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
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
The current challenges to legal education are a result of the profound changes in the legal marketplace. They have not arisen in isolation. The problem is the pipeline into the profession. The traditional progression from student to associate to partner is no longer optimal for the client who is being served.
The expectations for the education of new lawyers are increasing, but the willingness to pay for the process is decreasing. The issue is who will pay for much-needed training. Either before the bar exam or shortly thereafter, a lawyer must learn basics such as how to draft a complaint and a contract, how to interview a witness, what a financial statement indicates, etc. Preferably well before matriculating in law school -- though this cannot be counted on -- she should know how to write competently in standard English.
Almost all of the responsibility for book learning has been accepted by schools. That's not the issue. It's the development of practical skills that's at dispute. More to the point, it's the price of that education that has become contentious.
The tab could be picked up by any of the following in combination: the clients, the firms, the students, or the public. The issues of who will impart the skills and how best to do it are not trivial, but it is the costs which are most controversial.
Clients with market power say emphatically that they will not pay for associates to learn the requisite skills.
The big firms historically had passed on the costs, in a manner that distributed them. A new associate was not worth her billing rate at the outset, but her time was tucked away on an invoice that would be paid because if you wanted a high-end firm doing your work then that was the cost.
The small firms and mid-size firms, which are much more the norm than the big firms, may have had less formal orientation programs but they have more side-by-side collegiality. They absorbed the cost themselves, in the form of lower compensation all around for partners and associates.
As firms of all types try to assign this instructional role to schools, the schools typically pass the burden on to the students. Thus the cost of the clinic is covered by an increase in tuition.
The alternative of public support likely will not appeal to the taxpayer. The government, however, could do more through robust state appropriations for the educational system, direct subsidies for post-graduate public service, or a Gideon right-to-counsel in civil cases that would create jobs.
To start addressing the problem, it is necessary to identify it. Here is an effort at a neutral description. We have a series of vicious cycles that interlock and ratchet.
Law firms have become much more business-like. They have raised their billing rates as high as they can.
Clients have balked. They too are more savvy. Corporations have their own general counsel who has come from a law firm and knows its tricks. As the most senior partners charge more, in-house counsel have responded by agreeing to pay on the condition they actually receive the benefit of that specific person's expertise. The senior partners can command their rate of more than a thousand dollars per hour, but only by foregoing the the revenue of a half-dozen associates supporting them.
Law firms also have a new model. The pyramid structure is no longer stable. That system, with large numbers of associates being winnowed out to leave a few who would make partner at the seven year mark, was always a Ponzi scheme -- except there was no fraud because the arrangement is disclosed.
Law firms are trying different configurations. They have contract attorneys and others who will never own equity in the business. These individuals receive a level of training appropriate for their roles, but they don't expect the genuine mentoring that would be given to someone who will become an owner of the company.
Culture has evolved as well. Since Curt Flood challenged the feudal system of major league baseball two generations ago, every professional has become a "free agent." The most ambitious associates are smart enough to see their opportunities will be constrained if they remain in place for too long. Their very human reaction to the lack of loyalty shown to them as employees is to reciprocate, by becoming less loyal to employers in turn.
The most elite firms have a remedy. It is the recruitment of already experienced attorneys, in preference to new graduates.
But this approach only works for the firms at the top of the market and it will be effective only until the supply runs out.
Somebody has to hire new lawyers to ensure we have experienced lawyers. Eventually, thanks to the increasingly restricted access to the court system, there won't be many lawyers with real trial experience.
The more firms compete to attract laterals through compensation, the more internally stratified they become. The more stratified they become, the less they invest in growing their own juniors. And so on.
Finally, the preparation to be a lawyer is more difficult because the law is more complex. Fifty years ago, there were fewer statutes, regulations, and cases. A lawyer litigating a dispute did not worry about investigating email and social media. A lawyer drafting a contract gave no thought to whether it would be enforceable in China.
We collectively have become dependent on circumstances that will not last much longer. The crisis for legal education is a portent.
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
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
Critics claim the law school course catalog contains too many specialized seminars. They sneer at offerings that seem especially obscure. Their contentions are wrong. They are dangerous.
To begin with, laypeople likely misunderstand the usefulness of technical subjects not only within law but also throughout academe. The extraordinary biologist J.B.S. Haldane, asked what he had learned about religious faith from his scientific investigations, remarked that God seemed to be inordinately fond of beetles.
He was at least half serious. There are thousands of species of beetle.
A research university that strives to rank among the best will feature much more than an introductory survey course in biology. It may well boast an upper-level class on beetles.
An observer who wonders why the school is so devoted to the order coleoptera of the animal kingdom mistakes what the institution is about.
Everyone realizes that very few students will become professional entomologists. A few may be inspired, and that is well and good.
