The Legal Whiteboard

What is Law Without Walls? Why does it matter?

I am spending the weekend in Miami at the Law Without Walls (LWOW) ConPosium. What's LWOW?   Not an easy question, but here it goes:  LWOW is a completely new forum and methodology for teaching, learning, collaborating and -- most importantly -- spurring innovation in legal education and the legal services industry.  Twelve U.S. and foreign law schools are involved, with Miami Law taking the lead.  LWOW is part law school class, part idea laboratory, part networking venue, and part case competition.   I struggle in vain to find an adequate metaphor.

What's a ConPosium?  It's LWOW's annual penultimate event.  Over the course of the weekend, students present their "Projects of Worth" to a large audience of students, lawyers, law professors, regulators, business executive and entrepenuers.  The presentations are evaluated American Idol-style by a panel of experts,  including -- yes -- a handful of venture capitalists.  Thanks to the efforts of LWOW founders Michele DeStepano and Michael Bossone, the weekend also is an amazing aesthetic experience -- a theater of sofas and overstuffed chairs, inspiring music, multi-media stimuli, and a nonstop train of cleverly presented ideas from students, professors, judges and the audience.

As an educator, the most exciting facet of the LWOW format/methodology is that it pressures law students to be creative and economically viable.  (Understatement: these topics are generally not covered in law school, especially the latter).  Not all ideas are good; and good ideas by themselves are not enough.   As the venture capitalists tell us, nine out of ten good ideas fail due to lack of execution.  To survive, hard questions have to be asked, and the answers provided have to be realistic and accurate.  And then there is follow-through.  That requires passion.

LWOW is a grand experiment.  20 years from now, the DNA of a lot of innovation in legal education and legal services will be traceable to the seemingly impractical ideas that were trial-ballooned here.  And one or two may be brand names in a few short years.  So cool.

[Posted by Bill Henderson]

Three Blog Posts that Explain Structural Change

Three recent posts from nonacademics do a good job of explaining how and why the legal services industry is undergoing a massive structural change:

Jordan Furlong, Law 21, in a post entitled "Losing the Confidence Game":  "Here are six observations about the legal marketplace for you to consider, each supported by a news report filed just in the last few days ... ."  Furlong is a Canadian-trained lawyer, journalist, and consultant.  He is one of the most networked observers of the legal services industry I know.

Ron Friedmann, Strategic Legal Technology, in a post entitled "Does BigLaw have a Future?"  The answer is yes, but in way that is hugely disruptive to our settled views of how things work.  Ron, who has worked at the intersection of law and technology for 30 years, writes: 

Some firms may fade, some may implode, but others will thrive. Thriving, however, requires thinking and innovating. Some are doing so as these examples and data illustrate:

• I count 10 firms that operate low cost, centralized service centers, some of which provide lawyer support as well as business services. ... 
• About a dozen firms, perhaps more, have industrialized their approach to e-discovery and document review.
• Several firms now take project management seriously. ... 
• Three firms now offer alternative staffing models, arguably competing with staffing agencies. ...
• About one-half dozen firms have publicly announced partnerships with legal process outsourcing (LPO) companies.
• I understand about a dozen firms now have pricing specialists to deal with alternative fee arrangements.

Patrick Lamb, The New Normal, in a post entitled "A 'Valorem Dozen': The Ingredients of One New Normal Law Firm."  Lamb, a talented trial lawyer and former large law firm partner, lays out the how-to kit for alternative fee boutiques.  At a minimum, running an alternative fee shop requires slaying inefficiencies, embracing market forces, and developing a broader set of skills.  Here are some of Lamb's bullet points:

1) Sell what is valuable to your clients. No client has ever gone to a law firm looking simply to buy time. They go to lawyers to solve business problems that involve some legal issue. ...

3) Embrace the $60-per-hour-lawyer. ... [Y]ou can get great lawyers at a much lower price[ ]. You don't need to have these lawyers as employees, you just need to have access to them when you need them, for as long as you need them. ...

9) Collaboration is key. Most large firms, indeed most firms of any size, are a collection of silos ... We believed that if our senior people brainstormed and collaborated together, great things would happen and we would produce work and results better than any of us would do alone. ...  Hindsight shows that we were right on the money on this issue.

Folks, structural change in the legal profession is happening very quickly.  We legal educators need to spend a substantial portion of our time talking to people working in the legal services industry.  Every conversation should expand the list of who to talk to next.  And we need to put our pet theories and ideas on the shelf and just listen to what these lawyers and legal service vendors have to say.  Otherwise, in five years, traditional legal education is going to look like General Motors circa 2008. 

