Legal Profession Blog

Camille Nelson Appointed Dean of Suffolk University Law School

Posted by Jeff Lipshaw

Camille Nelson is our new dean.  Here's President David Sargent's message to the law school community:

I am pleased to announce the appointment of distinguished legal scholar Camille A. Nelson as the 12th dean of Suffolk University Law School. She will come to us Sept. 1 from Hofstra University School of Law, where she has been a professor of law.
 
Professor Nelson joins us in sharing a longstanding conviction that the potential for excellence is unlocked when doors are opened to people of ability from all backgrounds and circumstances, and I am confident that she will continue Suffolk University Law School’s mission of opportunity.
 
She is committed to public service and the pursuit of social justice, and we expect that the Law School will flourish through her energy, collaborative leadership style, and vision.
 
Her appointment follows a nationwide search and strong faculty support.
 
Since September 2009, Nelson has been a faculty member and Professor of Law at Hofstra University School of Law, where courses she taught included Comparative Criminal Law and Transnational Law.  Before joining Hofstra, she served as a visiting professor at Washington University in Saint Louis School of Law, where she became the Dean’s Distinguished Scholar in Residence. From 2000 to 2009, she was a Professor of Law at Saint Louis University School of Law, where she taught Contracts, Criminal Law, Critical Race Theory, Legal Profession, and Sports Law Ethics.
 
Following her undergraduate education at the University of Toronto, Nelson received her law degree from the University of Ottawa Faculty of Law and went on to receive a Master of Laws from Columbia Law School in New York. She clerked for Justice Frank Iacobucci of the Supreme Court of Canada and then worked as an associate at McCarthy Tetrault in Toronto, the largest law firm in Canada.
 
Nelson is widely recognized for her writings and lectures, which have focused on the intersection of critical race theory and cultural studies. Her writings are respected for both their insights and creativity. Nelson has published nearly two dozen journal and law review articles, including articles in the Iowa Law Review, the Yale Journal of Law & Feminism, the Southern California Interdisciplinary Law Journal, the University of Florida Journal of Law and Public Policy, and the Wisconsin Law Review.
 
As a gifted teacher, Nelson was named Faculty Member of the Year at Saint Louis University School of Law in 2004. In 2006, she received the university-wide Faculty Excellence Award from Saint Louis University. Nelson was honored with an Extraordinary Service Award from the National People of Color Legal Scholarship Conference at George Washington University School of Law in 2004. In 2005, she received the Derrick A. Bell Jr. Faculty Award from the Association of American Law Schools, Section on Minority Groups, for her activism, mentoring, colleagueship, teaching, and scholarship. In 2010 she was elected to the American Law Institute.
 
I look forward to your joining me in welcoming her as she joins the Suffolk community in September.
 
David J. Sargent

My "Dean Speech" on the Future of the Legal Academy

Posted by Jeff Lipshaw

The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students.  I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here.  I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.

How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.

1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.

2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?

My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).

Final Final Jeopardy

[I enjoyed reading Shubha Ghosh's trip in TV Land, and it looks like a lot of other blogs or forums pointed their way to his posts; here is his Epilogue.--Alan]

The recent Jeopardy posts may have come across as somewhat of a light hearted lark. But in my desire to show rather than tell, some of the parallels between games shows and legal education and legal profession may have come across as elliptical. The lottery mentality of games shows, the organization of economic power in terms of managers, workers, and contestants, and the implied promise of the contests do parallel, in my view, how legal education and legal process are structured. My emphases and perspectives in the posts were meant to draw out these parallels without being too obvious or strident.

At the risk now of being strident, I have to say that the experiences on the game show (and some of the aftermath) reminded me of what our students go through as they quest for the right answer in order to get whatever rewards the profession has to offer and what many clients, whether well-healed or, more often, not, progress through in the quest for justice. To look for these points in a game show may seem misguided, but the larger point of the posts is to show that the tournament for reward and justice has common roots with other parts of our culture and society.

Finally, to end this commentary on a game show note, during the taping, one of my contestants had toured the set for the show "Wheel of Fortune" and told me how surprisingly small the wheel was when compared to how it appeared on television. I pointed out that the Wheel has to be just large enough to allow the average American to spin it. Constraints of practicality, which often mask those of power, define market society and the legal profession that services it.

Update on Bill Threatening La. Student Clinics: SALT Weighs In

Posted by Alan Childress

[The Society of American Law Teachers has a list of past presidents and board members that reads like a who's who of the law prof world. A letter sent to Dean Griffin of Tulane today, by its presidents, Profs. Raquel Aldana and Steven Bender, reads in its body as follows --ed.]

Since 1974, the Society of American Law Teachers (SALT) has been an independent organization of law teachers, deans, law librarians, and legal education professionals working to make the profession more inclusive, to enhance the quality of legal education, and to extend the power of legal representation to under-represented individuals and communities. We write to you on behalf of SALT to express SALT’s opposition to SB 549, which undermines academic freedom and interferes with an essential public service provided by the clinical programs at the four Louisiana law schools. SB 549 threatens to prevent law school clinics from meeting their professional obligation to expand access to justice for their clients by seriously limiting the types of representation they can undertake.

SALT is particularly concerned with Section 2 of SB 549. Section 2 of the bill prohibits law clinics from filing any action against a government agency or filing a suit for monetary damages against any individual or business. It also prohibits law clinics from raising challenges to the Louisiana constitution.

These prohibitions would eliminate law student representation of clients in most civil law actions. Should this bill become law, future Louisiana lawyers would suffer from the lack of litigation skills training necessary to the effective practice of law, and clients would suffer from not having access to lawyers to take their cases through the justice system using the most relevant legal theories available. Legal representation without the ability to pursue applicable claims does not constitute meaningful representation for either the students trying to learn or the clients which they serve.

Furthermore, our system of checks and balances, a necessary component of good government, values the ability of lawyers to challenge governmental action – this right is protected in the federal and Louisiana constitutions and statutes. Law clinic clients should be guaranteed the same constitutional and statutory rights as everyone else in Louisiana.  . . .

The importance of the ethical principle at the heart of the legal profession, the duty to represent those who otherwise would not have access to justice, is a core value that students are taught in the classroom, but often experience and internalize only in their representation of clients in a clinic. ...

[The rest of the letter, a powerful one, follows in full by pdf: Download SALT Letter]

"A Serious Blow to Legal Education": La. to Effectively End Clinics? (Or Dialysis Patients Will Suffer?!)

Posted by Alan Childress

Law School clinics in several states, notably in Maryland and Louisiana now, are under fire.  Real people may be hurt beyond imagination -- from indigent clients and neighborhood assocations to law students and ordinary medical patients (the latter because the pending La. bill would cut off funding for their treatments at Tulane).  Here is the story by Nick Marinello at Tulane about a pending bill in La. which would effectively kill most clinics at our four law schools.

