Legal Skills Prof Blog

New legal "skills" scholarship: "Navigating the Uncharted Waters of Teaching Law with Online Simulations"

This article is by Professor Ira Steven Nathenson (St. Thomas) and has been published at 38 Ohio N.U. L. Rev. 535 (2012) and is also available here from SSRN.  From the abstract:

The Internet is more than a place where the Millennial Generation communicates, plays, and shops. It is also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as Torts, Property, or Contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live Internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In this Article, the author discusses observations stemming from his experiences teaching law courses using live, online role-playing simulations that cast students in the role of attorneys. The Article concludes that such simulations have significant benefits for law students and can also benefit scholars who use simulations proactively to deepen the synergies between their teaching and scholarship. However, the resources required for simulations may also exacerbate long-standing systemic tensions in legal education, particularly regarding institutional resources as well as the sometimes conflicting roles of faculty as teacher-scholars. Because the American Bar Association will almost certainly, and appropriately, require law schools to expand their simulation offerings, the benefits and tradeoffs of simulations teaching must be addressed now.

(jbl).

College student loan default rate at all time high

The overall default rate for college students has increased to more than 9%, a new record according to this story from USA Today. This article from the Chronicle of Higher Ed pegs the 3 year default rate at more than 13%. (query whether this will further shrink the law school applicant pool on top of the well-publicized concerns about the value of a law degree that are already causing students to stay away in record numbers).  Unlike previous years where many of those who defaulted were graduates of dubious for-profit schools, the Department of Education is reporting that many of those included in the new figure are graduates of more traditional, private and non-profit colleges. Also keep in mind that DOE only reports the default rate for two, and for the first time with this report, three years after the borrower has graduated  which might understate the true depth of the problem. From USA Today:

College students defaulting at record rate

Student loan defaults have risen for the fifth straight year, as students from traditional non-profit universities have an increasingly difficult time paying off their college debt.

Numbers released by the Department of Education Friday show that of the 4.1 million borrowers who began making payments in late 2009 and early 2010, 9.1% defaulted within two years, up from 8.8% the year before.

"Student loan defaults still continue to plague too many borrowers," said Debbie Cochrane, research director for the Institute for College Access & Success. "The numbers are distressing, and they needn't be so high."

Experts credited the combination of skyrocketing student debt, the poor economy and a lack of borrower education for the increase. Unlike previous years, when default rates rose because borrowers at for-profit universities were having trouble paying off their loans, this year's rise was attributed to borrowers who attended more traditional non-profit public and private universities. Public school borrowers defaulted at a rate of 8.3%, up from 5.9% just four years ago.

For the first time in four years, the two-year for-profit school default rate dropped from the previous year, to 12.9% from 15%. Mark Kantrowitz, publisher of Finaid.org, a financial aid website, said the drop indicated that new reforms had worked.

Politicians and finance advocates have long been critical of for-profit schools, saying they lure in unqualified students and didn't disclose enough about employment or debt rates. In the past few years, they've implemented new regulations on student recruitment and advertising, and made some changes to financial aid.

"This is a sign those rules are somewhat successful," Kantrowitz said. "All the criticism has lead to these colleges trying to clean up their house."

He added that he expects default rates have hit their peak, and expects them to drop next year based on reforms, a reduction in interest rates and an improving economy.

The two-year default figures released Friday count borrowers who began their repayment in fiscal year 2010 -- meaning they are mostly graduates of the 2009 class -- and measures the percentage who fell a year behind in their payments by September 2011. The data don't measure borrowers who default later in the life of the loan.

The Department of Education for the first time also released an official three-year default rate, which showed that given another year of payments, last year's 8.8% default rate ballooned to 13.4%. The department is in the process of changing its standard to look only at the three-year rate, which critics say gives a more accurate picture of the scope of loan defaults.

The three-year default data showed that nearly half the borrowers in default had attended for-profit colleges, despite comprising only 28% of the total borrowing pool, and 13% of enrolled college students.

Continue reading here.

(jbl).

More on the Callback Interview

Last Thursday, our blog posted advice on dealing with the callback interview. Here's more advice for your students.  For them, the callback is the big one that might lead to the job. A number of schools have handouts to advise their students on what to do and what not to do.

Here are helpful handouts from Hastings,   Berkeley,  George Washington,  Georgetown, and Michigan.

