Friday, May 31, 2013

A Summer Graduate School for E-Discovery

That's right, law students now have an opportunity to add hands-on e-discovery training to their skill set.  Surely, a first-of-its-kind program is being offered by one of the 200 ABA-accredited law schools struggling to adapt to a changing legal market, right?

Bryan-University-SealWell, actually, no.  It is being offered by Bryan University, which began life in 1940 in Los Angeles as a stenography school for court reporters.  It subsequently evolved into Bryan College, which offered associates degrees in various vocational tracks.  More recently, it has received accreditation as a university, with a masters degree in applied medical informatics and a cetificate program in e-discovery.  Both are offered exclusively online.

The e-discovey certificate program has some interesting features (press release here). 

  1. It's an actual graduate program.  Enrollment is limited to law students who have completed a course in civil procedure (so, functionally, 2Ls and 3Ls) or, at most, completed their JD studies in 2013. 
  2. It's real-world relevant.  The program is organized around the Electronic Discovery Reference Model (EDRM), which is a detailed yet evolving set of industry standards that flow from nearly a decade of meetings involving literally hundreds of major and minor players in the litigation industry -- law firms, tech start-ups, Fortune 500 companies, consultants, etc.  I have been at an EDRM meeting.  Just learning the arcane, technology language of this massive subfield could itself a big value-add for students. 
  3. Students learn how to use tools.  The program is an immersion experience in which students will learn how to use high-end software related to predictive coding and machine learning; after that, they move to human review using another industry software suite.  This event is supported by several legal vendors, mostly software providers, because they want their tools to become industry standards. Lexis and Westlaw used this same playbook 30 years ago.
  4. It's compact and efficient. The program meets online in real-time two hours a day, four days per week, for four weeks.  

The faculty is comprised of practitioners and technicians in the e-discovery business, not full-time law professors.  The tuition is $1,495 (very cheap if measured by contact hours), which can be paid online via credit card. Alas, May 30th was the last day of registration!

Signficance of the Bryan University program

Is the Bryan University e-discovery certificate program evidence of law's slide into vocationalism, or are 200+ ABA-accredited law schools missing the boat on the future of law?  This may frame a provocative debate among academics, but it gets us quickly onto the wrong track. 

Let's separate changes in the legal economy from debates over academic identity, which tend to arouse our emotions.  In other words, let's respond to these circumstances like level-headed lawyers and acknowledge the substantial evidence that the world of lawyering is changing in dramatic ways.  If this is true, by extension significant changes to legal education are likely on their way.

Exhibit #1

If we focus on facts, Exhibit #1 has to be access to justice.  Resolution of disputes through state and federal courts --the paradigmatic work of lawyers -- has become prohibitively expensive for the vast majority of U.S. citizens.  Further, it is now getting a too rich even for major corporations.  Part of the problem is proliferation of electronically stored information (ESI). Finding and analyzing the law, it turns out, is the easy part.  We teach that in law school.  But in this permanently digital world, facts never get lost.  Rather, they accumulate.  This creates large problems for litigants.

Instead of redesigning our judical system to deal with this challenge -- something a conservative legal profession is loath to do without a decade or two of deliberation -- we are now witnessing the rise of a massive industry of legal vendors trying to make electronic discovery more efficient. 

Exhibit #2

Exhibit #2 in our factfinding journey is that a huge proportion of these new legal vendors are owned and controlled by nonlawyers.  See Henderson, Losing the Law Business.  It turns out that the MR 5.4 ban on fee-splitting is, to a large extent, not much of a barrier at all.  Virtually everything up until the courthouse door or the client-counseling moment can be disaggregated and turned into a process or product delivered by a nonlawyer vendor adept at technology and systems engineering.  Because there is so much money to be made by the application of technology and process to legal problems, the nonlawyer genie is not going back into the bottle.  It is time to accept that fact.

Below is a chart I use in a lot of presentations to law schools and bar associations.


The point of this chart is very simple.  A legal services industry has arisen around the traditional legal profession.  Now, increasingly, the word "service" is falling out because products and mechanized processes are taking their place, driving up quality, and driving down cost and cycle time. Society wins.  Lawyers adapt.

So, at a practical level, what does all of this mean?

Let's start with the good news.  Law is not going away.  In a highly interconnected, complex globalized world, law is actually becoming more important. 

