Tuesday, March 10, 2009

Ribstein & Lipshaw's New Unincorporated Business Association Casebook

Posted by Jeff Lipshaw

Attention law professors who are going to be teaching a course called anything like "Unincorporated Business Associations," or "Agency and Partnership" or "Partnerships and LLCs"!  Larry Ribstein (Illinois, left) and I are in the final stages of preparing our Unincorporated Business Associations, 4th Edition for Ribstein publication in May.  The Teacher's Guide should also be available shortly thereafter.  Rather than re-invent the wheel, I'm simply going to quote from the letter LexisNexis will be sending out: 

Like its predecessors, the new edition of Unincorporated Business Associations takes a business planning approach to teaching the modern law of partnerships and other unincorporated firms.  In the five years since the Third Edition, the proliferation of unincorporated business forms has outgrown the scope of the traditional three-credit "Business Associations" or "Corporations" course.  Today's business lawyers are likely to be called upon to organize limited liability companies rather than closely held corporations, or to advise clients forming privately or public held investment partnerships.   Practice in this area involves not just a thorough grounding in the default rules of partnership and "uncorporate" forms of limited liability firms, but an understanding how lawyers customize the statutory standard business forms to match the needs of the business clients.   The traditional business law curriculum has not adequately covered those skills, and Professors Ribstein and Lipshaw designed Unincorporated Business Associations to fill the gap.

Significant changes to the Fourth Edition of Unincorporated Business Associations include:

• The material on LLCs has largely been rewritten, reflecting the rapid development in this form over the last several years.   The chapter contains sixteen new problems, ranging from issues of form selection, management, limited liability, transferability of interests, to dissolution and merger.

• Each chapter contains new and updated notes and problems that provide a "hands-on" approach to the consequences of, and planning and drafting for, issues in agency, partnership, limited partnerships, LLCs, and limited liability partnerships. The problems also draw together materials from disparate areas of the law, including tax, bankruptcy, securities, and employment discrimination, involved in business planning.

• The first chapter introduces teachers and students to several realistic business situations that continue through the book.

• The materials on partners' financial rights now includes a short primer on financial accounting, designed to teach students with no other grounding in the subject enough about the very basics to understand legal issues touching on capital accounts in unincorporated business associations.

• The Teacher's Guide is almost six-fold expanded from previous versions.  It contains approaches to organizing classes, synopses of all the cases, lecture outlines, proposed questions and answers, discussions of answers to all the problems, diagrams of the complex cases, and flow charts of complex statutory analysis in areas like partnership dissolution and winding up.   There are proposed syllabi for two-, three-, and four-credit courses.  Reflecting new thoughts in classroom pedagogy, the manual also includes three big interactive problems, in which students get asymmetric information about business goals and are asked to craft legal solutions.

• Professors Ribstein and Lipshaw will maintain a website from which the Teacher's Guide materials (including animated versions of the slides and flow charts) and other classroom aids will be available for download.

The advance page proofs for the Fourth Edition of Unincorporated Business Associations will be available in April. Please contact Sean Caldwell (sean.m.caldwell@lexisnexis.com / 513-721-2506) to request access to the advance page proofs.

March 10, 2009 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (1)

Tuesday, February 24, 2009

Larry Solum's Magnificent Entry-Level Hiring Data Base

Larry Solum (Illinois) has posted his annual request for information on entry-level hiring.  He's gone mega-sophisticated with a Survey Monkey form.  Very cool.  [Jeff Lipshaw] 

February 24, 2009 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2009

Some Real-World Pedagogy for Agency Law and Other Social Disabilities Arising Out of "Thinking Like a Lawyer"

Posted by Jeff Lipshaw

In an effort to demonstrate what "thinking like a lawyer" means (for better but, more likely, for far worse) to my agency, partnership, and LLC class, I sent the following e-mail today:

I don't usually obsess on matters of legal doctrine, but I noticed a couple of things this morning relevant to our class.

My dogs wake me up early (like 5:00 a.m.) so I'm up and out before a lot of people.  I was in the car at 6:35 a.m. to drop my shirts off at the cleaners and to get a Starbucks.  The Zoots at the Porter Square shopping mall opens at 7 a.m., but for registered customers like me it has a drop-off bin with a combination lock.  When I pulled up this morning, the store was 21792912thb dark, but there was a young guy sitting on the bench outside the store smoking a cigarette.  He was wearing the trademark purple Zoots jacket with a Zoots insignia on it.  I thought he was an employee waiting for someone to show up with a key to let him in.  I said, "Are you waiting for Zoots?"  He replied, "I am Zoots."  So instead of walking ten feet over to the drop-off bin, I handed him my purple bag.  He said, "Is Sunday after 5 okay?"  I said, "Yes."  Then I got in the car and drove off.

