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Thursday, March 22, 2018

I Just Got Tenured: sing along & poem

If you are newly tenured - meaning last 30 years or so as they say in the song - sing along:

I Just Got Tenured!

and some Dr Seuss parody (or satire ? good IP hypo right there):

Oh the Shit You'dd Do After You're Tenured 

Posted by Orly Lobel on March 22, 2018 at 11:10 AM | Permalink | Comments (3)

Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

A 17-year-old high schooler in Reno was suspended last week for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the school walk-out (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected).

The ACLU of Nevada sent letters to the school and to Amodei. The letter to the school laid-out the First Amendment argument the ACLU would make in a lawsuit. This could not have been in-school speech because it was made during a non-school-sanctioned event for which Noah was marked as being impermissibly out of school; if at school, it was non-disruptive because no one in school heard what he said; and the punishment was more severe because of Noah's viewpoint and his past expressive activities (during a school debate, Noah criticized Donald Trump, rather than talking about the assigned topic). I find the first point especially important--if speech made while a student is impermissibly outside of school is school speech, then the school can reach everything a student does. The letter demands rescission of the punishments imposed, which also presumably would be the remedy sought in the lawsuit, along with nominal damages.*

[*] This case illustrates a unique remedial and framing problem. Noah is presumably in 11th Grade, so he likely will have graduated by the time litigation is complete, allowing the school to vacate any remedy and avoid attorney's fees when the case becomes moot. The claim for nominal damages avoids the mootness problem. But a claim for nominal damages is subject to qualified immunity and there is almost certainly no robust consensus of authority arising from factually similar cases. Noah could sue the school, which does not enjoy immunity, but then the problem is whether the principal who imposed the suspension is the policymaker for the entire school board or school district. I will have to keep this in mind for class.

The letter to Amodei called for a public apology for retaliating against the student by enlisting the school to sanction him, ending with the rhetorical flourish that "[w]hat actions you take next will determine you and your office’s commitment to the First Amendment and the Constitution you swore to uphold and defend." The idea of a Bivens action against the congressman (which the letter did not threaten) raises two interesting problems: 1) causation and 2) Speech or Debate immunity (constituent interactions are viewed as political rather than legislative), but it would be fun to see the argument play out.

Posted by Howard Wasserman on March 21, 2018 at 04:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Tuesday, March 20, 2018

Calling Chicago - Come tomorrow Wednesday 6PM for a book talk at Seminary Coop Bookstore

Hey Chicago readers - would love to see you tomorrow March 21 at 6pm at the Seminary Co-op. Come and bring your friends and family - and make sure to say hi and maybe we can get drinks after! Free and open to the public. The next day at noon I am speaking at this fabulous BookIt series.

I’ve been thrilled to see the rave reviews of my new book You Don’t Own Me in The New Yorker, the Wall Street Journal, the Financial Times, Times Literary Supplement, Times Higher Education, NPR, Modern Law, National Law Journal, TechDirt, SF Chronicle, Washington Blade, LA Review of Books, Above the Law, Kirkus, Publisher’s Weekly, Booklist and many more. It seems there is something in the book for everyone – whether you think about innovation, IP, work relations, creative industries, antitrust, litigation and juries, entrepreneurship, feminist and race critique, consumer psychology, or mostly interested in a thrilling market battle over our icons, with colorful personalities and rollercoaster twist and turns. Here's a blog post on the Seminary Coop site about books that inspired You Don't Own Me.

Image result for you dont own me lobel


You are cordially invited to a book signing and speaking event for Orly Lobel's new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side



Wednesday, March 21, 2018 
6 - 7:30 pm
Seminary Co-op Bookstore
5751 S Woodlawn
Chicago, IL 60637

You Don’t Own Me reveals the cutthroat competition and innovation in the toy industry, with the twists and turns of a thriller, including colorful personalities, egos and keen questions about law and ethics, innovation and creativity, consumerism and market competition, trade secrets and economic espionage, parenting, childhood, feminism and race.   

In this free and open Chicago event, USD Don Weckstein Professor of Law Orly Lobel discusses her new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side. The book is received rave reviews from numerous journals including the Wall Street Journal, the Financial Times, Times Literary, NPR and the New Yorker.