But here is the realistic inner lining.  Law is also suffering from a productivity imperative.  The average citizen -- including the typical lawyer -- can't afford to engage the services of an artisan lawyer. And large firms filled with high-priced artisan lawyers are becoming a less attractive option for even large corporations.  They want better, faster, and cheaper legal solutions.

So, for law professors anyway, here is the bad news: Training artisan lawyers -- what U.S. law schools do -- is indeed a mature industry.   The U.S. economy can't fully absorp 45,000 law graduates per year, at least not doing traditional artisan-type legal work.  So, if we want reliable employer demand for our graduates, some retooling needs to take place.  Is the retooling process hard and complicated?  Absolutely.  Does this type of change occur in other industries?  Yes, as reliably as the sun rising in the east.  Now is our turn. 

How do we retool?

CheeseThe most difficult hurdle is just accepting the need to change.  It's purely an emotional obstacle.  The cheese has been moved.  It's gone.  It will not reappear. We need to find new cheese.  Not familar with the reference?  See Who Moved my Cheese.

The next step is just showing up to industry events and accepting the fact that we are not the smartest person in the room, at least when it comes to intersection of technology, process design, project management, knowledge management, big data analytics, machine learning, and modern law practice, etc.  Instead, it is time to just soak and poke.  Practically speaking, this means listening to others and trying to decipher patterns that simplify and unify what we are observing. 

Third, with the help of some adjuncts we deputize along the way (both lawyers and nonlawyers), we design and offer some new courses that capture these new realities.  Fumbling through a very crude version of this methodology, I taught project management back in 2010.  Not only was it a lot of fun, I learned new skills, both as a problem solver and as a teacher, made dozens of industry connections that opened doors for my students, and obtained a more realistic view of the legal profession.  In short, it changed my life -- for the better.  

Fourth, a subset of the legal academy needs to really dive into the topic of institutional design.  The rise of the e-discovery business is entirely a artifact of how our legal system is structured.  Perhaps it is time to think about better ways to resolve disputes and facilitate transactions.  See, e.g., Disputes in the credit care industry.  To me, law schools are the exact right places to think about, and wrestle with, these critically important issues.  These are mountains just waiting to be climbed by the next iteration of law schools and law professors.

Fifth, with some smaller victories under our belts, we need to collaborate with colleagues to begin the messy process of organizing our new insights into a coherent curriculum that produces graduates with the most valuable skills sets in the shortest supply.  With a world ramping up in complexity, I doubt these will be vocational skills.  That said, we are probably a decade or two away from a more settled law school curriculum.   But we will get there, and when we do, we will be incredibly proud of what we have accomplished.

[posted by Bill Henderson]

May 31, 2013 in Blog posts worth reading, Cross industry comparisons, Current events, New and Noteworthy, Structural change | Permalink | Comments (2)

Tuesday, April 2, 2013

"Wireless Medicine" -- Is Law Next?

by William Henderson

A good friend of mine, Ed Reeser, who is a lawyer, sent along this video on the "Wireless Medicine" movement, which is apparently led by Dr. Eric Topol, one of the nation's leading cardiologists, author of the book, The Creative Destruction of Medicine.  Its subtitle is, "How the Digital Revolution Will Create Better Health Care."  

Seeing a connection to the burgeoning intersection of law and technology, Ed wrote:

"I don't send videos like this around, especially to busy people like yourselves. But this is a much better way to make a point on how technology is totally changing the landscape, and why it is so critically important to understand where it is going and why.  .... The prospect for massively improved capabilities for quality service at lower cost are just beginning to emerge, and this is where the early adopters of the right approaches will have advantage. Understanding which will be just the beginning of the game.  If you think law is being impacted by this. Then, go back to your reflections on law and rethink the possibilities of where technology is going to impact law and how to become a positive driver of change with it, rather than roadkill in resisting it. "

Visit for breaking news, world news, and news about the economy

April 2, 2013 in Cross industry comparisons, Structural change, Video interviews | Permalink | Comments (0)

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)

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)

Sunday, December 16, 2012

Job Meltdown and Debt Crisis Among Veterinary School Graduates

Dr_Clark_s_PictureA colleague passed along a link to a thought-provoking blog post by Dr. Andrew Clark, a veterinary doctor who runs a consulting practice on the business of veterinary medicine.  His business gives him a bird's eye view of the forces roiling the industry. 