As I was leaving, I thought to myself, "What a great scam!  If you sit out here with a Zoots jacket, you can steal as much clothing as people are willing to leave with you."  Let's assume he had not been a Zoots employee, but he stole my shirts.  Under what circumstances would I have a claim against Zoots?  Think about this doctrinally (apparent authority and inherent agency power) as well as from a policy standpoint.  It may be one of those instances in which even the "least cost avoider" issue is puzzling.  If it really was a Zoots jacket (and it looked like one), maybe Zoots is the least cost avoider because it can control who gets its jackets, and thereby avoid the deception.  On the other hand, I could have, at some minimal cost of social embarrassment, said to the fellow, "I am a certified paranoid person (otherwise known as a law professor) who cannot confirm that you are indeed an agent of the principal Zoots, and therefore am questioning whether my assumption you are indeed an agent is reasonable.  Since I can avoid any issue merely by walking over to the drop-off bin and putting the bag in it, I may be the least cost avoider in this situation.  So pardon me if I seem to be a rude and untrusting doofus, but I'm throwing the bag in the bin."

This would be a variant on another clever scam I witnessed many years ago in Detroit.  The old Tiger Stadium in Detroit (now razed) was in a neighborhood called Corktown.  I think it was a lot like Fenway Park in that there was no official parking.  The area, unlike the Kenmore Square area, however, was a mix of single-family homes and warehouses, and the warehouses all had large parking lots.  So there were some private parking lots, and a lot of people made money parking cars in their yards.  If you were willing to walk a little, however, you could park in one of the warehouse parking lots if it was unlocked.    Some kids had the great idea of finding one of these lots, and painting a sign:  "Parking Easy In and Out $2.00" which was far lower than the going rate.  They hung out for about an hour before the game, collected $50 or $100 from the dupes, and then took off.  Now, if something happened to your car and you made a claim against the warehouse company, would it stand up? 

My intuition tells me there's a good agency claim in case #1 but not in case #2.

The litigation variant of the effect of being a lawyer on one's ability to act like a normal human being arose back when I was a litigator (through the 1980s).  I'd come home after a day of taking depositions and at least through dinner and well into the evening my conversation consisted of a series of staccato questions to my wife along the following lines: 

"So you went shopping today."

"What did you buy?"

"Is that all?"

"Anything else?"

"Anything else?"

"Anything else?"

"Now, let's go back to the first thing you bought. . . ."

(Clipart courtesy of clipart.com (c) 2009 www.clipart.com)

February 5, 2009 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (0)

Thursday, January 15, 2009

How to Teach the Difference Between Restatement of Agency 2d §8 and Restatement of Agency 3d §2.03 in Limerick Form

Posted by Jeff Lipshaw

On the question who must cause appearance,
Say classical doctrine adherents,
"The principals do it;
That's how we construe it,
At the cost of some real world coherence!"

January 15, 2009 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Sunday, December 7, 2008

Beyond IRAC: Law School Exam Taking Tips

Posted by Jeff Lipshaw

It's that time of year when law school professors (including me) procrastinate and whine about grading, even though it's one of the few burdens that fall upon us in our privileged lives.  I thought I would procrastinate in a useful way as I make my way through another round of bluebooks.  Here are some tips that go beyond the old IRAC/TREAC saws (even though thar's truth in them thar saws!):

1.  When the professor tells you how much each question is worth, take it seriously!  In particular, there is a tendency to devote disproportionately too much time to small questions at the beginning, sort of like going out too fast in the first mile of a 10K race.  For example, I always assign 180 points to my three hour exams, so that the points roughly equal the amount of time to be devoted.  If the first contracts law question has only 10 points assigned, it's unlikely the professor has in mind that you write the history of consideration law since the days of assumpsit - take a minute to figure out what the most obvious point of the question is, and write for 10, not 30, minutes on it.