“Like Condoleezza Rice, Ivanka Trump and Michelle Obama, Orly Lobel played with Barbie dolls when she was growing up. “Fortunately,” writes the San Diego law professor in her new book, “I was also encouraged to challenge the distorted realities of Barbie’s world. No toy has been deconstructed so thoroughly as Mattel Inc.’s iconic plastic doll. But Ms. Lobel’s “You Don’t Own Me” is something different. The world that she explores is not a dollhouse but a courthouse. Her brisk and engaging book chronicles the decadelong copyright clash between Mattel and MGA Entertainment Inc., an upstart rival that had a mega-hit with its “Bratz” doll line but that was nearly obliterated by Mattel’s scorched-earth legal offensive. Journalists tend to overuse words like “war” when writing about lawsuits. But if ever there were an example of a civil dispute meriting military metaphors, it is Mattel vs. MGA. According to Ms. Lobel, the combined legal expenses of the battle went north of $600 million….” - The Wall Street Journal

You Don’t Own Me has been getting advanced praise from Publisher’s Weekly (“impressive”, “thoroughly researched”, “entertaining”), Kirkus Reviews (“crisp narrative”, “aggressively researched”, “dizzying” drama) Booklist (“outstanding”), Yahoo!Lifestyle (“book not to miss!”) and more (“gripping”, “sparkling prose”, “thrill ride”, “brilliantly and meticulously” “amazing story and great read”, “all the ingredients of a great story”, “Colorful and dramatic. ...Orly Lobel masterfully draws us in”; “A thrilling page-turner. Orly Lobel delivers the impossible. A fast-moving, fun book about marketing, litigation and the culture we create,” “Elle Woods would eat this story up”...). 


Posted by Orly Lobel on March 20, 2018 at 03:37 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 30 (guest post, Harold Krent)

Michael Madison’s thoughtful posts have kicked off this symposium.  Most of us would agree that economic and technological developments are forcing law schools to reassess their role.  Fewer traditional jobs in law; fewer high paying jobs for graduates; fewer students willing to shell out sticker prices for a legal education, and even some uncertainty over Congress’s willingness to continue student loans spell trouble for the legal academy.  Megan Carpenter, as have others, has talked about the need for stratification in legal education, both with respect to what type of education law schools provide, and also with respect to the training needed to perform legal-related jobs such as real estate closings or incorporation of an LLC. 

I have futuristic views as well, but want to start by reflecting backwards.  We should keep in mind the substantial changes most law schools have made in the last generation.  It is hardly an exaggeration to say that experiential training has exploded in that time, and it has flowered in many ways.  Legal writing, skills and advocacy programs are no longer niche programs at a few non-elite schools. They are standard fare at almost every law school and, just as important, schools take them seriously.  Clinical students no longer focus solely on criminal law, government benefits and housing work for low-income clients, but have opportunities to immerse themselves in appellate work, legislative work, entrepreneurial law, small business advising, and family law.  In many of these clinics, students learn not only how the practice of law works, but how the business of law works because an increasing number of law school clinicians are now fee generators. Schools have invested heavily in externships and in simulations – we are familiar with the Washington and Lee experiment to offer (almost) exclusively experiential courses during the third year.  Pragmatic courses at the intersection of law and technology, like data analytics and block chain, are now offered, often instead of the law and humanities or law and social science classes that used to populate so much of the non-core curriculum.  Moreover, a number of schools such as ours offer courses in project management and problem solving.  Perhaps uniquely, we offer a certificate program called Praxis based on the idea that law students can and should  gain expertise in the soft skills that many sociologists have concluded contribute so substantially to  successful lawyering. 

Moreover, the attention that all of our schools place on pro bono has expanded even as our revenues dip.  I am impressed by efforts I have read about at any number of schools, from working with immigrants to reforming tenancy laws, and an increasing number of schools including ours seek to enhance access to justice through technology.  And, I know that many schools encourage students during spring break to volunteer their time, as a large group of our students did last week at an immigration detention facility in Texas.  Students learn important life lessons through these experiences:  what they are good at, what they care about, and how they want to define success for themselves.  If law schools in the past had paid more attention to the importance of these experiences, there might not have been as many lawyers who were so dissatisfied with their professional choices.

So, while I agree that, in the long run, legal education will change dramatically in the future, we should remind ourselves of the significant changes that been wrought in the last generation.  These changes in law schools reflect shifts in both the legal marketplace and in the student body.   We are producing a far more diverse group of graduates than ever before.  Some of these students want traditional legal careers, many do not.  All of them want a solid education that equips them better to become the professionals they want to be.  What the market wants and what our students want evolves, although  we may not have been as quick to change as some would like, we have adapted in important ways.  There is every reason to believe we can continue to do so, without fearing the future, and without losing sight of the beneficial changes we have made in the recent past.