Suffice to say, what is happening in the veterinary education, and the broader vet industry, is eerily close to the problems in legal education and the legal profession. 

Here is an excerpt of Dr. Clark's in-the-trenches view.  The post is titled, "Student Debt ... Our Best Thinking Got Us Here":

If you follow my blog or have worked with me, you already know that one of my favorite sayings is “our best thinking got us here.” That is certainly the case with the Veterinary Student Debt situation. We need some new thinking regarding what generates student debt and what hampers the ability of students to pay back the debt.

In the course of my management consulting business, I am fortunate to work at the interaction intersection between Veterinarians, Veterinary practices, Veterinary Colleges, Veterinary Students and Businesses that provide services and products to the veterinary profession. One of the most common and sincere concerns expressed by people in all of the groups is concern over the impact of student debt on the profession. The student debt situation is a circular process involving Veterinary students, Veterinary colleges, the AVMA, lenders and Veterinary Practices (employers).

I don’t have a solution to the problem but I have some observations and ideas that could be woven into the fabric of a different strategy for financing veterinary education. Although it may happen, my intent is not to offend everyone in the entire veterinary profession with one blog but rather to stimulate creativity and innovation.

Veterinary Compensation

Because the most common theme in discussions involving student debt is “Veterinary jobs should pay more,” I will enter the circle at the Veterinary Practice (employers) point. The assumption seems to be that every Veterinary business is profitable enough to pay whatever is necessary to cover student loans. When graduate Veterinarians enter the workforce a huge majority become employed by small businesses. No amount of marketing, posturing, denial or wishful thinking will change the fact that small businesses success or failure is driven by supply and demand.

From my position in the industry, in the economy in which we all work, the demand for veterinary services appears smaller than the supply of veterinarians. I routinely look at the financial statements of over 50 veterinary practices; equine, mixed and companion animal. Those financial statements demonstrate that practices do not generate enough profit to pay Veterinarians sufficiently to repay student loans under the repayment terms commonly available. That is a remarkably bad situation since the successful transfer of the Veterinary Profession from one generation to another is dependent upon the next generation being solvent and content.

Many practices are changing management practices to become profitable. That will help when practices generate enough earnings to add higher veterinary compensation to the cost structure of the business and remain solvent. Clearly compensation is not a realistic short term ‘fix’ until supply and demand for veterinary services shifts back to favor the Veterinarian.

Lenders ...

Lenders are rightfully concerned about security when they loan anyone money including students. Bankruptcy on student loans used to be a big loss for lenders. However, under the new regulations, student loans cannot be discharged by bankruptcy so there is significantly less risk now. [I wonder if the veterinary industry has its own Matt Leichter.]

Veterinary Colleges

When the dust all settles, Veterinary Colleges are in the business of selling Veterinary Medical Degrees to students who buy a degree with the intention of using it to make a living. In the age of austerity, Veterinary colleges have faced massive budget cuts. One response has been to increase class size, generating tuition revenue for the school. In effect, the colleges are generating more customers for their product and increasing the supply of veterinarians.

From my perspective and experience, the veterinary profession is upside down as far as supply and demand goes. We have inadequate demand for Veterinary services to support the number of veterinarians in practice. Increasing class size diminishes the earning potential and therefore the value of a Veterinary Medical degree yet the cost of the degree continues to escalate. That strategy only works for schools because student loans are easy to acquire and young consumers following their life’s dream are still willing to borrow the money to purchase the degree at an ever higher price with challenging terms. ...

AVMA Accreditation

It is difficult for me, a person working in ‘the business trenches’ of veterinary medicine, to understand the timing of the AVMA’s decision to accredit more schools. This clearly increases supply of veterinarians in the face of decreasing demand for veterinary services thereby reducing the value of a veterinary degree and the earning power of a veterinarian, both of which contribute to student debt management challenges.

Another component of accreditation that is an integral part of the challenge of rising student debt is the requirement to have a research program in order for a school to be accredited by the AVMA. The paradigm that effective teaching of veterinary students requires faculty involved in a research programs has never been assessed to be of measurable benefit to student success in general or even specialty practice.

In general, Assistant, Associate and Full Professor ranked positions are allotted 50% FTE (Full Time Equivalent) in non-teaching functions which include research. Who is paying for that 50% of their time? Many veterinary schools have chosen to hire instructor level individuals that are nearly 100% FTE in teaching to release higher ranked faculty to do research. Why are these instructors that do no or very little research acceptable as educators, when the need for research to enhance education is the paradigm?