2.  When the professor asks you to consider the claims plaintiff may make against a list of potential defendants, put yourself in the shoes of the the plaintiff, and again, start with the most obvious and work your way to the more subtle.  The reason is that you pick up more issues this way.  What I see a lot is students picking up on the most obvious issue that springs from the facts, say, a piercing the corporate veil issue to get to the shareholders, jump right to it and forget to discuss what claims the plaintiff has against the corporation itself, thus missing a chunk of possible points.  Again, put yourself in the position of the plaintiff.  Who do I sue first most obviously?  Where are the issues in that?  Then who else do I go after?

3.  Don't try to be funny.  Trust me.  Even though my class is one-part stand-up comedy to two parts substance, I get no comic relief from witticisms (even your repeating my own) in the exam.  It doesn't hurt you; it just wastes your valuable time.

4.  Organize, organize, organize.  You wouldn't believe the advantage that comes from having the issues separated by paragraph headings or outline notation.  Chances are that the professor has a sample answer or outline split up into issues.  Even you don't write your answer in the same order, having the issues split out lets us see clearly what you got and what you didn't.  (This, of course, assumes you have something relevant to say.  They say in practice: when you have the law, argue the law; when you have the facts, let them speak, and when you have neither, pound on the table.  The exam analog would be:  (1) when you know the material, show it; (2) if you have style, use it; and (3) if you have neither, puke all over the bluebook.)

Where I notice this particularly is in big "issue-spotter" questions with complex facts in the second half of the exam, when students are already tired.  This is where you really want to suck it up and resist your impulse to blow chunks all over the page.  Instead, take a deep breath.  Slow down for a couple minutes and write an outline of the answer in the margin before digging in.

5.  For God's sake, if you have terrible handwriting, invest in a Mavis Beacon typing course.  The reality is that grading is very much art surrounded by a patina of science.  By and large, a couple points on the exam here and there won't make a big difference.  I feel very, very confident that my exams create a representative continuum.  But there are arbitrary calls at the margins, particularly when you have to turn numerical scores into letter grades.  Why let that go against you because the professor got frustrated trying to make sense of a test that looks like Linear A or Hammurabi's Code in the original cuneiform?  (To be clear, I have no prejudice against handwritten exams; I have given just as many As on handwritten as typed and I've seen typed exams that look like the old "12 monkeys will eventually type the Encyclopaedia Brittanica" story.  But it's far more common to have unintelligible handwriting than unintelligible typing.)

Well, back to the salt mine.

P.S.:  If it makes any of my students feel better, I have had the recurring dream every night this week in which it is now the end of the semester, the exam is coming up, and I realize that I have never prepared for or gone to the advanced math class that meets on Mondays at 10:00 a.m.

P.P.S.:  Question for ABA Journal - Is this an example of slipping off topic?

December 7, 2008 in Teaching & Curriculum | Permalink | Comments (10) | TrackBack (1)

Saturday, December 6, 2008

Well, Yeah...

Teacher sorry for binding girls' hands, feet in slavery lesson
                             --Yahoo! News headline this morning

Number of times in teaching Torts that a very young Childress answered a 1L's question about the difference between assault and battery with a physical demonstration:  One.  Explaining myself to the dean:  priceless.  [Alan Childress]

December 6, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2008

Not Every Trackback We Are Asked To 'Publish' Is Reputable

" Free Networking Digree Online Course " :   I deleted this one.  This is worse than those blogs on capital punishment that had used Google AdSense and suddenly found they were advertising lots of mobility scooters (electric chairs).  [Alan Childress]

December 5, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2008

Nice Things About Mickey Maurer

Posted by Jeff Lipshaw

Bill Henderson and others have reported on Mickey Maurer's $35 million naming gift to the eponymous Maurer School of Law at IU-Bloomington.

I taught a class on Entrepreneurship and the Law at the IU School of Law - Indianapolis while I was still the general counsel at Great Lakes Chemical (spring 2005).  I cold-called Mickey Maurer (we had several mutual friends but had never met each other), then the director of the Indiana Economic Development Corporation (appointed by the then new Governor Mitch Daniels), and asked him if he would be willing to talk to my eight-person class for a couple hours about what it was like to be an entrepreneur.

He got back to me with a "that sounds like fun," showed up at the appointed hour, spoke to the students about his experience starting up the Bank of Indianapolis, and took questions with all of the energy and down-to-earth good sense and enthusiasm for which he is beloved in Indianapolis.