Harold Krent (Chicago-Kent)

Posted by Dan Rodriguez on March 20, 2018 at 08:24 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 29 (Luke Bierman)

My approach in this virtual symposium has been to lay out the experiences of Elon Law in changing our curriculum and should not be read as ignoring the postings of others.  Indeed, I have kept abreast with each posting and have the filled binder, laden with handwritten notes, to prove it.  I am especially interested in the postings about adapting for and teaching of technology, offering undergraduate degrees, reducing cost and debt, and providing cautionary tales for the future.  Upon reflection, I will keep to my original design of describing the think and do approach of changing the curriculum at Elon Law and then turn to other thoughts, random and responsive, to complete my posts in this virtual symposium.  I appreciate your indulgence in allowing me this opportunity to present, which concomitantly has provided some personal perspective on Elon Law’s recent endeavors to adjust to the changing environment of legal education.


Achieving a substantial curriculum change in six months is a notable accomplishment; I have been reminded more than once that is rare in higher education.  But our experience at Elon demonstrates that it is possible.  But, alas if it were all THAT easy.  The revisions to the curriculum required alterations to calendar, course sequencing, credits, teaching assignments, budgeting, space, and many other aspects of our operation.  We also needed to publicize the changes and recruit students while continuing to educate current students under the preexisting curriculum.  Approval of the University board of trustees also needed to be accomplished.  Alumni were notably interested in what was going on and many town hall meetings, virtual and otherwise, occurred.  There was no rest for the weary.

Since final approval did not occur until after we had begun recruiting for the next academic year, we moved expeditiously to edit our admissions materials.  And we decided to do something else, which has proven significant in our journey – we began to interview prospective students.  This step, taken to emphasize the uniqueness of our new curriculum, also allowed us to begin to distinguish candidates who demonstrated an aptitude for learning by doing, whether by work experience, prior service learning or other focus points.  Because I remain skeptical of the utility of standardized testing generally and of the LSAT specifically (a topic notably lacking of attention in this virtual symposium), I supported the idea of different admissions emphases for our law school with a difference.  Indeed, we began to redevelop our recruitment approach including materials around the idea that Elon Law’s highly experiential approach to legal education was distinctive.  The University administration supported this approach as the University board, after hearing from the President, Provost and me, approved of our redirection. 

The board’s support derived from assurances that the academic approach was sound but also that the fiscal issues were likewise.  The board was well aware of the challenges permeating legal education, including those of a financial nature.  Accordingly, the board was reassured that the approach being proposed was no worse than what was expected if we did nothing, with a much more substantial upside predicted with the change.  This required us to rethink how to approach pricing.  Since one of our stated goals was to address cost and debt issues, we decided to freeze cost for the life of a student’s time in law school and that the best way to do this was to base tuition on the cost of degree rather than by credit or term.  Working from this perspective, we were able to devise a budget for several years that, based on anticipated increases in enrollment, reduced the overall cost of the JD by about 20%, and promised no increase during enrollment, the latter of which we also promised to currently enrolled students. 

We then had to adjust the semester calendar for a trimester system that led to graduation in 2.5 years but also brought 1Ls to campus in August for a new introduction to legal studies course designed to ease the transition to law school.  This required balancing tuition with financial aid allotments, courses, credit hours and teaching loads.  Luckily, members of the faculty 4C committee, employing James Madison-like instincts, were dedicated to this work and, with input from staff, other faculty and administrators, helped to devise the system that then fell to the registrar and senior administrators to coordinate.  This approach really took 3 years to implement, with adjustments made along the way as we encountered unanticipated consequences, such as rescheduling a spring moot court competition run by 3Ls, who no longer would be enrolled at school in the spring, and reorganizing law review and student organization selection processes. 

Running essentially 3 calendars simultaneously was challenging but did provide some comic relief as we kept straight which students were at what point in their studies.  We also had to devise new processes and procedures for the residency-in-practice while faculty were recalibrating their syllabi to ensure adequate coverage of classes under the trimester system.  Although the amount of class time was not diminished under the new calendar, trimesters are more compact than semesters, which permits greater focus on fewer courses at a time but also require adjustments to preexisting and practiced pedagogies.    

While we were pleased to see that prospective students seemed to be self-selecting to attend Elon Law’s new approach to legal education, continuing students did express some trepidation that they were not getting deserved attention.  We had been wary of this possibility so had implemented a number of new and expanded courses, especially in bar preparation, for those students while keeping their tuition steady, thus providing them with more class time and educational support than they had expected and had paid for.  While this mollified many of the continuing students, others were less sanguine and we continue to work with our alumni group.    