[Posted by Bill Henderson]

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]

The Job Outlook for Lawyers: Projections from the BLS

Recently released data from the Bureau of Labor Statistics provide more evidence that the legal job market for graduates will be extremely difficult for the next several years.   The data come from the BLS Occupational Outlook Handbook, which is updated annually.  Below is a BLS bar chart* comparing growth in lawyer jobs versus other legal sector jobs versus the economy as a whole:

According to the BLS, there were 728,200 lawyer jobs in the U.S. in 2010.  By 2020, that number will grow to 801,800, producing a gain of 73,600. Currently, law schools average approximately 45,000 graduates per year, albeit entering classes have been trending upwards.  The BLS Handbook states:

[G]rowth in demand for lawyers will be constrained as businesses increasingly use large accounting firms and paralegals to do some of the same tasks that lawyers do. For example, accounting firms may provide employee-benefit counseling, process documents, or handle various other services that law firms previously handled. ... 

Competition [for lawyer jobs] should continue to be strong because more students are graduating from law school each year than there are jobs available. ...

The public debate often talks about the surplus of lawyers as if the hand of a regulator could or should turn down the spigot on entry level lawyers.  Yet, no such spigot exists.  Overproduction is primarily a function of optimism and the availability of federal loans.  Over the medium to longer term, I see three possible ways -- all mutually compatible  -- to unwind lawyer overproduction:

1. The Dept of Education looks at the proportion of law students on Income-Based Repayment, reads the BLS projections, and in turn curtails federal funding for law student loans;
2. The new ABA transparency criteria sends some schools into a "death spiral", see NY Times story on falling law school applications; or
3. Law schools focus on making their degrees more versatile and valuable so graduates become more competitive for professional jobs outside traditional legal services (traditional legal services has its own structural issues at the moment).  

#3 is the only factor in the control of law faculty, albeit it calls for something radical -- change in what we do and how we do it.  Call me crazy, but I think #3 is actually a huge opportunity for a law school with the right leadership and the right mix of faculty.  I am currently in the process of sketching out a blueprint anyone will be free to use or make fun of.

* The chart splices together BLS lawyers and paralegals/legal assistants.  It is interesting to note that nonlawyers jobs are projected to grow nearly twice as fast as lawyers.  I doubt this trend would be obvious to those of us in the academy; the magnitude of the difference surprised me, though it makes sense.  According to the BLS, paralegals only make $46,700 per year -- much cheaper than a junior lawyer and no expectations of a promotion.

[posted by Bill Henderson]

Unsustainable Law Student Debt

At Balkanization, Brian Tamanaha (Washington University) continues to shine a bright light on law student loan statistics.  See The Quickly Exploding Law School Debt Disaster. 

Viewing recently released 2011 data, Brian cites 17 law schools where the average debt exceeds $135,000 per student.  The vast majority of students at these schools will be forced into Income Based Repayment (IBR), which is, functionally, a federally administered insurance program for indebted law school graduates who fail to make a high five-figure or low six-figure income. It caps debt payment at 15% of income above some basic poverty level threshold. (In future years, it will drop to 10%.)  The downside of IBR is that unpaid interest is quickly capitalized, so a graduate's total debt load explodes upward, making it very difficult to afford things like a car or a home using debt finance. Then, as Brian suggests, buyer's remorse is going to set in for a whole generation of law school graduates. 

As a political issue, this is not going away.  I agree 100% with Brian's final line:  "This financial insanity will not stop until significant changes are made to the federal student loan program."  When this happens, every law school in the U.S. will be be affected.  As I said last week, it is time we get our houses in order.

[posted by Bill Henderson]

A Reply to the Empiricists at NWU Law

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

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

Big Picture

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

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

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

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

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

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

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

Here is what the data showed:

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

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

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

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

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

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

Statistics Minutiae  [After the jump ...]

Each of my five theories could be its own independent research study.  But that's a side show.  Testing the theories will not change the skew.  Don't forget the big picture -- we have a  counterinituitive data point that needs to be explained. 