The world is changing around us and we need to have a fresh look at research program requirements for accrediting schools. It is impossible to understand how the cost of faculty in 50% FTE positions is not passed along to the student in the form of tuition fees, etc. That component of tuition is financed by student debt. ...


This blog is aggregations of realities that I observe in the course of helping veterinarians manage their businesses and new graduates manage their debt. Although I am not in a position to resolve these challenges, I am in a position to share my observations and invite people in policy making capacities to use some new thinking. After all, our best thinking got us here. ....

[posted by Bill Henderson]

December 16, 2012 in Blog posts worth reading, Cross industry comparisons, New and Noteworthy | Permalink | Comments (14)

A Virtual Lawyer Speaking Crowdsourced Wisdom

PopularmechanicsAccording to this article in Popular Mechanics, virtual lawyers speaking crowdsourced wisdom is one of 110 predictions that will  come to pass over the next 110 years.  The occasion is the 110th anniversary of this revered magazine. Here is the blurb:

A virtual lawyer will help you plan your estate. "I don't mean avatars," Cisco's Dave Evans [Cisco's chief futurist] says. "I mean virtual people—self-contained, thinking organisms indistinguishable from humans." Sounds crazy, right? But surely you've seen the magic of CGI [Computer Generated Imagery]. What's to say you can't attach a lifelike visage to an interface fronting the crowdsourced wisdom of the Internet? Give it a nice head of hair, teach it how to smile, and you're looking at a brilliant legal eagle with awesome people skills.

If this makes you worried, note that the magazine also predicts annual physicals being done through a cellphone app.

December 16, 2012 in Blog posts worth reading, Cross industry comparisons, New and Noteworthy | Permalink | Comments (2)

Sunday, December 2, 2012

More on Big Data

Below is an interview of David Cowen by Monica Bay, editor-in-chief of ALM's Law Technology News.  The topic is Big Data.  The interview provides a useful glimpse on how this trend is corporate America is taking hold.  It should be of great interest to lawyers because (a) it has enormous economic value, and (b) it raises novel privacy issues.  Which will predominate? [posted by Bill Henderson]

December 2, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, New and Noteworthy, Video interviews | Permalink | Comments (0)

Wednesday, November 21, 2012

An Open Letter to India's Graduating Classes

From far away, knowledge workers in India appear to be a formidable and growing threat to American college graduates.  But according to Mohit Chandra's essay, "An Open Letter to India's Graduating Classes," which appeared in the India Ink section of the NY Time/International Herald Tribune, the current generation of Indian university and professional school graduates is hindered by a serious skills and values gap.   MohitchandraIndeed, the author, a partner at KPMG in Delhi, chastises the newly minted 2012 graduates for being spoiled and behaving unprofessionally. 

There are two crosscurrents at work here that are quite difficult to untangle: (1) the process of globalization, which is linking together the economies--and thus the cultures--of India and the U.S.; and (2) workplace generational frictions, which apparently are just as vexing in India as they are in the U.S.  As a mid-career Indian professional with an MBA from Ohio State and a work history that includes KPMG, Capital One, McKinsey & Company, and Ernst & Young, Chandra sits on top of both of these faultlines. 

I think Americans might be surprised by both the content and tone of Chandra's letter, which cannot be judged by western standards.  The letter reveals as much about the U.S., and humanity, as it does about India.  Quite a read.

Dear Graduates and Post-Graduates,

This is your new employer. We are an Indian company, a bank, a consulting firm, a multinational corporation, a public sector utility and everything in between. We are the givers of your paycheck, of the brand name you covet, of the references you will rely on for years to come and of the training that will shape your professional path.

Millions of you have recently graduated or will graduate over the next few weeks. Many of you are probably feeling quite proud – you’ve landed your first job, discussions around salaries and job titles are over, and you’re ready to contribute.

Life is good – except that it’s not. Not for us, your employers, at least. Most of your contributions will be substandard and lack ambition, frustrating and of limited productivity. We are gearing ourselves up for broken promises and unmet expectations. Sorry to be the messenger of bad news.