But a course about beetles in name is about much else as well. Students who are not enamored with bugs will take away research techniques applicable to other specimens.
And a course about beetles is the beginning of the campus commitment. The teacher who is fascinated with the weevil deserves support in order to advance knowledge on behalf of humankind -- that is a perforce hyperbolic corrective to the contempt directed at professors nowadays.
It is easy enough and perhaps tempting to make fun of these intellectual pursuits and the intellectuals too. Any observer can beat up the egghead who wants funding to dedicate a lifetime to looking at insects. Everything that has happened since high school should persuade reasonable people that bullying nerds is not commendable.
We need information about insects to control pestilence. Theorists even propose we can comprehend our own behavior from ants and bees if not beetles. These zoological matters come back to law eventually in the form of sociobiology and evolutionary psychology, which, it is argued, generate recommendations for regulating personal conduct and passing public policy.
On top of that, classes turn out to be practical to a greater extent than people expect. Internet law is the latest example of a field that when it was initially identified was ridiculed as more or less a joke or at best an indulgence. The details of jurisdiction on the web, dispute resolution, privacy, and the other issues that would hardly have been recognized much less deciphered a generation ago are doubtless worth studying now and have exploded into glorious complexity. It isn't clear a lawyer would even be competent, whatever their practice, if they were unaware that commerce on the internet has its own characteristics.
Many of these "crazy" classes are the direct result of student demands. People want choices. They judge the quality of a school by the breadth of its curriculum. They compare it to competitors.
Some students, or earlier generations of them anyway, sought exactly what other students, or their successors, then disclaim as worthless.
Ethnic studies, for example, has typically been established thanks to protest movements. Ethnics studies would be unnecessary if the experiences of everyone in this great democracy had been integrated into its history, but that has not happened without struggle. Animal law similarly is a student favorite. It is not as if university administrators have been eager either to open centers dedicated to empowering minority communities or to liberating laboratory test subjects.
The same element of student interest is often what motivates the addition of Indian law and Islamic finance. Both of those classes lead to areas of practice where supply is not sufficient for demand. It also is true of sports and entertainment law. Neither of those classes lead to realities of practice that will satisfy the expressions of interest.
But some students -- as anyone else would -- react angrily to administrators who want to dissuade them from their dreams. They may perceive advice about maximizing their job prospects, however well-meaning or based on fact, as both disagreeable and patronizing.
The expansionist tendencies are not necessarily restricted in political terms. There can be agitation to bring on courses about the economic analysis of law or the history of gun rights. The reading of the classics has been encouraged to justify the war against terrorism. Western philosophy has been asserted to be the basis for battlefield victory.
Other classes are the indirect consequence of student expectations. People want renowned scholars on the faculty of their school. A customary negotiating point in recruiting a professor is the teaching assignment.
The big names usually want to teach less and to concentrate on what they are expert in. Almost all professors whose research has a specific emphasis are quite capable of teaching a class that is general in scope if they must do so. So to fill the endowed chair in criminal law requires accommodating the occasional class on the culture of dueling.
Ultimately what is at risk in the hue and cry is the idea that has made American higher education the envy of the world. The Johns Hopkins University, the first modern research university in the nation when it opened in 1876, was based on its German peers, which themselves had only been set up as such.
The model emphasized, above all, the value of original research in an academic context. It was formal, organized by department, with a hierarchy of credentials. The core of the concept is as vital as ever: practically by definition, developing societies must foster the development of new ideas or at a minimum the new application of old ideas. Education is deficient if it consists solely of the memorization, recitation, and re-interpretation of old ideas; it does not deserve to be designated as "education."
From its inception, the ideal of the research institution included mentoring. Professors were supposed to share their findings with their pupils. They were expected to enlist them in their endeavors.
American success in this regard is unrivaled. The most prestigious English institutions, Oxford and Cambridge, collectively "Oxbridge," were not as enthusiastic about the grimy work of natural philosophers ("scientists" in our modern terminology). The finest Chinese schools, like those throughout Asia, have sought to copy our spirit of free thought and the resulting innovation (ignoring the irony of trying to copy these traits).
What came out of the quantitative fields has inspired the liberal arts. In law, academic research ascended along the lines of two movements. The realists who sought to describe the law as it functioned in society were applying the insights of social scientists. The positivists who drafted restatements of doctrine were relying on the scientific method.
The threat to legal education extends beyond an attack on legal educators. It constitutes nothing less than an ideological challenge to the promise of the research university.
"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
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
Critics 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:
Thursday, January 16, 2014
As reported by our friend Dan Filler of the Faculty Lounge http://www.thefacultylounge.org/2014/01/battling-to-keep-the-florida-law-dean-search-open.html the University of Florida has disclosed a list of candidates for the deanship there:
I am not sure that disclosure at this stage of a search is helpful, and it might make the job of the search committee that much more difficult. I fully respect the Florida Open Meeting law, and its intended purposes, and think that the committee should be required to be open about its processes, and criteria for candidate review. Most importantly, the process for selecting the members of the search committee must be transparent and inclusive.
