Law Deans on Legal Education

Dean Daniel Rodriguez on faculty retirement incentives as "evidence of adaptation, not desperation"

Dean Daniel Rodriguez of Northwestern University School of Law posted the following essay on Word on the Streeterville, his Northwestern dean's blog.  The title of the essay is "A Most Unfortunate Narrative."

Many law schools are working hard to keep up enrollments and student credentials; some are indeed struggling.  As deans and university leaders work hard to make adjustments on the expenses side in order to deal constructively with these difficult issues, there has emerged an almost daily narrative about how the sky is falling (which is isn’t).

The most recent iteration of this is the news emerging from a handful of schools that faculty members are being offered retirement incentives.  Although I am in no vantage point to assess the wisdom of any of these strategies for any of these law schools, it strikes me as a sensible reaction to enrollment circumstances that are, for the most part, currently out of control for some law schools.  The business of retirement incentives is not, of course, a new phenomenon.  With the end of mandatory retirement, university departments can manage human resource costs only by looking at creative tactics such as retirement incentives.  Sometimes this will involve more senior (and typically highly compensated) members of the community; other times, given the long careers ahead of young faculty members, this will involve incentives nearer the front end.  These incentives create a dynamic of negotiation not distinct from any other sort of employer-worker negotiation.  They are tried-and-true carrots, not sticks.

That law schools are looking to manage their costs by taking close looks at their faculty labor force seems entirely sensible.  It is hardly the harbinger of disaster; and, like the press releases that are attached to these proposals, these are important messages to the wider community of students and alumni that the law schools are looking at constructive ways of preserving strong academic programs and high quality in their student bodies.

These should be welcome developments.  Folks like our friends at Above the Law, who are habitually cranky about law school decisionmaking and the motivations of academic leaders, should say:  “Hurray.  It’s about time law schools take a hard look at costs.”  But, instead, the headline of the day is essentially “Law Schools are Crashing Around Us.  Witness the Scramble to ‘Kick Out’ Faculty Members.”  Think I am exaggerating?  Here’s a link to a post by the sober Pepperdine Law professor and influential blogger, Paul Caron.

Take a breath, doomsayers.  Have some perspective.  This is evidence of adaptation, not desperation.  And you are not helping the general situation, IMHO!

What Causes a Dean Search to Fail?

The University of Florida has announced that the search for the next dean of the Levin College of Law has failed.  http://www.gainesville.com/article/20140314/ARTICLES/140319713?p=1&tc=pg

While I have always felt that the only truly failed search is one in which the wrong person is hired, the Florida search is unique because so much information has been shared publicly. What causes a dean search like Florida's to fail, and how will a second search achieve better results, next year?

The reports surrounding the search clearly inidcate that the law school faculty found two of the candidates highly acceptable to lead them in the years ahead. They also voted another candidate acceptable, but had reservations about him. This raises the question of what the President found objectionable about these candidates. Was it merely the fact that he asked for four names, and only got three? Was the President's favorite candidate not among the three names sent forward as acceptable? Did the President tolerate the long and work-intensive process only to the extent it produced him the candidate he planned to appoint all along?

The answers to these questions will greatly impact the next search at Florida.  I would bet that Florida's next dean will come from its own faculty (as is often the case following a failed search).

 

Dean Frank Wu: "That's Why We Call It 'Work'"

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This essay was previoiusly published at Above The Law.

I was talking to a reporter the other day about changes within the legal profession. She had called me to ask what types of jobs were opening up. I disappointed her. She wanted specialties offering positions that were sexy, new, and numerous.

I explained there were indeed more jobs. But I did not know any of them that satisfied all of her criteria.

There were many possibilities for her article. None of them were everything she was looking for.

That would be true for the individuals obtaining those roles as well. I recall a former colleague who used to say in response to the extravagant expectations that young people express about their careers: “That’s why we call it ‘work.’” She meant that there isn’t any reason to believe it will be fun. It is more likely to be boring, stressful, or both boring and stressful by turns if not simultaneously.