Today, we regret to inform you that you are spoiled. You are spoiled by the “India growth story”; by an illusion that the Indian education system is capable of producing the talent that we, your companies, most crave; by the imbalance of demand and supply for real talent; by the deceleration of economic growth in the mature West; and by the law of large numbers in India, which creates pockets of highly skilled people who are justly feted but ultimately make up less than 10 percent of all of you.

So why this letter, and why should you read on? Well, because based on collective experience of hiring and developing young people like you over the years, some truths have become apparent. ...

There are five key attributes employers typically seek and, in fact, will value more and more in the future. Unfortunately, these are often lacking in you and your colleagues.

1.You speak and write English fluently: We know this is rarely the case. Even graduates from better-known institutions can be hard to understand.

Exhibit No. 1: Below is an actual excerpt from a résumé we received from a “highly qualified and educated” person. This is the applicant’s “objective statement:”

“To be a part of an organization wherein I could cherish my erudite dexterity to learn the nitigrities of consulting”

Huh? Anyone know what that means? We certainly don’t.

Continue reading

November 21, 2012 in Blog posts worth reading, Cross industry comparisons | Permalink | Comments (2)

Thursday, September 20, 2012

The Eds and Meds Sector

There is a fascinating story at newgeography which looks at trends in the education ("Eds") and medical ("Meds") sectors. 

Newgeography focuses on trends in urban affairs and economic geography.  Eds and Meds are of interest to this group because these two sectors have been such a critical part of maintaining or restoring many regions' economic vitality.  Why?  Universities and hospitals generally pay high wages, don't lay people off, and are perceived as long term drivers of growth because more degrees and longer life spans are two trends that will probably continue. 

But the author, Aaron Renn, presents compelling trend data suggesting that America can no longer to afford extra large helpings of Eds and Meds.  As shown in the chart below, these sectors have been growing faster than virtually all other sectors for a long, long time.


Renn points out the healthcare is on its way to consuming 20% of our GDP by the year 2021.  And the growth in the higher education sector has been substantially fueled by student loans.  Unfortunately, even college grads are subject to the pressures of outsourcing and competition with very able professionals from around the globe.  So the ability to repay all that debt can't be taken for granted.  What can't go on forever, won't.

Here is another chart presented by Renn, this one presenting the rates of inflation occuring in Eds and Meds sectors as compared to the overall CPI:

KaplanThere is an opportunity here.  I would be extremely bullish on innovations that produce productivity gains in the Eds and Meds sectors.  I recently listened to this HBR Ideocast discussion with Robert Kaplan, the Harvard Business School professor best know for developing the Balanced Scorecard.  Kaplan is now turning his considerable intellect toward the problem of cost-containment in healthcare. 

What the key insight?  Measuring how much patient treatment actually costs--to date, there has been almost no sophisticated cost accounting in healthcare.  Most of the brainpower has gone to dealing with (and maximizing) third party reimbursements.  Under Kaplan's system, fortunately, we can actually identify the points in the system that cost way too much and thus begin the reengineering process.

ChristiansenThe same thing may soon be happening in higher ed.  Another Harvard Business School professor, Clayton Christiansen, who authored the renowed business book, The Innovator's Dilemma, recently co-authored a letter that called for colleges and universities to quit chasing prestige and start focusing on innovations that improve educational quality without increasing price.  Remarkably, the letter was included in a mass mailing by the American Council of Trustees and Alumni -- going to 13,000 trustees!  See Inside Higher Ed, Distruption's Strange Bedfellow, July 12, 2102.  Another Insider Higher Ed story suggests that this may be the true faultline driving the University of Virginia controversy.  See Disruptive Innovation: Rhetoric or Reality?, June 26, 2012.

The world appears to be changing, even in Eds and Meds sector.

[posted by Bill Henderson]

September 20, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, Important research, New and Noteworthy, Structural change | Permalink | Comments (1)

Sunday, September 2, 2012

"There is a Shortage of Skilled Workers"

That is the message delivered by Patricia Milligan, president of Mercer's human capital business.   Who are the workers she is talking out?  Managers, technicians and executives working inside the world's biggest companies.

I realize that many lawyers and law professors are likely to be skeptical of the pronouncements of human capital consultants.

But for a moment, let's take Milligan at face value.  So, what are the skills in short supply?  Milligan does not answer that question in the above video.  But in the video on this webpage she suggests that such skills are  a combination of communication, colloboration, and data analytic skills. 

