Saturday, November 24, 2012
Failing Law Schools -- Brian Tamanaha's Misguided Missile by Philip G. Schrag.
Professor Brian Tamanaha’s book, Failing Law Schools, usefully collects in one place the recent critiques of law schools for reacting excessively to U.S. News rankings, manipulating admissions data, spending excessive amounts of money to hire “star” professors and to circulate glossy brochures and magazines, and in some cases, falsifying graduates’ employment statistics. But Tamanaha’s main argument is that law school has become unaffordable for most applicants, because it will saddle them with debt that they cannot afford to repay on the incomes that they can reasonably expect. His thesis is based on a misunderstanding of student loan repayment methods. In particular, he erroneously assumes that the only proper way to repay student loans is through so-called “standard” repayment (over a ten year period). Actually, many law graduates will find typically law school debt manageable if they repay federal student loans through income-based repayment plans, particularly the new Pay As You Earn (PAYE) plan. Tamanaha disparages income-based repayment, however, because he incorrectly believes that total debt, rather than the ratio of current repayment obligations to current income, primarily determines a borrower’s credit-worthiness for mortgages and other large loans.
Based on his belief that law school is no longer affordable for most students, Tamanaha offers several radical proposals, such as amending accreditation standards to permit a two-tier system, in which only a few expensive law schools would continue as research institutions offering three-year degrees, while most would offer law degrees after two years of classroom study and a year of some sort of lightly-supervised apprenticeship. He would also do away with the standard that requires schools to put most faculty members on tenure tracks and to support faculty research. This review essay questions the need for those far-reaching changes in legal education and concludes with the suggestion that Tamanaha focus his considerable critical skills on the problems not of law students, but of lower-income clients who are unable to obtain the legal services that they need.
By Dean Donald J. Polden (Santa Clara) published at 52 Santa Clara L. Rev. 899 (2012) as part of Santa Clara's recent symposium on "Leadership Education for Lawyers and Law Students." From the introduction:
Leadership matters. In nearly every aspect of public and private life, the ability to inspire others to work towards positive and ethical change is critical to the success of organizations, businesses and communities, and other groups. Leadership also is critical to the success of our political and governmental institutions because people want to believe in the ability of their leaders to guide change and achieve success. The same is true for lawyers whether in private law practice, government service, work with nonprofit entities or other areas where lawyers use their skills and knowledge. Leadership involves skills and competencies that are essential for success in the practice of law and in other occupations and callings that lawyers fulfill. It is therefore surprising that leadership is not taught in most American law schools and that only a few, but visionary, law firms are developing leadership skills in their lawyers in a systematic way. What accounts for this gap between the skills necessary for success in a client-service and value-driven profession and the educational objectives of both the professional education and practice regimes?
The main theme of the Article is why leadership skills are important for today's lawyers, especially lawyers beginning their careers in law firms and other law practice settings. This Article attempts to explain the reasons for the gap between what the legal profession values with respect to leadership competencies and what law school graduates are being taught, and, more importantly, to fill those gaps by articulating a more robust case for leadership education for the legal profession. Without question, there is growing interest in the development of leadership skills in law schools and in law practice settings and this trend toward greater leadership education is described in the Article. This Article describes how leadership skills are being built into the performance expectations at some leading law firms as they attempt to develop and strengthen their associate level talent.
Part I begins by describing the importance of leadership education for lawyers and other professionals. This description includes a working definition of leadership abilities that lawyers and law students should be taught and be able to demonstrate. Part II provides a definition of leadership by lawyers and Part III identifies and describes several leadership models and theories and explains their applicability to lawyers in the service of clients. Then, Part IV attempts to “unbundle” leadership by examining various competencies subsumed within the skill of leadership and several useful approaches to understanding the fundamental attributes of leaders. Part V then examines these competences in the specific context of lawyers and demonstrates that leadership education for lawyers is achievable and desirable. The legal profession and certainly the well being of lawyers' clients are advanced by the broader and more systematic education of lawyers for leadership roles and responsibilities. This Article argues that the development of leadership skills is desirable in many walks of American life and that these abilities are critical to the success of our organizations and institutions--commercial, non-profit, governmental, and others. Further, it develops a workable definition of leadership that is particularly applicable to the roles and responsibilities of lawyers in our communities and in their work with clients.
From the ABA Journal online (excerpts):
Fifty-one percent of law schools have cut the size of their entering class, and 63 percent say the reason was the poor job market, according to a new survey.
The numbers are likely to swell; 28 percent of the law schools that haven’t cut enrollment are planning to do so for the current applications cycle, according to the survey by Kaplan Test Prep. Admissions officers from 123 ABA-accredited law schools responded to the survey.
• 68 percent of law schools have already revamped their curriculum to make their students more “practice ready.”