He is also a crossword constructor, and has contributed puzzles to Will Shortz that have been published in the New York Times, including one that is in Shortz's book of best ever NYT puzzles.

December 4, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2008

Help Wanted at the Wharton School

Wharton [Posted by Bill Henderson]

My good friend David Zaring alerted me to these job postings in the Legal Studies and Business Ethics Department at The Wharton School:

December 2, 2008 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (0)

Friday, November 21, 2008

Stanford Announces Fellowship In Professional Responsibility and the Legal Profession (Deadline 12/1/08)

Posted by Alan Childress
Prof. G. Randall Lee at Widener, on behalf of the AALS Section on Professional Responsibility, forwarded to members this interesting announcement, and has said we could reprint it here at LPB:

Stanford Law School’s Center on the Legal Profession invites Fellowship applications for the forthcoming academic year (2009-2010).   

The Center

The Center on the Legal Profession, directed by Professor Deborah L. Rhode, supports research, teaching, programs, and public policy initiatives on crucial issues facing the bar. The Center focuses on issues of professional responsibility and the structure of legal practice. Central concerns include how to enhance access to justice, sustain ethical values, improve bar regulatory structures, and effectively respond to the changing dynamics of legal workplaces.  Upcoming Center events include The Roadmap to Justice Project, a national effort to draw leaders in the field to develop an agenda for expanding access to legal services for low- and middle-income individuals, and the International Legal Ethics Conference in 2010.

The Fellowship

The Center on the Legal Profession Fellowship is a full-time, one-year residential fellowship beginning in June 2009.  It is designed to offer scholars interested in topics of professional responsibility and the structure of legal practice an opportunity to conduct research and participate in law school events. Fellows will be provided with office space, a stipend of $50,000, and a generous benefits package. 

All inquires about the program and applications should be submitted by December 1, 2008 to:

Amanda Packel, Associate Director, Center on the Legal Profession

Stanford Law School  559 Nathan Abbott Way  Stanford, California 94305-8610

apackel@stanford.edu -- Tel (650) 736-9770  Fax (650) 721-5537

November 21, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Sunday, November 16, 2008

New 10th Edition of Morgan & Rotunda Available for Spring

I got an email stating that the new edition of the problems casebook by Tom Morgan (GW) and Ronald Rotunda (now at Chapman) is now available for spring 09 adoption, via this link.

I also wanted to mention that John Dzienkowski (Texas) has an excellent Sum & Substance audioCD summing up the course.  (John is also one of the founders of Legal Ethics Forum.)

[Alan Childress]

November 16, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2008

New Edition Announced For Crystal's PR Casebook

Just out by Aspen Publishers is the problems casebook by Nathan Crystal of the University of South Crystal4eauthwebcoverCarolina, entitled Professional Responsibility: Problems of Practice and the Profession, Fourth Edition, 2008.   Its link here.  Here is part of the blurb:  "this concise problem-based casebook continues to offer students the opportunity to hone their judgment skills and to develop a philosophy of lawyering that can become a credo for dealing with the hard ethical issues that are part of their chosen profession."

[Alan Childress]

October 23, 2008 in Teaching & Curriculum | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 22, 2008

Musings by Real Students on the MPRE

This is a follow-up to our April posts here and here on the statistical info behind passing the MPRE (minimum passing score, average score, standard deviation, etc.) and Jeff's own musings about coming out of ethical hiatus to take the exam as a certified AARP member (and his commendable result). Now consider this student blog's post and reader comments on the recent August 8, 2008 exam administration, studying for it, and sweating out the results.  Those who blogged it out seemed to agree the questions were nearly incomprehensible, but they inexplicably passed anyway.  The students did not address Jeff's most acute piece of advice:  "#13.  Don't drink a Venti Starbucks thirty minutes before you start the exam."

Consider also this older epinions post and comments, Advice on How to Pass the MPRE from Someone Who Just Did Last Month.  Another student wrote, a year ago, that the exam prep needed more than she was led to believe:  friends "simply reviewed the material the day before the exam. To quote my dear friend Mirenda aka Ma Henny, 'Whatevva Hunney'."  As Mike has written, one point shy is not enough. The official NCBE exam website is here.

