Saturday, April 28, 2012
A just released study by the Yale Law Women documents that class participation at Yale Law tends to be disproportionately male (H/T to Jeff and Lior Strahilevitz at Prawfblawg). Although the report offers prescriptive advice for Yale faculty and students on how to close the gap, it does not offer an empirically grounded explanation for why the gap exists in the first place. Coincidentally, I recently read another empirical study that appears to offer an answer.
In an article in the 2012 volume of Adminstrative Science Quarterly, Yale School of Management professor Victoria Brescoll provides compelling evidence that different power rules apply to women than men. Brescoll's article, "Who Takes the Floor and Why: Gender, Power, and Volubility in Organizations," found that when women possess the same objective measures of power as men, they are reluctant to use that power to speak up (i.e., be voluble) in organizational settings.
Why are powerful women less likely to speak up? Because of fear of backlash. Further, the fear is justified. Specifically, holding the objective measures of power constant, Brescoll found that when women were more voluble in meetings, they tended to be viewed as less likeable and deserving--and here is the kicker, less likeable and deserving at roughly the same levels by both male and female peers. In contrast, when powerful men were more voluble, their peers--both males and females--viewed them as more likeable and more deserving.
Wow. This is quite a problem. Brescoll observes that "the presciptions for powerful men's and women's behavior may be much more comprehensive than originally hypothesized (i.e., power men should display their power, while powerful women should not)." This differential in power rules is not something amenable to a quick, simple fix. Its root cause appears to be buried deep in both the male and female subconscious. It's hard to fix what we don't understand.
Over at Work Matters (H/T), Bob Sutton posted the perfect cartoon to summarize the Brescoll study:
It is worth noting the Yale Law Women describe social norms at Yale that essentially mirror Brescoll's results. On page 24 of the report, a YLS professor is quoted, "I think there’s an in-group dynamic where when women are gunners, they get punished more than men for doing it. Their classmates’ reactions are harsher.” The report continues, "This observation finds widespread support in the student survey among both men and women. Multiple students mentioned that there are norms about participation and women are either more likely to abide by the norms or are more likely to receive criticism for breaking them." The Brescoll study lends substantial support to this explanation. Again, not an easy problem to solve.
Some readers might be interested in a more in-depth description of Brescoll's research design. So here it goes. Brescoll results are based on the findings of three interconnected empirical studies. She starts with the established empirical fact that powerful people tend to assert their power through commanding more time--i.e., being voluble--in organizational settings. As a historical matter, most power has been held by men. Now that women have obtained some measure of social/organizational power, we want to know whether women, holding objective measures of power constant, are equally voluble.
- Study 1. Is volubility a function of power alone, with equal volubility among males and females with comparable power? According to Study 1, which studied patterns of floor time among male and female U.S. Senators (2005 session, controlled by Repulicans and 2007 session, controlled by Democrats), the answer is no. The connection between more power and more volubility was observed only among male Senators. In contrast, more power was not associated with more floor tiime taken by female Senators.
- Study 2. Following up on Study 1, Study 2 essentially asks, "why are equally powerful females more reticent than their male counterparts?" Using a controlled experiment format with male and female participants with workplace experience (average age 38, most with at least "some college" education), participants were asked to simulate an organizational meetings in which important decisions needed to be made. Holding levels of power constant, female participants were much less likely to speak-up. The primary explanatory variable was fear of social backlash.
- Study 3. The question that flows from Study 2 is essentially, "Is the female fear of backlash justfied?" Study 3 used a similar controlled experiment design to ascertain how male and females reacted to powerful CEOs. The only two variables were volubility in meetings and gender of the CEO. Remarkably, for both male and female study participants, male CEOs who dominated a meetings were viewed as competent and deserving. In contrast, for female CEOs, the opposite was true--more volubility led study participants to view powerful female CEOs as less competent and less deserving.
Very important research.
[posted by Bill Henderson]
Posted by Jeff Lipshaw
Lior Strahilevitz (Chicago, left) has some interesting and thoughtful reactions at PrawfsBlawg to a study performed by Yale Law Women on gendered experiences of a Yale Law School education. The comments are also interesting, and one of them in particular got me thinking. An anonymous female YLS alum wrote: "I don't know how much it relates to my being female, but I do know my confidence level took a beating at YLS. I went in far more confident (and eager to speak up) than I was when I left."
I don't dispute at all that there are gendered differences as reflected in the study. If you look at the report's appendices, however, you will see that the only questions about the student's background relate to race and gender. The reason that is significant to me is that (a) I went to a law school as small and just about as "elite" as Yale, (b) had exactly the kind of substantive first-year small sections that Yale apparently doesn't offer (mine were Contracts with Jack Getman, and Property with Paul Goldstein), (c) for law school purposes I'm probably whiter than your average white male (I'm Jewish), (d) nobody has ever described me as shy or retiring, and finally (e) I felt exactly the same way as the anonymous commenter over at PrawfsBlawg. And I have pretty distinct recollections why. I went to a large public high school (suburban Detroit) and public university (Michigan) and I was intimidated by the Harvards, Yales, Amhersts, Williams, etc. and by the Exeters and St. Albans and University Schools all around me. I knew my LSAT score was at the very low end of the range. Unlike my fellow students at Michigan, my fellow students, even in my supposedly unintimidating small section, seemed to have backgrounds and sophistications that I didn't have (advanced degrees, experience working as paralegals in fancy New York law firms, parents who were lawyers, etc.).