A pending bill in the Louisiana Legislature that would restrict the roles of university law clinics could "deal a serious blow to legal education in our state," according to a letter written by law school deans from Tulane and Loyola universities to members of the state senate. In that letter, Tulane Law School interim dean Stephen Griffin and Loyola University Law School dean Brian Bromberger describe the essential role of clinical legal education and decry the chilling effect that the bill would have on university law clinics.  

The bill purports to regulate legal clinics but would in fact cripple them, write Griffin and Bromberger.  
Senate Bill 549 by Sen. Robert Adley, R-Benton, would prohibit law clinics at any state or private university that receives state funding from suing government agencies. In addition, the bill would forbid clinics from suing individuals and businesses for financial damages and curtail the ability to raise constitutional challenges.  

As stipulated in the bill, any violation of the law will "result in the forfeiture of all state funding to the university for that fiscal year."  

In an interview, Griffin said that he believes the restrictive language of the bill is targeting a particular clinic. "Although the bill is aimed at the Environmental Law Clinic, the target it actually hits is far more broad and affects nearly all of our clinics negatively, which would severely hurt our curriculum and our ability to serve the community by providing access to justice."  

Along with the Environmental Law Clinic, Tulane Law School operates clinics representing indigent clients in civil litigation, criminal law, domestic violence, juvenile law and legislative and administrative advocacy.  

According to Griffin, SB 549's prohibition of suing the government and restriction on raising constitutional issues would have a profound and negative impact on the attorney-client relationship.  "You can't say, 'yes I'll represent you but, by the way, I can't make an argument based on a state constitutional challenge'," said Griffin.  

The legislation also calls for all university law clinics to be subject to oversight by the House Committee on Commerce and the Senate Committee on Commerce, Consumer Protection and International Affairs. Currently, the Louisiana Supreme Court supervises law clinics.  

"Clinics have always been supervised by the courts," said Griffin. "They operate under the strictest limitations in the country. More regulation is simply unnecessary."  

Currently the bill is under review before the Senate Commerce Committee. Griffin encourages anyone interested in the welfare of clinical legal education to contact members of the committee to voice their concern.

The law deans' letter appears here [Download Deansletter].  Contact info for the Committee, in case you can share your view. What a sad way to celebrate the second week of JazzFest:  resisting a bill that may be targeted by petrochemical industries at our environmental clinic -- this, ironically, while the fishing industry tries to salvage its shrimp bed from oil -- but really will end one of the best things about legal education and about Loyola and Tulane.  Have they no shame?  And will this effort stop at La. and Md.?

Update:  letter from SALT opposing bill, here.

Joint Report Recommends Changes to Legal Education for Practice and CLE Training

Posted by Alan Childress

From a press release this morning:

Recommendations for improving the training of lawyers to meet the challenges of the 21st century were explored at Equipping Our Lawyers: Law School Education, Continuing Legal Education, and Legal Practice in the 21st Century, a summit organized by ALI-ABA Continuing Professional Education and the Association for Continuing Legal Education (ACLEA) in October of last year.

The summit examined the entire spectrum of lawyer training and development, and recommended ways in which all constituencies within the profession can improve their cooperation toward the goal of a competent bar.  ALI-ABA and ACLEA have now released the Final Report containing recommendations that emerged from the summit. [or: Download Finalreport] Among the final recommendations are: 

-- Develop model core practice competencies keyed to each level of a lawyer’s professional career.
 
-- Design and share transitional training programs in legal practice skills starting in law school and continuing through at least the first two years of practice.

-- Consider reformulating bar examinations to include phased examination, linked in part to attainment of legal practice skills, with some parts as early as in the law school years.

-- Accredit in-house continuing legal education programming similarly to that produced by other CLE providers.

-- Develop appropriate accreditation standards for all varieties of distance learning CLE.

-- Expand law school and CLE programming to prepare and encourage law students and lawyers to represent underserved communities.

Can a Discussion of Contract Theory Up Front Allay the Usual First-Year Angst About Consideration (and Everything Else)?

Posted by Jeff Lipshaw

After a fair amount of writing on contract theory, I've been assigned to teach contracts next year (for the first time since I taught the first semester of the full year offering at Wake Forest in 2005).  I have been fiddling with the essay that follows, and asking myself whether its attempt to allay first year angst, and particularly that angst that seems to appear just after the second or third case on consideration, might actually allay angst. I invite comments.

Welcome to law school and to the year we will spend together learning contract law.
 
The law of contracts falls under the general category of "private law," meaning that agencies of the government (courts, legislatures, etc.) do not necessarily set rules for legal or illegal conduct (as, say, in criminal or environmental or civil rights law), but instead enforce the obligations of individual parties to each other.  Tort law deals with non-voluntary obligations - the private rights of one party to seek recompense from another for a relationship that it's likely neither party ever wanted.  Our relationship in a tort case, for example, arises from the fact that you hit me with your automobile, or the product you manufactured and sold to me was dangerously defective.  Intentional torts aside, normally when there's an injury giving rise to a tort claim, we didn't mean for it to happen.
 
Contract law deals with enforcing the rights of the voluntary agreements of private parties.  It is a subject with which many law students struggle.  The subject matter is probably unlike almost anything you have studied; the classic "Socratic" method of teaching (remember Kingsfield in The Paper Chase taught contract law) can be disorienting; and there is a certain unreality to the whole enterprise.  I'm going to tell you here why I think that's so, and I will repeat it when we get together for the first time.
 
The approach to the study of law through the reading of assembled cases, still the predominant method of instruction, and particularly in the first year, is something invented at Harvard by C.C. Langdell in the late 1800s.  The teaching through cases, however, was about something more than instruction.  The view of the great pioneers, Langdell and Samuel Williston, for example, was that law could be approached as a science - that the underlying principles of the law existed "out there" and could be discerned, as a botanist discerns the structure of a plant, by examination of the raw material, namely, judge's opinions.  But think about what that means.  We're pretty sure, in the physical sciences, there is indeed a coherent and regular structure waiting to be discovered.  We are probably less sure about that in the social sciences. Whether it's true about "the law" is, in my mind, very much an open question.
 
Nevertheless, we still tend to teach subjects in the law in the way Langdell and others envisioned it:  that there is a coherent structure out there waiting to be found.   Moreover, our hope is that coherent structure is correct, that it leads to the right or just results.  So the traditional course in contract law is to proceed through a series of cases that reveal to us how the law sees the formation, enforceability, execution, interpretation, breach, and recompense regarding private agreements. 
 

But there's a troubling paradox in that presumption of coherent structure.  As one noted contract law scholar has observed:  "participants within the legal system use private law as an instrumentality to their subjective ends, while scholars try, objectively, to make sense of it as a system. Put another way, how can the legal result in a particular dispute be discoverable as a truth statement and, hence, constitutive of an objectively correct result, when parties themselves approach the law not as a matter of truth but as argumentation in favor of their preferred outcome."  We'll explore this idea over the course of the year, but I think it's key to the usual "lost at sea" feeling that first year students have about the law generally, and about contract law specifically. 

