Thursday, February 28, 2013

The Law of Too Many Words

Ron Friedmann sees something that a lot of us law professors are failing to see, here.

[posted by Bill Henderson]

February 28, 2013 in Blog posts worth reading | Permalink | Comments (0)

Sunday, February 24, 2013

A Poor Man's Newcomb Problem, aka The Game of Life

LifeI have a running philosophical and existential debate with my good friend Jeff Lipshaw.  If I did not love Jeff, I would not blog with him. Anyway, Jeff has a tendency -- in my opinion -- to get bogged down in high theory. See, for example, his post on the Newcomb Problem.  Here is a poor man's version of the Newcomb Problem.  It has been described to me as "The Game of Life": 

Imagine that the game of life is played in an arena with a small rectangular field in the center.  Only 25% go onto the field.  75% stay in their seats waiting for more information.  Of the 25% who go onto the field, 4 out of 5 come back to their seats when they realize that they may not win the game.  They don't want to be embarrassed, so they quit.  In the end, only 5% are really living – doing their best with no guarantees but knowing what it is like to be fully alive.

So applying this insight to Jeff's Newcomb problem, the moral of the story is very simple:  Pick Box B, and only Box B.  Everything else is just mental obfuscation.

[posted by Bill Henderson]

February 24, 2013 in Blog posts worth reading | Permalink | Comments (1)

The Newcomb Problem of Going to Law School, Vet School, or Becoming a VAP

Posted by Jeff Lipshaw

When I teach contracts, one of my catch phrases is "you pays your money and you takes your chances."  It's consistent with my view, expressed ad nauseam in this article and elsewhere that thinking of any kind (whether or not "like a lawyer") only gets you so far.   To tap into my inner existentialist for a moment, life is about choices.  Making a choice is a mental process, but it's not quite the same thing as sorting things out rationally.  Making a choice (particularly one on which you then act) is more akin to the action than the thought.  (One might even say that making a choice but not acting on it isn't really making a choice because there's no consequence to it.)

NewcombAn ancillary catch phrase to "you pays your money..." might be "hope springs eternal."  My heart goes out to all of those who have made rational life decisions that have not panned out.  I'm an old guy who made a career in a different time, and I have no idea if I'm good or lucky, but I'm closer to the end than the beginning than most of my current professional peers, with a completely different set of life burdens.  So I observe the battle from the standpoint of one who has fought in it but has since been evacuated to safety.

To get  a sense of the turmoil, one need only have read the dozens of almost uniformly anonymous posts of law students whose debt obligations presently exceed their income expectations.   Then, in this morning's New York Times, David Segal, the author of a similar series on young lawyers, writes about debt-laden and unemployable young veterinarians.   And, over at The Faculty Lounge, it's hard not to be moved by the story of someone who committed to be a VAP and has similarly been caught in the backwash of the bursting of the law school and legal profession bubble.

I know that every one of my current students applied to and matriculated in law school (i.e., committed to the battle) after it was clear that the bubble had burst.  Why are they here?  Why apply to vet school after reading today's Times?  Why be a VAP?

There's a thought problem in decision theory called the "Newcomb Paradox."  The graphic above lays it out.   In the problem, assume an all-knowing and all-powerful "Predictor" and a "Chooser."  The Chooser has in front of her two boxes.  Box A is transparent and she can see it holds a $1,000 bill.   Box B is opaque.   It either contains nothing or $1,000,000.  Her choices are limited to the following:  (i) choose only Box B, or (ii) choose both Box A and Box B.  Here's the rub.  The Predictor (being all-knowing and all-powerful) has already predicted how she is going to choose.  And Chooser knows this as well.  So, if she goes with choice (ii) (both boxes), the Predictor will have predicted that and Box B will contain nothing.  If she goes with choice (i) (only Box B, thus giving up the sure $1,000), then the Predictor will have predicted that, and Box B will contain the $1,000,000.

Here's the paradox.  A causal decision theorist says choose both boxes because what is done is done.  Chooser's choice can't change the past, so there ought to be $1,000,000 in the box, and Chooser will get both the $1,000,000 and the $1,000.  The evidential decision theorist says, no, the best present evidence of what the Predictor has put in place is Chooser's present choice, and so Chooser ought to choose only Box B, even though it means giving up a sure $1,000.  Each side, the causalist and the evidentialist, thinks the other is irrational.  As Robert Nozick observed, there is no "knockdown" argument for either side.