As to the value of "speaking up" itself, I think that's very much a Yale thing, or an elite law school thing, or a law professor thing, or a law school thing, but I didn't speak up much in law school, and I've been a big law partner, a Fortune 1000 GC, and a law professor. I had only one very Socratic professor, the late John Kaplan, who called on me once and scared the living crap out of me. (He was a really nice man, but even looking at his picture now, right, scares the crap out of me.) Moreover, I had some really smart classmates (at least five or six of them are law professors now, including Bob Weisberg at Stanford, Douglas Baird at Chicago, Jan Neuman at Lewis & Clark, Randy Hertz at NYU, Lynne Henderson at UNLV), but I have to say that I have quite a few memories of things my professors said, but I cannot remember a single comment in class by a fellow student (except one: in Trust & Estates, Howard Williams asked Dick Van Duyne, also a really smart guy, the following: "Mr. Van Duyne, you are a Latin scholar. What does nunc pro tunc mean?" To which Dick replied, "Um, I don't know, maybe without tunc?"). No, I did what I think many students did when other students in large classes took the floor: I tuned out and waited until the professor started back with whatever he (and as I recall they were all "hes", so there's another point regarding the reality of the gender issues) was covering. And it impacts my reaction to being a law teacher: I'm very concerned in my somewhat dry doctrinal areas (contracts, securities reg, business associations) that so-called Socratic approaches, even the warm-hearted kind, cause many of the other students to tune out. (My default approach is probably more like a warm-hearted "Bueller, Bueller?")
The point is that the report appears to have important things to say about gender differences at Yale. It also has some pointed and pragmatic recommendations for students and professors in addressing the particular problems of "speaking up" and student-faculty interaction. But I'm not sure at all that it has anything fundamental to say about the inherent problems in legal education!
Thursday, April 26, 2012
In retrospect, it looks pretty simple: (1) find a convenient time for 1Ls, (2) provide pizza, (3) invite successful lawyers to talk about their careers, (4) have law faculty gently moderate, and (5) implement a modest attendence requirement tied to a 1L substantive course.
This is the format for Indiana Law's Career Choices program, which is an important part of our 1L Legal Professions curriculum. The goal of the Career Choices program is to provide students with a more realistic and structured view of modern law practice. The 2011-12 edition, which concluded earlier this month, consisted of 45 lawyer speakers spread over 24 lunchtime programs.
Why does this matter? If students have better information and have a broader view of the profession--created through a balanced and well structured programming--they can make sense of the world more quickly and in turn make better decisions related to their own professional development. Immediate benefits include:
- Shedding stereotypes of what lawyers do--often stereotypes created by the media and pop culture). Almost everything looks different from far away--sometimes better, sometimes worse. Although the up-close view takes time and effort to acquire, it is the view needed for reliable decisionmaking.
- Developing a more sophisticated vocabulary that enables students to adopt and mimic the language of practicing lawyers. This subtly impresses and flatters practicing lawyers. It signals engagement. And it opens doors.
- Broadening minds to consider practice areas, internships, and training opportunties that students would otherwise overlook.
- Improving student time allocation. And time is students' single greatest asset!
Because the benefits of better decisions compound over time, there is no better time to start than the 1L year. Over the medium to long term, this simple action can elevate the entire law school community.
The Career Choices Program evolved over a period of years. It is only one piece of Indiana Law's 1L Legal Professions curriculum, but it is critically important to professional identity formation. Cf. Sullivan et al., Educating Lawyers (2007) [aka The Carnegie Report] (discussing legal education's neglect of the professional identity apprenticeship).
The value of the Career Choices program can be separated into two buckets:
- What the program looks like today--let's call it Career Choices 4.0
- The evolutionary process that produced the current program.
Career Choices 4.0
The success of the Indiana Career Choices program is the result of the joint efforts of the Indiana Law faculty, our two deans of students, and our world-class Office of Career and Professional Development (OCPD). Indiana Law's OCPD (staff photos below) deserves special credit. Among their many other responsibilities, they handle all the complicated event planning logistics so that it is an enjoyable experience for both lawyers and students. According to Law School Survey of Student Engagement data, Indiana Law's OCPD is objectively one of the best career services offices in the nation, at least as judged by law student respondents.
In 2011-12, the Career Choices program consisted of 24 programs featuring 45 law school graduates (approximately 85% Indiana Law alumni). It kicked off on the first day of class in January. It was then followed by a program virtually every Thursday and Friday for the next twelve weeks, excluding spring break. Career Choice forums are scheduled well in advance and space is limited (capped at ~40 to 100 student depending upon room size). To attend, students sign-up through OCPD using Symplicity, a widely used career services software.
Career Choice events were typically organized around practice settings (i.e., small firms, big firms, in-house lawyers, personal injury lawyers, prosecutors, public defenders, state agency lawyers, public interest lawyers, business and nonprofit executives, etc.) and substantive areas (IP, sports and entertainment law, international law, family law, bankruptcy, etc.) An ideal panel would be one where the practitioners moderately disagree with each other -- this is why we like having more than one lawyer in at a time. When lawyers disagree, students have to engage their minds in order to make sense of the differing perspectives.
The lynchpin of the Career Choices program, however, is its integration into the Indiana Law's Legal Professions course, which is required 4-credit course taught in the second semester of the 1L year. The course covers traditional professional responsibility and the law of lawyering. But it also focuses on the structure of the legal profession itself. The course is explicitly designed to get our students to think about their future careers in a realistic and structured way. Course requirements include:
- Five in-person informational interviews
- Team based projects
- Personality and motivation asseessments
- 360 degree peer feedback
- An end-of-semester reflective essay.