A better approach is to triangulate what we know from historical patterns, published studies, the data itself, theory and commonsense and apply Occam's Razor to find a simple set of explanations that explain all the data points.  My blog post never made any strong claims on relative importance or validity of my theories.  I was just trying to formulate a reasonably plausible set of explanations.  When something is highly contestable and important, then we can go to the trouble of formal hypothesis testing.  But we have five theories here.  It is unlikely all five are wrong.  If they were, we'd need a sixth killer theory, heretofore unknown, to explain the skew.  Again, Occam's Razor.

To my mind, this is the source of disagreement between myself, Kate and Max:  they are focused on poking holes in my theories, but I want a satisfactory explanation for this very large skew.  Max doesn't offer any explanation, and Kate's explanations quickly wilt when Occam's Razor is applied.

From this point forward, this post may be of interest to readers with a large appetite for the inner workings of inferential statistics.

Here is Kate's macro level critique:

In short, the averages he is discussing cannot tell us anything useful. The main problem is selection effects combined with the level of data aggregation: (1) no individual-level data on hired/promoted lawyers; (2) all top-250 law firms are grouped together; (3) all non-T14 law schools are grouped together.

Unfortunately, I don't know what "useful" means here.  My analysis unearths some data points that are surprising and counter-intuitive -- so says the blogosphere.  I think the averages, viewed in light of my five theories, are potentially useful if I were a law firm partner and wanted to understand unwanted attrition in my law firm-- a potential multimillion dollar problem. If I am law professor, I might also find it useful to adjust my worldview so that fits surprising and counter-intuitive data points.  After all, we are occasionally called upon to provide career advice. 

Regarding Kate's three points on data limitations, it is possible break out the data as Kate suggests.  And when broken down, it boosters rather than detracts from my initial analysis. Let me be clear, however, on the precise sample I am working with:  

• It is called the NLJ 250 Law School Hiring Survey, but the sample is not complete.  Here is what it includes:  155 firms supplied data.  127 are AmLaw 200 (AmLaw 200 is based on revenues), and 27 firms not in the Am Law 200, but in the NLJ 250 (NLJ 250 is based on lawyer counts).
• Of the 127 AmLaw firms in the sample (63.5% response rate), median profits per partner is $970,000 ($1.2 million average) versus $807,000 ($1.1 million average) for the 73 that did not supply data.  So the sample is not comprised of the less profitable firms; they are, if anything, more profitable. The difference in means, however, is not statistically significant.
• The sample firms are larger: 567 median, 819 average for sample; 401 median, 472 average for the missing firms.

Based on the above, the sample appears to be a reasonable representation of the BigLaw universe.  Further, we know the directionality of the missing data, which is useful for interpreting any results. 

[One more sampling point: Kate objects to grouping all non-T14 schools together.  I disagee.  There is no point in breaking down the law schools further by U.S. News tier -- Andy Morriss and I documented that during the halycon days of the mid-2000s, outside the Top 25 or so, large law firm jobs were limited to between 0 and 15% of NLJ 250 entry level jobs.  In contrast, T14 was typically well north of 50%, even with large numbers of judicial clerkships.  There is one relevant divide here: regional versus national.  A few regional schools, such GW, Fordham, Emory, UCLA, USC and Texas, have a strong foothold for students in the top 30% or 50%.  After that, the grade cutoffs turn all other law schools to near decimal dust in terms of market pull.  I have parsed the data in previous years--these in-between schools are, well, in-between the regional and nationals in terms of outcomes.  Breaking them out won't tell us anything.]

As I noted in the original post, and pointed out by Kate, we almost certainly have massive selection effects at work here.  We know from other research that T14 grads gravitate to the most prestigious firms where the washout rates are very high.  See Zaring & Henderson.  The value of the partnership (higher profits) in combination with better outplacement prospects may make this tradeoff rational.  Sure enough, there are large selection effects: 61% of the T14 graduates in the sample joined firms in 2011 in the Top 50 as measured by Profits per Partner (PPP).  This supports the First Jobs theory. 

That said, even in the high prestige firms, non-elite grades are getting more than their pipeline's share of the partnership promotions (or, stated differently, T14s are leaving in larger proportions): 

• Among the 25 most profitable firm in the Am Law 200, T14 accounted for 76.0% of associates hired, compared to 24.0% for non-elites  graduates.  But for partnership, the numbers fall to 60% versus 40%.
• Same pattern if we broaden to 50 most profitable firms:  71.4% T14 hired, 28.6% non-T14;  for partners, 55.6% versus 44.4%.
• The pattern continues for AmLaw 200 firms outside the Top 50 PPP bracket:  40.5% T14 hired, 59.5% non-elite; for partners, 24.0% T14, 76.0% non elite. 