By the journalist’s standards, unless it is sexy, new and numerous, it does not register at all. That isn’t the best understanding of the universe of possibilities. Law is not intrinsically sexy….

 

Some jobs that are not sexy are indeed new and numerous. Litigation support, performing e-discovery, or its transactional equivalent, analyzing terms and conditions of contracts, has been set up as its own track. Junior associates once took care of these tasks, eventually advancing to more meaningful functions. A category of lawyers now can be assigned to such labor on a more or less permanent basis, thanks to the combination of automation and outsourcing.

Other jobs are sexy and new but not numerous. A recent graduate of my law school conducted an intensive search and was hired to the government negotiating team addressing global climate change. That is about as exciting a position as possible for someone interested in environmental policy; it didn’t exist a generation ago. But it’s basically a one-off; there are few such opportunities.

Employers also need to recruit for jobs that are sexy and numerous though not new. There is increased demand for litigators who are interested in trusts and estates disputes: taking a side with families squabbling with one another about what the deceased has bequeathed descendants. If you want to gain trial experience, this is sexy — assuming you are able to argue accounting. The rivalry and resentment animating these cases is as ancient as humanity itself, meaning there is no end of intense interaction with opposing counsel and clients.

Yet the more significant story is that whole fields of law are developing. The insistence on sexy, new, and numerous frames the issues poorly.

Privacy, for example, is a concern of anyone with a credit card or who accesses the internet, which is to say everyone who is a consumer within the modern economy. We care about these issues. The rules are only starting to develop, subject to the most powerful political considerations and policy arguments.

Firms, both plaintiff’s side pursuing a contingency fee and the defense bar representing corporations, as well as government agencies, have set up privacy units. Yet privacy compliance is not necessarily legal practice in a traditional sense. It can be performed by professionals who work alongside lawyers. It is legal work though maybe not lawyer’s work.

I am not sure I have persuaded the press to orient coverage toward the realities beyond the headlines. The real issue is whether there is work to be done. Law is changing at a rate that the bench and the bar might not have anticipated, but it turns out to be the same in that regard as everything else in our accelerating reality.

Dean Frank Wu on Cutting Law Schools

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

Law schools must cut. Enrollment is down. The drop has no end in sight. It might be temporary; it might be permanent. Even if it is the former rather than the latter, there is much more to come: two-year JD programs, limited licenses, and various demands for reform.

Most law schools already have cut their enrollment. Unless the law school's dean has made a Faustian bargain, the cut to enrollment calls for a cut to the budget.

Many law schools are facing a structural deficit. It is important to explain what that means.

A deficit is a negative balance at the end of a given time period, typically a fiscal year (which may or may not correspond to a calendar year or to an academic year). The expenditures exceed the revenues.

An enterprise might run a one-time deficit because of an extraordinary expense. Say part of a building burns down in a particular year. It has to be rebuilt.

For an independent law school, such as UC Hastings, covering an extraordinary expense necessitates spending from the reserves that have been accumulated for just such a purpose. For the majority of law schools that are embedded within a larger university structure, it is possible the central administration will offer a temporary subsidy to make up for the loss.

A one-time deficit is not desirable, but it is not likely to be fatal. "One-time" is a crucial adjective. There is no reason to expect that another building will burn down the next year.

A structural deficit is something else altogether. It is inherent. Suppose the school has a payroll that is oversized relative to the money coming in. Human resources are what law schools buy; there is little raw material, as would be purchased by a manufacturing venture.

Unlike a building burning down, which one hopes occurs rarely, it is a certainty that employees will wish to be paid regularly. If the payroll cannot be met one year, and nothing is done to change the situation (either laying off some employees or reducing compensation for all employees or deploying some combination of measures), the deficit will repeat itself the following year. This will continue until the reserves are depleted or the outside source of funding is exhausted. The institution then is insolvent.