On the other hand, publicizing the names of the candidates, when a large majority of them will not be invited to campus for on-campus interviews, can do more harm than good. Strong candidates might decide to withdraw, if they were not expecting their applications to be public at this point.
Furthermore, the committee might be subjected to undue external pressure in favor of, or against a particular person. This might be detrimental to the work of a committee tasked with holistic review of every candidate. The committee should be free to decide which candidates best fit the law school's goals as defined by the law school community and the university. The finalists chosen as a result of that process will, of course, be vetted in the open.
It will be interesting to see the impact, if any, of publishing the names of applicants at this stage in the UF search.
Monday, January 13, 2014
Elon School of Law has just announced that Luke Bierman will be its dean effective June 1, succeeding George Johnson, who is stepping down as dean after five years of service.
Bierman is currently associate dean for experiential education and distinguished professor of practice of law at Northeastern University School of Law. The full press release can be found at:
Sunday, January 12, 2014
My wife has taken to warning me, "The press will turn on you, Sherlock."
That's a line from the nonpareil BBC Sherlock Holmes series. I recently binge watched this updated version of the detective stories, set in modern London. Holmes true to form appears to be vaguely uncomfortable around people, perhaps because of Asperger's syndrome. Watson has returned from a tour of duty as a medical doctor in Afghanistan, as in the original canon. People sometimes mistake the duo for a gay couple.
In the cliffhanger last installment to be broadcast -- the series has been on hiatus for some time, as happens with English television -- Holmes has become famous thanks to Watson's writing (in the very up-to-date form of blogging).
Watson tells Holmes, "The press will turn, Sherlock. They always turn. And they'll turn on you."
In the past year, I have been flattered to receive accolades from various media sources. It's enough to make my wife worry. During this time, it seems a day has not passed without another article lambasting legal educators in general. It's hard to keep up with the accusations.
At my law school, we've been working on profound structural changes. These reforms include reducing the class size significantly and launching high-quality on-line courses. We've started Lawyers for America, which places third-year students into a hands-on externship with a public agency and then guarantees them a post-graduation paid fellowship in the same office. We've also accepted students into a Master's degree program that trains them to blend law with other disciplines, to prepare them for leadership in their current careers, not to become practicing attorneys.
We are not alone. Other institutions have adapted to the marketplace as well. They have used their own strategic advantages. Clinical training and international perspectives are among the innovations.
The aura of deceit, though, that has descended on law deans makes the challenges all that much more formidable. I look at the reporting on these improvements, the blogging, and, most especially, the various comments that are posted on the internet.
They are a blend of distrustful and welcoming. Some assert we are acting out of self-interest. Others allege that we care only about rankings or revenue.
Truth is, I would be a skeptic as well. Even as the economy recovers, there is a sense -- based on a reasonable rationale -- that the American Dream has lost its luster. Families face the real threat of downward mobility. We must become reconciled to competition nationally and personally, such that the minimum levels of credentials and skill sets ratchet upward.
The legal profession, and legal education by extension, are only an example of the problem. Law happens to be an especially troubling case. Law is the foundation for everything else in a democracy. Higher education is the engine of the American Dream of upward mobility.
Being admitted to law school, with the expectation of becoming a lawyer, symbolized acceptance of not only an individual but also a community. It promised access to the justice system; equality in public life; and, perhaps for the most ambitious and the most idealistic, the ability to change the world. The expectations were set so high that disillusionment was inevitable, in hindsight.
Yet I continue to have confidence. Our nation has an openness to immigrants and ideas. We have a system that allows both to flourish, a system structured through law.
There will always be a need for lawyers -- the right number of lawyers, not the excessive quantity that have been produced lately. There also is increasing need for legal professionals who are not lawyers, but who work alongside lawyers in areas such as compliance, human resources, and criminal justice.
Education returns value. Young people with only a liberal arts undergraduate degree, or without any bachelor's at all, have much worse prospects than those with advanced levels of higher education.
t's never easy to restore faith. But doing so always requires cooperation. The most important skill of a law professor is knowing the questions to ask, even if one does not know the answers to give. It is imperative to me that I ask the questions, and I have confidence that together we will find the answers.
For our students, I tell them that the economy is not good, recovering slowly, and likely to be dynamic. I strive to show them, however, that we are on their side. I don't know that I always succeed, but it does not serve their interests to end up adversarial to those who are able to help their cause.
In the Sherlock Holmes reboot, the "Reichenbach Fall" episode ends with Holmes suspected of being nothing more than a fraud. Fans know he will be vindicated in due course.
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
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
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
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.