So, using the underlying raw numbers, let's translate these figures into ratios of associates hired to partners promoted:

• Top 25 PPP:    T14 = 10.1, non-T14 =3.9
• Top 50 PPP:    T14 = 4.8, non-T14 = 1.9
• Non Top 50:    T14 = 3.9, non-T14 = 1.8
• Non-AmLaw:   T14 = 2.0, non-T14 =0.8

In every bracket in the NLJ 250/AmLaw200, the T14 get superior hiring access but much lower rates of partnership.  Again, this is Ted Seto's research in another form. 

We can get more granular.  Among the 79 firms in the 2011 sample that (a) hired T14 and non-T14 associates, and (b) promoted at least one T14 lawyer to partner, there were 51 firms (65%) where the non-14 were getting promoted at rates that exceeded their pipeline percentages. Further, compared to the remaining 28 firms, these 51 firms had higher average Revenues per Lawyer ($772,000 versus $711,000) and higher average Profits per Partner ($1.2M versus $1.0M).  Perhaps non-Top 14 partners are good for business!

Had Kate had access to these data, she may not have replied so boldly. After hiring, T14 does not fare well in any bracket.  Again, why is that?

I am not saying the above data supports my five theories; rather, I am saying some combination of my five theories likely explain a good portion of the large, counter-intuitive gaps between elite and non-elite law school graduates. Here is the story in five bullet points:

• Selection Effects. If you are at a T14 school, BigLaw jobs are relatively plentiful. Interview well and you get the big paycheck.  In contrast, the Non-T14 crowd are comprised of a larger proportion of people who had to work very hard to get their foot in the BigLaw door.  These types of behaviors generally don't end after one gets hired. They become habits.
• First Jobs.  The T14 are going to the most prestigious firms where the washout rates are high. We showed this above. But the T14s washout in greater proportion than their Non-T14 peers.  So, by itself, this can't explain the overall NLJ 250/AmLaw 200 gap.
• Intergenerational Privilege.  We know from the After the JD study that elite law schools grads come from more affluence families.  See Dinovitizer & Garth, Lawyer Satisfaction in the Process of Structuring Legal Careers.  This is also the story line of Thomas Mann's Buddenbrooks novel -- affluence can produce less disciplined behavior among our progeny.
• Ratings-Driven Admissions Criteria.  We now throw away personal statements, resumes and letters of references when making admission decisions.  20 or 30 years ago we consulted commonsense when making admissions decisions.  So the pipeline to elite law schools, and hence to the NLJ 250, has likely been affected in deleterious ways.
• "A Better Plan B."  Elite grads have more options, presumably in gov't and business.  This is obvious.  But it is too speculative a category to explain the whole elite/non-elite gap, which is very large.

Kate's critiques in order:

• Selection effects:  Kate says I can't rule out that that the non-T14 crowd is getting hired and promoted because they have, say, important client connections.  Why would I try to rule this out?  It is a de minimis effect at best.  It fails Occam's Razor.
• First Jobs.  Kate says "probably true."  We can stop right there.  We are looking for the most plausible explanations.  Nonetheless, the data above are also responsive to rest of Kate's criticism--the T14/non T14 pattern holds up in every part of the BigLaw hierarchy.
• Intergenerational Privilege.  Kate thinks I don't have the data to document T14's higher family wealth.  But The After the JD research does have these data.  Further, Garth and Dinovitzer make an empirical case that it affects satisfaction in the large firm environment.  In short, we have a literature on this topic -- I am merely pointing to it.
• Rankings effect.  Kate thinks I lack any concrete data to make this claim.  She is right.  But we have all watched law schools make insane trade-offs in admissions to goose their rankings.  I am making the leap that this affects the labor pool in unhealthy ways.  Supply chain analytics are important in other industries.  Law firms are waking up to this.
• "A Better Plan B."  We both agree that we need better data to make sweeping claims on this one.  We also agree that elites will have the edge.  It is just a matter of measuring the size and direction (gov't, business, public interest, academia) of the edge.

What I find puzzling about Kate's comments is that she never addresses the large gap between T14 hiring and promotions.  To my mind, that is the storyline -- the puzzle that needs to be unraveled.  If she doesn't like my theories, then she should formulate something simpler and more plausible.  But let's focus on explaining the gap.  Where is the sixth killer theory?