(ljs)

New York Times Op-Ed says USNWR rankings game responsible for exorbitant tuition increases

An Op-Ed in yesterday's New York Times by business commentator Joe Nocera argues that the recently released USNWR college rankings rely heavily on how much money schools spend which is why tuition has risen significantly faster than inflation resulting in a generation of students saddled with crushing student loan debt.

The College Rankings Racket

The U.S. News & World Report’s annual college rankings came out earlier this month and — knock me over with a feather! — Harvard and Princeton were tied for first.

Followed by Yale. 

Followed by Columbia. 

It’s not that these aren’t great universities. But c’mon. Can you really say with any precision that Princeton is “better” than Columbia? That the Massachusetts Institute of Technology (No. 6) is better than the California Institute of Technology (No. 10)?  That Tufts (No. 28) is better than Brandeis (No. 33)?

Of course not. U.S. News likes to claim that it uses rigorous methodology, but, honestly, it’s just a list put together by magazine editors. The whole exercise is a little silly. Or rather, it would be if it weren’t so pernicious.

Magazines compile lists because people like to read them. With U.S. News having folded its print edition two years ago, its rankings — not just of colleges, but law schools, graduate schools and even high schools — are probably what keep the enterprise alive. People care enough about its rankings to pay $34.95 to seek out the details on the U.S. News Web site.

And they imbue these rankings with an authority that is largely unjustified. Universities that want to game the rankings can easily do so. U.S. News cares a lot about how much money a school raises and how much it spends: on faculty; on small classes; on facilities; and so on. It cares about how selective the admissions process is.

. . . .

[S]chools know that, if they want to get a better ranking, they need to spend money like mad — even though they will have to increase tuition that is already backbreaking. “If you figure out how to do the same service for less money, your U.S. News ranking will go down,” says Kevin Carey, the director of education policy at the New America Foundation, a nonpartisan research group. The rankings encourage trends that ill-serve the country.

There is something else, too. The rankings exacerbate the status anxiety that afflicts so many high school students. The single-minded goal of too many high school students — pushed by parents, guidance counselors and society itself — is to get into a “good” school. Those who don’t land a prestigious admission feel like failures. Those who do but lack the means often wind up taking on onerous debt — a burden that can last a lifetime. And U.S. News has largely become the measure by which a good school is defined. “U.S. News didn’t invent the social dynamic,” says Carey. “What it did was very accurately empiricize them.”

Continue reading here.

(jbl).

Fair Use: How Much Can You Copy?

Quite a bit is the answer attorney Zick Rubin gives in his commentary at the Chronicle of Higher Education. He bases his position on the federal District Court decision, Cambridge University Press v. Becker, in which the plaintiff publishers largely lost their copyright case against Georgia State.

Mr. Rubin’s explanation of the 350 page opinion gives encouragement to the academic community, which want to reproduce an article or book chapter, not to gain a profit, but to educate students. The court opinion suggests that copying 10 percent of a book is fair use. Caution: the publishers are appealing the decision.

(ljs)

New legal "skills" scholarship: "Legal Education's Perfect Storm: Law Students' Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urgent Need to Reconfigure the First-Year Curriculum"

This article is by Professor James Etienne Viator (Loyola, N.O.), published at 61 Cath. U. L. Rev. 735 (2012) and available at SSRN here.  From the abstract:

This article addresses concerns about the quality of legal education, specifically law schools’ perceived failure in teaching legal writing and critical thinking skills. The solution suggested is, instead of teaching rhetoric or legal reasoning as a separate course (or integrated with a school’s legal research and writing course), for law schools to adopt the Iowa model of integrating the teaching of these skills into first-year substantive courses.

(jbl).

Good Articles in the ABA Journal

The October issue has a number of valuable articles available online. Here they are:

