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.

Wlone

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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.

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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)