When any leader in higher education announces that there is a problem of this nature, there is a temptation to infer that the leader is the problem. If only the wrongdoeers were identified, all would be well. The administration must be incompetent, dishonest, or both.

Or sometimes observers assume that there is a hidden surplus in the system. They suppose that a thorough search will turn up excess that could take care of everything if it were eliminated. Yet one person's waste is another person's livelihood.

The extent of the crisis for legal education, however, cannot be denied. It is quite possible that in this application cycle, law schools--not any specific law school, but all accredited law schools taken together--will see a fifty percent reduction in the applicant pool since the recession set in. There have been thirteen consecutive LSAT sittings with fewer takers.

"Crisis" is the right term. Industries rarely see such negative change.

Law schools have been insulated from economic trends. They actually have been somewhat countercyclical, so an uptick in the economy might not help matters. (This description of the situation doesn't even take into account the tuition discounting that must be applied to attract the best students.)

With potential revenue at such a low point, expenditures must be brought into line. The alternative is bankruptcy.

People always hope to address the revenue side. There two common suggestions.

The first is to build out non-JD programs. LLM programs have multiplied. Over the past generation, LLM programs have enrolled primarily foreign students or the handful of Americans who took law degrees outside of the country. More recently, it also has included LLM programs for Americans looking to specialize or add prestige to their pedigree: what once was restricted to the specialty of tax has proliferated to various other fields. In an instant, it has begun to encompass non-professional degrees for individuals in cognate fields who could use legal skills to continue advancing in their current occupations.

The second is to raise more money from private sources. Even institutions that once depended on state subsidies for the bulk of their income have set up advancement operations. They chase their alumni for gifts and submit applications to foundations for grants.

These tactics are necessary and commendable. They can compensate for modest shortfalls, but they cannot cover up basic inadequacies with the business model.

Unless a law school wishes to transform itself out of the training of lawyers, its core will remain the JD program; it is wishful thinking to wager otherwise.

Non-JD students are not available in sufficient quantities, and they do not substitute on a one-to-one basis for JD students in monetary terms. They are at best a two-for-one proposition; speaking of them in that sense only exposes the troubling tendency to treat them as if they were a financial necessity and little more. If they are not similar in quality to the JD students, taking them in trades one set of worries for another.

Fundraising potential is routinely overestimated. An institution with thousands of alumni who have not been accustomed to giving will not become an institution with thousands of donors without a better pitch than its own imperilment. Contributions follow success. There are lawyers who appreciate what their teachers enabled them to do, but, contrary to what legal training might suggest, it is not generally possible to persuade someone they ought to feel generous.

Thus we come to this. Law schools must cut. I embrace radical transparency in making that declaration. What we see when we pull back the curtains is not necessarily pretty. The great and powerful Wizard of Oz asked us not to pay attention to the little man back there.

The challenge for us legal educators is to continue inspiring people to care about the law: students, benefactors, the bench and the bar, even the public at large. Inspiration will require innovation. It's time to step out from behind the curtains.

March Madness

 

The US News Law School Rankings will soon be released, and I am surprised there is not a betting pool on the outcome.

For many years, applicants have relied heavily on the rankings when they were choosing between law schools. These choices were often made with disregard to the individual student’s cost of attendance. That is, a student would attend the school ranked 75^th, rather than a school ranked 125^th, even though the tuition at the 75th ranked school might be significantly higher.

A positive change that seems to be occurring is that the many law schools and students realize that educational cost can have a bigger impact on long-term career choices than the rankings. Students with lower debt leaving law school have many more options in the job market. Conversely, a student with large debt must find a job with a large enough salary to pay that debt and have enough left over to live on.

There is little doubt that the top students at top law schools have a better chance of being hired by the top 250 law firms. The NLJ grid found at the link below, therefore, is not surprising:

 http://www.nationallawjournal.com/id=1202589186825/The-Go-To-Law-Schools?slreturn=20140206161948

Each of the schools listed on the NLJ chart would be considered an elite law school. It is important to note that even at Berkeley and Cornell 55% of the graduates are hired in jobs other than big law jobs, or are unemployed and still looking.