The inside scoop on successful lawyering, in-house and out Mark Herrmann, known for his “Inside Straight” column on the popular legal blog Above the Law, offers advice from the perspective of a lawyer who has worked as both outside and in-house counsel. Underused tools to attract clients >> Protecting directors and officers from personal financial, criminal liability An executive protection program that coordinates common and statutory laws with insurance can help avoid a result in which either a corporation or its directors are unduly punished. Claims against directors and officers are increasingly common >> Put a stop to bullying in your law firm Bullying isn't just on the playground anymore. It's even in the workplace. Law firms should have a protocol on how to deal with bullies as soon as a problem is identified. Try these steps. Any allegation of bullying must be taken seriously >> Beware: Blogs can be legal minefields Horace Hunter sued the Virginia State Bar for the right to post news about clients' noteworthy cases on his firm's blog without labeling the information as advertising. Hunter and a panel discuss the case and the challenges that legal blogs present. Should you blog about client cases? >> Yes, small firms can snag big clients Small firms can promote value pricing and ultra-attentive service over their larger competitors. Keep quality high, even when prices are low >> Prevent these professional pitfalls of social media Heed this advice to maintain your reputation when tweeting or posting on Facebook outside of work. Three standards to uphold >> Divorce lawyers: Avoid a malpractice suit An expert panel identifies the top 10 reasons matrimonial lawyers get sued and how they can avoid it. Why managing client expectations matters >> Be 'kind': Represent a child in immigration court The ABA and Kids in Need of Defense are recruiting and training volunteer lawyers to represent immigrant children who have no counsel during removal proceedings. Partnership provides training resources, including six free podcasts >> Top tips for deposing an expert witness A principal and a partner at an Illinois firm share 10 essential tactics. Ask who, what, where, when, how, like a good direct examination >> Want to win? Establish credibility It's more than the law that helps you successfully try a case. There's body language, interpersonal actions and even apologies. Clients often need 'credibility training' >> Technology for more high-value work, efficiency boost These six tips will help make your firm more productive. Try a tablet for note-taking during meetings >>

(ljs)

Empathy and Judging

Andrea L. McArdle has just posted an excellent article on empathy and judging.

Using a Narrative Lens to Understand Empathy and How It Matters in Judging.

Abstract: The questions of what empathy is, how it may function in judicial decisions, and its relationship to concepts of emotion, identity, and experience, continue to challenge thinking about how and why a capacity for empathy may matter in judging. Drawing on the framework for narrative analysis developed in Anthony Amsterdam and Jerome Bruner’s Minding the Law, this article seeks to elucidate what the addition of empathy — a multifaceted concept including both emotional and cognitive dimensions — can offer to judging. I use a narrative analysis to illuminate the workings or absence of empathy in two Supreme Court opinions decided in the same term of the Rehnquist court — DeShaney v. Winnebago County Department of Social Services and Michael H. v. Gerald D. Both cases required the Court to address the scope of “liberty” under the Due Process Clause, and both presented compelling facts implicating family relationships involving judicial review of (in DeShaney) a state’s failure to intervene in, and (in Michael H.) a failure to entertain, a father-child relationship.

Using a narrative lens, I first consider the DeShaney majority’s efforts to neutralize what it characterized as the “tragic” facts of parental abuse with a flat narrative of the law that drew a bright line between the Department of Social Services’ challenged failure to act and legal liability (an approach that Amsterdam and Bruner would refer to as "category-centered"). I consider the differences in narrative perspective between the majority opinion and Justice Brennan’s dissent, and the alleged emotionalism of Justice Blackmun’s separate dissenting opinion. These dissents, I argue, offer a distinct “due process” narrative about the choices entailed in judicial interpretation. They illuminate the link between a capacity for empathy and what Amsterdam and Bruner would describe as a more context-sensitive, situation-centered mode of interpretation. I then turn to the plurality and principal dissenting opinion in Michael H. v. Gerald D. Applying the tools of narrative analysis, I consider how an exercise of empathy evident in Justice Brennan’s more situation-centered dissent could have contributed to the plurality’s category-centered understanding of Michael H.’s efforts to formalize a parental relationship with a child who, under a presumption of legitimacy, was recognized as the child of another.

Both cases illustrate the divisions in interpretive frameworks that existed within the Court at that time, divisions that were reflected in part in the widely diverging narratives of the main and dissenting opinions. If both situation-centered and category-centered judges use narratives to convey their legal rationales and interpretive approaches, I conclude that the quality of the narratives, marked by differences in the level of attention to detail and the capacity to imagine and capture different perspectives, will offer evidence of the extent to which empathy is at work, for whom, and to what end.

Comment: Evolutionary psychologists have demonstrated that emotions are a central part of human thinking and morality.  Consequently, empathy should be central to judging.

(Scott Fruehwald)

Friday Fun: The fixed fee tango

This video was produced the U.K. firm Riverview Law which describes itself as a legal services organization "that aims to change the way businesses buy and use legal services." (Check out their innovative "money-back" guarantee).   It's a very humorous look at the dance that takes place between clients who want the certainty of a fixed fee arrangement and law firms that are still wedded to hourly billing.  It really is funny.

Hat tip to The Legal Whiteboard.

(jbl).