Career Choices is another required element. Every 1L is required to attend at least three Career Choice events. At Indiana Law, we tend to focus on data so we can track evidence of progress, or lack thereof. A ID scanner (placed between the door and the pizza) is how we track attendance. It is very fast.
This year, we have 230+ 1L students spread across four sections of the Legal Profession class. The average 1L attended 5.5 Career Choice events. Well over 60% of the class attended more than the mandatory three sessions, which is pretty remarkable. 1Ls are a notoriously harried group of students. Every hour spent in a non-mandatory activity is one hour less that can be devoted to beating the 1L curve. Ask any law school career services professsional how difficult it is to get students to invest in voluntary professional development -- 600 hours in a single semester for 1L is a miraculous feat. Now that learning is compounding for the students' and, indirectly, IU Law's benefit.
Here is another statistic: we served 2,800 slices over the course of the semester. 1L students are busy and relatively cash-strapped. By putting these events at a time when students would ordinarily break for lunch, we are making it easy for them to give the programs a try. For the last several years, an alumnus has paid for the pizzas. He believes it is a small price to pay to get students in the door. No studennt learning can take place if students never show up.
When guest speakers are available to stay for dinner, the same alumnus also pays for dinners for speakers and three to five students. Over the years, I have attended roughly two dozen of these meals. Many times students tell me that the insights shared over these dinners are among the most memorable and fulfilling learning experiences of their 1L year.
The Evolution from 1.0 to 4.0
Remember that I said that the Career Choices formula looks so simple "in retrospect."
The most important lesson we learned from Career Choices experience is that any significant success in programmatic or curricular changes is going to require several iteratives until the program's progress is reasonably near its ambitious goal. Fortunately, we were sufficiently committed to the mission that we built feedback loops and retooled accordingly. Here is some the trial and error:
- Respect student preferences. During the 1.0 version, we had four mandatory sessions at 4:30 on Thursday afternoons -- and as a result, we were leaning heavily into a headwind. A minority of students resented the imposition on their time; and this negativity affected the general mood of the students, which created an uphill battle for even the finest guest speakers. It is easy to conclude what students "ought" to value. But such judgments don't improve the situation at hand. The smart person accepts; the idiot insists.
- Impact of size on participation. We learned through experience that 1Ls go silent when they are in a big, full auditorium. Even the gunners shut down. Holding speaker quality constant, smaller groups and more intimate venues produced dramatically more student engagement. This meant that four or six Career Choice events, though cheaper and easier to manage, was not going to work. The program had to be bigger to be successful.
- Choice matters. Students can have pretty fixed ideas on who is worth listening to. This is a constraint. But when students can exercise some choice on speakers, they show up with a positive attitude and higher levels of curiosity. These positive experiences bring them back voluntarily --now, voluntary participation is well beyond the minimum. The choice created the way for buy-in.
- Timing really matters. Pizza is not enough to get students to give up a lunch hour. The winning combination is lunch plus content plus a time period when students are not scramblng to read for class. Moving from Wednesdays to Thursdays was huge for student participation--albeit it was less convenient for faculty. We learned that faculty need to bend as much or more than students.
- Faculty involvement. Faculty involvement (or lack of involvement) sends a strong message to students on what is important. Career Choices has been a required element of the 1L Legal Professions curriculum since 2009. But this year, Legal Professions instructors served as the moderators. This enables us to bring the practitioner themes back into the classroom and tie them into our discussions of legal ethics and professional development. Many times faculty attended just to hear the speakers. If I am in town, I am there. Students noticed.
Last week our OCPD/instructor team debriefed on the 4.0 version. This discussion was substantially informed by student feedback. Some improvements for version 5.0 include (1) a better mix of young versus old lawyers, as the best panels had often someone five years out with someone 20 to 30 years out, (2) a more standardized format that permits lawyers to tell their stories but also ties their experiences into specific themes in the course, and (3) careful attention to diversity, something that our students really care about.
Finally, the biggest surprise our Career Choices program has been the reaction of its guest speakers. Although a typical guest speaker's day might include a lunch-time program, meeting with OCPD and faculty, two hour long informational interviews with students, and a long dinner, invariably the lawyers have more energy at the end of the day than the beginning. If you think about it, it makes sense. Lawyers seldom have a time to reflect on their careers to discern meaning and priorities. Career Choices provides them an entire day devoted to just that. Knowing how lawyers react to the program makes it much easier to ask them to participate.
At Indiana Law, the success of Career Choices has enabled us to consider more ambitious goals for the future. 5.0 will be better.
[posted by Bill Henderson]
Saturday, April 21, 2012
The Metaphor of the Immediately Obsolescent Business Plan - And What Does it Mean for Educating Some Kinds of Lawyers?
Posted by Jeff Lipshaw
I am teaching the last two sessions of my Unincorporated Business Entities class (LLCs, partnership, and limited partnerships, with agency mixed in). We're at the endgame section, dealing with death, divorce, dissociation, dissolution, and other dire dilemmas of deal dissatisfaction. Until this point, teaching the default rules has been a little like teaching music scales and exercises, with the real fun (as in real life) coming from the riffs and variations and improvisations on the themes that show up in these complex situations. But the relationship between knowing the notes and making the music as a business lawyer is so hard to get across. I was thinking about that, Bill's post about Law Without Walls, and the tunnel vision of lawyering (and, don't get me wrong, tunnel vision is entirely appropriate for some sub-disciplines of the law!) that constitutes a part of the "practical skills" complaint about modern legal education.