Note that Milligan thinks the talent shortage problem is too big for employers to solve on their own.  This is leading to collaborations with academic institutions.  Are law schools ready for such a step?

[posted by Bill Henderson]

September 2, 2012 in Blog posts worth reading, Cross industry comparisons, New and Noteworthy, Video interviews | Permalink | Comments (1)

Saturday, September 1, 2012

"Application, Discipline, Focus, Repetition"

For the Labor Day weekend, I thought I would post this video of Henry Rollins, an American singer and artist who has continually reinvented himself since he left his job as a manager of a Hagen-Daaz ice cream store in 1981 to become the lead singer in Black Flag.

The point of posting this video is not to glorify Henry Rollins, but to consider, on its own terms, the life narrative of one interesting person. Rollin's formula of "application, discipline, focus, repetition" sounds a lot like deliberate practice.  Based on my own research, I have broken this process into two steps:

  1. Identifying the core elements needed to be become an expert or master in a specific domain -- Jeff Lipshaw was alluding to this in his post on Donald Schon and reflective practice;
  2. Practicing, through thousands of hours of effort, on elements that one lacks in order to move along the continuum to mastery.  Number 2 works best when the person has the benefit of feedback and coaching.  Of course, they also have to be willing to do the work.

For an individual, it may not be necessary to formally break down the core elements into specific pieces.  Instead, these pieces can be obtained iteratively through trial and error and reflection.  I think this is what Rollins has done. It is a formula that works for one highly determined person.  But can it be scaled?

As an educator, I am interested in making the components of practice mastery more explicit and transparent--this is step #1 above.  To  accomplish step #1, we still need to do foundational research that  deconstructs the careers of outstanding lawyers into sets of specific skills, abilities, and competencies--i.e., the things to be practiced.   (Notice I said "sets" -- outstanding lawyers often master different domains.)  At present, the Shultz-Zedeck Effective Lawyering study is the only solid published research that is even adjacent to this topic.

Once these components of effective lawyers are identified--i.e., a law school identifies the skills, abilities and competencies it wants to develop over the course of three years--we move to step #2.  This step raises complex questions of order (which competencies first, which come second, etc.) and pedagogy (best and most cost-effective methods) and measurement (how do we know we have made progress?).   I think the answers would have to come iteratively, through trial and error. 

Any educational institution pursuing this strategy would have to commit itself to studying and continuously improving the educational process.  For law schools, this would be new.  At the vast majority of law schools, we mostly teach legal knowledge, we don't articulate our intended educational outcomes, we let students pick their courses ala carte with minimal guidance, and we don't engage in serious measurement. But we could.  I think this is the next great frontier--an enormous opportunity for any law school willing to think for itself, to experiment and to change.  The data needed would come from one's own alumni, ideally supplemented with data sharing within a law school consortium.

[posted by Bill Henderson]

September 1, 2012 in Blog posts worth reading, Cross industry comparisons, Innovations in legal education, Video interviews | Permalink | Comments (1)

Friday, August 10, 2012

Federal Funding of Higher Education--A Bubble that is Going to Burst

NPR's Planet Money has a story on interplay between higher college and university tuition and changes in financial aid.  As shown in the graphic below (from the College Board), the federal government is assuming a larger role in finaning higher education. Every other source of funding is shrinking its a proportionate contribution to financial aid.  Despite favorable bankruptcy laws enacted in 2005, the federal takeover of higher ed financing has almost completely muscled out the private lenders.


Coincidentally, a colleague forwarded to me a pointed commentary from, which suggests that recent comments by Ben Bernanke portend serious financial instability.  In 2007, Bernanke said:

"At this juncture . . . the impact on the broader economy and financial markets of the problems in the subprime markets seems likely to be contained" - March 28, 2007.

Two days ago, Bernanke said:

"I don’t think student loans are a financial stability issue to the same extent that, say, mortgage debt was in the last crisis because most of it is held not by financial institutions but by the federal government" - August 7, 2012

Now take a look at the federal government's holding of consumer debt (overwhelmingly student debt that has piled up since the 2010 legislation). See Henderson & Zahorsky, The Law School Bubble, ABA Journal (Jan. 2012).