Record number of households have student loan debt says Pew study

The number of households that owe student loan debt has more than doubled in the past two decades to 19%, about one in five homes. Among households headed by someone 35 years or younger, 40% of those homes now owe student loan debt.  These are among the findings of a new Pew Research Center study released yesterday which is excerpted below. The study found a significant spike in student loan debt since 2007 most likely tied to tanking the economy as many sought refuge by borrowing money to pursue degrees. Because the study only tracks through 2010, it may be that the numbers have climbed even higher in the intervening years.

A Record One-in-Five Households Now Owe Student Loan Debt: Burden Greatest on Young, Poor

About one out of five (19%) of the nation’s households owed student debt in 2010, more than double the share two decades earlier and a significant rise from the 15% that owed such debt in 2007, just prior to the onset of the Great Recession, according to a Pew Research Center analysis of newly available government data.

The Pew Research analysis also finds that a record 40% of all households headed by someone younger than age 35 owe such debt, by far the highest share among any age group.

It also finds that, whether computed as a share of household income or assets, the relative burden of student loan debt is greatest for households in the bottom fifth of the income spectrum, even though members of such households are less likely than those in other groups to attend college in the first place.

Since 2007 the incidence of student debt has increased in nearly every demographic and economic category, as has the size of that debt.

Continue reading here.

(jbl).

Interest in Law by College Frosh

Here’s data from the Law School Admissions Council.

 

LSAC combined three years of law school applicant data with seven years of data from The Freshman Survey (available through UCLA’s Cooperative Institutional Research Program) to examine how US college students’ backgrounds, experiences, and goals affected their decision to apply to an ABA-approved law school. Overall, 37% of the ABA law school applicants expressed an interest in law as freshmen. The accompanying chart, which breaks down the ABA law school applicant pool by race/ethnicity and gender, shows how the distribution of those interested in law as freshmen varies by subgroup. For example, 50% of African American female applicants expressed an interest in law when they were US college freshmen.

Then question is why this interest is not in line with who actually applies post-college.

(ljs)

 

 

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Chapman law school seeks to hire prof for immigration clinic

Here are the details:

CHAPMAN UNIVERSITY SCHOOL OF LAW invites applications for a full-time faculty position to begin in the 2013-2014 academic year as a clinical professor in the Bette & Wylie Aitken Family Violence Clinic.  The clinic represents low-income clients in immigration and protection order matters.  Students elect to enroll in either the immigration track or the protection order track.  The clinical professor will teach the immigration track of the clinic seminar, supervise immigration track students, perform intake interviews with prospective clients, represent clients in immigration matters, and assist with clinic fund-raising efforts.  Candidates should have a J.D. or its equivalent along with either great promise or a record of excellence in teaching.  We especially prefer candidates with experience in immigration practice.  Chapman University is an Equal Opportunity Employer, committed to providing career opportunities to all people, without regard to race, color, religion, gender, age, national origin, sexual orientation, disability, or veteran status.   Final candidates will be required to undergo a background check. Contact: Interested candidates should send a cover letter and resume to Professor Scott Howe, Chair, Faculty Appointments Committee.  Contact address: swhowe@chapman.edu.

(jbl).

You can now hire services to take online courses for you

We all know that services have long existed which offer to write student academic papers for cash. Indeed, this guy has written a book about it (and says his services have even been used by law students). But perhaps you didn't know there's an emerging business that will offer to take an entire online course on your behalf for a fee. Inside Higher Ed has the story:

Paying for an A

The growth of the online education market appears to have spun off another, more surreptitious market – one that goes beyond the paper-writing services long available to less than honest students – and online educators are taking note.

A handful of websites have sprung up recently offering to take a student’s entire online class for them, handling assignments, quizzes, and tests, for a fee.

These sites make an appeal to the busy online student, struggling through a class they’re not good at or not interested in. The description of one site, wetakeyourclass.com, reads: "I’m sure you are here because you are wondering 'how will I have time to take my online class?' It may be that one class such as statistics or accounting. We know some people have trouble with numbers. We get that. We are here to help.”

Prices for a “tutor” vary. Boostmygrades.com advertises a $695 rate for graduate classes, $495 for an algebra class, or $95 for an essay. When Inside Higher Ed, posing as a potential customer, asked for a quote for an introductory microeconomics class offered by Penn State World Campus, noneedtostudy.com offered to complete the entire course for $900, with payment upon completion, and onlineclasshelpers.com asked for $775, paid up front. Most sites promise at least a B in the course.