[Alan Childress]

October 22, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2008

Aspen Announces New Edition of Wolfman et al. on Tax Ethics

Here is a link to the new 4th edition of Ethical Problems in Federal Tax Practice, by Bernard Wolfman, Deborah Schenk, and Diane Ring.  The latter, from Boston College, is a new addition.  [Alan Childress]

September 22, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

If you measure time in semesters, not years, NYTimes has a good essay

The beauty, humor, and frustration of university teaching, as years fly by, is nicely captured in math prof Manil Suri's "X = 50 Semesters." It is part of the NY Times Sunday Magazine's roundup of education (in which legal education is underexamined).  Hat Tip to Devan Desai in his concurring opinions post on the magazine issue.  [Alan Childress]

September 22, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2008

If Yale is #1 in U.S. News, Is It the Best Law School?

[by Bill Henderson, crossposted to ELS Blog]

In a provocative post entitled "Is the End Near for Yale's Dominance", Brian Leiter reports one insider's assessment that Yale may lose three or four additional faculty members.  If that happens, surely Harvard, with its recent lateral hiring sprees, will be the best law school in the country--right? Brian thinks that predictions of Yale's decline are premature.  I agee.  But in the process Brian implicitly highlights an interesting problem: what exactly does it mean to be the "best" law school? 

Here are the vexing facts:  on a per capital basis, Yale places more people in academia and Supreme Court clerkships than any other law school;  Yale's acceptance rate is 7.3% versus 11.8% for Harvard; yet, over the last decade, the average U.S. News academic reputation score for the two schools are exactly--yes, exactly--equal: 4.840 for Harvard, 4.840 for Yale. 

Is it possible that Yale is #1 because, well, Yale is #1 -- and has been every year since USN began publication?  Brian refers to U.S. News "small school bias".  He is right.  Because of Yale's massive endowment and small student size, it enjoys a per-pupil expenditure that is roughly 1/3 its total tuition price.  According to a simulation model of the 2008 U.S. News rankings, which Andy Morriss and I recently constructed, Harvard would not overtake Yale even if: 

  • Harvard's median LSAT climbed to 180 and its median UGPA hit 4.0;
  • Harvard's academic and lawyer-judge reputation scores were both a perfect 5.0;
  • Harvard's acceptance rate plunged to less than 5%.

In fact, even with these changes, Yale would still have a nice leadership cushion.  [Note:  Similar anomalous math was noted by Ted Seto in his classic essay, Understanding the U.S. News Law School Rankings, SMU L Rev (2007).]

Yet, Yale's dominance keeps things simple.  Applicants signal their elite status by enrolling at Yale.  Judges, in turn, derive prestige by hiring Yale graduates, even though they mockingly complain that Yale clerks know very little law.  And faculty favor Yale graduates because it validates our own sense of eliteness and institutional upward movement.  We can rationalize Yale's dominance in terms of scholarship, but the real endgame is the allocation of positional goods.  It is so easy to get too caught up on the hamster wheel of envy and prestige without realizing that the energy expended does not necessarily produce anything of lasting social value.

Of course, each of us is free to determine our own merit criteria. I think  the "best" law school is the one where faculty are willing to make inordinate personal sacrifices for the benefit of the collective enterprise--and where aspiring lawyers leave the law school skilled, confident, ethical, and ensconced in a powerful professional network that opens doors and values public service.  In turn, alumnus are sufficiently grateful for the transformative experience they received that they are willing to underwrite the law school's mission and subsidize this opportunity for future generations.  This vision requires a greater focus on internal rather than external metrics.  For us human beings, that is no easy trick.

September 1, 2008 in Teaching & Curriculum | Permalink | Comments (3) | TrackBack (0)

Friday, August 22, 2008

Conference Announcement: Using Empirical Data in Jury Trials

Posted by Jeff Lipshaw

My colleague and suite-mate, Mike Rustad, is co-chairing "Successful Strategies for Jury Trials," a day-longVidmarn conference to be held at the Suffolk University Law School here in the heart of downtown Boston on Friday, V_hans October 24, 2008.  The panels will include state and federal judges, distinguished trial lawyers, and two of the leading academics in jury research, Professor Valerie Hans (left) of the Cornell Law School, and Neil Vidmar (right) of the Duke Law School.  Take a look at the brochure:  the topics will include how to conduct pretrial jury management in light of empirical research, the best trial strategies, insights into how juries make decisions, how juries perceive experts, and the role of jury consultants.

Highly recommended.  Enroll while it's hot!