The question applicants need to ask if they are not going to an elite school is what is the cost versus benefit of my education? I assert that there is very little real difference between, for example, a law school ranked 75^th and one ranked 125^th.

I admit it is true that the 75^th ranked school will have better median LSAT and GPA profiles than the 125^th ranked school. Because of that fact, some would argue that the applicant will be in class with “better” students at the 75^th ranked school. I disagree with that position, because I am not convinced that a student with a 157 LSAT is truly “better” than a student with a 154.  Furthermore a student with a 157 LSAT at a school with a 157 median is less likely to earn a high dollar scholarship than a student with a 157 LSAT at a school with a 154 median. If the LSAT numbers have some value as predictors of first-year success, the student would arguably be better off at the lower ranked school, where she is predicted to be at the top of the class, rather than at the higher ranked school where she is predicted to be in the middle. That is especially true, if her cost of education is greatly reduced by being at the lower ranked school. The rankings give applicants the sense that they are making a rational decision by picking a school higher up on a list, even if that decision is economically irrational.

Wouldn’t it be nice if a magazine like Consumer Reports could create a reliable and useful ranking system for law schools.  Until then, we will have to endure the impacts of March Madness in legal education.

 

Dean Frank Wu on The Problems of Legal Education

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Above The Law. 

Legal education does not suffer from a problem. It suffers from multiple problems.

In law school, before students learn anything else, they must understand the importance of issue spotting. One cannot analyze a case or a line of cases, without being able to see the multiple potential issues that are raised and then recognizing which warrant consideration. In actual practice, this skill remains a pre-requisite for offering an opinion or fashioning an argument. It becomes a matter of course.

Legal education faces at least three problems. They are related but not the same. What might help with respect to one problem might hurt with respect to another problem….

First, there is a glut of lawyers on the market. There are simply too many people out there who hold JDs and wish to work as lawyers. The oversupply may be overstated, but the number of seats in law school should be — and is being — reduced.

This particular issue extends beyond law school; there are too many lawyers at virtually every level, including the most prestigious. Even if this surplus is temporary, its negative consequences may be so significant as to outweigh everything else. (There is the irony, for another day, of a lack of lawyers available to represent ordinary people.)

There are various possible remedies. Some lawyers will, as they always have, perform other types of work. That encompasses occupations that are as fulfilling, intellectually and materially, as the role of an attorney; it does not mean dispensing fancy coffee. Other lawyers might migrate overseas, where demand is relatively strong and likely to remain so.

Second, legal education costs too much. (I’ll discuss the hyperinflation of tuition further later.)

Third, the skills that are imparted through the traditional program of training are not suited to the demands of employers, and, ultimately, clients.

The Dean of Georgetown, William Treanor, gave a talk recently for the Lawyers Club of San Francisco. He observed that the possibility of a shortened curriculum, meant to address the second problem (high cost), would worsen the third problem (inadequate skills). There is another means of changing the cost-benefit calculation: instead of decreasing the former, increase the latter. (Incidentally, for economies as a whole, deflation presents worse risks than inflation.)

In the background, however, there is a problem bigger than all of the ones mentioned above. We are living through a period of profound economic restructuring in general. It isn’t merely the pervasive effects of globalization and the speed of technological advance; it’s the constancy of change and the volatility of society. Almost all of us are unsettled by uncertainty, even if we would like to be avant-garde. For those of us who have felt assured of the American Dream, it is about as demoralizing as it could be to realize that our reasonable expectations might not be matched by economic realities — never mind unreasonable expectations that are held dear.

The only hope, for institutions as well as individuals, is to adapt. That has always been true. It hasn’t always been acknowledged. We do not live in the best of all possible worlds; that is yet to come.