You can continue reading here. And an update here says that one of the companies profiled in the original IHE article has been busted, or at least gone into hiding, since the story first appeared.

(jbl). 

Attention law students: What to do now that you've got a callback job interview

Back in August we brought you tips from Grover Cleveland, author of Swimming Lessons for Baby Sharks, on how 2L's can ace the initial on-campus job interview. Mr. Cleveland is back, by way of the Careerist blog, to offer additional tips on how to ace the all-important callback interview:

How to Ace the Callback . . .

At this stage, interviewers are trying to discern how well you will get along with others in the office—particularly under stress. They'll also want to see if you have the poise and professionalism to represent the firm and cultivate clients. Finally, they will be looking for qualities such as initiative, attention to detail, and resourcefulness.

Here are some tips to engage your interviewers and turn your callback interviews into an offer:

Keep up with the news. Be prepared to chat about something beside law school. Although law school is not particularly conducive to fascinating extracurricular experiences, come up with one or two succinct stories that will interest the interviewer. Here, a trip to Cuba trumps your moot court experience. Also check the news in the morning before your interviews. If there is a huge story that everyone is talking about, you need to be able to discuss it. 

Relax and have a conversation. To show that you are friendly, professional, and poised, it's key to be relaxed (or act like you are). When the interviewer thinks about whether you would be pleasant to work with at 2 a.m. before a trial or a closing, the answer needs to be “yes.”

Do some intelligence work, if possible. If you hit it off with your initial interviewer, you might ask her for insights about the other lawyers you are scheduled to speak with. You might discover landmines to avoid or pick up an interesting nugget that will be a good conversation-starter later in the day.

Don't be too casual during the interview meal. Callback interviews sometimes involve a meal. Don’t let your guard down. The meal is part of the interview, and your dining companions will inevitably submit evaluations as soon as the meal concludes. Order food that won’t take your focus off the discussion or create a wardrobe disaster. Anything that requires peeling, deboning, twirling, or slurping is off-limits.

Questions to ask. Open-ended questions will elicit the most information, and genuine questions that call for a personal perspective are likely to flatter the interviewer. Some questions to ask: "Where do you see the firm in 10 years?" or "What practice areas are experiencing the most growth?"

Continue reading Mr. Cleveland's advice column, including tips on what questions to avoid asking the interviewer, by clicking here.

(jbl).

NY Bar Applicants Must Perform 50 Hours of Pro Bono Work

Last week, NY Chief Judge Jonathan Lippman provided the details of New York’s new pro bono prerequisite to applying for the NY bar. Here are excerpts from an article in the NY Law Journal:

The first-in-the-nation requirement will take effect immediately for first- and second-year law students, who will have up to 34 months to fulfill the mandate. Current third-years are exempt.

Read the new rule on pro bono practice.

Starting Jan. 1, 2015, every applicant to the bar will be required to fulfill the requirement.

Under the rule, 22 NYCRR §520.16, qualifying pro-bono work must be law-related.

"If you build houses for Habitat for Humanity, that doesn't count," Lippman said. "But if you do legal work for a non-profit like Habitat for Humanity, that could count."

Approved pro bono work includes legal services for people of "limited means"; not-for-profit organizations; individuals or groups seeking to promote access to justice; and public service in the judiciary and state and local governments.

The work must be performed under the supervision of a law school faculty member; an admitted attorney in good standing; or, in the case of a court system clerkship or externship, by a judge or lawyer employed by the court system. Participation in law school clinics for which students receive credit would count.

Several NY law deans were not excited. The new requirements will place more of a burden on law schools and their faculty members at a time when budgets are tight. Law schools that are not in NY, but have students who plan to take the NY bar will also face this added burden.

(ljs)

 

The Unified Learning Model and Legal Education

One of the major points in Reforming Legal Education: Law Schools at the Crossroads is that legal education reform should be based on how adult students learn. I believe the best model of student learning is in Duane F. Shell et. al., The Unified Learning Model: How Motivational, Cognitive, and Neurobiological Sciences Inform Best Teaching Practices (Springer 2010). (Some writers on legal education reform have used a learning model in Patricia L. Smith & Tilman J. Ragan, Instructional Design (1999). I prefer the Shell model because it adds motivation to the earlier models.)