[UPDATE:  I'm persuaded by a number of the comments, here and offline, to tone down the angst aspect.  Jeremy Telman has an alternative and thoughtful pedagogical approach over at Contracts Prof Blog - suggesting he benefits from not having a "systematic" approach to contract theory.  As I mentioned to Jeremy in an e-mail, my systematic theory (if you call it that) is that you really can't find a systematic theory within the doctrine.   But the way the doctrine itself is presented presumes a systematic theory.  That's the real dilemma.  Anyway, the essay continues after the break.]

Case law arises when judges try to resolve disputes in which the parties have a stake in the action.  Each party wants to argue that its position is the just and correct one.  The law isn't the reality of the underlying transaction - it’s how someone who sees the transaction goes about making a model of it.  Sometimes a particular model matches the reality well and sometimes it doesn't. Sometimes the model matches our intuition about the underlying game is really played, and sometimes it doesn't.  Most importantly, sometimes one model gives an advantage to one person over another. 
 
I suggest to you that learning contract law is a little bit like learning a game or a sport for the first time in at least two ways.  First, you watch the sport and kind of think you understand it but in fact it has all sorts of rules and customs that turn out to be arbitrary, and you just have to learn them, not because there's a deep reason for them, but because they are the rules and customs.   There's no inherent reason why you can't move a knight in chess along a diagonal, run to third base after you hit the ball in baseball, or receive a pass in soccer if you are the only offensive player between a defender and the goalie.  We will see rules like that in contract law.
 
Second, rules in a game can be arbitrary, but they usually need to be coherent.  In other words, the rules need to fit together and not contradict each other. What we will see as we study contract law is that many times the rules of contract law are NOT coherent; they do contradict each other.

So we find ourselves playing the contract game, and frustrated as hell when the game rules seem to be both arbitrary at times and not coherent at times.   Arbitrary: did the offeree accept the offer in exactly the terms proposed by the offeror?  (Under "classic" approaches to contract law, if not, it is an ineffective acceptance.)   Not coherent:  Was this an enforceable contract or a gratuitous promise?  (Under "classic" approaches to contract law, this requires that there be something called "consideration" and there are at least three or four different rules, not always consistent, for making that determination.)  (In England, barristers are not allowed to sue clients for their fees.  Why?)
 
I am going to propose a working hypothesis that I hope dispels some of the usual "first year contracts class" angst, but it means engaging in some hard thinking about both the practice and theory of law.  Here’s the proposition in theoretical terms:  The reason we get frustrated is that when we play (i.e. practice) the contract law game, like any game, we very much want it to be coherent.  But in reality the contract is an attempt to model an understanding in language.  As the psychologist and cognitive scientist Steven Pinker observes, reality is continuous and flowing, but language is digital.  Our thoughts and understandings contain pictures and concepts and metaphors, but, by and large, the medium of contract law is words and sentences.  Moreover, reality presents us with situations all the time that appear to our minds as paradoxes and contradictions that the digital medium of language doesn't seem to be able to resolve.
 
In short, contracts, besides being games we play, are models of something else.  In physical science, two physicists each propose a model of an atom.  Physicist Alice’s model looks like a solar system, in which the electrons revolve around the nucleus.  Physicist Bob’s model looks like a pomegranate, with the electrons stuffed into it like seeds.  Some models are better than others; some models conflict with each other; the beauty of many models lies in the eye of the beholder.  If we are using the pomegranate model to explain the atom, talking about orbits and quantum jumps isn't going to make a lot of sense.  We will see similar conflicts in the way contract law wants to characterize (or, in my words, model) the underlying transactions.  Does any contract act as a perfect model of the underlying transaction?  The answer to that seems intuitive - like any other kind of model, a lot is going to depend on the complexity of the thing it's trying to model!  And if it's a perfect model of a really complex thing, maybe it's not a model any more!

I’ll propose just one example of the theory and practice implications of the model problem, and then we’ll begin the course.  This is going to involve three “hypotheticals” (hypotheticals or “hypos” are stories law professors invent to demonstrate a problem or a distinction). 

Hypothetical #1:  You have been accepted to the Ginormous State University Law School.  The school demands you pay your tuition before you start class as the way of demonstrating that you plan to attend.  You send a check to the school for $35,000.  Do you have a legally binding and enforceable contract to attend the law school?

Hypothetical #2:  You have always been an admirer of the Ginormous State University Law School, and have amassed a great fortune.  You send a letter to the dean, stating that you intend to endow a professorial chair in the amount of $3,500,000.  Immediately after sending the letter, you have second thoughts.  Do you have a legally binding and enforceable contract to endow the chair?

Hypothetical #3:  In Hypothetical #2, the dean receives your letter and, knowing that the endowment will permit $175,000 per year to be drawn for the payment of salary, hires the renowned contracts professor William Sammiston, who moves to Ginormous City and takes up his duties.  You have had second thoughts about endowing the chair.  Do you have a legally binding and enforceable contract?

Hypotheticals 1 and 2 have clear answers under a model of contract law often called the “classical view.”  The model turned out not to accord with at least some legal scholars’ and judges’ intuitions when applied to Hypothetical 3, at least in part because the model’s results seemed to be arbitrary and unjust.  The result was that they proposed a new model.  Which model is the law?  Are they mutually exclusive?  Could both models be the law at the same time?  If we apply the new model in Hypothetical 3, are we then also required to keep the system coherent by applying it in Hypotheticals 1 and 2? 

To make matters even more confusing, not only are judges looking for the right model, but often one model gives an advantage to one side or the other.  The clients in the dispute would like the law to see the issue the same way they do.  So the lawyers in the case argue that, if the judge has a choice of models, the one that ought to be applied is the one that favors the lawyer’s client!  And it helps in that argument to show that the application of the model isn’t arbitrary and is coherent!

In law school, you will learn hundreds, if not thousands, of rules and models.  Your practice will require that you know how to work within them, and your technical success as a lawyer will depend on your skills in recognizing and applying them.  You’ll find, however, that the frustrations caused by the imperfect match between language and reality don’t end in law school.   From time to time, you and your clients will continue to be frustrated as hell when the rules that seem to apply to your situation also seem arbitrary and incoherent. That’s when you will step back and consider the theory as well.  

And now we will dig in.

Kazakhstan Law School Seeks Dean

Posted by Jeff Lipshaw

The School of Law of the Kazakhstan Institute of Management, Economics, and Strategic Research in Almaty, the major commercial center of Kazakhstan, is looking for a dean.  Here's the job description (from AcademicKeys.com):

The Kazakhstan Institute of Management, Economics and Strategic Research (KIMEP) is a rapidly growing, dynamic higher education institution, offering American style, credit-based programs in business administration, social sciences and international law. KIMEP is located in Almaty, an attractive and cosmopolitan city, with 1.2 million residents, located in the foothills of the Tian Shan mountain range. The Institute currently enrolls about 4,300 students in degree programs. All degree programs are taught in English.

