but that has not happened without struggle. Animal law similarly is a student favorite. It is not as if university administrators have been eager either to open centers dedicated to empowering minority communities or to liberating laboratory test subjects.
The same element of student interest is often what motivates the addition of Indian law and Islamic finance. Both of those classes lead to areas of practice where supply is not sufficient for demand. It also is true of sports and entertainment law. Neither of those classes lead to realities of practice that will satisfy the expressions of interest.
But some students -- as anyone else would -- react angrily to administrators who want to dissuade them from their dreams. They may perceive advice about maximizing their job prospects, however well-meaning or based on fact, as both disagreeable and patronizing.
The expansionist tendencies are not necessarily restricted in political terms. There can be agitation to bring on courses about the economic analysis of law or the history of gun rights. The reading of the classics has been encouraged to justify the war against terrorism. Western philosophy has been asserted to be the basis for battlefield victory.
Other classes are the indirect consequence of student expectations. People want renowned scholars on the faculty of their school. A customary negotiating point in recruiting a professor is the teaching assignment.
The big names usually want to teach less and to concentrate on what they are expert in. Almost all professors whose research has a specific emphasis are quite capable of teaching a class that is general in scope if they must do so. So to fill the endowed chair in criminal law requires accommodating the occasional class on the culture of dueling.
Ultimately what is at risk in the hue and cry is the idea that has made American higher education the envy of the world. The Johns Hopkins University, the first modern research university in the nation when it opened in 1876, was based on its German peers, which themselves had only been set up as such.
The model emphasized, above all, the value of original research in an academic context. It was formal, organized by department, with a hierarchy of credentials. The core of the concept is as vital as ever: practically by definition, developing societies must foster the development of new ideas or at a minimum the new application of old ideas. Education is deficient if it consists solely of the memorization, recitation, and re-interpretation of old ideas; it does not deserve to be designated as "education."
From its inception, the ideal of the research institution included mentoring. Professors were supposed to share their findings with their pupils. They were expected to enlist them in their endeavors.
American success in this regard is unrivaled. The most prestigious English institutions, Oxford and Cambridge, collectively "Oxbridge," were not as enthusiastic about the grimy work of natural philosophers ("scientists" in our modern terminology). The finest Chinese schools, like those throughout Asia, have sought to copy our spirit of free thought and the resulting innovation (ignoring the irony of trying to copy these traits).
What came out of the quantitative fields has inspired the liberal arts. In law, academic research ascended along the lines of two movements. The realists who sought to describe the law as it functioned in society were applying the insights of social scientists. The positivists who drafted restatements of doctrine were relying on the scientific method.
The threat to legal education extends beyond an attack on legal educators. It constitutes nothing less than an ideological challenge to the promise of the research university.
"The beginning of a new year is a time for resolutions, resolve and optimism. Thus, it is fitting that the annual meeting of the Association of American Law Schools meets at the beginning of the year. This year, law school deans, faculty and staff gathered to discuss the theme "Looking Forward: Legal Education in the 21st Century." Given the significant challenges facing law schools and the legal profession, many of the sessions focused on how law schools can better support, train and prepare students to ensure that they have fulfilling careers. Many sessions explored at a deeper level how our students are addressing the current situation."
This paragraph sums up how many of us feel about our students and the kind of courage and optimism we--as legal educators--need to display in meeting the challenges that face us in this changing legal landscape:
"Current students and recent graduates are exceptionally brave and optimistic. They are coming to law school because they really want a legal education. In the face of a difficult job market, a profession that is in a period of dramatic transformation, and even with the prospect of incurring significant debt, they want to study law, become lawyers, and have fulfilling careers. They are going against the grain, against the advice of commentators, some pre-law advisors, and probably friends and family. That takes a lot of courage, real courage. Amelia Earhart said, "The most difficult thing is to act, the rest is merely tenacity ... You can act to change and control your life, and the procedure, the process is its own reward." The decision to act also takes optimism. Do those of us in legal education have that kind of courage? What must we do to honor that kind of courage and optimism?"
Sunday, January 26, 2014
Critics of higher education ask from time to time why I don't simply reduce faculty compensation by, say, twenty percent. They are right to observe that the payroll is the primary portion of the budget. I am always willing to consider ideas offered in good faith. Here is how an across-the-board salary reduction for professors might play out.
The foreseeable reaction to my hypothetical decree likely would be the calling of a faculty meeting at which I would receive a no-confidence vote. Institutions of higher education practice democracy. The chief executive officer of a college -- one hesitates to even borrow that title from the corporate context -- is elected and can be unelected. Professors are my colleagues; I am not their boss.
Although the governing board is actually the authority that appoints me, a strong signal of disapproval from the faculty often, though not always, leads to the exit of the head of any campus. In rare instances, the board opposes the faculty and backs the leader. That in turn means a siege will set in, which has various outcomes, none especially happy.
I hasten to add that this isn't about self-interest. The point is not to protect my own job. The point is that a search for my successor will be convened sooner rather than later. The faculty will ensure that the most important selection criteria is whether the candidate will reverse my decision posthaste.
Thus it is not likely that a faculty salary reduction of any magnitude can be maintained permanently. It would merely swap out the person who presides over meetings.
Suppose though that I enjoyed sufficient popularity I could bring around a majority of my peers to accept this cut. No doubt there would be some who would do so begrudgingly or on the tacit understanding the situation was temporary.