Their model looks like this:

1. Learning is a product of working memory allocation.

2. Working memory’s capacity for allocation is affected by prior Knowledge.

3. Working memory allocation is directed by motivation.

When humans learn something, it becomes Knowledge stored in the brain–in long-term memory consisting of the firing potentials and interconnections of neurons. The authors state, "Knowledge is everything we know. It not only means facts and concepts, but also problem solving skills, motor behaviors, and thinking processes." They continue: "Knowledge . . . is entirely the result of the micro-architecture of the brain. . . . It is due to neural patterns in that region having been strengthened and weakened in ways that correspond to learning algebra, calculus, etc. The strengthening and weakening of neurons is learning. Thus, the micro-architecture of the brain and as a result, virtually all of our knowledge is the result of learning."

Working memory is the key to learning. Working memory has two functions–temporary storage and processing of information. Storage is the "process of turning a specific [sensory] input into a permanent trace" in the long-term memory. The senses receive a great deal of input, which is aggregated into sensory output and sent to the working memory. However, the working memory cannot handle all this sensory input, so one of its roles is "attention"–to process some of this input and ignore other parts. Attended memory activates neurons in a temporary memory area, which "creates a neural representation of the sensory input in working memory." "Long-term potentiation" preserves this input for a few hours. "If the neural pattern does not decay, it activates a neural pattern in the cortical region that produces a permanent memory trace of the original input."

Although working memory has only about four slots, these slots can hold from single letter to complex chunks (schemas). A chunk is "a connected grouping of knowledge." From a neurobiological viewpoint, chunks are neurons connected by synapses.

Working memory is devoted to a task when slots are available for input and attention or processing is directed to the slot. Attention directs sensory input, and it prevents a temporary memory from being erased. Novelty and salience affect attention. Humans can focus attention, and this mainly depends on concentration

When the trace is the same as a neural pattern already in long-term memory, the pattern is fired, and it is strengthened in the long-term memory. If this happens frequently, the pattern is further strengthened, and working memory recognizes it more quickly (called retrieval). When two sensory inputs are in working memory then stored in long-term memory, the two inputs will form a neural pattern. When one of inputs is retrieved, it fires the neuron of the other one because the neurons are chained together (matching). This function also occurs when more than two inputs are involved in the pattern. The fact that this can continue infinitely "is how our knowledge of things and concepts are built." In other words, "when one part of a chain is matched, the entire chain is activated because patterns are linked by chaining of neurons" (Pattern matching). Thus, with the help of long-term memory and chunking, "the amount of knowledge potentially available for processing in working memory can become quite large. . ." In sum, "learning is about connections."

Motivation affects working memory. Just because working memory slots are available does not mean they are being used. Working memory is substantially connected to and receives input from the emotions. Emotion affects attention and allocation of working memory. More specifically, "Motivation in working memory is derived from emotional inputs as well as from knowledge that has been stored about previous performance, goals, rewards, and ourself. These motivational influences determine the effort level that is put into learning."

Based on the model, these authors have developed five rules of learning:

1. New learning requires attention.

2. Learning requires repetition.

3. Learning is about connections.

4. Some learning is effortless; some requires effort.

5. Learning is learning.

I have applied this model to law teaching here.

(Scott Fruehwald)

Lowering the cost of legal education might be trickier than containing faculty pay

That's the message from this NYT Dealbook column called The Economics of Law School. Putting aside for the moment that even if you cut the cost of law school by half it won't create jobs that didn't previously exist, what it means is addressing the cost of faculty salaries since that's by far the biggest part of overhead.  But the very best schools, Professor Steven Davidoff argues, won't be able to attract the best legal minds unless they can compete in a marketplace where SCOTUS clerks can walk into $280k per year law firm jobs. The top schools are able to justify their high tuition because employers are still willing to pay a premium for students who've been trained by the smartest minds in the business.

But can second, third and fourth tier schools justify charging the same as HYS when the vast majority of those students won't get the same financial outcome as grads from elite schools?    Obviously not.  For everyone who isn't HYS, they've got to find a way to contain costs which implicates faculty salaries.  But it's a slippery slope, Professor Davidoff argues, because for schools just outside the top tier, competing for high quality students means attracting good, if not the very best, faculty that their money can buy.  That's because students care first and foremost about academic reputation when choosing which school to attend. By way of example, Professor Davidoff notes that lowered tiered CUNY charges only $12,090 per year for in-state tuition which is a steal by today's standards yet it still has trouble attracting applicants because of its rank. And all that skills training that's so trendy right now?  That costs lots of money too since those courses require low student-faculty ratios putting more pressure on administrative overhead. 