• 47 percent of law schools have increased the amount of financial aid for students in the 2012-2013 cycle.
The Faculty Lounge has noted that law school class sizes are shrinking, along with the number of students taking the Law School Admission Test. The number of students taking the October 2012 LSAT was down more than 16 percent from October 2011, the blog says.
Friday, November 23, 2012
Each Year, the American Dialect Society picks a “word of the year”:
Word of the Year is interpreted in its broader sense as “vocabulary item”-not just words but phrases. The words or phrases do not have to be brand-new, but they have to be newly prominent or notable in the past year.
You can nominate the word for the year 2011 here. For purposes of guidance, here are the words of the year for the past several years:
" Expanding the Lawyers' Toolkit of Skills and Competencies: Synthesizing Leadership, Professionalism, Emotional Intelligence, Conflict Resolution, and Comprehensive Law."
This is a new "legal skills" related article by Professor Susan Daicoff (Florida Coastal) and available at 52 Santa Clara L. Rev. 795 (2012). From the introduction:
The legal profession is in the midst of rapid and dramatic change, fueled by longstanding dissatisfaction within and without the profession, and inflamed by the economic recession beginning around 2007. Changes in the profession are propelling or reflecting concomitant changes in legal education. Lawyers may no longer be able to rely simply on excellent legal analysis and advocacy, written and oral communication skills, trial skills and traditional pre-litigation negotiation and settlement skills. Clients want more legal work for less cost. Law school applications have declined and unemployment among lawyers is a concern. In efforts to cut costs, clients are hiring auditors to oversee and audit their counsel's legal bills, and using in-house counsel, paralegals, or even nonlawyers to do their legal work. Court dockets are clogged to the point of inaccessibility and yet many parties still lack access to lawyers. The legal profession is rife with commentary exploring how to be more marketable in the law profession of the future given the rapid changes fostered by technological advances, disruptive concepts and strategies, the need for sustainability, and outsourcing. Law schools are under fire for providing students with unsatisfactory returns on investment, when students compare their employment prospects with the cost of legal education. A reevaluation of the competencies needed to be a twenty-first century lawyer thus seems appropriate. Some assert that it is time to decisively redefine both the role of the lawyer and the content of legal education.
Law firms are experimenting with different interviewing methods and processes, including performance-based tasks and simulations. Law schools are placing a greater emphasis on bar passage results and teaching lawyering skills, rather than limiting classes to the acquisition of doctrinal knowledge and traditional lawyering skills. Some are expanding the set of skills being included in legal education, while others may even be experimenting with admissions criteria that include assessing applicants' proficiency in various competencies, in order to produce more effective graduates.
In evaluating legal education reform, law schools have turned to empirical studies to define the skills needed to be an effective lawyer. These studies highlight the importance of skills sometimes overlooked in legal education. This Article will first synthesize a number of empirical studies identifying the skills and competencies important for effective lawyering. It will briefly evaluate their inclusion in current legal education. The Article will also explore twelve disciplines that provide training for law students in these skills and competencies and advocate the synthesis of these twelve fields, in an effort to prepare lawyers more effectively for the legal profession of the future.
Thursday, November 22, 2012
If some of your students are thinking about attending business school after finishing law school, Bloomberg’s rankings may be informative. Bloomberg offers a ranking of full time MBA programs as well as a couple of other rankings, including "Good Schools If You Didn't Ace the GMATs."
Wednesday, November 21, 2012
A proposal to follow the lead of the New York Court of Appeals by creating a national, mandatory pro bono requirement for all students attending ABA accredited law schools didn't gain much favor with the ABA accreditation committee during its meeting last week according to this report from the New York Law Journal.
It appears that a New York-style pro bono requirement for law students won't be going national anytime soon.
Several organizations and legal leaders have asked the committee that is updating the American Bar Association's law school accreditation standards to add a 50-hour pro bono requirement, but that idea got a chilly reception from the committee at its most recent meeting on Nov. 16 and 17.
None of the nine committee members in attendance endorsed the idea, which generated only a few minutes of discussion. Those who took a position said that requiring a certain amount of pro bono work is outside the scope of the ABA's accreditor role.
"My own thought on this is that meeting the need for legal representation should not be the goal of accrediting law schools," said committee chairman Jeffrey Lewis, a dean emeritus and law professor at Saint Louis University School of Law.
Erica Moeser, a committee member and the president of the National Conference of Bar Examiners, agreed.
"I don't think the [ABA's accreditation standards] should be used by anyone as a vehicle for good works," she said.
Continue reading here.