KIMEP is accepting applications for the position of Dean of the School of Law (SL).

Currently, the Law Program is housed in the Bang College of Business, offering an LLM, a minor in Law and undergraduate courses. The creation of an independent Law School is being planned, with both undergraduate and expanded graduate programs.

The Dean of SL is the School's administrative and academic head. Reporting to the Vice-President of Academic Affairs (VPAA), the Dean will exercise vision, ethical leadership and advocacy in curriculum matters of the School, placing emphasis on quality assurance and continuing development of the finest educational program possible. As key responsibilities and duties, the Dean of SL shall:

•Manage fiscal and personnel resources of the School and recruitment, evaluation and retention of well qualified faculty and staff;

•Curriculum planning and development;

•Promotion, publicity and student recruitment;

•Manage the School’s faculty, including hiring, promotion, arrangement of leaves, salary determination, assignment of academic and administrative duties and resolution of grievances and disciplinary problems;

•Prepare and submit the School's annual budget and other relevant reports;

•Serve as Chair of the School Academic Committee and facilitate the work of other School committees; •Serve as a member of the Deans’ Committee and KIMEP Executive Committee;

•Represent the School in KIMEP-wide events and to external constituencies;

•Teach one course (3 credits) in each of the Fall and Spring semesters; and,

•Other duties, as assigned by VPAA.

Qualifications: Doctoral degree in Jurisprudence/Law; a clear educational vision for an effective, rigorous, comprehensive Law program, following American models; administrative experience, preferably at Chair or Dean level, at an institution of higher education; experience in curriculum development and review; excellent negotiation, communication, organization and leadership skills; and, fluency in English.

Applications will be accepted until the position is filled. Salary is negotiable.

To apply, please send, via e-mail, a letter of interest, curriculum vitae and contact information, including e-mail addresses of three references, to: stevens@kimep.kz

We like to be a full service blog, so if you are interested, here's a link to the Cores real estate agency in Almaty, if you might be looking to rent.  If you'd be looking to buy, we suggest Almaty Real Estate.  And here's Air Astana, the national airline of Kazakhstan.

Bernstein on Pervasive Teaching of Professional Responsibility (Torts Version)

Posted by Jeff Lipshaw

Anita Bernstein (Brooklyn, left) is a guest blogger over at our sister Torts Prof Blog and has an interesting take on whether and how to mix professional responsibility into the torts class. (HT:  Sheila Scheuerman)

Utah Grants Waiver Of ABA-Accreditation Requirement

The Utah Supreme Court recently granted a petition for extraordinary relief and allowed waiver of the requirement that the petitioner have graduated from an ABA-accredited law school in order to sit for the bar examination. The petitioner graduated from Western State University which, at the time of his graduation, was accredited by the California State Bar but not the ABA. He was told by the Utah Bar that he would be allowed to sit for the bar exam if he was admitted in California and practiced there for at least five years.

 Petitioner was authorized to sit for the Utah bar in 1988 but did not show up for the exam. In 2008, he moved to Provo to care for his ailing mother. When he reapplied to take the exam, he was advised he was ineligible due to the ABA problem. He filed the petition for extraordinary relief rather than appeal the Bar's decision.

The court here granted the waiver, noting that it "has no desire to encourage a flood of individualized waiver petitions...where an attorney had actively practiced law, without blemish, for nearly thirty years and comes highly recommended by judges, clients, and fellow attorneys, waiver of the ABA-accreditation requirement is appropriate." The court also referred the issue to the Bar and the court's rules committee to consider changes to give the Bar authority to waive the requirement in the future subject to discretionary court review.

A good result that does not mindlessly follow procedural rules but rather does the right thing. (Mike Frisch)

Would-Be Iowa Law Prof Litigant Responds

Posted by Jeff Lipshaw

Back in August, the ABA Journal ran a story on a Michigan lawyer and academic aspirant, Donald Dobkin, who was suing the University of Iowa Law School on an age discrimination theory.  Usha Rodrigues commented over at The Conglomerate, and I opined as well, generating some debate about whether he had alleged the basis of a good claim.  Mr. Dobkin has responded in a comment to the August post, and I thought it deserved not being buried back in the comments.

First, some context.  As I read the reports, this is an age discrimination claim.  Here were some of my comments back then:

Much as I think it's questionable policy, it doesn't take much to overcome the initial prima facie burden in an age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all Iowa would have to do is satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA. According to one of the news releases I saw, the complaint is based on his response to the posting in the AALS Placement Bulletin. I don't know which one, but it happens that the AALS posts a sample placement bulletin on its website, this from 2006, and it happens that Iowa had an ad in that issue that is very typical of these kinds of ads: "Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College. Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in administrative law, business law, constitutional law, criminal law, disability/health law, immigration, intellectual property, law and economics, property, regulated industries, and taxation." Apropos of my comment about naivete, that's the classic laundry list, probably reflecting a myriad of conflicting views within the faculty about the school's top hiring priorities. As applicants and faculty members know, that's often not sorted out until the last debate among the whole faculty, and is one of the reasons I suggest in the "Retire and Teach" article that you not assume anything until you actually have a call from the dean extending you an offer.

Here's Mr. Dobkin's comment, posted this morning (the text, as well as the metadata on the post, satisfy me that it really is Mr. Dobkin!):

Now having read all of the posts from this blog as well as many others it is readily apparent how one sided the comments are from members of the academy and just how insular the entire community appears. The posts reflect several errors which I shall note as follows. First, I can assure all that I am not naive. I spent 5 years at this academic endeavor since retiring from active practice. I published 5 law review articles in less than four years. I am halfway through a significant book on the US immigration mess. I presented papers several times at scholarly meetings. I spent a year at Johns Hopkins in the graduate program in PoliSci only to be told that it was a waste of time since nobody would hire a 60 year old. I am a graduate of a mega-elite law school, Northwestern, in case no one has noticed. I am a member of the Martindale Bar Register of Preeminent Attorneys (which I assume counts for nothing with all of you). I registered 4 years in a row with the FAR and never got an interview. I applied for visiting professorships and was rejected. My conclusion after going through all of the above is that unless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.

Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?

Some comments below the break.

It's not my place to defend the University of Iowa Law School, nor do I dispute the general idea that the legal academia could do a whole lot better balancing what legal academics want out of their careers with what needs to be done to educate new professionals (see Andy Perlman's gaze into the future).  We are working on a transactional curriculum at Suffolk for just that reason.  (I hope I haven't gotten insular or co-opted in my five years in the academy, but I'll claim at least equivalent real world practice bona fides, and something less than the gold standard of academic qualification!)  My issue continues to be the trivializing of a serious issue in the guise of an trial, which Mr. Dobkin seems to concede needs a pretext of an age discrimination claim to get to the real issue he wants to try:  whether he's more qualified or competent than a newbie prof to teach immigration law.  Personally, were I litigating the case, I'd stipulate that there is nobody more qualified in the world to teach and write on immigration law than the plaintiff!  That's not the issue, however.