It's the "how did we come to this?" backstory of these business divorce cases that I find fascinating, and the usual lawyer's lawyer treatment of them is to perpetuate the myth of legal perfectability. In other words, had the lawyers been smart enough to think the problem through, the contract would have solved everything. (Theorists take note: this is an equal opportunity category error. Lawyer-economists think the contract would have forestalled opportunism; lawyer-moralists think it would have reified the promise.) The alternative metaphor that occurred to me a couple days ago came from one of my former bosses, Larry Bossidy (above), who spent 34 years at GE (rising to Vice-Chairman), and when it became clear he wasn't going to get to run GE (there was another guy named Welch who happened to be (a) his good friend, (b) a year younger, and (c) doing a pretty good job), he took over an industrial conglomerate then known as AlliedSignal (it's Honeywell now). Bossidy's point was that an annual operating or business plan was likely to be obsolescent almost by the time you finished creating it - competitors would announce new products; commodity prices would spike; war would break out. That wasn't to excuse shoddy planning, but to say that you had to keep updating the game plan as the game progressed.
Having said that, the number one goal Bossidy set for AlliedSignal every year I worked there was "Make the Numbers." Invariably, as one of the leaders of the business, as well as one of its lawyers, I explained that as shorthand for "do what you promised" or "keep your commitments." This raises a real life conundrum. If your plan is obsolescent almost immediately, then how is it realistic to keep your promises? If you promised so little as to make the numbers even if the world went to hell in a handbasket, then it was a sandbag, not a real promise. If you can't keep your promise, what do you do? Resign? Get fired? This was always a problem of leadership and management, because it involved more the legal algorithms of promise, which focus almost entirely on the rights of the promisee and the obligation of the promisor. Instead, the relationship needed to be one of trust, thoughtfulness, objectivity, reasonableness, and accommodation as between promisor and promisee.
Why isn't the same thing true of a complex relational agreement, like a partnership agreement or an LLC operating agreement? I suspect it is. When we held our symposium at Suffolk last year centered on Charles Fried's Contract as Promise, Jean Braucher (Arizona, left), a close associate of Stewart Macaulay and the Wisconsin "law-in-action" school, talked about the morality of the marketplace being "less the stern morality of promise keeping as a morality of adjustment, release, and forgiveness in contractual relations." Lisa Bernstein's (Chicago, right) work with Southern cotton brokers suggested that "promise or pay" was not the accepted moral stance; instead the reason you gave for breaking your promise mattered in the promisee's decision whether to accept the promise-breaking as an acceptable business practice. (Jean's paper is here; Lisa didn't publish a paper with us, but I summarized her presentation in my introductory essay.) I've suggested (more abstractly) that the perception of a duty not to enforce a promise is the grease that keeps relationships moving; a strict focus on rights would be the equivalent of metal on metal and the whole engine would grind to a halt.
So... If you want law school to be practical, and you want it to do more than train litigators (whose orientation is the enforcement or opposition of legal rights and duties - and where some practitioners get to be appropriately tunnel-visioned), and you want lawyers to be "practice-ready" when they get out, and you don't want a lot of interdisciplinary theory, what do you do?
[Cross-posted at Legal Profession Blog.]
Friday, April 20, 2012
That is the title of an essay posted on blog of the The Atlantic magazine. Jordan Weissman, a journalist who formerly worked in the business operations side of a major law firm, reviews the profitability of the most elite law firms pre-crash (2001-2007) and post-crash (2007-2010). [See charts below] The slide into lower profitability is what is causing the run-on-the-bank at Dewey LeBoeuf, a storied firm on the brink of collapse.
Dewey LeBoeuf, like the Howrey firm which failed slightly over a year ago, are almost certainly on the lefthand side of the 2007 to 2010 profitability chart. Weissman's conclusion is pretty simple: the industry is running out of gas. More failures are likely. Unfortunately, I agreed.
For the record, legal education's problems are no less severe. There are not enough qualified students to fill the number of 1L seats, so as an industry, our revenues (akin to law firm profits) are going to go down. The entire legal services and legal education industry is undergoing a major disruption. All of this talk of structural change is going to move from the abstract, where we contest it the premise, to the concrete, which induces panic among the unprepared. It is going to be very tough. Our character is going to be tested.
Paradoxically, making decisions based on our professional values rather than self-interest will be the key to survivial. More on that later. I have to prepare for the Lawyer of the Future Conference at Pepperdine University School of Law.
[posted by Bill Henderson]
Tuesday, April 17, 2012
Frank Snyder (Texas Wesleyan) was one of the first real live law professors who reached out to me when I was a mere aspirant (albeit super-annuated) to the legal academy. He is one of the most entertaining law professor writers around (unfortunately, not a high bar, but based objectively on my "wish-I-had-said-that-o-meter"). His essay Clouds of Mystery: Dispelling the Realist Rhetoric of the Uniform Commercial Code deftly demonstrates that the UCC merely substitutes one set of organizing algorithms for another, rather than create a contract law more "realistic" than the common law. Late Night Thoughts on Blogging While Reading Duncan Kennedy's 'Legal Education and the Reproduction of Hierarchy' in an Arkansas Motel Room had me both laughing out loud and thinking seriously when I read an early version (Frank was an early blogger as founding editor of Contracts Prof Blog, one of our sister blogs in the Law Professor Blogs network).