Our knowledge of the first Thanksgiving rests on shaky grounds. We have two accounts, which may be of the original holiday
In a letter to a friend, dated December 1621, Edward Winslow wrote: "Our harvest being gotten in, our Governor sent four men on fowling, that so we might after a more special manner rejoice together, after we had gathered the fruit of our labors; they four in one day killed as much fowl as, with a little help beside, served the Company almost a week, at which time, among other Recreations, we exercised our Arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some 90 men, whom for three days we entertained and feasted and they went out and killed five Deer, which they brought to the Plantation and bestowed on our Governor, and upon the Captain and others."
The following is from Governor Bradford:
"They began now to gather in the small harvest they had, and to fit up their houses and dwellings against winter, being all well recovered in health and strength and had all things in good plenty. For as some were thus employed in affairs abroad, others were exercised in fishing, about cod and bass and other fish, of which they took good store, of which every family had their portion. All the summer there was no want; and now began to come in store of fowl, as winter approached, of which this place did abound when they came first (but afterward decreased by degrees). And besides waterfowl there was great store of wild turkeys, of which they took many, besides venison, etc. Besides, they had about a peck of meal a week to a person, or now since harvest, Indian corn to that proportion. Which made many afterwards write so largely of their plenty here to their friends in England, which were not feigned but true reports."
NOTE : The Mayflower arrived in Plymouth in December of 1620. No further ships arrived in Plymouth until immediately after that "First Thanksgiving" - the Fortune arrived in November of 1621. One of the passengers on the Fortune, William Hilton, wrote a letter home that November. Although he was not present at that "First Thanksgiving," he does mention turkeys. Click HERE for William Hilton's letter.
These sources appear on the Pilgrim Hall Museum website.
Tuesday, November 20, 2012
Writing across the curriculum has long been an important subject for legal writing professors. Christy Hallam DeSanctis and Michael D. Murray have written a book on writing across the curriculum that includes problems and exercises for first-year and upper-division classes.
Abstract: This book contains research and writing problems, drafting problems, and writing in the law discipline problems with the goal of helping students to develop the skills necessary to practice law. Part 1 includes problems in each of the first-year subject areas: contracts, torts, civil procedure, criminal law, property, and constitutional law. Parts II, III, and IV present problems for each topic of a first-year legal research and writing course. Part V contains problems from upper-division courses such as remedies, copyright, right of publicity, and advanced constitutional law.
That's according to a recent LexisNexis/Martindale-Hubbell survey of 209 law firms from around the globe (excluding U.S. firms) reflecting a cross-section of small, medium and large shops. One of the take-aways being that individual lawyer bios are one of the best, most effective online marketing tools meaning that those bios need to be dressed to impress.
Based on initial qualitative interviews conducted in April 2012 and an online, quantitative survey in July, the study "The Use of Websites in Law Firm Marketing" reflects the views of 209 law firms across six world regions (excluding the United States). Amongst all participants, offline tactics currently account for just over two-thirds of all marketing spend, compared to 38% for online - though many respondents expect this to change in the future as online methods become more widely adopted in their marketing programs.
. . . .
Firms that responded to the survey perceive their website to be 'very effective' (34%) in helping to build their reputation and awareness of their brand. A disparity, however, lies in the role that their websites play to help generate new work. Here respondents are seemingly more ambivalent, with more than one third (36%) feeling that their website fails to sufficiently support lead generation - though this view was more prevalent among respondents from smaller law practices and firms that had not revamped their website for more than three years. On average, all firms surveyed tended to run their websites for two to three years before considering a re-design.
A quarter of all respondents report taking a formal approach to managing content on their website, with 25% (small, medium and large firms) using a content calendar to schedule regular updates, whilst the majority (66%) have yet to put this structure in place. When asked about the most popular content on their website, lawyer biographies are the most visited pages (85% of respondents), followed by information about practice area/sector expertise (52%) and thought leadership articles, case histories, etc. (50%).
The popularity of such content helps to explain why respondents also ranked online legal directories (61% 'very' and 'somewhat' effective) as the third most effective lead generation tactic, behind their website (74%) and Search Engine Optimisation (SEO, 62%). Adding relevant content about their lawyers, market expertise and thought leadership to online directories provides firms with further SEO benefits beyond their own website and helps to surface their content to a wider online audience to help prove credibility and generate new leads.
Continue reading here.
Hat tip to the Lawyerist blog.
From Tech News Daily:
Students may no longer enjoy the luxury of slacking off in privacy because of new electronic textbooks that report their study habits.
Teachers can track the time spent reading e-textbooks and see the notes or highlights made by students through the new service offered by CourseSmart Analytics. Three U.S. universities and colleges have signed on to test the e-textbook service before it becomes widely available in 2013 — a way to identify students who need help and gauge the e-textbooks that hold student interest.
Monday, November 19, 2012
The LSAC website has the numbers which show the total number of test-takers last month was 37,480 compared with 45,169 in October 2011, a 16.4% drop. It's the lowest number for that month in more than 10 years.