Max makes an entirely different point.  Max writes:

What to make of Bill’s piece?  I don’t think it tells us much. Bill is looking at the conditional probabilities. ...   If firms are willing to take fewer risks on Loyola students (e.g., we hire the number one at Loyola and that’s it), then it’s not surprising that the conditional probability is higher. In my view, this result likely suggests a bias in favor of T14 students (perhaps for rational reasons regarding search costs), and an even stronger reason to attend an elite school if one’s goal is to be a top 250 law firm partner.

Max is certainly right.  If a student's goal is to be a BigLaw partner, he/she you will have an easier time getting hired if he/she attends an elite school.  You are the same person after all, so your behavior, motivation and ability can be treated as a constant -- getting your foot in the door is key. 

But Max overlooks the perspective of a law firm, which might look at the data and say, "My god, we have been calculating these conditional probabilities all wrong.  Clients aren't paying for training any more.  We can't afford this revolving door of T14s, who don't seem as engaged as the less elite grads."  So I think the data say quite a lot.  The huge presumption favoring elite grads created the Bi-Modal distribution; this propensity was arguably the beginning of the end of the BigLaw model where firms just passed off higher salaries onto clients.  No more.

Conclusion

Just like Phil Corboy, who could not get a job on LaSalle Street because he was Catholic, or Sandra Day O'Connor, who could not break into the Arizona corporate bar because she was a woman, or Joe Flom who was shut out of Wall Street because he was a Jew, there is always a contemporaneous narrative that justifies the status quo.  But eventually the prejudice becomes too expensive to bear.  And we change. 

The corporate law firm sector is now competing over market share for the first time ever.  Whether elite grads are better or worse hiring bets is now becoming a matter of strategic importance.  Unlike in earlier years, firms have to think twice before paying a snobbery tax for hiring criteria disconnected from, or even negatively correlated with, performance.

People's self image are all bound up with this topic. It has very little to do with rationality, and much more to do with identity and emotion.  But the takeaway is very simple: Pedigree does not reflect a natural ordering; it is socially constructed, initially based on substance and merit, but eventually perpetuated by inertia and vested interest.  Especially during times of transition and stress, it too can crumble.  This forebodes the regeneration of substance, and that is something that all of us should welcome.

Legal Education's Ninety-Five Theses

Brent E. Newton, an adjunct professor at Georgetown University Law Center, has posted a legal education reform piece on SSRN, entitled The Ninety-Five Theses: Systemic Reforms in the American Legal Education and Licensure   [Hat-tip TaxProf].  Judging by his title, Newton is hoping to spur a Reformation of legal education, akin to what Martin Luther did for Christianity in the 16th century.  If that is his agenda, I will not stand in his way.  

According to his GULC web bio, Newton is Deputy Staff Director of the U.S. Sentencing Commission; prior to that, he had a distinguished career as a public defender.  Newton is not the only adjunct-practitioner who has forcefully challenged U.S. legal education.  In 2008, Jason Dolin (solo practitioner, adjunct at Capital), published Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession.   In 2010, Steve Bennett (partner at Jones Day, adjunct at Fordham) published a law review article entitled, When Will Law Schools Change?

Law professors rarely engage with these critiques; to acknowledge these critiques, some might argue, is to give them oxygen and legitimacy.  I think this approach is a huge mistake.  Any enterprise interested in long-term success cares about the perceptions held by its stakeholders -- and adjuncts are definitely in that group.  In times of crisis, we need friends, not enemies.  Further, Newton, Dolin and Bennett are serious people and very capable lawyers.  If you leaf through these articles, you'll see that they read like Brandeis Briefs against the legal education establishment.  The authors present thoughtful, fact-based, and (albeit occasionally) trenchant arguments on why we, speaking as a legal education insider, should change. 

Simple question:  Can any of us identify a single historical example in which the establishment reformed itself because a critic effectively marshaled facts and logic to reveal the errors of its ways?  Institutional change doesn't happen that way -- facts and logic are no match for a few thousand egos and pious rationalizations for why others should change, but not me.  

The common storyline for institutional change is failure, with the rise of other institutions that better address the social, political and economic needs of stakeholders and broader society.  A less common narrative is institutional adaption, thanks in part to (1) the self-interest and survival instincts, and (2) the serendipity of timely, brilliant leadership.  (Does the legal academy have a few hundred great leaders?)