Frank has made his triumphant return to the blogosphere in Lawyer Apocalypse, a blog that treats on much the same things Bill and I are talking about here. Welcome back!
Saturday, April 14, 2012
I am spending the weekend in Miami at the Law Without Walls (LWOW) ConPosium. What's LWOW? Not an easy question, but here it goes: LWOW is a completely new forum and methodology for teaching, learning, collaborating and -- most importantly -- spurring innovation in legal education and the legal services industry. Twelve U.S. and foreign law schools are involved, with Miami Law taking the lead. LWOW is part law school class, part idea laboratory, part networking venue, and part case competition. I struggle in vain to find an adequate metaphor.
What's a ConPosium? It's LWOW's annual penultimate event. Over the course of the weekend, students present their "Projects of Worth" to a large audience of students, lawyers, law professors, regulators, business executive and entrepenuers. The presentations are evaluated American Idol-style by a panel of experts, including -- yes -- a handful of venture capitalists. Thanks to the efforts of LWOW founders Michele DeStepano and Michael Bossone, the weekend also is an amazing aesthetic experience -- a theater of sofas and overstuffed chairs, inspiring music, multi-media stimuli, and a nonstop train of cleverly presented ideas from students, professors, judges and the audience.
As an educator, the most exciting facet of the LWOW format/methodology is that it pressures law students to be creative and economically viable. (Understatement: these topics are generally not covered in law school, especially the latter). Not all ideas are good; and good ideas by themselves are not enough. As the venture capitalists tell us, nine out of ten good ideas fail due to lack of execution. To survive, hard questions have to be asked, and the answers provided have to be realistic and accurate. And then there is follow-through. That requires passion.
LWOW is a grand experiment. 20 years from now, the DNA of a lot of innovation in legal education and legal services will be traceable to the seemingly impractical ideas that were trial-ballooned here. And one or two may be brand names in a few short years. So cool.
[Posted by Bill Henderson]
Friday, April 13, 2012
Jordan Furlong, Law 21, in a post entitled "Losing the Confidence Game": "Here are six observations about the legal marketplace for you to consider, each supported by a news report filed just in the last few days ... ." Furlong is a Canadian-trained lawyer, journalist, and consultant. He is one of the most networked observers of the legal services industry I know.
Ron Friedmann, Strategic Legal Technology, in a post entitled "Does BigLaw have a Future?" The answer is yes, but in way that is hugely disruptive to our settled views of how things work. Ron, who has worked at the intersection of law and technology for 30 years, writes:
Some firms may fade, some may implode, but others will thrive. Thriving, however, requires thinking and innovating. Some are doing so as these examples and data illustrate:
- I count 10 firms that operate low cost, centralized service centers, some of which provide lawyer support as well as business services. ...
- About a dozen firms, perhaps more, have industrialized their approach to e-discovery and document review.
- Several firms now take project management seriously. ...
- Three firms now offer alternative staffing models, arguably competing with staffing agencies. ...
- About one-half dozen firms have publicly announced partnerships with legal process outsourcing (LPO) companies.
- I understand about a dozen firms now have pricing specialists to deal with alternative fee arrangements.
Patrick Lamb, The New Normal, in a post entitled "A 'Valorem Dozen': The Ingredients of One New Normal Law Firm." Lamb, a talented trial lawyer and former large law firm partner, lays out the how-to kit for alternative fee boutiques. At a minimum, running an alternative fee shop requires slaying inefficiencies, embracing market forces, and developing a broader set of skills. Here are some of Lamb's bullet points:
1) Sell what is valuable to your clients. No client has ever gone to a law firm looking simply to buy time. They go to lawyers to solve business problems that involve some legal issue. ...
3) Embrace the $60-per-hour-lawyer. ... [Y]ou can get great lawyers at a much lower price[ ]. You don't need to have these lawyers as employees, you just need to have access to them when you need them, for as long as you need them. ...
9) Collaboration is key. Most large firms, indeed most firms of any size, are a collection of silos ... We believed that if our senior people brainstormed and collaborated together, great things would happen and we would produce work and results better than any of us would do alone. ... Hindsight shows that we were right on the money on this issue.
Folks, structural change in the legal profession is happening very quickly. We legal educators need to spend a substantial portion of our time talking to people working in the legal services industry. Every conversation should expand the list of who to talk to next. And we need to put our pet theories and ideas on the shelf and just listen to what these lawyers and legal service vendors have to say. Otherwise, in five years, traditional legal education is going to look like General Motors circa 2008.
[Posted by Bill Henderson]
Wednesday, April 11, 2012
Our friend Nancy Rapoport (UNLV, below), former dean of the law schools at Houston and Nebraska (and Ohio State Buckeye fan, but we won't hold that against her), when she's not winning dance competitions, has some ideas about changing the template in most law schools: Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools. Here's the abstract:
This essay argues that discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same. A better description of the educational opportunities provided by ABA-accredited law schools would group theschools into three rough clusters: the “elite” law schools, the modal (most frequently occurring) law schools, and the precarious law schools. Because the elite law schools do not need much “reforming,” the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools could benefit from some changes to help law students move from understanding the theoretical underpinnings of law to understanding how to translate those underpinnings into practice. “Practice” itself is a complex concept, requiring both an understanding of the law and an understanding of how to relate well to others. Because law students may not understand how to relate well to those with different backgrounds from their own, law schools should do more to explain how one’s perspective is both limiting and mutable. Too many law schools suggest that students can “see” different perspectives by, essentially, merely thinking harder. The essay concludes with some suggestions regarding possible reforms of U.S. legal education, focusing primarily on the modal law schools.