The only question in the litigation is whether Iowa had a legitimate, non-discriminatory basis for not interviewing (much less hiring) a candidate whose admittedly superior qualifications are nevertheless restricted to an extremely narrow field, and one that is not untypically covered by adjunct professors.  From my earlier comment:  "As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive based on my own teaching adventures that it is. But it's not the only element in the management of law schools to be considered, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring." 

I have to add that, in my view, the hoary strategy of "getting to the jury" to be able to nullify, emote, or punish beyond the strictures of the claim itself is an ethical issue that goes beyond pure legal ethics, but that's for another time.

AALS Section on Professional Responsibility Issues Newsletter

Packed with info and announcements, and just in time for the holidays, is the latest newsletter [fall 2009 edition] from the section on Professional Responsibility of the AALS.  Thanks again to editor Randy Lee and section chair Laurel Terry for allowing us to link it here for your review.  It includes useful updates from Roy Simon and others, and tributes to the late Fred Zacharias.  Available at: Download AALS Newsletter   [Alan Childress]

What is "Soft Socratic" Teaching?

Posted by Jeff Lipshaw

Jacqueline Lipton over at The Faculty Lounge observed that the self-described teaching style au courant in FRC interviews these days is something called "soft Socratic."  Here's Jacqueline's description:  "When asked about their 'teaching style', candidates invariably answer 'soft Socratic'.  In other words, they like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared."  Others have chimed in, including Ilya Somin at Volokh Conspiracy, Dave Hoffman at Concurring Opinions, Steve Bainbridge, and my co-author, Larry Ribstein, (the latter three all in the context of teaching corporations, and with PowerPoint, and the last with a plug for an excellent unincorporated business entities casebook.)

I've converted to what I think is "soft PowerPoint," which I define as projecting those things that I know I would have put on the whiteboard anyway - the class outline and schematics of the cases, for example.  I've even adopted the "sidebar" outline approach now seen on ESPN SportsCenter.  This is a concession to my innate randomness.  When I started at Wake Forest in 2005, I imported the wholly non-visual style of my own teachers from the second half of the Seventies.  I moved to having non-PowerPoint "class outlines" (formatted in Word, and posted on TWEN) so that the students would have a sense where we were in the material, and now, to some extent, keep that scrolling on the left side of the schematics or bit of statutory language that may be on a slide at any given time.

But I'm still not sure what "soft Socratic" is, as opposed to my style, which I would call "interrogative lecture," something I think falls between whatever soft Socratic is, and the incredibly annoying "anyone? anyone?" style of Ben Stein in Ferris Bueller's Day Off. I distinguish this from true lecture, which I think of as non-interrogative or non-interactive, and the best of which have wonderful narrative structure, a beginning, a middle, and an end, with a pace and an organization that bring you along from one place of shared knowledge to another of greater understanding.

I think there are two aspects of classroom manner that make the teaching Socratic of any kind.  First, the teacher calls on students (rather than relying on volunteers).  The method of calling, and the amount of warning (e.g. panels, going in alphabetical order, working across the seating chart) don't matter - if you call on students other than volunteers, it's Socratic.  Second, whether or not, it's "soft," there's a certain amount of squirm that the teacher is willing to allow the student to endure.  It may be a nanosecond of squirm, or it may be an extended squirm, but there's squirm.  In my view, there's a third element to traditional "hard" Socratic method, but I'm not inclined to make it a sine qua non, because it usually disappears in "soft Socratic":  the progression of questions from the statement of the facts of the case, through the court's holding, to a series of increasingly minor variations in the fact pattern, to the point at which the viability of the rule of law announced in the case, at least as a matter of analogical reasoning, falls away.  The primary pedagogical purpose is to impart the understanding that in the common law the court's holding and the facts are inextricably linked, and to test the power of the analogy that supposedly connects the thread of the law as it progresses from case to case.  (I take no position in this blog post as to whether that's a load of hooey, but I will say that the notion of a case being "on all fours" depends on precisely this relationship.  Moreover, if you think about the "law" being taught, say in 1910, which I'm positive was overwhelmingly case law versus statutory interpretation or any kind of "law and..." (even at "elite" schools), it's not surprising that it might well have worked!)

As I said, I wouldn't call what I do soft Socratic, because over the past several years in upper level courses (the only ones I teach presently), I have gradually eliminated, in roughly this order: (i) cold-calling; (ii) "on-call panels"; (iii) calling on people at all; and (iv) finally, the seating chart (in favor of name cards).  (I'm teaching contracts next year, so I'm considering all of this for its application to the first year, or at least the first semester.)  Nevertheless, I still pounce around in moderately manic style, often posing rhetorical or not so rhetorical questions, and often staring with puppy dog eyes at a student or two, begging for an answer if for no other reason than to remind me I'm not talking to the wall.  I have a hard time calling that a "lecture" (see above).  My primary objection to any kind of Socratic method is the result of my experience as a student and as a teacher.  As a student, when others were in the throes of Socratic exchange, I recall drifting off to more pleasant thoughts, writing sarcastic comments in the notebook of my friend sitting next to me, or turning to the only redeeming aspect of The Stanford Daily, the New York Times crossword puzzle (so much for the evil of Internet surfing).  As a teacher, not only do I see my own students doing the same, but it strikes me as a terrible waste of time to drag whatever teaching point I want to make out of the poor kid.

Having said all that, I do indeed on occasion go into "what if" mode, with a series of questions changing the facts just a little each time, to make precisely the point about the relationship of facts, law, and policy that I believe was the basis for the institution of Socratic method at the outset.  I just don't do it by calling on students or making them squirm.

Teaching Contracts

Posted by Jeff Lipshaw

I've been asked to teach our six credit contracts course here next year, and have been puzzling (far ahead of time) about book adoption and teaching philosophy.  Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.

I spent 26 years in practice, as a law firm litigator and then transactional partner, and then as the general counsel of two different companies.  I have written fairly extensively on contract theory (perhaps teaching the course will be impetus to combining my various pontifications into a book), but I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world.  (See my article Models & Games, for example.)  Although there are some admirable contracts casebooks out there that attempt to do so, if I don't use one, it will be a result of my concern that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons).   You don't really teach the business world, and you don't really teach traditional doctrine.

No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it.  Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.

I've concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin - with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms.  (As I have made clear in the past, I'm a skeptic on subjective intent altogether when even the interpretation of the contract is the subject of colorable litigation positions.)  Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction."  Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work.  No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker's view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps.  (Think about the classical view of offer and acceptance, for example, versus the UCC's view.  Does either one really map onto a singular underlying reality of the making of an agreement?  Even "the meeting of the minds" is a metaphor (and, in my view, an unfortunate one)). (I think the Macaulay/Macneil relational contract school falters on this point, by the way.  It gives up on the map altogether and tries to go straight to the reality of the relationship.  That may explain the relationship, but it may not make for the best way to explain the law.  I have a similar reaction to Omri Ben-Shahar's longstanding proposals (now with Lucian Bebchuk) on liability arising out of preliminary negotiations - we're trying to fine tune the map (or model) beyond its usefulness as a model.)

