Saturday, March 17, 2012

A Reply to the Empiricists at NWU Law

My blog post from last week, "Too Good for BigLaw: The Statistician Edition" has resulted in a minor kerfuffle with some of the distinguished empiricists at Northwestern Law.  See Dan Rodriguez, Law School Sorting and the Partnership Track:  Northwestern Empiricists Weigh In, Word on the Streeterville [The Blog of NWU Law Dean].  NWU Law folks were not impressed with my analysis.  Dan Rodriguez was gracious enough to send me the link at the same time his post, quoting the views of his colleagues, went live.  He has also encouraged me to reply publicly. 

I am happy to do that.  Let me start with big picture issues.  Then, for those folks with the curiousity and stamina to wade through arcane details--and experience tells me this is a small group--I will directly address, point by point, the the issues raised by Kate Litvak and Max Schanzenbach.  But at the outset, I will say that I am not conceding any ground.

Big Picture

First off, it is important to understand why this topic generated so much traffic.  See Above the Law, ABA Daily Journal, TaxProf, InstapunditAdam Smith

It all started with a provocative blog post by Vivia Chen, the columnist for The Careerist.  Vivia reviewed hiring and promotion data from the NLJ 250 Law School Hiring Survey and noted that elite law school graduates were becoming partner in very low numbers when compared to the hiring pipeline. Vivia editorialized on the numbers in a way that played into readers' fragile egos and insecurities.  Of course, that is her job, which she does very well.

In a nutshell, here is why people care -- or more precisely, get anxious -- about this topic:  it is conventional wisdom that graduation from elite law schools produces better career outcomes.  When that expectation is countered by actual marketplace data, people are surprised.  See, e.g., Bruce MacEwen,  "The Best & The Brightest" at  Adam Smith Esq. (leading blog on law firm economics).  Surprise is the first reason this issue got so much play.  Emotion is the second.

Emotion matters because very few lawyers and law professors are dispassionate on this topic.  When it comes to conventional wisdom on law school pedigree, we all have horses in the race.  Because we are human beings, we lawyers and law professors don't wait for balanced market data to develop our own entrenched worldviews.  When the conventional wisdom favors us, we go with it -- albeit we aren't really conscious this is happening. So when data upset the apple cart and potentially make us look complacent, our passions get aroused. 

The folks at Above the Law have built a entire business model around such predictable lawyer foibles.  The more chum thrown in the water, the higher the ad revenues.  It's just that simple.

Vivia's primary point, stated through metaphor, is that regional schools (such as Chicago Loyola) seem to be making partner at higher rates than the elite schools (such as Chicago).  This is a reasonable inference because the ratio of associates hired to partners promoted appears to be consistently high for elite law schools and very low for a large number of regional law schools.  This very point was made independently by Bruce MacEwen, who is a very sophisticated guy who advises law firms on strategy.

That said, there was ample opportunity for readers to draw spurious inferences from Vivia's metaphor-driven blog post.  Thus, to avoid any school-specific claims (a 1-year crossectional sample is not suitable for such a purpose), I pooled the schools by U.S. News ranking, drawing a line between elite and non-elite at the T14 mark.  Why T14?  Because these schools have played a closed loop of musical chairs for 20 years in the U.S. News rankings.  These schools would be viewed by most employers as "national" law schools.  

Here is what the data showed:

  • Pipeline in:  53.7% T14, 46.3% non-T14
  • Partners Promoted: 29.4% T14. 70.6% non-T14.

That is, well, an enormous skew. In 2011, for every 5.43 elite grads hired, a senior associate from an elite school makes partner.  For non-elite schools, that corresponding statistic is 1.95.  Vivia found these numbers surprising and somewhat counter-intuitive.  So did Bruce MacEwen, Above the Law, ABA Journal, etc.

There are ways to break down these numbers to gain additional insights, but the key point here is one of magnitude.  Elite law graduates are supposed to be smarter and more capable -- no one expects these folks to be on short side of any race, tournament or desired outcome.  The magnitude of hiring/promotion gap is the surprising fact that needs to be explained.

I had observed roughly the same skew several years ago (pooled 2007 and 2008 data) and alluded to it in this article, "Why is the Job Market Changing," Nat'l Jurist (Nov. 2010).  I also follow other relevant studies, such as The After the JD, which have noted differences between elite and non-elite graduates.   So I had a head start in thinking through possible explanations. I thus offered five theories, all of which could work in concert, to explain the large skew in the data:

  1. Selection effects
  2. Differences in first jobs
  3. Intergeneraional privilege
  4. Influence of admission criteria on the associate pipeline
  5. "A Better Plan B" for elite grads

So, to be very clear, I am not using the NLJ 250 data to support the above theories.  It is the reverse: I am offering the above theories as a likely explanation for the very large skew between elite and nonelite grads.  Framed as a open-ended research question, it might be written, "why are elite grads not becoming BigLaw partners in numbers commensurate with hiring patterns and general presumptions of their higher ability?"  That is a mystery and a puzzle.