Then the forces of the market would operate on us forthwith. Virtually all of our professors, capable and productive as they are, would look for opportunities elsewhere. The renowned scholars and the best teachers would be recruited away by our rivals.
The reputation of the institution would drop, perhaps irreversibly. The word on the street would be that the school was approaching its demise. (Blogs could be expected to encourage the speculation and exodus.)
Ironically, the group whom we imagine as benefiting from a reduction of faculty compensation -- the students -- would no longer be interested in attending. They would have no desire to be associated with a place that has such serious problems.
Collusion among schools on compensation is not legal and wouldn't be effective. It violates antitrust policies. But if it could be arranged, maybe by the state legislature as to the public system, there are enough well-endowed private schools that would take the opportunity to raid their competitors.
Finally, what if a magic reset were to occur. We wake up, and, by an intervention along the lines of the classical deus ex machina, faculty salaries ended up much lower.
The quality of the faculty would suffer, as people chose other pursuits: staying in the lucrative practice of law instead of joining the academy. Anyone a decent law school would consider hiring as a professor could, if she wished, make much more money at a prestigious law firm. Our tenured professors make less than a brand-new associate at such an enterprise.
Without delay, constituents would demand that each school compete against others in rankings, leading straightaway back into the same cycle as each bidder for a star tried to put together the best recruitment deal. Professors are human beings. They respond to the same incentives as anyone else.
Whenever we face difficult decisions, we wish for the cure-all. A moment's reflection on the consequences should suffice to dissuade us in this instance.
There are better alternatives. I admire the professors with whom I am privileged to be affiliated. They value both teaching and scholarship. Reducing compensation is not as good an option as increasing productivity. Our faculty already have agreed to increase their workload. Tenured professors are teaching more classes than their junior colleagues here and more than their peers at other leading institutions. They also are committed to increased counseling of students. Our strategic plan emphasizes engaged scholarship. The best research applies to the world around us.
Together, but only together, we can change higher education.
Thursday, January 23, 2014
At Ole Miss we just completed a two-week skills session, which is required for all students.
Information about the program can be found at: http://law.olemiss.edu/skill-session-success-made-possible-by-alumni/
I am really pleased with the success of this program, and the students have enthusiastically endorsed the idea of intensive, small-section professional skills courses. Every student will be required to take one of these classes each year of law school.
One of the great side-benefits of the program is that we bring together leading judges and lawyers who spend two weeks on campus. In addition to teaching their classes, these lawyers hold discussion panels on career and professional development. This experience convinces me even more that law schools should be expanding these opportunities for students.
Sunday, January 19, 2014
Law professors are facing criticism. They are accustomed to being on the other side of the podium. In the tradition of Professor Kingsfield of Paper Chase fame, they are depicted as engaging students in Socratic dialogue that puts the future advocates' analytic abilities to the test, constitutes hazing, or both. Now they are accused of profiting from those whom they are training. Although legal education ought to be subjected to scrutiny, if people want to be angry then they should be angry for the right reason.
Contrary to what people assume, the job of a professor is not easy.
When I entered academe, my former colleagues in practice seemed to believe I would spend the afternoons napping and the summers frolicking. Before I became a teacher, I spent time in what since has been dubbed "BigLaw."
I didn't just spend time at a firm; I spent lots of time there. I billed between 2500 and 2700 hours per year; I had a few 300 hour months. That was respectable back in the day. It likely would pass muster even as standards have changed.
These numbers do not describe well the workload if you have not billed time in six-minute increments. If you work the conventional 40 hours per week, 50 weeks per year, you would have worked 2000 hours total.
That's only if you managed to bill a client for each of those minutes. No ethical lawyer could claim to do that. You'd lose at least an hour per day to lunch, bathroom breaks, hallway chatter. That means you would need to work another hour each day to make those numbers.
Consider what it means to bill another 700 hours on top of that. Let's make the math simple by running through the figures with the hyper-efficient lawyer who realizes every moment of those 700 hours with no loss. You could work another full day, which brings you to seven days per week, and you would have put in more than half of that additional amount: eight hours for that extra day multiplied by fifty weeks equals 400 hours. To gain the final 300 hours, you could work another hour each day from Monday through Saturday.
Let's summarize how we reach that total of 2700 hours per year. It's Monday through Saturday, 9 am to 7 pm, plus Sunday, 9 am to 5 pm.
Even lawyers who love their job cannot keep up that pace. They need a few breaks. So you could work Monday through Saturday, 9 am to 8:20 pm, freeing up a day of rest.
The point of this exercise is that I can attest that I worked harder as a professor than I did as a practicing lawyer. The main difference is that when I was a professor, most of what I thought about I would have thought about even if I weren't being paid to do so. When I was a practicing lawyer, most of what I thought about I would not have thought about without being paid to do so.
For that matter, I am middling in my productivity as a professor. I have colleagues whose publication lists are much more impressive. The work required to write a law review article is underestimated by those who have not pursued tenure.
Any law professor who wants to be successful must be highly self-motivated. There are neither clients nor supervisors who will monitor their progress. There are only peers who check up on them once per year.
The legal academy deserves challenges, and it is receiving more than its share of them. There are various reasons to take to task its members, but laziness should not appear on the list.
Friday, January 17, 2014
After my post yesterday I read UF Professor Jeff Harrison's comment on the Faculty Lounge: