Monday, March 30, 2015

Bar Wars

This is a volatile time in terms of bar admissions.  Some states have added subjects to the bar exam (a terrible idea, in my opinion).  Some have or will raise passing scores.  In Illinois, most of the deans were recently able to convince the Supreme Court to significantly scale back such a plan. A few have considered Wisconsin-style diploma privileges (as a dean I am too biased in favor of this to comment objectively;  it does seem odd to limit this option to graduates of law schools within the state - are graduates of Marquette and Wisconsin really more prepared to practice there than graduates of Loyola or Northwestern?). Others, led by New York, have added, or are considering, a pro bono/public service requirement prior to admission (well meaning, but almost completely unrelated to competence to practice law;  why not impose that requirement on experienced lawyers first?).  Still others, starting with California, are moving towards experiential learning requirements beyond those in the ABA Standards (quite defensible, although burdensome to law schools and threatening to a national standard of legal education requirements). Meanwhile, this past summer saw a significant drop in bar pass rates around the country, reflecting, depending on your point of view, either a flawed examination or the results of declining admissions standards.   

It seems like a good time for modernizing bar admissions.  The Uniform Bar Examination is worth serious consideration, as are recent innovations in Arizona and New Hampshire.  More effort should be made to test competence to practice law rather than the ability to do well on something that is a mix between a law school essay exam and a standardized test.  Bar associations that have been quick to establish law school-bashing task forces, should convene state-wide dialogues on this important topic.

March 30, 2015 | Permalink | Comments (2)

Monday, March 23, 2015

Lucre, Malice and The Charleston School of Law


Charleston Law board members, and former federal magistrates Robert Carr and George Kosko, have made public statements that they would rather have the law school close, than approve board member Ed Westbrook's plan. Westbrook has formed a nonprofit corporation to run the school, which he says would provide a viable alternative to selling it to the for-profit InfiLaw System. A majority of the original five member board had always planned to transition the school to a nonprofit model, once it was firmly established. Unfortunately, two board members retired, and Carr and Kosko saw the school as a road to personal wealth.

It is disappointing, but not surprising, that Carr and Kosko are putting their interests ahead of the students, faculty, staff, alumni and Charleston legal community. Despite the prohibitions found in Canon 4A of the Code of Conduct for United States Judges, Magistrates Carr and Kosko were governing board members of CSOL, and they spent several hours of the day at the school. Neither Carr, nor Kosko contributed money to the founding of the school. Instead, they each signed a $400,000 note to repay Ed Westbrook from the revenue of the law school. Westbrook is the only board member who actually funded the school in its start-up years. 

The plans put forth by the five law school founders showed that repayment was expected to take place over a five year period. The initial entering class was projected to be 125 full-time students. Instead, the school was able to enroll 135 full-time students and 65 evening students. The board had not planned to include an evening program, but the associate dean of admission convinced them that there was pent-up demand for a limited evening program. The faculty were enthusiastic about teaching in the evening program. The median LSAT for this inaugural class (including the evening students) was a respectable 151.  The result would be that the school earned enough money in two years, rather than the projected five, to cover the notes of Carr and Kosko. From that point on, they had no risk.

Irrespective of the fact that they had acquired their interests in the law school by leveraging student tuition dollars, and the dedicated work of faculty and staff, Carr and Kosko regularly referred to the law school as belonging to them. George Kosko,who was not renewed as a magistrate after his first eight-year term, frequently bullied faculty and staff members. He has now turned towards Ed Westbrook, and the remaining faculty, because they have fought the sale to Infilaw. It is unconscionable that CSOL is offering buy-outs, when Carr and Kosko have each withdrawn in excess of $5 million from the school over the last 3 years.

Oaths of admission to many state bars state that the lawyer will not "delay anyone's cause for lucre or malice." The mess at the Charleston School of Law can almost completely be attributed to two board members, who are the embodiment of lucre and malice.

 More to come on this story.

March 23, 2015 | Permalink | Comments (0)

Wednesday, March 18, 2015

A Thank You

Two weeks ago, I announced that I would be stepping down from the deanship at Ole Miss Law.

I have enjoyed being dean at Ole Miss, very much, and am really pleased that my wonderful colleague Debbie Bell has agreed to serve as interim dean. 

I have been fortunate to serve as a dean at three very different institutions, and am grateful to each of those institutions.  My experience at Ole Miss was enhanced greatly by the professionalism and strength of the senior administration we have at our university. This is a difficult time for law schools, and having a Provost who understands that makes a huge difference in a dean's day-to-day. The Provost here, Dr. Morris Stocks, has been simply great to work with. Not many deans publicly thank their Provosts, after they step down, so I wanted to make sure I thanked Morris in this very public way.