Elsewhere, I've suggested this is a helpful way of looking at the illusion (or delusion) that we can beat the market.  It's a causal world, but one in which real causes are so complex and remote that they might as well have been put in place by the Predictor (or God).  So, like the evidentialist Chooser, we rely on evidence, part of which is our own assessment of our own abilities to make probabilistic judgments about the future of the causal world.  And hope springs eternal.  If we don't believe in our assessment of our own ability to go for broke, then unlike the sad VAP, we never leave the safe confines of our Big Law job (the $1,000 bill in the transparent box) for the big reward - a tenure track position in an accredited law school (which may or may not be in the opaque box).

Daniel Kahneman refers to this as the "illusion of skill."  My critique of Kahneman is that, while his is an undoubtedly accurate empirical assessment of the behavioral heuristics and biases of what I would more plainly call "self-deception," merely applying more thought to the problem leaves you with the very same problem you started with:  is my own assessment of my own self-deception itself an illusion of skill (the skill here being self-knowledge)?  No wonder I conclude:  at some point, you pays your money and takes your chances.

I know that's no comfort to those disappointed by the outcomes in the real, causal world.  But it's the only way I can understand the inner process of making the commitment decision - whether it's going to law school, becoming a vet, or trying to be a law professor - in a world we inhabit, don't control, and in which can only make educated guesses about the future.

February 24, 2013 | Permalink | Comments (1)

Sunday, February 17, 2013

ReInventLaw Silicon Valley 2013 @ The Computer History Museum

Posted by Dan Katz, Assistant Professor of Law, Michigan State University and Co-Director, ReInvent Law Laboratory @ MSU Law.

Screen shot 2013-02-14 at 4.20.19 PM

On March 8, 2013 - The ReInventLaw Laboratory - Founded by Daniel Katz and Renee Knake from Michigan State will host ReInventLaw Silicon Valley 2013 @ The Computer History Museum in Mountain View, CA.

Topics to be covered include: 
LegalTechStartUp, Lawyer Regulation, Quantitative Legal Prediction, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Design, 3D-Printing, Driverless Cars, Business of Law, Legal Education, Legal Information Engineering, New Business Models for Law, Lean Lawyering, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, E-Discovery, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.

What do I need to know?

  1. At all price points, the legal services market is rapidly changing and this disruption represents peril & possibility.  This meeting is about the possibility ... about some of the game changers who are already building the future of this industry.
  2. This is a 1 day event featuring 40 speakers in a high energy format with specific emphasis on technology, innovation and entrepreneurship.
  3. It will highlight the new and growing portion of the legal services industry. It will not be boring.  
  4. For more on our lab and related events please see: 

How Much Does it Cost?
This event is generously sponsored in part by the Ewing M. Kauffman Foundation, Michigan State University College of Law and the ReInvent Law Laboratory. 
Thus, tickets are FREE but limited.

There will only be 400 tickets for this free event.  Many of them are already taken and when they are gone, they are gone. Thus, if you or your friends/colleagues/students would be interested in attending -please sign up today.

Final Thoughts …
As I mentioned to Bill Henderson the other day … the old internet adage applies with equal vigor in the legal services industry "the future is here … it is just not evenly distributed."  

Come join the future already in progress at #ReInventLaw Silicon Valley March 8th, 2013  (and at our other free public events in London and New York later in 2013). 

February 17, 2013 in Current events, Fun and Learning in the classroom, Important research, Innovations in law, Innovations in legal education, New and Noteworthy, Structural change | Permalink | Comments (0)

Wednesday, February 13, 2013

Jim Moliterno Answers Questions on W&L's 3L Program; Supplies Additional Data on W&L

My previous post on Washington & Lee's 3L Program stirred a lot of interest and commentary, including some disbeleiving critics.  Fortunately, Professor Jim Moliterno agreed to write a reply essay, below, that completes the cycle. [Bill Henderson]

  MoliternoJim Moliterno Replies  [This is a long reply, so a PDF version online here]

A number of comments to Bill’s January 28 post and posts regarding it on other blogs cause me to enter this conversation.

Are students really coming to W&L because of the new curriculum?  Yes, to a significant extent. How do we know?  Because the entering students say so. As do many law schools, we administer a questionnaire to our enrolling students. Among the questions asked is the obvious one: why are you here?  

In the most recent such survey the students were asked to rank the strengths of the law school. Here are the top ten, in order, according to the entering students:

  1. Third Year Curriculum
  2. Ranking / Prestige
  3. Quality of Life
  4. National Reputation
  5. Job Placement
  6. General Cirriculum
  7. Clinical Program
  8. Faculty
  9. Financial Aid Award
  10. Size of Lexington

The curriculum reform was first.  Financial aid awards were 9th, just ahead of the “size of Lexington.” The data does not support the unsubstantiated claims of some bloggers that students are choosing W&L because of the generosity of financial aid awards. 