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let's say you are playing cricket, and you do something that cause the other team to cry "foul!"  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn't mean there couldn't have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

Anyway, that's my current thinking.  Responsible opposing (or helpful) views are always welcome.

Fear and Learning - Cantering and Law School

Posted by Jeff Lipshaw

As those of you who tune in for what the ABA Journal quaintly refers to as my "off-topic" posts may be aware, I decided this summer to learn English style riding (horse, that is).  Let me make this clear.  Other than perhaps a ride on a carnival pony when I was little, my backside and a saddle had never been in any kind of intimate contact.  (If you have spent much time in Ann Arbor, you'll appreciate the following Carnak style joke from one of our Christmas skits in the Dykema office.  Answer divined by Carnak (waiving sealed envelope near forehead):  "Gallup Park."  Question (upon the opening of the envelope):  "What does Jeff think are the gear shifting markings on a horse?") [Joke explanation for the uninitiated:  Gallup Park is a municipal park that follows along the Huron River near the University of Michigan Medical Center.]

There are all sorts of analogies I could make here in terms of the learning process, but here I am about 17 lessons into this, and skiing is perhaps the best one.  Just as you progress in the mechanics of skiing from snowplow to stem christie to parallel turns (at least the way we used to get taught), and accordingly gain the ability to ski steeper slopes (from green to blue to black), in riding you progress "walk-trot-canter" (that oversimplifies it, but not unduly so).  It's hard to get too scared in a walk, but when a perky horse starts to trot for the first time, and you need to steer, control the pace, sit correctly, keep your heels down, keep your hands down and quiet, squeeze your upper legs, and keep your knees relaxed and your lower legs still, a certain panic may set in.  It's like pointing your skis down the fall line the first time, and then losing it as you begin to pick up speed and panic.

So today was a watershed because I cantered for the first time.  It's a little faster than a fast trot, but that's not the issue.  It just feels really different.  I was taught to get into the canter from a "two-point" position, which means that I'm trotting around the outside of the ring with my butt off the saddle, my back flat and looking up and outward (sort of leading with the chest, as it were), and my hands holding both the reins and the horse's mane.  I then give the horse a kick aftwards (to the back) with the outside leg (which I understand is telling the horse to lead with the inside leg, which is correct), and then . . . holy moses (or words to that effect) - I AM GOING TO FALL OFF THE FREAKING HORSE!  The natural tendency, akin to the fall line panic, is to curl forward which is exactly the wrong thing to do.  If you relax, look up, and get "taller", it feels pretty smooth and controlled.  The problem the first time is you don't know what it is going to feel like.  I can report success, however.  I did a nice canter down the long side of the ring, and then when I was later trotting in a two point (tapering off at the end of the lesson), the horse started to canter and I actually laughed as I brought her back to a trot and to a walk. 

One of my rationalizations for spending all this time and money (other than the fact that I really enjoy it) was better to understand learning from a student's perspective.  What really jumped out at me today was the relationship between fear and learning.  Often what you need to do is counter-intuitive, or counter to natural self-preservation instincts.  The first time is the hardest because you don't know what to expect, and the unknown is the most fearsome.  This takes me back over thirty-three years, but I can recall just how terrified I was of getting called on in John Kaplan's criminal law class (I had never before spoken aloud in class among all these incredible smart fellow students and the professor who seemed to be able to tie minds in knots), or the fear before taking the first set of exams in the first semester (which, by the way, were after the holidays just to make it worse). 

The fear sits out front like a barrier.  (Think of the vibrations Chuck Yeager experienced before getting to Mach 1.)  I don't think there is a significant difference between fear of physical injury and fear of embarrassment or public failure.   I am far and widely known as a physical coward (think Woody Allen).  You must push through it, because control, calmness, and the ability to function return on the other side.

Job Talks

Posted by Jeff Lipshaw

[I posted this as a comment to the thread over at PrawfsBlawg that Dan Markel started for those going through the AALS recruitment process, and decided to repost it here.  Over here, think of it as Jeopardy! - you can guess the question from my answer.]

FWIW, from somebody who has been arguing in courts of appeal, making presentations in business, sitting on panels, and giving academic talks for over 30 years. And listening to a lot of them.

30 minutes is too long. Plan for 15 to 20. At 30 minutes, people will either be squirming or interrupting. Trust me, there's nothing so critical in your talk that you need those extra minutes. You only think there is. When you think you've cut to the bone, cut again. The audience will never know.

Re giving a 60 page paper in 15-20 minutes, a couple points. First, can you really not get your thesis across in 15-20 minutes? There's a real problem if you can't. Second, even if you are in the center of the constitutional law strike zone, you aren't giving this paper to people who know this subject like you do, or even know anything about your area. This is an exercise in interdisciplinarity. Consider that you are giving your talk to a roomful of very intelligent laypeople, and think of all the detail filling those 60 pages as layers that you might draw on to amplify your basic points when it comes time for questions. Think of this like oral argument - you have just a few minutes to get across the problem you're addressing, the current state of intellectual play, your contribution, and why it matters. Don't get lost in the trees.

As to reading papers. Oy vey. Reading a paper, it seems to me, is at one of the rungs of hell, the only things lower being (1) reading the paper off tiny note cards in a meek monotone, and (2) reading verbatim the overly dense bullet points on a Power Point.

As to Powerpoint, much less is much more. Personally, I wouldn't use it unless there is something diagrammatic that simply needs to be viewed communally. Very brief outlines are helpful, but I think handouts are better for that, particularly if you have the text of a statute you are discussing.

As to the podium, nothing wrong with using notes. But don't use the podium like a crutch or a barrier. Step to the side from time to time. Particularly when it's time for Q & A, move out from behind the podium and get closer to the audience. Relax. Have fun. Be the master of your domain. My experience in a number of callbacks is that the audience wants you to succeed (very much) - nobody is comfortable witnessing a disaster, and the hope is always that you are the best thing since sliced bread. Even when you get challenging questions, it's because you have caused some mental gears to be engaged. View every question as an opportunity to be a teacher!

Does Popular Intellectualism Overlap With Academic Dilettantism? And What Does It Imply for the Future of Teaching Lawyers?

Posted by Jeff Lipshaw

I'm stealing some thunder because we get our Sunday supplements to the New York Times on Saturday morning, so I can't presently link to the online version of the Book Review (do your best with the link I've given you).  The cover review is Steven Pinker (left) on Malcolm Gladwell's (right) new book, What the Dog Saw, which is an anthology of his New Yorker articles.  It's interesting because Pinker is an academic with some reputation as a public (or popular) intellectual; Gladwell is a journalist who popularizes otherwise arcane academic or intellectual topics, particularly in mathematics, statistics, and the social sciences.  (Maybe they are bonded by their views on hair.)