Student loans are viewed as "assets" by the federal government ... until they become uncollectable, in which case the value of the assets eventually has to be adjusted through write-downs, just like mortgages in the mortgage crisis.  Extensive use of Income-Based Repayment makes it possible for a student loan to be simultaneously uncollectable but not in default.

Folks, I am an unapologetic New Deal Democrat.  But the current "system" of federal higher education financing is near perfect insanity.  We set tuition and, no questions asked, the federal government writes us checks in exact proportion to students' willingness to sign loan papers.  For young people who have never worked, it is all like Monopoly money. 

The only way the math works is if the real earnings go up en masse for virtually all college and professional school graduates.  In a rapidly globalizing world in which our students are competing against Chinese and Indian professionals, the assumption of mass rising real incomes is implausible.  See, e.g., views of economist Alan Blinder in this NPR article.

Right now we--higher ed and the nation as a whole--are maintaining the illusion of prosperity through debt financing heaped on naive young people.  This is immoral in the extreme.  Moreover, in the long run, it is economic and political ruination.

The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing.  The financing has to incentivize educational productivity -- i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation.  No more $100,000 checks from the federal government for sorting students by standardized test scores.  Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level.  How many of my fellow law professors grasp the depth of our problems?  Not enough.

[Posted by Bill Henderson]

August 10, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, Structural change | Permalink | Comments (9)

Tuesday, July 17, 2012

UK's Legal Services Board Releases Study on Individual Legal Consumer Market

LsblogoWith the passage of the Legal Services Act 2007, the UK began the process of liberalizing its market for legal services.  The UK legal market and all of legal education is now regulated by the Legal Services Board, which is presided over by a nonlawyer civil servant named Chris Kenney.  

The LSB's regulatory objectives are set out in Section 1 of the Act. They include: "(a) protecting and promoting the public interest";  "(c) improving access to justice"; "(d) protecting and promoting the interests of consumers"; "(e) promoting competition in the provision of services within subsection (2)"; and "(g) increasing public understanding of the citizen's legal rights and duties[.]"

One of the fruits of the new LSB regime is this just released empirical study on how British citizens evaluate and make decisions about their own legal needs. In a nutshell, they often go in alone without the benefit of a lawyer. Further, only about 20% of this unmet legal need fall in the domain of "reserved legal activities," which require a licensed legal professional.

Although the report does not come out and says this, the implication of the myriad statistics is that the British consumer market is ripe for commodification through technology and mass distribution channels.  When confronted with a legal need, face-to-face counseling with a skilled professional may be the ideal, but that is far from the reality for most British citizens.

[posted by Bill Henderson]

July 17, 2012 in Cross industry comparisons, Current events, Data on the profession, Innovations in law, Scholarship on the legal profession, Structural change | Permalink | Comments (1)

Wednesday, June 13, 2012

The Dangers of Being Smart

BigThinkI just read a short essay at the Big Think, "The Dangers of Being Smart," that reminded me of nearly every faculty workshop I have ever attended.  In a nutshell, brilliant people -- and law faculty are filled with them -- can wax eloquent on cognitive bias, yet the deft ability to describe and comprehend does little to enable brilliant people to rein in the bias.  In fact, being smart can be disadvantageous because we fall in love with the beauty and nuance of our own rationalizations and justifications.  

This really hit home for me because I have witnessed hundreds of examples in which data are never sought out or consulted because the brilliant lawyers were so persuaded by their own reasoning. (And I stipulate that I am sure I have done this many times myself.)   Or worse, good but not perfect data are dismissed because a lawyer or law professor could theorize a plausible flaw in the sample or methodology.  The glee in finding the flaw then shortcircuits the right response, which is a simple discussion of probability -- that is, what is more or less likely based on all available evidence.

KahnemanThe Big Think essay reminded me of Dan Kahneman's Thinking, Fast and Slow, especially the section titled "Overconfidence."  Kahneman, a psychologist, won the Nobel Prize in economics because he, along with co-author Amos Tversky, identified several predictable, recurring cognitive biases in human decisionmaking. 

Kahneman later revealed that the basis for their breakthrough research was errors they detected in their own judgments.  “People thought we were studying stupidity,” said Kahneman. “But we were not. We were studying ourselves.”   For a wonderful primer on Kahneman's unusual worldview, see this Michael Lewis essay.