August 22, 2008 in CLE, Conferences & Symposia, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2008

Playbook for Institution Building

[posted by Bill Henderson]

With all the discussion we have been having on institution building (Henderson, Lipshaw I, Chen, Madison, Caron, Smith, Lipshaw II, and Ribstein), it should not go unnoticed that one of the truly great deans of our generation, Richard Matasar (New York Law School), has posted his entire playbook on SSRN, entitled "Defining our Responsibilities:  Becoming Academic Fiduciaries." 

Two of Rick's most recent accomplishments are selling his school's "air rights" in the Tribeca neighborhood of Manhattan, which financed a new building and created a large NYLS endowment, and implementation of a data-driven curriculum over the last five years that resulted in a 2007 NY first-time bar passage rate of 90.2%, which is 1 point below Cornell and 1 point above Fordham. See this NYLJ story

Incidentally, Rick's article is in the same volume of Law & Contemporary Issues as Clayton Gillette's "Law School Faculty as Free Agents" essay.

August 15, 2008 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (1)

Joy, Inspiration, Leadership, and Free Agency

Posted by Jeff Lipshaw

Gordon Smith has jumped
into the fray Bill Henderson created with his deft analysis of the "faculty free agency" issue, since added to by Jim Chen, Mike Madison and Paul CaronGordon's focus was on the need to create a sense of of intrinsic value or joy within an institution.  (Aside:  my own joy right now has a lot to do with the fact that Bill Henderson is a co-editor of this blog!)  That was a conclusion I reached, perhaps not as articulately, in a response to Bill's comment on my deconstruction of incentives a couple days ago.  But it is buried in the comments, so with the magic of technology and a bit of editing I'm going to repeat it here.

I love Bill's aspiration to create a mission beyond self-interest within a faculty. The wonderful thing about his is this: "an initiative that will add value for students and the institution--e.g., creating skills, building relationship, solving real world problems, etc."  So the question is how translate great faculty accomplishments (like the one Bill describes Andy Morriss undertook in Cleveland).  The task is to have those accomplishments be seen as capital, and then to do what we can to make them school-specific.

So the way to create school-specific capital is to have evaluators (students, alumni, other faculty) value it as such, and to keep people around long enough to get the programs institutionalized. My point is not to throw cold water on the aspiration, but to suggest: (a) doing that is really aspirational (read: difficult but not impossible); (b) the task is difficult (but not impossible) even where, unlike in law schools, there is a unifying metric (that's the only reason for distinguishing a complex business), and (c) in my experience, contracts are not motivators, they merely legalize a more, how shall we say, emotional commitment.

I truly believe that what inspires people to great performance is a sense of mission, purpose, creation, posterity, whatever, and contracts or other legal or rule-based commitments are the tail of that dog. Cool. Do five year contracts or commitments. But do it within an institution marked by inspired and inspiring leadership.

August 15, 2008 in Hot Topics, Law Firms, Teaching & Curriculum | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 13, 2008

Law Professor Free Agency and "School-Specific" Capital

[posted by Bill Henderson, cross-posted to ELS Blog]

[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post.  There seems to be some misunderstanding on my point of "long-term contracts."  In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts. 

I am talking about this:  Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]."  Law School Y says, "I love this idea.  If you are right, it will grow our institution.  Because you have committed to building it here, School Y will fund it."  Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision. 

So we are talking about communitarian norms here.  This type of approach is easy in small groups, which is what law faculty are.  Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership.  On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage. Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands.  Thus, in the legal academy, the free agent ethos is damn near ubiquitous.

No need to be abstract about all this.  I lay out a highly plausible counteractive approach in this comment.]

Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008).  See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda.  Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results.   I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.

Law Professor Free Agency

In a nutshell, here is Gillette's argument.  The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good.  Teaching and service, to be sure, are relevant goods, but they are hard to measure.   Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors).  Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring.  Clayton observes,

In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ... 

[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)

Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity:  Some costs potentially get externalized onto the students, alumni and law school administrators.   When  scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.

To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level.  Listeners interested in the merits of this debate should weigh the critic's potential bias.]   It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools.  See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006).  We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.

But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement.  And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.

"School-Specific" Capital

Gillette actually understates his argument.  Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions.   One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves.   So more free agency suggests fewer law schools that transform good human capital into great human capital.  On this score, the "best" law schools can, in fact, be pretty mediocre.   (I believe there is a way out of this box, which I will address below.)

More after the jump. ...

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August 13, 2008 in Hiring, Law Firms, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)