Interestingly, one theme in Nancy's piece is that students don't get those contextual and non-legal skills from their undergraduate liberal arts education. Scott Greenfield at Simple Justice either disagrees or doesn't think it matters to a lawyer, judging by an interesting reaction to my post on the increasingly interdisciplinary nature of law practice. And coming from the standpoint of doing "New York criminal defense," he may well be right. I'd agree that there is a segment of the law - mainly litigation, and particularly criminal litigation - that doesn't need to see a whole lot of change in the doctrinal approach, and would benefit from students' intense and relatively narrow exposure toclinics or other intern-like experiences. But that's looking at the legal profession and its place in the rest of the - sorry, Scott - increasingly interdisciplinary world through the wrong end of the telescope. I don't expect anybody to buy it merely on my authority (a wobbly stool to be sure), but I spent 26 years out there in the real world as a real lawyer. It's that experience, not academic theorizing, that's the basis for the conclusion that Nancy's assessment is likely correct, and that more and more of what the vast majority of lawyers is going to be doing sits in the overlap of that Venn diagram.
I'm reposting here Alan Childress's note from Legal Profession Blog on several books, re-issued and new, about the profession.
Cynthia Fuchs Epstein (CUNY, Sociology) has republished her classic and foundational study Women in Law as part of the Quid Pro book project. It adds a new Foreword by Stanford's Deborah Rhode. Excerpt on the demise of 'Ladies' Day' in law schools, and other info, found at MsJD blog. And the book itself is at Amazon in paperback or Kindle, plus B&N for Nook and Apple iBooks. Although the book certainly covers women as law students and in law teaching, most chapters are about professional practice as such, in firms, solo practice, public interest work, government, and the judiciary.
Also out in paperback is a book I edited, written by Tulane students: Hot Topics in the Legal Profession 2012. Those two are the newest ones on topic with the U.S. legal profession. Upcoming is a reissue in paperback of Llewellyn's The Bramble Bush, though already in Kindle and other ebook formats.
Today's morning reading provides a vivid example of how the Law & Society research, if deployed in the right way, can help the legal profession cope with large scale structural change. An article from the Triangle Business Journal [Research Triangle in NC] highlights some recent stories documenting the movement away from the billable hour. The reporter then canvases Research Triangle companies and comes up with this trend-line from GlaxoSmithKline, a Fortune 500 pharmaceutical company:
GlaxoSmithKline, the pharmaceutical giant whose U.S. headquarters are in Research Triangle Park, is one of the large corporate clients driving the move toward flat fees. GSK (NYSE: GSK) spent 63 percent of its outside legal budget under alternative fee arrangements last year, up from less than 3 percent in 2007, the year before the recession fully hit and the last full year before Dan Troy took over as GSK’s general counsel.
From 3% in 2007 to 63% in 2012? This is BigPharma, one of the most heavily regulated industries in the world; products liability lawsuits are as certain as the sun rising in the East; international trade and government contracts are essential to its survival. This is roughly $300 to $500 million in outside counsel legal spend shifted from billable hours to some alternative fee structure. This is money law firms need to survive -- although law firms might not want to dump the billable hour [translate: assume some of their clients' risk, which is not what businesses want to do without a price premium], they'll gladly do it if the alternative is extinction. The article also quotes IBM GC Don Lui, “For us, it’s no longer a necessity just because of the recession. It’s now part of the normal process.”
So here is the opportunity for Law & Society [aka "law in action"] scholarship: This massive shift needs to be studied, described, theorized, and simplified so it can be understood, not only by students, but also by other industry actors. BigPharma, manufacturers, and insurance companies will come first because the inefficiencies and lack of innovation spawned by the billable hour represent a significant sum that could potentially fall to a company's bottomline. But eventually, like water running downhill, the innovations spawned by their legal department will become mainstream. It is hard to overstate the important of understanding the process of adaption--i.e., separating what works from what doesn't and explaning it with a sound, empirically based theory. Our graduates have to be able to deal with change, and advise clients on how to cope with legal/business implications of change.
So here are some of the pieces of the agenda:
- Step 1 is going out and talking to people. Law schools have huge advantage because we have people called "alumni" who, like everyone, enjoy talking about themselves and their problems. A good L&S researcher likes to listen.
- After building a pipeline for this type of research, we [law schools] use it for a "needs analysis" for legal employers. A needs analysis is just answering a question with facts, not opinions: What knowledge, skills and experience do these lawyers need to cope with the heighten complexity documented by the L&S research?
- The needs analysis for employers provides the basis for a needs analysis for any law school, though the nut of it is not hard to foresee: lawyers of the future, or knowledge workers with legal expertise, will need tools to help them do more with less. This is about innovation and designing/building/managing solutions to legal/business problems.
The stretch here for L&S researchers, or legal academics generally, is to do fact-based research with an eye toward making real world decisions on how to allocate time and resources. And the first decision on that front is how to allocate our own time and resources for the good for our own institutions.