The curriculum reform has steadily moved higher on the “strength” rankings given by enrolled students since 2009. The 2011 and 2012 surveys are nearly identical, and the written comments of students about their reasons for coming to W&L (none reprinted here), are more striking than the numbers themselves.

I don’t know of any better data on this proposition but the statements of those whose reasons are under study. If that data is unsatisfying to some, then they will continue to be unsatisfied.

Are there other reasons students come to W&L? Of course. W&L has a highly productive, highly visible  faculty engaged in scholarship and projects at the highest levels. Some students undoubtedly value W&L’s faculty prowess.  W&L is highly ranked. Some students undoubtedly are affected by a top 25 ranking. It has an excellent reputation as a small, closely-knit academic community.  Some students select for the sense of community and size. No reason will ever be the only reason for prospective students to choose a law school.  Changes made by law schools will affect student choices for or against a particular law school. The W&L curriculum reform is positively affecting a significant number of students’ calculus about choosing W&L.   

And some do come because of the financial aid package they were offered.  But the financial aid reason is unlikely to explain the increase in applications since 2008. Some students, the recipients of aid, undoubtedly come in part because of the aid.  That is no different than the students who choose [insert name of any school] because of the financial aid they were awarded.   In 2012, about the same number of offers of admission were made as in previous years, but instead of the usual 130 or 135 admittees choosing to attend, more than 260 made deposits. Some were asked to defer their attendance until 2013 and once the dust settled we had a class of 187 instead of the usual 130 to 135. This same class entering in 2012 listed the curriculum reform first and financial aid ninth as strengths of the law school.

What else was happening in 2008 and 09 when the applications increased by nearly 33% per year? 

In 2009 and 10, while W&L applications were on the rise, the US News ranking fell from 25-34 (while its reputation rank among academics stayed steady).   It has now recovered to 24.  If anything, that should have led to a drop in applications during 2008-2011 rather than the sharp increases that actually occurred.

Can we exclude all other possible explanations than those previously mentioned?  Of course not.  It could be that being in a small, beautiful mountain town is all the rage among young adults and 33% more students want that now than wanted it in 2007. I know of no data to prove or disprove that proposition, so it remains one that could be true. The reality is that the students who have come in recent years rate the curriculum reform among the top reasons (often the most important reason) for their attendance at W&L. That matters.

There is empirical evidence that the W&L curriculum reform is engaging students more than in the traditional “no plan” third year curriculum. Is it perfect evidence? Of course not.  Is it definitive evidence that has no flaw? Of course not. Is anything ever supported by perfect, definite evidence that has no flaw? Not to my knowledge.  We make all of our most important decisions in life based on the best available evidence. As long as the evidence is empirically sound and statistically significant, it is worthy of respect. The evidence of W&L 3L engagement increases is sound and statistically significant and marks a path toward further research and verification.

One commenter suggested that the data is suspect because the peer schools have not been identified. Their data belongs to them, not W&L.  LSSSE does not make specific school data available to other schools.  So W&L has only a composite score for those peer schools. And it would be unseemly for W&L to reveal the specific schools.  I will not do so here. But to be sure, W&L asked LSSSE to calculate the data from a list of schools because they are the schools with whom W&L competes for students and competes in the rankings. It would not have served W&L’s research interests to learn how it compares with a list of schools that it does not compete with in the marketplace. No one at W&L has the data for any specific school. 

Nonetheless, do not be mistaken, the schools with whom W&L is compared in LSSSE data are the schools anyone would expect them to be: schools that by their geography, rank and quality compete with W&L in the relevant markets for students and placement.

One observation: in the legal profession and legal education in particular, the status quo never seems to need empirical justification.  Only change is suspect and wrong until proven definitively to be otherwise. Is there any empirical evidence that the status quo third year is the best possible third year except that it has been done that way for a long time? None that I know of. The old adage, “if it ain’t broke don’t fix it” does not apply here.  The third year of legal education is “broke”.

Amid calls for its abandonment by some, dating back at least to the early 1970s report by Paul Carrington, the third year is widely acknowledged to be of the least value among the three years. (See below on W&L’s largely unchanged  approach to years 1 and 2.) The Roman Legions (and more than a few other military powers) have found out that the mere fact that something has been successfully done before is not sufficient evidence that it will prevail in the present or future. Arguing in favor of the status quo based on no empirical evidence, . . . based only on instinct and the argument that it is the way things are currently done, is an approach doomed to failure.  Just ask Kodak. (And see my forthcoming book: “The American Legal Profession In Crisis,” Oxford, March 2013.)