Statistics Minutiae  [After the jump ...]

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March 17, 2012 in Blog posts worth reading, Data on legal education, Data on the profession, Law Firms, New and Noteworthy, Scholarship on legal education, Structural change | Permalink | Comments (3)

Friday, March 16, 2012

Counter-Intuition in the Legal Academy (and Life)

Posted by Jeff Lipshaw

Larry Kramer, Stanford's dean, was in Boston yesterday, and we had lunch.  (Full disclosure:  I am an unabashed Larry Kramer fan.)   I've previously lauded the efforts of Larry and the Stanford faculty to reform the second and third year curriculum, primarily to provide more interdisciplinary and joint degree opportunities as between the law school and other arms of the university, like the business school, med school, engineering school, and so on.   Larry reported that the program was moving ahead nicely, but that students were still tending to select more traditional classes, presumably in reaction to the contracting job market over the last couple years, and on the theory that a more traditional transcript would be more attractive to employers in a tight market.

We agree this was a natural flight to safety, but that the more appropriate reaction, perhaps counter-intuitive, would be to double-down on the interdisciplinary opportunities.   In our conversation, I suggested to Larry the following as an illustration of his point.

A free-lance reporter called me the other day wanting to understand a contract lawsuit recently filed by the operator of the Park City ski resort in Utah.  In a nutshell, the operator as lesseee had a fifty year lease, and apparently the right to renew it for another fifty years.  I don't have the underlying contract, only the complaint, but it's clear the party were negotiating amended terms of a renewal, and in the process, the operator created some ambiguity over whether it had exercised the renewal option precisely and literally according to the terms of the agreement.  It also appears that the lessor said something in the negotiations to the effect that the lessee hadn't properly renewed, and was subject to being evicted.  Nevertheless, the lessor has not yet sought to terminate the lease or the occupancy, and is still collecting rent.  Moreover, the case is a declaratory judgment action filed by the lessee, seeking a determination that it indeed renewed the lease.

Now I think this may well be a lovely case for demonstrating the interplay of express and implied conditions as a matter of doctrine, but it seems to me a perfect example of how little you know if all you know is contract doctrine or even litigation strategy.   In the past, I've used the metaphor of a ricocheting bullet for the unintended consequences of a hardball action, particularly the filing of a lawsuit.  Deciding to escalate, and to escalate publicly, invokes not just legal doctrine (i.e., a prediction how a third party decision maker might rule), and not just trial strategy (i.e., how do we put ourselves in the best position to win the litigation), but business strategy, public policy, public relations, psychology, finance theory, and other disciplines, all mediated by a well-grounded view of human nature.

I don't think a law student gets more "practice-ready" or more attractive to an employer by taking more old-style doctrinal classes that do things like focus solely on the kernel of legal doctrine that may lie at the heart of a problem.  I can think of a bunch of metaphorical terms for this reaction to change, crisis and uncertainty:  bunker mentality, cocooning, circling the wagons, etc.  Of course, I'm already in hot water with the contract professors union for suggesting that the universe as we have come to know it will not end with a reduction from six credit hours of contract law doctrine in the first year.  That too strikes me as circling the wagons.

Flights to safety and control are the typically intuitive (and, in my view, wrong) reaction to change and uncertainty (e.g., banning laptops or cutting off wireless access as the means by which teachers seek to control the attention of students in a classroom).   We already know or what we've previously done feels safe and controlled.  Being interdisciplinary is, by definition, unsafe and uncontrolled, by virtue of the fact that there are no intra-disciplinary authorities to tell you that what you are doing is okay.  (If there's an interdisciplinary authority, then the interdiscipline has really become its own discipline.)  But is the intuitive flight to safety and control the right one?

[Cross-posted at Legal Profession Blog.]

March 16, 2012 | Permalink | Comments (0)

Tuesday, March 13, 2012

The Eye Contact Revolution

Several years ago, a student wrote in my teaching evaluations that I had a hard time with eye contact; the context was office hours.  I had not really thought about it,  but upon reflection, I realized that he/she was right.  More recently, in organizing peer evaluations of student presentations in my Legal Professions class, the topic of eye contact kept coming up.  And I agreed.  Students who maintained audience eye contact seemed more confident, competent and memorable.