That said, Newton, Dolin and Bennett may be on the right side of history.  Because of the overproduction of law school graduates and their high levels of debt, we are now at a point when survival for a large proportion of law schools can no longer be taken for granted.  "What cannot go on forever, won't."  Herbert Stein, economist.  

Prediction:  In the next few years, some law schools will change and thrive.  Others won't and they will fail.  There will be nasty recriminations and gnashing of teeth.  A few at the very top will throw dice and decide not to change.  They will survive, but the innovations taking root in the rest of the law school hierarchy will make them look like anachronisms.  It will be a slow decay.  In the meantime, some aspects of the Post-Langdellian paradigm will look a lot like the suggestions made by Newton, Dolin and Bennett.  In twenty years, maybe sooner, the revolution will be over. Finally, Newton et al. will get a must deserved footnote.

[Posted by Bill Henderson]

What is The Legal Whiteboard?

[Posted by Bill Henderson]

As I write the inaugural post for The Legal Whiteboard, I am cognizant of the fact that our current readership will likely be single digit and driven largely by errant Google searches.  Hey, that is better than zero.  It doesn't matter if the first snowball is small; it just has to roll.  My sincere thanks to Paul Caron and Joe Hodnicki for taking a chance on one more blog devoted to lawyers and legal education.

For the benefit of our small initial readership, I would like to offer my own rationale for creating The Legal Whiteboard.  So here it goes.

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before --- shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living. 

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

In addition to outlining the purpose of The Legal Whiteboard, I want to take this opportunity to say how happy and proud I am that Andy Morriss has agreed to be my co-venturer on this new project.  Andy Morriss and I have a long history together.  And it is a history that goes to the very core of what this blog is about – the transformative power of education.  I do not use the word transformative lightly.  I am talking about something that is life altering and deeply existential, helping us answer the most fundamental questions regarding the meaning and purpose of work and life.  Nearly twenty years ago, Andy was my college teacher.  And I got transformed.

Back in 1994, I was a 31 year-old firefighter-paramedic in a Cleveland suburb who decided to return to college at Case Western Reserve University to finish my undergraduate degree.  The goal was to attend law school.  (I had dropped out of college in 1984 after a junior year abroad at the London School of Economics – but that is a topic for a different post.)  I had my sights set on Cleveland-Marshall College of Law.  I was negotiating contracts for the International Association of Firefighters (IAFF), and I wanted better tools to stick-it to the management attorneys we were up against. (A few years later, I learned to separate positions from personality.)

My last year of college was costing me a small fortune.  If I could earn a few A’s during my senior year, maybe I could get a partial scholarship to Cleveland-Marshall.  Suffice to say, I was an engaged student.  At the time, Andy, who has a JD and economics PhD, had a joint appointment with the Case business and law schools.  To minimize my use of “comp time” on days when my classes overlapped with my fire department shifts, I stacked all my classes on Tuesday and Thursdays – and those were the days that Andy taught at the business school.   So I took Law & Economics, Environmental Economics, and Law, Cooperation and Economics in successive semesters.

Taking a class from Andy has an exercise in having your expectations of a lecture class turned on their head.  To simulate a slip-and-fall case, we made puddles of spilt milk in hallways and contemplated who was in the best position– the alleged victim or tort-feasor – to avoid the harm in the first instance.   At the end of a substantive course unit, Andy would ask for feedback.  And in the next course unit, he would change his approach accordingly.  When someone in the class had an interesting life experience, he would get very excited and mine it for information relevant to the lesson plan.

Slowly it began to dawn on me that Andy was turning every classroom into a laboratory.  He was more than happy to convey his massive learning, but he was always trying to pull learning from the students and the classroom.  When a smart person lacks a big ego and is truly openminded, the ideas gush in.  Andy could walk to the grocery store from his condo in Tuscaloosa, Alabama and return home with a research idea worthy of a PhD dissertation.  And, in turn, he would give the idea away.

I have known Andy for almost 20 years and worked on several major projects with him.  Although we have never voted for the same presidential candidate, I can honestly say we have never once had a disagreeable disagreement.  And we have had hundreds of hours of laughter.  I want The Legal White board to perpetuate this ethos.  We are interested in ideas, meaningful trends and problem solving in law and legal education.  The dialogue is intended to be task-focused.  Ideas, facts and analysis are important; egos, ideology and personal agendas are not.  I hope this blog is useful first, but also entertaining, collaborative and humane.  These are the tricks I have learned from friend and mentor, Andy Morriss.