March 18, 2015 | Permalink | Comments (0)

Saturday, March 14, 2015

Regulating LL.M. Programs

Llm_programsAt an informal lunch at AALS last January, the topic turned to LL.M. programs at a group of professors’ respective schools. Five or six faculty members chimed in – faculty members from across the spectrum of U.S. law schools – and every one of them said some variation on the theme that their school’s LL.M. program was explicitly designed to be a cash cow – to bring in wealthy foreign students, get them to pay full sticker price, plug them into existing J.D. courses (i.e., no additional curricular expenditure), implement an explicit two-tier grading system (i.e., all LL.M. students receive high grades), and pass the LL.M. students so that they can either sit for an American bar exam or return home with a new and presumably valuable credential.

Surely not all American LL.M. programs fit this model. The one at my own law school doesn’t – our LL.M. program in democratic governance and rule of law is designed for students in transitional states, they have a mostly independent curriculum, we explicitly require them to return home to practice government-reform or NGO work for at least two years after graduation, and it's a net money-loser to our institution (though we more than make up for it in goodwill and international diversity). But if even a significant number of American LL.M. programs are diploma mills or cash cows, doesn’t that devalue the legitimate programs? How are foreign prospective students expected to be able to discern the difference?

Currently, LL.M. programs are virtually unregulated. The ABA/AALS looks at them only to the extent that they do no harm to the J.D. programs; the converse is not part of the consideration. Maybe it should be.


March 14, 2015 | Permalink | Comments (0)

Tuesday, March 10, 2015

Using USNWR to Impose Reputational Costs

Manipulation(Rick Bales)

Much as I despise the USNWR ranking system, I’m a bit surprised that we deans (and associate deans) don’t use our relatively outsized influence as voters in the peer-assessment component of the ranking to police our own ranks.

When a school subsidizes the employment of large numbers of graduates for nine months and a day after graduation, or a quarter of its second-year class is comprised of students who it rejected for admission as first-year students, it’s obvious that the school is playing games to artificially inflate its employment outcomes and  student selectivity and ultimately its USNWR ranking. In my mind, this is unethical, because it actively seeks to mislead consumers (prospective students and employers of current students) who may not understand the numbers-manipulation that is occurring behind the curtain. It’s also, I believe, a sure sign of structural weakness – if a school has to play games to maintain its employment statistics or entering-student credentials, the school is masking significant underlying problems.

I'm not against transfers per se -- there are legitimate reasons for students to transfer, and in an open market they should be free to do so. Likewise, I have no problem with incubator projects or a law school hiring an odd recent graduate or two to help with admissions or the like. These are not the manipulations I'm objecting to.

I am not, by any stretch, a fan of the USNWR rankings. Many law deans boycott the annual survey, or at least say they do, for good reason. But for those who do fill the survey out, perhaps it makes sense next year to consider using the survey to significantly penalize the law schools who are manipulating their numbers and misleading consumers. Forcing schools to pay a price for their misbehavior seems the best way to stop it.



March 10, 2015 | Permalink | Comments (1)

Is the Influence of U.S. News Declining?

Over at The Faculty Lounge, Al Brophy asks, "Is US News Still Relevant?".  One thing that caught my eye in the new rankings is that far fewer opinion survey recipients seem to be responding.  Over the past decade, an average of 67% of the academics receiving the US News survey filled it out.  This year, that number was down to 58%.  Among judges and lawyers, the average response rate over that time period has been 22%.  Several years ago, US News started using two years of the judge/lawyer responses each time, probably in recognition of the low response rate.  This year, US News did not even publish that response rate.  And, they moved to a 3-year average.  This strongly suggests that the response rate dropped significantly.

What does it mean that more people than ever are throwing out the US News survey?  My guess is that the ongoing crisis in legal education makes it easier to recognize that the annual horse race-like results of the rankings are far less important than lots of other things going on in legal education. 

March 10, 2015 | Permalink | Comments (1)

Monday, March 9, 2015

Want My Job?

People interested in pursuing a job similar to mine -- Chancellor & Dean of University of California Hastings College of the Law -- often ask me for advice. Perhaps the most useful answer I am able to offer to their questions is to ask them whether they really want what they believe they want. Even the most attentive observers only see what they can see.

Every professor should be given the opportunity to run the enterprise, if only to give her insight into what it takes to do so. We imagine how we might perform in an occupation, based on an idealized version of its obligations -- even if we do not suppose we would be better than the incumbent.

Once, I attended a conference of Unitarian Universalists where I enjoyed chatting with a new member of the clergy. A businessperson who had switched careers, moved by spirituality, she confided to me that she had not quite realized when she was in seminary that her future was not to be exclusively contemplative or given over to pastoral care. She most enjoyed the time in her study preparing the Sunday sermon or attending to a member of the congregation who sought counseling. As she explained to me, she was surprised that she also was charged with attendance, the physical plant, the collection plate, and HR matters more vexing than in the private sector due to the commitments of faith and the culture of the congregation.