[Posted by Bill Henderson]
Tuesday, April 10, 2012
I recently posted an essay that explains structural change in the legal profession uses a historical narrative and simple supply-demand framework. Unlike my other academic work, this essay is short and accessible (not a single table or chart). Many thanks to the many faculty workshops that helped shorten and sharpen the message. The abstract:
A simple framework for understanding the U.S. legal profession is gradual progression through three generations of lawyers: the generalist, the specialist, and the project manager. The transition from one generation to the next is driven by the familiar story of supply and demand. The generalist era (colonial period to the end of World War II) gave way to the specialist era (post-War to early 2000s) because of a shortage of sophisticated business lawyers capable of serving the needs of large, growing, and increasingly regulated industrial and financial clients. Over a period of several decades, leading local practitioners with business expertise transformed their small local practices into regional and national powerhouses. The common feature of all these transformations was an associate-partner training model, which enabled firms to build sufficient human capital to keep pace with -- and thus profit from -- the legal needs of their clients.
In contrast, the U.S. legal profession is now in transition from the specialist to the project manager era. This era is driven by the need for clients to obtain more and better legal work at a lower and more predictable cost. To keep pace with these new client needs (i.e., demands), lawyers working for large corporate clients will increasingly layer their specialized legal knowledge with the skills of the project manager. To the extent that outside lawyers and law firms resist this gravitational pull -- perhaps because they are too wedded to the success and prosperity of the specialist era -- they will lose their seat at the economic table. Thus, as the project manager era unfolds, old hierarchies in the U.S. legal profession will fall and new hierarchies will be created.
[Posted by Bill Henderson]
Monday, April 9, 2012
I provide this as a public service.
I just got an e-mail that looked just like the usual notice from Amazon that an item has shipped. The shipping address was not to my house, however.
My first thought was that somebody had hacked my Amazon account. When I clicked on "track my orders," it redirected me to some bogus site and then quickly to my Amazon log in page. I then looked back at the return email address and it was from somebody at a yahoo.com email address. No doubt this is designed to get your Amazon user name and password.
I've since changed my Amazon password and confirmed that indeed there are no open orders.
Posted by Jeff Lipshaw
With apologies to the Car Talk guys (particularly Ray who starts each show this way), this is from the "I wish I had thought of that first" department here at The Legal Whiteboard.
Mark Herrmann (left)*, chief litigation counsel at Aon, a former Jones Day partner (he did products liability litigation for us when I was at AlliedSignal going nigh on twenty years ago), author of The Curmudgeon's Guide to Practicing Law, and now "email@example.com," has posted an open letter to the University of Chicago Law School requesting that it finally remove him from the wait list for the entering class of 1979.
I could send that same letter to Yale.
* Apropos of almost nothing except the parenthetical reference to the location of Mark's picture, the Boston Globe this morning ran a story on Planned Parenthood's endorsement of Elizabeth Warren over Scott Brown in the Senate race here in Massachusetts. I don't know if the editor meant to be making a statement with the following caption (which also appears on the web site, where if it were a directional reference it should have been "above"): "'We’re excited to be endorsing Elizabeth Warren (left),’ said Dianne Luby of the Planned Parenthood Advocacy Fund."
Thursday, April 5, 2012
Posted by Jeff Lipshaw
Bill and I have already posted separately (here and here) about our mutual sense that the traditional disciplinary walls of the profession are crumbling, not just in terms of regulatory aspects like multi-disciplinary practices, but in terms of the integration of legal expertise with other aspects of enterprise, policy, mediation, and the like. (Nothing like a blog to flog your own work - blog flog? - but I've written about this in The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity.)
In that continuing vein, the Wall Street Journal has a story this morning about school administrators and corporate recruiters rethinking the value of an undergraduate business major. "The biggest complaint: The undergraduate degrees focus too much on the nuts and bolts of finance and accounting and don'tdevelop enough critical thinking and problem-solving skills through long essays, in-class debates and other hallmarks of liberal education." I want to make it clear I understand this is about undergraduate education, and not a professional school in which students are investing (or leveraging with debt) another $100,000 to $200,000. But it's the directional thrust about disciplines that I think we need to take very, very seriously. Clearly we have an obligation for teaching professional depth. But the following statements, I'm assuming well-reported even if anecdotal, say something about the need for professional breadth:
- "Companies say they need flexible thinkers with innovative ideas and a broad knowledge base derived from multiple disciplines."
- "William Sullivan ... says the divide between business and liberal-arts offerings, however unintentional, has hurt students, who see their business instruction as 'isolated' from other disciplines."
- "[B]usiness schools ... are tweaking their undergraduate business curricula in an attempt to better integrate lessons on history, ethics and writing into courses about finance and marketing."
- "Doug Guthrie, dean of the George Washington University School of Business, is planning to draw on expertise in the university's psychology and philosophy departments to teach business ethics and he'll seek help from the engineering problem to address sustainability."
- "Firms are looking for talents, they're not looking for content knowledge, per se."
If there's general consensus that the third year of law school needs overhauling (and maybe the second year as well), and if we are thinking about all the things that people with law degrees might do other than the traditional activity "before the bar," this is food for thought in the design of all those skills courses, clinics, simulations, and practica.
[Cross-posted at Legal Profession Blog.]