Lowered-tiered schools that charge HYS-style tuition are not providing good value to their students given the economic realities of today's job market so they've got to find a way to contain costs while ensuring a quality faculty and a curriculum that offers the small class experiences that legal skills courses depend on. No one said this was going to be easy.

From Professor Davidoff's column:

[T]he trend away from law schools has prompted much discussion about what structural changes may be needed. Should law schools charge less? Should they strip down their programs? Should they abandon their collegiate ivory towers in favor of a trade-school approach by having “real world” lawyers teach practical skills?

None of these solutions, however, are likely to improve the economics of law school.

I believe that law students do need more training in practical skills, but a focus on that is probably only going to make law school more expensive.

A single law professor can easily teach 70 students in one contracts law class, but a clinical professor is limited to six to 10 people a class. If reducing costs is the goal, then more clinical education will only increase it.

A second alternative is to pay professors less, or replace them with practitioners who would also be paid less.

. . . .

So what if universities hire less qualified, lower-paid practitioners instead, you may ask? Well, quality matters.

U.S. News & World Report lists 15 law schools where tuition is currently less than $15,000 a year. CUNY School of Law, in New York City, has an in-state tuition of $12,090 and is ranked in the third tier by U.S. News. But there is not a flight of applications to these lower-cost schools from higher-paying ones. Instead, students still flock to top-tier schools with the highest-quality professors. In 2011, CUNY’s applications were down from the year before.

Creating less expensive law schools with less-qualified staff may give graduates a degree, but that may not better qualify them for jobs.

. . . .

There may be valid criticism about lower-ranked law schools, particularly those U.S. News places in the third and fourth tier. Such private schools often charge significant tuition but do not obtain the same employment outcomes. The question is whether changes can be made to lower their costs, and whether this will lead to better opportunities for their graduates.

. . . .

It is here where revolutionary technologies like online learning may come into play. If it becomes accepted that many basics like contracts law can be easily taught by one professor online to thousands of students, then a law school can charge a lot less. But this is still mostly a theoretical change embraced by those outside academia that has yet to sweep universities. Even with one online course, some local presence will be needed to facilitate learning, particularly if there is skills training involved.

Continue reading here.

(jbl).

Practice law for love not money

Yesterday's New York Times featured an essay by James B. Stewart, the author, Pulitzer Prize winning Wall Street Journal reporter and former Cravath associate, called A Law Firm Where Where Money Seemed Secondary in which he wistfully recalls a bygone era in law practice when money wasn't everything.  It's a reminder that the practice of law really has changed, for the worse. I'm not talking about the structural changes taking place today wrought by offshoring and technology that's replacing lawyers and squeezing the job market. Rather, it's that gone forever are the days when young lawyers didn't have to worry so much about maximizing their productivity or accounting for every billable moment in the day. Employers took the time to mentor new associates which often meant new lawyers tagged along on depositions or observed trials where whole days would not be billed. Coincidently, I had the same talk with my students last spring; that the days when when employers cared more about their professional development rather than how much they billed that day are long gone and never coming back. The silver, if not golden, age of law practice is a distant memory

Mr. Stewart also makes the point that those who thrive in practice do so because they have a deep passion for it. With so many reports of depression, substance and alcohol abuse and related mental health problems supposedly rampant among lawyers, one has to wonder how much of that can be attributed to those who have pursued a law degree for all the wrong reasons. An pertinent excerpt from Mr. Stewart's NYT's piece:

The one thing nearly all the partners had in common was they loved their work.

This came as a profound revelation. Of course they worked long hours, because it didn’t feel like work to them. They took great satisfaction in the services they rendered their clients.

You couldn’t fake this. The partners seemed to have some sixth sense. I enjoyed my work. But I had to admit I didn’t love it the way they did.

At times I found this mystifying. How could anyone tackle a complex tax problem with such enthusiasm? Or proofread a lengthy indenture agreement? Why couldn’t I love a prestigious, high-paying, secure job like they did?

At the same time, it was liberating. It was obvious to me that someone who loves his or her work, whatever that might be, has a huge competitive advantage, not to mention a satisfying and enjoyable life. Somehow people who love what they do seem to make a living. So I started pondering what I might love as much as some of my Cravath colleagues loved practicing law.

When I announced my departure and took a big pay cut to become a reporter, I know some of my colleagues took it personally. They felt I was rejecting not just them, but their profession. I’m not sure I was ever able to explain my thinking, but to my mind I was paying them the highest compliment.

Read the rest of Mr. Stewart's essay here.