The same lament is true for other leadership roles.

A law school dean or college president must be passionate about the content of the education, and, at any research oriented institution, the original scholarship that is being produced. That's why a person who heads a campus, with significant duties, feels compelled to fulfill such responsibilities. She identifies with the purpose of the place and is motivated by it. The shared cause is what sustains people through the inescapable stress.

But an administrator also needs to be interested in the quotidian details of operations, ranging from the motivating of individuals and the organizing of groups to the finances and fundraising. That is why she is hired. She must be devoted not only to what happens on stage but also everything behind the scenes. The students deserve that dedication.

Leadership is about both ideas and implementation. Thinking and doing depend on distinct skill sets. Integrating them is the challenge.

March 9, 2015 | Permalink | Comments (0)

Sunday, March 8, 2015

Why Law Firms Fail -- and What Law Schools Can Learn From That

Elsewhere, I have written about law firm failures. Although some laypeople might applaud as members of the bar receive their comeuppance, there is much for us in the academy to learn from these trends.
I am no expert. I offer only this comment about the dynamics of the legal marketplace.
Nobody suggests that law firm failures are caused by lawyers performing their work in an incompetent manner. To the contrary, everyone is surprised that great lawyers have not avoided the demise of their enterprises.

The same could be said of other ventures. That includes law schools and other institutions of higher education. It is important to assemble excellent scholars and dedicated teachers. But bringing together a group of great individuals is nothing more than gathering together impressive resumes, without a business model is sustainable.

March 8, 2015 | Permalink | Comments (0)

Monday, March 2, 2015

An American Law Professor in China; Eventually Chinese Lawyers in America?

I had the honor of teaching at the Peking University School of Transnational Law in its inaugural year. The oldest university on mainland China has had a law school for some time, but it decided to establish a unique law school. Offering an American Juris Doctor program, conducted in English, this upstart institution confirms the extent to which the American legal system has become the global standard. A mirror image would be difficult to imagine. Although there are accredited institutions in the United States offering a curriculum in Chinese Traditional Medicine, it is unlikely that a prestigious university here will soon set up a law school on the legal traditions of the PRC.


"STL," as it is known, is located on a separate campus in Shenzhen, shared with other universities developing new programs. The location is apt. Shenzhen has become famous: a fishing village across from Hong Kong allowed early on to play with capitalism, it transformed itself into a boom town exemplifying the ambitions of a nation. Development drives everything in the "Special Economic Zone."


My students displayed a determination uncommon in most classrooms. They were preparing themselves for a profession that depends on linguistic skill, in a tongue not their own. They were taking on risks that I -- an Asian American whose origins are as forgotten as anyone else's who assimilates to the new world -- would not dare hazard. They had the utmost confidence in the upward mobility of their society as well as themselves, based as much on hard work as innate talent.


In my time overseas, I realized how the rise of China as an economic rival to America will test our commitment to rule of law. It will challenge the openness of the system.


STL is symbolic. By creating it, China has shown at least that much interest in participating within a marketplace defined by American norms. More precisely, Chinese professionals who aspire to the highest levels of success have shown their eagerness to be accepted in that environment.


Yet eventually my students will decide that they are teachers in their own right. China will expect that it will be able to influence the customs and practices presented as universal and just. Otherwise, they will wonder why they accepted the invitation to join the community of nations.


America has presented itself as an exceptional experiment of democracy. The Chinese who come here, becoming Chinese Americans, Asian Americans, or simply Americans, achieve equality, through principles more fulfilled by the day. But I wonder about the Chinese who have no wish to become Chinese Americans, much less Asian Americans, or plain Americans, whether they will be granted rights, as participants able to influence outcomes. Perhaps they will cite the colonials who were galled by taxation without representation, notwithstanding that they are citizens of another sovereign. No matter how the advocate for themselves, we will be forced to consider their claims.


I am confident that our ideals will be the better for it.


This blog originally appeared on Linked In through its Influencers program.

March 2, 2015 | Permalink | Comments (0)

Champions of Justice Interview with Dean Gilbert Holmes

Excellent interview with Dean Holmes (LaVerne).

March 2, 2015 | Permalink | Comments (0)

MacArthur Foundation Supports Chicago Incubator Program

I have been fortunate enough to serve on an advisory board to the Justice Entreprenuers Project, an incubator program established by the Chicago Bar Foundation to assist law school graduates in developing law practices for low and moderate income clients.  The MacArthur Foundation recently announced a $400,000 grant to this great project.



It is too early to tell whether this (or other incubator programs) is a sustainable model.  But it is great that MacArthur will aid in the development of this type of program. 

March 2, 2015 | Permalink | Comments (0)