How about the claim that “[W&L’s LSAT has] gone down every year since [the new curriculum was announced], while its GPA rank has, after a plunge, more or less returned to where it was.” The blogger made that claim, once again without any data, let alone empirically credible data.  Actually the W&L median LSAT was steady at 166 from 2005-2010, dropped 2 points to 164 in 2011 and stayed at 164 for 2012. It has not “gone down every year since [the new curriculum was announced in 2008].” Meanwhile, the GPA of entering classes, which was in the 3.5 and 3.4 range in 2008-2010, has gone up to the 3.6 range (3.65 and 3.62) in 2011 and 2012. The two modest changes in LSAT and GPA have essentially off-set one another in US News points. Hardly the reason for pause suggested by the blogger.

It seems that as long as someone is arguing against change, no rules apply to the arguments’ underpinnings.

Here is what the empirical evidence from the LSSSE surveys shows and what it does not show: students are more engaged in their work and their work includes more writing, more collaboration and more problem solving. Here are a few charts even more striking than those Bill used in his post. Together they say that significantly more than their peers or their predecessors at W&L, current third year students are working more, writing more, collaborating more, applying law to real world problems more, and preparing for class more often. Overall, they describe a harder-working, more engaged student body. And they are working harder at acquire the skills that matter to success as a lawyer.


Continue reading

February 13, 2013 in Blog posts worth reading, Current events, Data on legal education, Innovations in law, Innovations in legal education, New and Noteworthy, Scholarship on legal education, Structural change | Permalink | Comments (6)

Monday, February 11, 2013

Deciding Whether the Best Lawyers Have the Most Excellent "Slow Brains" Takes Something Other than a Slow Brain

Posted by Jeff Lipshaw

Bill and I have been having this friendly debate for a number of years now.   I believe the insights of Tversky and Kahneman are fully deserving of every accolade they receive, but they don't answer all the questions.  Personally, I think describing a lawyer as a having an excellent Kahnemanian "Slow Brain" is like describing a baseball pitcher as having a 102 mph fastball - it's a necessary but not sufficient ingredient of excellence (you need control as well as velocity).  

ImagesAs I've argued at length, it's because pure analytical ability (the "slow brain" quality) fails to capture the subjective and bottomless experience of judgment - in short, as Kahneman acknowledges, sometimes your fast brain answer is the right one, so if you use your slow brain to decide whether the fast brain or slow brain is giving you the correct judgment, are you making a mistake?

"Metacognition" - thinking about your own process of thinking - is all the pedagogical rage right now.  To the extent it encourages what I call "epistemic humility," I'm all for it.  But it's no silver bullet.   To quote myself:

I have a reasoned skepticism about our ability to navigate through life on a wholly reasoned and rational basis, concluding instead that sometimes being wise means understanding we just have to conclude, to decide, to act, to pay our money and take our chances. I recognize fully the abstraction of much of what I have said here. But I have wanted to counter the underlying rational, objective, and scientific underpinnings of much of the professional mindset: we can figure it all out and control it if we just think hard enough. More practically, as some have suggested, there is a real question whether any of this state of mind can be taught in school. I think we can rigorously and ethically help young lawyers develop one- handedness, but that must be the subject of another article.

For more where that came from, see Dissecting the Two-Handed Lawyer:  Thinking Versus Action in Business Lawyering, coming soon to a prestigious law review near you.  (The conversation I describe at pp. 49-50 of the SSRN draft was with Bill!)  The abstract follows the break.

Continue reading

February 11, 2013 | Permalink | Comments (4)

Sunday, February 10, 2013

Do the Best Lawyers have Excellent "Slow" Brains?

We were born with a fast brain, but we need a slow one to advance civilization, among other things. I am talking about insights of behavioral economics being applied to lawyer decisonmaking and judgment, and I think the answer to my question is "yes".  Indeed, I think the insights of behavior econonomics put a whole new and important gloss on the tired adage, "Thinking like a lawyer."   

We cover the basics of this topic in my 1L Legal Professions class.   Apparently, it resonated with one of my many attentive students, as he/she  sent me this amazing science video.  It boils down all of Dan Kahneman's brilliant Thinking, Fast and Slow treatise into four very engaging minutes.  This is a vegetable that tastes like chocolate.  (H/T to a wise anonymous 1L at Indiana Law.)