Click here to see a table from the LSAC website showing the total number of annual LSAT test-takers for each from 1987 to the present.
The blog Attorney@Work has started a new 3-part series on advice to first year law students. In the first installment, Goodwin Procter's director of professional development Scott Westfahl talks about the need for students to build their "technical" and legal skills.
Here are specific things Westfahl says associates can do to develop their legal and technical skills.
- Seek out evaluations. Young attorneys need to pay attention, ask questions and be proactive about seeking out feedback on their work. Don’t wait for your formal evaluation to see how you’re performing or even for a senior associate or a partner to offer their assessment more informally. Be direct and ask them what you’re doing right and what you need to improve. In the 1980s New York City Mayor Ed Koch constantly asked his constituency a question that became his slogan: “How’m I doin’?” Using your own voice and line of inquiry, you should be asking the same thing.
- The big picture is everything. Show interest in the client and the legal problem beyond the narrow scope of the assignment you’ve been given. That way, when there’s the opportunity to talk to the senior associate or partner with whom you’re working, you can engage him or her. “Get more context about the substantive area of law and how it applies to the clients’ problems,” Westfahl says. “Now that you’ve gone beyond legal doctrinal study in law school, you’re applying that doctrine and you want to understand the broader context.”
- Stay ahead of the game. Once you gain this context, you need to anticipate what’s coming next in a case or matter. “Partners often say, ‘I look for the associate who tries to think two steps ahead,’” Westfahls says. “’They don’t always get it right but I want them to try to anticipate what I need and what the clients need, and I really appreciate that.’” It’s these associates, he adds, who get more of the coaching and mentoring time because the partners feel it’s worth it. And the associates’ development of technical skills is accelerated in that kind of learning environment.
Continue reading here.
In 2010, the Supreme Court decided to stop permitting attorneys and other visitors from entering through the front door. Instead everyone would have to enter through a side door. Justice Breyer (and Justice Ginsburg concurring) issued a statement voicing disappointment with the decision.
Justice Breyer explained the original architectural plan for the building: “[Architect Cass] Gilbert’s solution was to design an entrance that, in the words of architect and lawyer Paul Byard, “emphasiz[ed] the processional progress toward justice reenacted daily in [the Court’s] premises.”
Further, “To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.” You can read more here.
Sunday, November 18, 2012
There are two types of reflective thinking. With the first type, the learner reflects on the results of a process the thinker has undertaken. For example, after solving a legal problem, the problem solver should evaluate whether the result was the best one for the client. Similarly, after having written a brief, the writer should evaluate whether the brief is substantively correct and whether it is convincing. The second type of reflective thinking is metacognitive--thinking about thinking. With this type of reflection the thinker evaluates the process used to reach a result. For example, in solving a problem, did I employ an effective and efficient process to solve that problem? Likewise, in doing legal research, the researcher should consider not only whether the result was correct, but whether the process employed in reaching that result was effective and efficient.
Ann Davis Shields recently proposed a great exercise to help students develop their metacognitive reflection skills on the LRWPROF-L listserve (a listserve for legal writing professors). She suggests an exercise in which the students write a letter of recommendation for themselves. Such an exercise would be a good method to help the students think about their thinking process.
Thanks to An Associate's Mind for this one; the results of a survey administered by the Alabama State Bar that asked law grads from the class of 2011 to identify how long their job search took, how they found a job, where they landed, their starting salary and the amount of educational debt they accumulated while in law school. While the response rate was only 34% and salaries and employer size reflect the fact that Alabama is not a major legal market like NYC, DC or LA, the results still provide some insight into the economic value of a law degree circa 2012.
The median starting salary was mid-$40k and of those who went into private practice, the vast majority went to work for small firms consisting of 2 to 5 lawyers. Forty-five percent of those who responded to the survey graduated with educational debt somewhere between $100k and $250k (for one outlier).
In terms of the job search itself, most of the grads found employment in a relatively short time after the bar results were posted (which is data that might help allay the anxieties of future 3L's who are freaked out that they don't have jobs at the time they graduate). And despite the prevalence of social media in the lives of today's students, the vast majority found it pretty worthless when it came to finding a job. Most found a job the old fashion way through their career services office or via face-to-face networking.
From the Detroit News:
A federal appeals court has thrown out Michigan's voter-approved ban on affirmative action in college admissions and public hiring.
The court ruled the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents, who would have to mount their own long, expensive campaign to protect affirmative action.
The Sixth U.S. Circuit Court of Appeals in Cincinnati said Thursday that the burden undermines a federal right that all citizens "have equal access to the tools of political change."
Based on reading just the news stories, I think it problematic that the Sixth Circuit’s reasoning will survive the Supreme Court’s scrutiny