Pinker's primary critique of Gladwell is simply that when he gets very far below the surface, he also gets it wrong.  There's some pretty good logic to this: if the non-expert misses the point of what the expert is saying about the particular problem, the non-expert is likely to propose a solution to the problem that is either wrong or naive.  One example Pinker points out is Gladwell's treatment of the predictive value of certain data for success in professions like teaching.  I liked the way Pinker put the point on a subject I've thought and written about a lot: the extent to which all judgments come down to a irreducible leap from what is known to what is not.  I think that's Gladwell's "blink" moment as well.  But Pinker rightly observes that does not mean that you give up on data or expertise.  Says Pinker, "[G]iven the technology you have, there is an optimal threshold for a decision, which depends on the relative costs of missing a target and issuing a false alarm."  There's still great mystery in the science and philosophy of that instance of decision, but the right answer is not to consign all decision-making to a dartboard.  Gladwell seems to be suggesting you throw the predictive data out because it might be wrong ("teaching ought to be open to anyone with a pulse and a college degree").  [Ed. note:  smart ass remark about current state of many faculties deleted.]

If you don't read the Editor's "Up Front," at page 4, however, you'll miss Pinker's equally well-taken critique of academic expertise.  He observes that academic experts (I would offer "often" but not "always") lack perspective.  "They suffer from 'the curse of knowledge':  the inability to imagine what it's like not to know something that they know.  That makes them underestimate the sophistication of readers and write in motherese rather than explaining concepts from the ground up."  (Motherese, I just learned, is an academic term for the way parents talk to children, including heightened pitch, exaggerated intonation, and increased repetition of words and clauses.  The best example I can remember offhand of witnessing misplaced motherese is when during his opening statement, a pompous opposing trial lawyer, explaining the problem with an industrial boiler, said (and I quote), "for you ladies on the jury, think of the boiler as a teapot.")

I think there are two interesting implications here, one about academic interdisciplinarity, on which I posted a week ago, and one on the future of law schools, which is presently a hot topic, having been addressed by Gerding, Ribstein, Gerding again, and others.  As to the first, the Pinker-Gladwell exchange suggests a continuum with polar extremes of narrow and deep academic specialization, at one end, and broad and shallow familiarity, at the other.  Both Pinker and Gladwell move toward the center of the continuum, albeit, I'd argue, from the opposite poles (Pinker trying to explain language and thought from an academic standpoint; Gladwell trying to do the same from a popular standpoint).  I think there's another place in the continuum, and that's where there's an attempt at intermediation between one narrow but deep academic specialty and another, in the hope or expectation that there is useful intellectual grist somewhere in the middle.  For example, I go back to Goedel's Proof.  Is it no more than a spectacular advance in symbolic logic, or does it have explanatory power in epistemology?   David Chalmers's view is that consciousness is an inherent part of the physical universe, down to particles (I'm not sure if that's fair, but it's close).  Roger Penrose thinks there's an explanation of consciousness somewhere in quantum theory.  And we haven't even gotten to the subject of "law and . . . "!  Louis Menand's comment once again comes to mind:  "The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms."

As to law schools training lawyers, and particularly for those of us thinking about how to educate transactional lawyers (not to mention jump-starting the development of wise judgment abilities for all lawyers), Larry Ribstein's comments strike at this same issue.   What does Larry hold up as the current state of affairs?  Pretty fairly, in my mind, that law schools teach "how to litigate and give individualized advice."  (Compare what business school teaches.)  So how do you teach a business lawyer?  Larry's on to something:  "a convergence of legal education with technology and business training;" "use disciplines such as history, psychology and economics to get potentially profitable insights into contracts and litigation;" "learn to speak the languages of the other disciplines in their firms, and these other disciplines will have to learn some law."  Joe Tomain at Cincinnati offers a CLE program to Ohio lawyers in "law and leadership" that draws on works in the humanities and history (e.g., Plato's Republic, Sophocles's Antigone; The Prince by Machiavelli); every time I mention something like that to the managing partner of a law firm, he or she immediately responds enthusiastically.

But, to quote the Ghostbusters, who ya gonna call to teach this stuff?  It has to be somebody working that line between Pinker and Gladwell - not talking in motherese, but also not shying away from dipping into other disciplines in which he or she is not "narrow but deep."

Unsupported CJA Fee Requests, and Overly-Sarky Sidley & Austin Brief

Posted by Alan Childress

Two recent posts from the Law of Criminal Defense Blog caught my eye and I share them with you below.  (This is in addition to recommending Bill's nice and provocative post here this morning on outcomes in legal education -- which btw has been picked up by the ABA Journal here [they do that to Mike's posts all the time, too] and has good comments after, including several "Go Henderson"s.).

In one post, the blog (by John Wesley Hall, Jr.) reports on "a rare look at an appeal from a denial of CJA fees appealed to the Circuit Court and applying the" circuit's written guidelines.  That court was the Ninth Circuit; it held that the trial judge's "48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation." 

I am indisputably interested in issues of federal appellate deference and standards of review, to be sure, but also what caught my eye is the decision below was by "Judge Quackenbush."  I immediately thought of Groucho's doctor-character in A Day at the Races, but that was actually Hackenbush. But my comedic instincts were not wrong.  Turns out he was originally Quackenbush but "MGM’s legal department discovered at least a dozen legitimate U.S. doctors named Quackenbush, so, for legal reasons and to Groucho’s dismay, the name was changed to Hackenbush."  More famous litigation lore, perhaps, is the Warner Brothers' rumored threat to sue the Marx Brothers for their film title A Night in Casablanca, to which Groucho wrote a letter to WB threatening to sue them for using the word “Brothers”:  “Professionally, we were brothers before they ever were.”

In another post, Hall comments on a trial judge's chastising of Sidley Austin "for dripping sarcasm in their brief."  Hall's reminder:  "You're going to win or lose without it [sarcasm], either on the facts and law or the fact the judge hates defense lawyers and defendants, and sarcasm is just unprofessional."

Hall also links to an article on lawyers AS criminal defendants, by Leslie Levin, new in the Georgetown Journal of Legal Ethics.

Outcome Measures and Regulatory Failure in Legal Education

[Posted by Bill Henderson]

Over the last few years, the topic of outcome (or output) measures has been a recurring theme at various association meetings and conferences surrounding legal education.  Some of this discussion is motivated by Department of Education initiatives that want to establish a clear linkage between educational cost and economic returns.  Some schools, however, believe that their fortunes will rise when they can be judged on three years of education (e.g., bar passage rates, employment, student satisfaction) rather than the input measures that drive the U.S. News Rankings.

It is hard to imagine a more impossible task than faculty from 190+ law schools reaching a "consensus" on outcomes measures.  Yet, consensus is not required.  The ABA Section on Legal Education and Admission to the Bar, through its authority to accredit law schools, can require law schools to measure, collect, and report information that the Section determines is in the public interest.   In 2007, the Section created a "Special Committee on Output Measures" and asked it to "define appropriate output measures and make specific recommendations as to whether the Section should adopt those measures a part of the [Accreditation] Standards."

