Thursday, March 22, 2012
One part of the restructuring of the legal industry is going to be the need to pay attention to what is happening in the industry. Bill has given me several key blogs to follow, here's a website that is both fascinating and fun: RollOnFriday.
A somewhat irreverant look at the legal profession in Europe (mostly in England), Asia, and the US, including "a rich collection of colourful incidents that have helped make the name of the website that went from curiosity, to irritant, to eventually earn an almost affectionate place in the City legal community." (From "Friday's Children" in LegalWeek - an incredibly expensive newsletter that has a short free trial period). LW reports the monthly audience for the blog is 125,000. It has 2 full time reporters working for it, active discussion boards on life as an associate and other topics, and regularly jabs both firms and law schools. The best part: "a guiding principle behind the site is that increased transparency is a good thing for the profession." (again from LW).
[posted by Andy Morriss]
Over the last several months, I have reluctantly concluded that law school employment transparency is a lot like cancer treatment: it can beat back symptoms and buy time, but it won't necessarily cure the disease.
This is not a flip comment. My mother died of cancer two years ago, and chemotherapy extended her life for several months. Lots of wonderful things happened as a result. Relationships got healed. We crossed things off the bucket list. We laughed and cried. And more than anything, we stayed in the moment.
Over the last 18 months, three separate ABA groups -- the Questionnaire Committee, Standards Review Committee, and the Council on Legal Education -- have given sincere and focused attention to the law school employment controversy. Frankly, I am in awe of the breadth and depth what they have accomplished. Going forward, prospective students will get, at a school-specific level:
- Type of Practice Setting. Law firms (#, broken down by size), business and industry, government, public interest, judicial clerkship (federal, statel, local by size), employed in academic, pursuing graduate degrees, unemployed (various types) and status unknown.
- Duration and Quality. For the first time, jobs will be broken out by: (1) full-time versus part-time, (2) long term versus short term; (3) number of law school funded jobs, (4) whether JD is required; (5) whether JD is preferred; (6) whether the job is professional or nonprofessional
- Uniform Web Reporting. All of this information, plus tuition, fees, employment data, scholarship (including renewal rates), entering student credentials, will be in a relatively standardized format on the schools' websites.
What's controversial about the ABA's decision? Law schools will not be required to report any salary data (on the theory that they are too incomplete on the bad outcomes side to be reliable). This omission upset Kyle McEntee, the Executive Director of Law School Transparency, who expressed frustration and disappointment in an article in the National Law Journal. See Karen Sloan, ABA Backs Off Making Law Schools Report Graduate Salaries.
I have a slightly different perspective. Back in Dec. 2010, I was with Kyle at the Questionaire Committee Meeting in Fort Lauderdale, Florida -- a month before the first David Segal article broke. Is Law School a Losing Game? Suffice to say, the prospects of reform did not look bright. Yet, less than a year and a half later, ABA-accredited law schools are poised to become the most transparent institutions in the history of professional education. And this sea change occurred in large measure due to the tireless efforts, moral fortitude, and deft statemanship of an underemployed Vanderbilt law grad named Kyle McEntee.
Kyle, you've just hit for the cycle! This is a once or twice in a career event, and you did it in your rookie year. For God's sake, forget about the popout at the end of the game. It's time to admire the lopsided scoreboard. Moreover, your constituents at LST will still get regional and practice setting salary information pooled across law schools--and those data, while not school specific, will have the virtue of being relatively reliable. So even your outfield popout managed to score a run.
With the ABA getting its house in order, and yesterday's dismissal of the alleged deceptive employment data against New York Law School (albeit there are cases pending against other law schools under different consumer protection laws), it is possible to begin conceiving of US legal education in a new post-scandal era. This is all very good.
Going back to the cancer metaphor, however, the ABA industry-level transparency efforts are going to beat back a lot of symptoms of what ails us. But they won't provide a permanent cure. Further, the relief will be, at best, temporary. Going forward, every ABA-accredited law school needs to seek out additional aggressive treatment in order to increase our odds of beating back the long term threat. On this score, we legal educators cannot lose sight of the fact that the lack of transparency was precipitated by structural problems in legal education that aren't going away:
- Our costs are too high
- The market for traditional legal jobs is stagnant and likely in long term decline
- There is industry overcapacity (50,000+ 1L seats per year)
- Public subsidies are going away
- Near total financial dependence on loans from the US Dept. of Education
- Law is on the precipice of a radical information revolution led by technology, knowledge management, and process engineering
- Tenured faculty control hiring and curriculum and have a limited appetite for retooling
- We law professors don't understand that we are running a business
- Our rankings are based on high costs and admissions sorting
- Thus, based on #9, there is no market reward for innovation or value-add in legal education. In fact, the concept--that education can trump sorting--still needs to be proven.
In the short to medium term, industry-level transparency will have two effects that pull in opposite directions. First, the legal education industry, at least at the ABA self-regulation level, will have clean hands. That really matters. But second, and pulling in the opposite direction, transparency will give rise to a whole new rankings industry that will rival and potentially supplant US News.
Why? Because law students don't really care about rankings per se-- instead, they care about the number and quality of employment options created by their law school investment. In the US News rankings, top law schools rankings are highly correlated with a multitude of wonderful options. But in the new transparency era, it will be possible to use hard data to make more precise decisions for all the other law schools. For example:
- Why go to a law school ranked #60 and pay twice as much when the new Employment Transparency Rankings show essentially identical employment outcomes for a lower ranked school?