[posted by Bill Henderson]

February 10, 2013 in Cross industry comparisons, Fun and Learning in the classroom, Important research, Innovations in legal education, New and Noteworthy | Permalink | Comments (5)

Saturday, February 9, 2013

"LPOs Stealing Deal Work from Law Firms"

That is the title of this video interview of  law firm consultant Kent Zimmermann of the Zeughauser Group.  In the interview, Zimmermann relates a story from a recent large law firm retreat in which one of the partners raised her hand and said that one of her major clients in the healthcare industry recently used Axiom in an M&A deal.  Not for due diligence.  They used Axiom for the whole deal.

For what it is worth, I think we have a language / perceptions gap at work here.  At least in the winter of 2013, the phrase "Legal Process Outsourcers" tends to connote masses of low-level attorneys toiling away doing low-level work in India, the Philippines, South Africa or in small or middle market cities in the U.S. -- i.e., a simple labor arbitrage play.  

But Axiom's competitive advantage is in understanding the clients' needs and working backwards to a solution.  The value here is in (a) listening carefully to the client (e.g., "we want the same or better quality but lower and more predictable pricing"), and (b) in designing and building a system that delivers that outcome.

For background on Axiom, read this eyeopening article, "Disruptive Innovation", from The American Lawyer.  Axiom has backing from Sandhill Road venture capital and Wall Steet private equity.  One of their investors is quoted, “Axiom has an opportunity to disrupt an industry that hasn’t materially changed in a century. ... With a worldwide legal market that is a trillion dollars each year, there is plenty of running room to build a successful business."

Water runs downhill.  There is a lot of money to be made by making law more efficient and affordable.  Lawyers need to facilitate this outcome, not obstruct it, as society needs and wants better, more affordable access to legal solutions.  Process-driven legal services and legal products are the future.  Indeed, as the cyberpunk science fiction writer, William Gibson, once quipped, "the future is already here — it's just not very evenly distributed."

For my own views on the incipient revolution that threatens 100 years of established hierarchy, see "Losing the Law Business," Cayman Financial Review (Jan 2013); for the implications for legal education, see Section II.C of A Blueprint for Change.

[posted by Bill Henderson]

February 9, 2013 in Blog posts worth reading, Current events, Data on the profession, Innovations in law, Law Firms, Legal Departments, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (3)

Monday, February 4, 2013

"We Need a New Kind of Learner"

Via the Big Think, [though I added in the references to law students] BigThink

The 21st century requires a new kind of learner—not someone who can simply churn out answers by rote, as has been done in the past, but a student who can think expansively and solve problems resourcefully. The traditional academic skills of reading, ’riting, and ’rithmetic must be replaced with creativity, curiosity, critical thinking and problem solving, and collaborative and communication skills in order to solve the complex problems of tomorrow. ...

[I]magine that knowledge is a multisided box. When we teach [law students] to simply memorize material so they can pass tests, we give [law students] access to the knowledge on only one side of the box. So when life tosses this box up (as it certainly will), it may not land on a side that is visible and accessible. In this case, the [law students] don’t have access to the knowledge. ...

[Students] need to learn to navigate the course of acquiring knowledge—essentially, to get to the answers by being curious and coming up with a lot of questions, a lot of whys. They need to get accustomed to learning from different directions, playing with concepts, and figuring out how to ask the whys in order to gain access to knowledge. This process is more important than having the knowledge itself

The author is Ainissa Ramirez.  She is an author and science evalengist who recently wrote the ebook Save our Science: How to Inspire a New Generation of Scientists. I think the identical issues apply to law students.  Education needs to be cheaper, yes.  But to hold our society together, it also needs to be better.

[posted by Bill Henderson]

February 4, 2013 in Blog posts worth reading, Cross industry comparisons | Permalink | Comments (4)

Saturday, February 2, 2013

Who Are These Companies?

Below is a photo of the exhibitor list at the LegalTech New York trade show.  [Click on to enlarge]


There was a lot of money sloshing around this trade show.  What do these companies sell?  How do they make money?  Who are their clients? Who founded these companies and who financed their growth? Are lawyer-employees a key part of their business models?  These are the questions I am asking.

If you think that the ethics rules (MR 5.4) are keeping nonlawyers out the legal industry, you need to come to LegalTech.  

[Posted by Bill Henderson]

February 2, 2013 in Current events, Innovations in law, New and Noteworthy, Structural change | Permalink | Comments (0)