So what happened?  The Special Committee's 76-page single-spaced Final Report, issued in July 2008, made little headway in defining output measures or making specific recommendation regarding accreditation. In a nutshell, the Committee recommended that the Standards be amended so that each law school would be free to define and measure its own outcomes.  In theory, these new Standards could be given teeth by the rigor of the outcome measures (or lack thereof) embodied in a school's self-study report and strategic plan (two processes already required under the accreditation process).  This excerpt from the Final Report puts the best possible spin on the Committee's recommendation:

[A]n approach that accords significant independence to law schools would make it possible for the schools to serve as laboratories for innovation and systemic improvement. ... As law schools experiment with various models of their own choosing, the data these schools generate will inform other schools' experiments and will provide a basis for fine-tuning models for instruction and evaluation. At some point in the future, it may be the case that our understanding of outcome measures has progressed so far, and that certain views have become so widely held, that the ABA Section of Legal Education and Admissions to the Bar will be in a position to demand greater specificity in the criteria in the [Accreditation] Standards and/or Interpretations. But, at least at the present time, the Committee believes that in drafting Standards and Interpretations, it is best to give law schools the latitude to experiment with a wide range of models.

When we step back, it is hard to believe that this thousand-flowers-bloom approach is the tack taken by the regulator charged with overseeing legal education.  To paraphrase the above passage, it says "do what you want to do, but try a little harder.  When something works well, and most schools adopt it, the Section can implement it as the new rule.  That way we can avoid difficult decisions that will upset our friends."

In truth, the Committee's approach turns the purpose of outcome measures on its head.  In the broader discussion in higher education, outcome measures are sought because they enable an apples-to-apples assessment of the effectiveness of an educational institution.  Indeed, the entire process is meant to facilitate comparisons.  Why? Because meaningful comparative information levels the playing field between those providing education (the schools) and those financing it (the students/citiizens). When outcome information is readily available, it changes behavior and alters powerful norms, including over-reliance on US News.  In the absence of apples-to-apples outcome information, the market adapts as it does now--by focusing on the basis of inputs (revenues, books, number of faculty, LSAT scores, UGPA, etc.).  It is the opaqueness of legal education that creates a vacuum needed for the US News rankings, which are nearly perfectly correlated with student entering credentials.

The Committee shrinks from the task of defining specific, comparable outcomes because it knows (at least implicitly or subconsciously) that the very process of creating meaningful outputs creates a large number of winners and losers among law schools.   Yet, by refusing to act as regulator that serves the public interest, the ABA Section on Legal Education and Admission to the Bar makes law schools the winner and law students the losers. 

If we evaluate outcome measures from the perspective of law students rather than law schools, there are at least three pieces of information that the Section should collect and publish annually in a format that facilitates school-to-school comparisons:

1. Bar Passage.  Working in conjunction with the Law School Admissions Council (LSAC) and the National Conference of Bar Examiners (NCBE), the Section should construct a database that compares scores on the Multistate Bar Exam after controlling for entering credentials, jurisdiction, and law school attended.  Preliminary evidence suggests large variations--above and beyond entering credentials--in law schools' ability to get their students over the bar exam hurdle. See Henderson Letter to Special Committee (January 30, 2008).  This information is crucial to diversifying the bar because minority students historically have significantly lower bar passage rates. Both educators and students need to know which schools are most effective at erasing this gap.  Principled objections to the bar exam as an outcome (so often voiced by professors) need to be squared with the practical realities faced by students.


2. Employment Outcomes.  How many graduates are working in non-legal settings?  What are the salary ranges and distributions within legal and non-legal practice settings? Is there any evidence that some schools have better placement records as a result of curricular initiatives?  Remarkably, no one in legal education knows the answers to these questions. Schools should be required to submit a list of the employers and job titles for all of its graduates, and the Section should then code and compile these lists in a way that reveals the full range of outcomes, thus enabling meaningful school-to-school comparisons.  The lists themselves need not be published; the binning process would capture the useful information while also ensuring student anonymity.  There is a high probability that the current ABA coding system (e.g., "academia", "business") contains outcomes that make $120K in legal education look like a bad investment.  The Section should follow up with these graduates to better understand their circumstances, including the decision-making process that the graduates relied upon.


3. Debt Loads.  Because of the scholarship process used by virtually all law students, tuition is a misleading indicator of law school cost.  Debt is a more accurate measure.  But means and medians are not enough; students need to see full distributions. Specifically, they should have access to a histogram of a school's debt loads at graduation. And not just law school debt, but also total educational debt and consumer debt.

If the Section focused on the above approach, they will not need to develop the thousand-flowers-bloom approach embodied in the Special Committee's Final Report.  In a market will better information, law schools will find and leverage their own competitive advantage in order to survive--and let's be honest, some schools won't.  From a societal perspective that is okay.  The Section on Legal Education and Admission to the Bar needs to wake up to the fact that is is regulator with a fiduciary responsibility to law students, not law schools.

Louis Menand on the Marketplace of Ideas

Posted by Jeff Lipshaw

I've just pre-ordered a copy of Louis Menand's new book The Marketplace of Ideas, part of the "Issues of our Time" series edited by Henry Louis Gates, Jr., based on the taste I got from the excerpt in the November-December 2009 issue of Harvard Magazine (the alumni journal - I am not an alum, but I am married to one, and it keeps me humble - she left the article lying on my desk ).  Menand is the Bass professor of English at Harvard, and the author of the thoroughly engaging intellectual history The Metaphysical Club, about the Boston "reading group" consisting of Charles Sanders Peirce, Oliver Wendell Holmes, Jr., William James, etc.  The excerpt is about the "Ph.D." problem in the humanities, and does this sound familiar on the subject of legal academics, primarily motivated by their scholarship, teaching professionals-to-be who could care less about those arcanities?

Doctoral education is the horse that the university is riding to the mall. People are taught—more accurately, people are socialized, since the process selects for other attributes in addition to scholarly ability—to become expert in a field of specialized study; and then, at the end of a long, expensive, and highly single-minded process of credentialization, they are asked to perform tasks for which they have had no training whatsoever: to teach their fields to non-specialists, to connect what they teach to issues that students are likely to confront in the world outside the university, to be interdisciplinary, to write for a general audience, to justify their work to people outside their discipline and outside the academy. If we want professors to be better at these things, then we ought to train them differently.

And on the subject of intellectual regeneration and foment:

The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms. And the gap between inside and outside academia, which is partly created by the self-sorting, increases the hostility of the non-academic world toward what goes on in university departments, especially in the humanities.

The wonderful irony here is that one of the suggestions is that getting a Ph.D. be more akin to getting a J.D., with the requirement of passage not a pre-publication dissertation, but a peer-reviewed article! Which, of course, is exactly the opposite of the direction often advocated for legal academics!

In any case, food for thought!