- More perniciously, why go to Law School X or Y at all when over half of their graduates routinely fail to obtain full-time legal or professional employment 9 months after graduation?
- And the potential death blow, why should the DOE continue to fund such miserable outcomes when the U.S. taxpayers are ultimately on the hook for the bill?
Transparency will not create law jobs for law school graduates. Instead, it will reveal in minute detail the value proposition of every ABA accredited law school. Everything needed for the new Employment Transparency Rankings will be in the public domain. (Note to LST: this is a business opportunity.)
I am an avid reading of industry history. The one commonality of iconic but failing industries is denial among its beneficiaries. Our mind is framed by success, so we believe in the rebound rather than face the unpleasant tradeoffs needed to save 40% or 50% or 60% of the franchise that can survive in the new competitive landscape. This has happened to architects, journalists, airline pilots, and Eastman Kodak. Similarly, the cable networks knocked out the broadcast networks; and now cable networks are on the ropes. Well, the same forces of creative destruction apply to law schools. See Henderson, The Hard Business Decisions Facing US Law Faculty.
For those of us who accept change as the one bankable constant, change is less a threat than an opportunity. Over the next five to ten years, maybe slightly longer, a more sustainable Post-Langdellian business model for legal education will emerge. This new model will likely place a higher emphasis on communication, collaboration, and problem solving, which are the skills needed to price, allocate, manage, or engineer around legal risk or legal problems. Winning a case in court is only a sliver of the calculus. Technology and new pedagogy will pack a much better education into three years. At least some scholarship will be highly applied. And at the best schools, teaching, service and scholarship will merge, and the most valuable faculty will be less ivory tower. It will be an exciting place for students, professors and alumni.
If we pursue the right treatments, we can survive to help create and experience this new era.
[Posted by Bill Henderson]
Monday, March 19, 2012
My Legal Professions class is now covering the conflicts of interest. In the usual march through the rules, it is easy for students to draw the inference that avoiding a conflict of interests is just a matter of knowing Rules MR 1.7 to 1.12 and their accompanying comments. But far and away the biggest danger is the Bug of Self-Interest. And, I have to break it to my students that none of us enjoys complete immunity from its noxious effects.
In his book, Advise and Invent: The Lawyer as Counselor – Strategist (1990), the renowned M&A lawyer, James Freund, has a brilliant cartoon that depicts the Bug of Self-Interest and the many client and career dangers its breeds. Because it is such a compelling visual -- and made more powerful because it reflects on Freund build his law practice -- I figured it deserved its own spot on the Internet. [Click to enlarge. It's worth it.]
Freund was a remarkably prolific author during his long and distinguished career as a practicing lawyer. Early in his career, Freund wrote Anatomy of a Merger (1975), which is still in print 37 years after its original publication. Four years later, he wrote Lawyering: A Realistic Approach to Legal Practice (1979), which to my mind is the single best resource for the understanding how to manage relationships and build a law practice while staying entirely loyal to clients, fellow partners, and one's self. It goes for $55 used on Amazon -- and its worth it.
In addition to Advise and Invent, other worthwhile Freund books include The Acquistion Mating Dance (1987), Smart Negotiating (1993), and The Smell Test: Stories and Advice for Lawyers (2006). In addition to his successes, Freund reveals a lot of his own mistakes in these books. This adds to their value and usefulness.
[Posted by Bill Henderson]
Posted by Jeff Lipshaw
Apropos of Bill's post on whether "cooperation" can be taught, the Wall Street Journal's special Monday section today featured a series of "yes-no" debates relating to small business, including the question: "Can Entrepreneurship Be Taught?" Not surprisingly, a Harvard Business School professor takes the affirmative and a Silicon Valley venture capitalist takes the negative.
Yes-no questions of this kind, like law school rankings, make for fun reading and water cooler debate, but ultimately try to digitize the analog. The problem in both cases comes from confusing (a) the model with the reality, and (b) the data marshalled for argument (the "is" or the "descriptive") with theorist's theory (the "ought" or the "normative"). Indeed, rankings and binary debate questions emphasize the twin problems differently. With rankings, the more apparent issue is the former: confusing the model with the reality. The more subtle issue is whether the theory of the ranking holds water, even as to data relatively immune from manipulation (e.g., is peer reputation a self-reinforcing loop?) When looking at a debate question like "Can entrepreneurship be taught?", the more apparent issue is the latter. It's pretty easy to spot the normative focus. What is more subtle is the falsity of the "yes-no" model itself - as though "teaching," "experience," and "entrepreneurship" have objective definitional boxes such that it's meaningful even to debate the issue in that form.
As I reflect back on my career in corporate management, it occurs to me that part of my job was to puncture false binaries in organizational disputes over things like territories, responsibilities, causation, credit, or blame, often by recasting the question from "us or them," "inside or out," "team or individual," "cash or stock," "employees or shareholders" into another conceptual model (i.e., another theory of the problem). As I observe my present career in academia, I see the same kinds of false binaries in doctrine, pedagogy, and administration. Are lawyers, by training, unusually inclined to delight in just such conceptualizations? No, talk to an engineer - mechanical, civil, electrical, organizational, financial, or transactional cost (pace Ron Gilson) some time. Nevertheless, are false binaries a problem among lawyers and in legal education? If so, who is competent to deal with them?[Cross-posted at Legal Profession Blog.]