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The Scalia-Posner Controversy Heats Up

Recently, we reported on Judge Richard Posner’s highly critical review of “Reading the Law: The Interpretation of Legal Texts” by Justice Antonin Scalia and Bryan Garner. More recently, Justice Scalia gave an interview in response in which he accused Judge Posner of lying. Here are excerpts from a report on that interview appearing in the Chicago Tribune:

U.S. Supreme Court Justice Antonin Scalia on Monday escalated a war of words with a prominent appeals court judge, saying the judge lied in a recent criticism of Scalia's judicial philosophy.

Scalia, 76, the longest-serving justice and a leading conservative on the court, said Judge Richard Posner, of the Chicago-based 7th U.S. Circuit Court of Appeals, lied in a review in August of a book co-authored by Scalia.

In the review, Posner accused Scalia of deviating from his own strict, text-based approach to interpreting law when he struck down a District of Columbia handgun ban in 2008 by considering the legislative history behind the law.

"To say that I used legislative history is simply, to put it bluntly, a lie," Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler.

The 567-page book sets out the legal philosophy, called "textual originalism," which says judges should adhere strictly to the text of laws and give them the meaning understood by the people who adopted them. Laws do not change in meaning over time, they contend.

The book has sparked a heated debate in legal circles after Posner accused the authors of making flawed arguments based on sloppy research. Posner said numerous cases that the authors held up as models of text-based decisions were influenced by other factors, including judges' personal views.

Scalia fanned that debate on Monday, saying Posner was only able to make such an assertion because he was writing in a non-legal publication, The New Republic. "You can get away with it in The New Republic, I suppose, but not to a legal audience."

Judge Posner displayed judicial temperament in declining to comment on the interview.

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New Jersey attorneys reprimanded for using wrong font size in client solicitation letter.

Another good example to pass along to students that technical details like font size really do count in practice.  The excerpt below is from a New Jersey Supreme Court's disciplinary review board decision reprimanding two attorneys for not following the rules of professional conduct in connection with solicitation letters sent to clients. Some of the violations relate to the attorneys' failure to follow the font requirements specified in the rules.

These matters came before us on recommendations for an admonition filed by the Committee on Attorney Advertising (CAA). The formal ethics complaint charged respondents with having violated RPC 7.1(a) (prohibiting false or misleading
communications about the lawyer, the lawyer’s services, or any matter in which the lawyer has or seeks a professional involvement), Attorney Advertisinq Guideline 2(a) (March 2, 2005) (Guideline 2(a)) (requiring the phrase "ATTORNEY ADVERTISEMENT" to be at least two font sizes larger than the largest size used in the advertising text), and Opinion No. 35 of the Committee on Attorney Advertisinq, 182 N.J.L.J. 792 (November 21, 2005) (Opinion 35) (requiring attorney advertising
letter to state: "If you are already represented by counsel in this matter, please disregard this advertisement"). 

We decided to treat the recommendation for an admonition as a recommendation for greater discipline, pursuant to R__. 1:2015(f)(4). Following oral argument, and for the reasons set forth below, we determine to impose a reprimand on each of the
respondents for their misconduct.

. . . .

In addition, the font size of the words "ATTORNEY ADVERTISEMENT" violated Guideline 2(.a.). because they were not in a font size two times larger than the largest size used in the text. Finally, the notices prescribed by RPC 7.3(b)(5)(ii) and .(iii) violated Guideline 2(a) because they were in a font size smaller than the
size used in the text.

. . . .

RPC 7.3(b)(5)(i) requires solicitation letters to have "the word ’ADVERTISEMENT’ prominently displayed in capital letters at the top of the first page of text and on the outside envelope, unless the lawyer has a family, close personal, or prior
professional relationship with the recipient." Guideline 2(a) standardizes the size of the text to ensure that it meets the "prominently displayed" requirement of RPC 7.3(b)(5)(i), by mandating that the word "ADVERTISEMENT" be "at least two font
sizes larger than the largest size used in the advertising text."

. . . .

Although there was no evidence presented that identified the size of the font used in the text of the June 3, 2008 letter and the size of the font used for the words "ATTORNEY ADVERTISEMENT," undoubtedly the size ofthe words violated
Guideline 2(a).. The words "ATTORNEY ADVERTISEMENT" are obviously no larger, or not much larger,than the words that appear next to the bullet marks at the end of the letter. Thus, we find that all three letters violated Opinion 35 and Guideline 2(a).

You can read the full disciplinary board decision here.

Hat tip to the Legal Profession Blog.

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