[posted by Bill Henderson]

June 13, 2012 in Blog posts worth reading, Cross industry comparisons, Important research | Permalink | Comments (0)

Sunday, May 20, 2012

$100,000 Scholarships to "Stop" College

Entrepreneur Peter Thiel (Stanford Law '92) is financing twenty $100,000 scholarships for young people who agree to "stop" their formal education for two years to pursue or join a real world project broadly related to some aspect of business, innovation or technology. See Thiel Foundation's "The 20 Under 20 Fellowships."

Thiel is a former federal judicial clerk turned  securities trader turned entrepreneur (founded PayPal) turned hedge fund manager/venture capitalist (he bet big on Facebook and won).  Thiel believes  that the key skills for innovation are not taught very well in universities.  Further, because Thiel believes we are in the midst of a serious higher education bubble, he argues that the debt incurred by students only hobbles their ability to pursue activities that would redound to the benefit of the U.S. economy.  Thus, as a nation, we are stuck in a very unhealthy spot.

Thiel shares his unorthodox views with Morley Safer on tonight's 60 minutes.  In the meantime, below is a preview of Thiel's views on higher education courtesy of the The Big Think.

May 20, 2012 in Cross industry comparisons, Current events, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (0)

Saturday, May 19, 2012

"Graduates Shun Legal Profession"

ShunprofessionThat's the headline of a story in the Sunday edition of The Age, one of Australia's leading daily newspapers.  Here is the nut:

ALMOST two-thirds of Australia's law graduates are not working as lawyers four months after they have completed their degrees, according to a study.

The Graduate Careers Australia survey of 1313 recent graduates from all over the country found that 64 per cent were not practising law between 2010 and 2011.

There was ''no way'' law firms could accommodate all the graduates from Australia's 31 law schools, La Trobe University's director of undergraduate studies, Heather King, said. ''It's a well-acknowledged fact that 40-50 per cent will not end up in a traditional law practice.''

These statistics may seem even bleaker than those that describe the U.S. legal market.  Yet, for two key reasons, these Australian students are far better off. First, the Australias follow the LLB model, which has some substantial advantages.  According to my Australian colleagues, a law undergraduate degree is often combined with a major in another field or discipline, such as business, accounting, sociology, or literature.  So a student's commitment to law as career is often tentative and, in many cases, hedged by another career interest.  Second, higher education in Australia enjoys a large national subsidy.  So law graduates typically graduate with little or no debt.

Ironically, as the story reports, some Australian universities are moving toward the J.D. model, essentially concluding the law is best taught to more mature students as a graduate discipline.

I agree that students ought to have a cost-effective way to opt out of law.  I also agree that law is best taught as a graduate discipline to students with some substantial life experience.  I don't, however, see an easy way to cost-effectively achieve both. The fact that the solution is not easy will, conversely, make the solution quite valuable.

[posted by Bill Henderson]

May 19, 2012 in Cross industry comparisons, Data on legal education, Data on the profession, New and Noteworthy, Structural change | Permalink | Comments (0)

Saturday, April 28, 2012

Different Power Rules Apply to Men than to Women

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. 

BrescollvIn 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]

April 28, 2012 in Blog posts worth reading, Cross industry comparisons, New and Noteworthy | Permalink | Comments (0)

Friday, April 20, 2012

"The Death Spiral of America's Big Law Firms"

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]

April 20, 2012 in Blog posts worth reading, Cross industry comparisons, Current events, Data on the profession, Law Firms, Structural change | Permalink | Comments (3)

Tuesday, April 10, 2012

Three Generations of U.S. Lawyers: Generalists, Specialists, Project Managers

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]

April 10, 2012 in Cross industry comparisons, Data on the profession, Structural change | Permalink | Comments (0)

Monday, March 26, 2012

What Does Leadership Look Like?

IDEO is the world's leading design and innovation company.   Diego Rodriguez, one of the partners at IDEO, has made a point of sharing the video below with a number of his colleagues.  Why?  Because he wanted to show them "what leadership should look like at IDEO."  It will surprise you.  (Hat-tip to Bob Sutton at Work Matters.)

Maurice Cheeks, then the head coach of the Portland Trail Blazers, sets a high bar for courage, confidence, decisiveness, humanity, kindness, unselfishness and world class poise.  If that is leadership, I am ready to follow. 

[Posted by Bill Henderson.]

March 26, 2012 in Blog posts worth reading, Cross industry comparisons, Video interviews | Permalink | Comments (0)