Monday, April 2, 2012
Recently released data from the Bureau of Labor Statistics provide more evidence that the legal job market for graduates will be extremely difficult for the next several years. The data come from the BLS Occupational Outlook Handbook, which is updated annually. Below is a BLS bar chart* comparing growth in lawyer jobs versus other legal sector jobs versus the economy as a whole:
According to the BLS, there were 728,200 lawyer jobs in the U.S. in 2010. By 2020, that number will grow to 801,800, producing a gain of 73,600. Currently, law schools average approximately 45,000 graduates per year, albeit entering classes have been trending upwards. The BLS Handbook states:
[G]rowth in demand for lawyers will be constrained as businesses increasingly use large accounting firms and paralegals to do some of the same tasks that lawyers do. For example, accounting firms may provide employee-benefit counseling, process documents, or handle various other services that law firms previously handled. ...
Competition [for lawyer jobs] should continue to be strong because more students are graduating from law school each year than there are jobs available. ...
The public debate often talks about the surplus of lawyers as if the hand of a regulator could or should turn down the spigot on entry level lawyers. Yet, no such spigot exists. Overproduction is primarily a function of optimism and the availability of federal loans. Over the medium to longer term, I see three possible ways -- all mutually compatible -- to unwind lawyer overproduction:
- The Dept of Education looks at the proportion of law students on Income-Based Repayment, reads the BLS projections, and in turn curtails federal funding for law student loans;
- The new ABA transparency criteria sends some schools into a "death spiral", see NY Times story on falling law school applications; or
- Law schools focus on making their degrees more versatile and valuable so graduates become more competitive for professional jobs outside traditional legal services (traditional legal services has its own structural issues at the moment).
#3 is the only factor in the control of law faculty, albeit it calls for something radical -- change in what we do and how we do it. Call me crazy, but I think #3 is actually a huge opportunity for a law school with the right leadership and the right mix of faculty. I am currently in the process of sketching out a blueprint anyone will be free to use or make fun of.
* The chart splices together BLS lawyers and paralegals/legal assistants. It is interesting to note that nonlawyers jobs are projected to grow nearly twice as fast as lawyers. I doubt this trend would be obvious to those of us in the academy; the magnitude of the difference surprised me, though it makes sense. According to the BLS, paralegals only make $46,700 per year -- much cheaper than a junior lawyer and no expectations of a promotion.
[posted by Bill Henderson]
[For reasons discussed below, my good friend Andy Morriss is taking emeritus status on the Legal Whiteboard. Nonetheless, as noted in post #1, he will always remain a deep source of inspiration, at least for me. Below is Andy's final LWB post as a regular co-editor. wdh.]
As an economist, I think comparative advantage is a critically important concept for understanding the world. After trying this format for a bit, I've figured out it isn't mine - so I'm signing off and leaving this to Bill and Jeff. Both are writing thoughtful and thought-provoking stuff. That requires time and effort. Both are (or appear to be) naturals at this format, so perhaps it is easier than it looks for them to do that. But it still represents a major commitment to do well.
It became clear that this wasn't for me recently for two reasons. First, there are interesting folks doing important work in this area - I just spent time at a conference this weekend with John McGinnis of Northwestern, whose WSJ op-ed with Russell Manges, is one of the more significant pieces on reforming legal education. After having some interesting discussions with John - and a fascinating weekend digging into Harold Berman's Law and Revolution II which itself raises some quite important questions about legal education's content and the impact of that content on a lot of things - I find I am more interested in finding out what people like John think about legal education than writing about it and more interested in thinking about how the ideas in Berman's work ought to affect my teaching than writing about that.
Second, looking at Bill's and Jeff's excellent posts made me realize how tentative my own thoughts on the subject are. Which leads me to the realization that I simply don't have enough interesting to say to say it to the world.
So I discovered that blogging about legal education is neither my strength or my interest. Given the opportunity to spend time writing a blog post or to read something related to my teaching and research interests, I find I'd rather do the latter. If it seems like a chore, it is pretty clear it is not for me.
There are some really great law professor bloggers. Glenn Reynolds of Instapundit is truly indispensible; the Volokh Conspiracy (esp. my former CWRU colleague Jonathan Adler) has set the bar high for substantive law blogging; Paul Caron is called the Blogfather for good reason; the late Larry Ribstein wrote blog posts more substantial than most law review articles, and there are quite a few more. I suspect Bill and Jeff will make this an interesting place as well as our industry changes. All of these folks are really good at this format. This experience helped me figure out that I'm not. That's valuable knowledge! Thanks to Bill for his kind words at the start of this; good luck to both Bill and Jeff as they move forward.
[posted by Andy Morriss, signing off and taking emeritus status]
Sunday, April 1, 2012
CHICAGO, Apr. 1, 2012. Faced with law school faculty resistance to the "outcome measures" proposed in the July 27, 2008 committee report commissioned by the Section on Legal Education and Admission to the Bar, the ABA issued a report this morning that it has scrapped "outcome measures" in favor of "income measures." ABA spokesman Carl Spackler said, "We have spent almost four years coming to the conclusion that the only outcome that makes any difference is income. We realized that nobody complained in any significant way about legal education or the profession until the financial crisis sent shockwaves through the economy, and made pursuing a legal career a far riskier endeavor. Beginning with the matriculating class of 2013, law schools will be required to track four-year, ten-year, and twenty-year incomes of its graduates." Asked whether this constituted an irresponsible abandonment of its stewardship over the profession, Spackler responded, "Look, law school has become an extension of a liberal education. If you are flipping burgers, but making a good living and paying back your loans, we've fulfilled our obligation to you."
Robert Morse of U.S. News & Report said that the magazine was reviewing this development in connection with its highly influential rankings of American law schools. "I'll have to see how they plan to collect the data," said Morse, "but it sounds a hell of a lot more reliable than subjective faculty reputation surveys."