This morning, via the Big Think, I read that we are -- or could be, if we got our act together -- in the midst of a eye contact revolution.  Here is an excerpt:

Michael Ellsberg, author of  The Power of Eye Contact: Your Secret For Success in Business, Love and Life, and The Education of Millionaires: It’s Not What You Think, and It’s Not Too Late thinks most of us are getting it wrong, eye-contact wise. Good eye contact, he argues, is as important to connecting meaningfully with others (at play or at work) as is, say, bathing. What’s needed, says Ellsberg, is a soft, open gaze – one that neither intimidates nor communicates anxiety on the part of the gazer.

[Why does this matter?]
Ellsberg’s “eye contact revolution” is aimed not only at careerists, but at the social and spiritual heart of our glowing screen-obsessed world. Looking up from our smartphones and into each other’s eyes, he believes, will increase the quality of every aspect of our lives.

Ellsberg suggests trying out his techniques in low stakes interactions, such as sales clerks and waiters and waitresses. 

This reminds me of Warren Buffett's experimentation with Dale Carnegie's techniques for making friends and influencing people.  In his teens, Buffett practiced the Carnegie methods for several weeks and tracked the results.  Then he reverted to his former self and agained tracked the data.  At the end of the process, he compared the statistical output and realized that the variation could not be explained [reasonably] by chance.  So thereafter, he committed himself changed.  See Alice Schroeder, The Snowball: Warren Buffett and the Business of Life (2008).

Below is a Big Think video of Ellsberg discussing his ideas.

[Posted by Bill Henderson]

March 13, 2012 in Blog posts worth reading, New and Noteworthy, Video interviews | Permalink | Comments (1)

Monday, March 12, 2012

Considering the Med School Analogy

Posted by Jeff Lipshaw

Bill is as usual too kind, but indeed we have been friends since that fateful lunch in Bloomington six IMG_0230years ago this month.  I'm immensely flattered that Bill and Andy have seen fit to hand me the dry erase marker, and the first thing I did with it was draw a far more accurate self-portrait than the picture Bill managed to dig out of some P.R. file somewhere.

I flew out to San Francisco from Boston yesterday.  About an hour into the flight, the flight attendant asked over the PA whether there was a medical professional on board, and I saw somebody up near the front of the plane hit the call button.  I had been discussing this very situation with my third-year medical student son a couple weeks ago, reacting to a post from my friend Howard Wasserman at PrawfsBlawg.  Howard told the story of a newly-graduated doctor flying in fear of being called on in such a situation, believing that she didn't have the practice skills to intervene.  Howard's point, if I can restate it, was that pointing to medical education as the model for "practice-ready" lawyers was a mistake, and that newly-minted doctors were just as "unpractice-ready" as newly-minted lawyers.

I wouldn't want a newly-minted doctor to perform neurosurgery on anybody I liked, but I thought Howard had overplayed the meaning of the anecdote.  My son advises me that invariably what you need on an airplane is an EMT, not a doctor.  (He tells me all med students are CPR-trained, but he'd be far more competent to diagnose a cough or a rash than to apply the CPR.)  If the only person on the plane to step up was a third year med student, I'd still think that person was more qualified to act as a GP doctor, relatively speaking, than the typical doctrinally-trained law grad would be to act as a GP lawyer.  Others may feel differently.

Having said that, and having observed my own education, my son's, and the education I'm now employed to help provide, I am still convinced that medical education, apart from internship and residency, effectively creates "doctors" by the time med students are in their third year. The great bulk of medical education takes place in three years - the first two in the classroom (culminating in the USMLE Step 1 exam), and the fourth being largely devoted to rotations in specialties and the residency placement process. The third year is the one that is brutally intense. On a outpatient service, the students spend something 10.5 hours a day, five days a week in the clinic, then go home and study for 2-3 hours more. On inpatient rotations, they go from 6:30 am to 5:00 pm in the hospital, and again go home to study for 2-3 hours. They have an exam at the end of each rotation.

There is an important institutional difference in medical education.  There's no doubt that med students get the benefit of public and private funding of the health care systems, but they are also care providers - they do things that if they didn't others would have to do.  Finding legal institutions capable of replicating this kind of intensity for law students is a problem (particularly for non-litigating lawyers), but the point is that no law student is going to approach the kind of practice readiness I perceive in a med student of equivalent tenure by doing fifteen credit hours (three hours a day of class time) a semester of even the most pragmatic skills oriented course work. Are students, faculties, administrators, law firms, courts, corporations prepared to create the kind of full-time (I mean thirteen hours a day) experience for the final two years of law school that might well leave one thinking "that's somebody who's a lawyer"? Because to do both the theory and the practice (as the med students do) would take that kind of commitment from all concerned.

(Cross-posted at Legal Profession Blog)

March 12, 2012 in Cross industry comparisons | Permalink | Comments (2)