The residency-in-practice component went surprisingly well considering it was without any real analogue elsewhere.  We were relieved when we found any number of lawyers in many settings including judges not just willing but anxious to assist by serving as supervising attorneys, so that placing students was readily accomplished.  This may have been facilitated by the fact that all of the students on residency were eligible and in fact received a student practice certificate, permitting them to undertake more work independently than a typical clinical or intern student.  We also designated a faculty member to lead the program and with some training, guidance and examples, the faculty and supervising attorneys did a more than credible job in their first efforts. 

As the third class entering under the new curriculum arrived in August 2017 while the first class of 3Ls under the new curriculum prepared for their final trimester, Elon Law was able to return to a single calendar based on the 2.5 year curriculum requiring the residency in practice, among other innovations.  We have begun studying the effects of our changes and, with wisdom from our experiences and the input of students, made some adjustments along the way.  We will benefit from a substantial grant from AccessLex for a three year study of the new curriculum, performed by independent researchers, the results of which will be published so that we can share in more depth what we have learned from our comprehensive approach to redesigning the law school experience.  In my next post, I will report on some preliminary results of what Elon Law has accomplished to date and what our next steps may look like. 

Luke Bierman (Elon)

Posted by Dan Rodriguez on March 20, 2018 at 07:29 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 28 (Frank Pasquale)

Institutional Pluralism, Metrics, and Diversity

Mike Madison’s “Invitation” has sparked much insightful commentary here, and I wanted to continue the conversation by engaging with an important point from Mark Tushnet’s intervention. Mark observed that “there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).” Having started my career at a religiously affiliated law school (Seton Hall), and having published research based on Catholic Social Thought, I agree. So I worry about the tensions between humanistic, religious, and civic aims, and the type of neoliberal managerialism all too common in the discourse of higher education reform.

As Sameer M. Ashar has observed, when it comes to legal education, “Leading reformers accept the accelerated disaggregation and commodification of legal practice without attention to aspects of the profession that privilege the public good over market norms and rationales.” This is part of a larger ideological bent to mainstream education reform---the type now celebrated in Congressional committees and the pages of the New York Times. The disruptionist mantra is to deliver more, for less, faster. What is the “more” we are to maximize? In the dominant legal education reform discourse, it is almost always some combination of workforce preparedness, starting pay for graduates, and JD-required jobs.

All of these are good things. But taken to an extreme, focus on them risks trapping us in a finite game, an arms race for spots in an arbitrarily defined hierarchy of graduate placements.* Such a focus also erodes institutional pluralism. To the extent metrics dominate the profession and even menace the existence of some institutions, they draw resources away from non-monetizable quantities (such as a commitment to religious or other moral traditions, social justice, or diversity). As Bruno Frey and Margit Osterloh have observed, “instead of improving performance through accountability, too much energy and time is being consumed in reporting, negotiating, reframing, and presenting performance indicators, all of which distracts from the performance that is desired.” Rankings generate forms of academic capitalism that squeeze out other values.

If we are truly committed to institutional pluralism, and to values in the legal academy beyond pecuniary dimensions of training, we need to cultivate a healthy skepticism of managerialism. We can start with some crucial points of caution about metrics from Christopher Newfield and Heather Steffen: “indicators help create the inequality they measure, while assuring their consumers that the inequality is a natural, preexisting fact. They do this by ignoring distinctive qualities that cannot be quantified and compared.”

That is not to say that metrics are useless. As Jerry Z. Muller argues, “Performance metrics can be beneficial, especially when used not for reward and punishment, but for diagnostic purposes by the practitioners themselves, and are shaped by their professional values, experiences, and expectations.” However, risk-adjustment is essential, especially once we consider the many ways in which external environments drive outcomes that are all too often credited to (or blamed on) institutions.

For example, one school may not do as well as another at placing students in certain jobs, but that may be due to many factors: perhaps the laggard is not teaching relevant topics, or perhaps the leader has engaged in risk selection, by admitting a disproportionate share of students from well-connected families. Discerning the relative merits of each institution depends on careful, qualitative judgment, because even as we compensate for circumstances, that risk adjustment, too, can be gamed (as I explained in another context in a webinar for the Centers for Medicare and Medicaid Services two weeks ago). There are multiple “bottom lines” in accounting for excellence.

So to return to my original point: I hope that in the future, the legal education reform discourse is more sensitive to the ways in which managerialism tends to impose “double binds.” We can’t say that we are committed to institutional pluralism, diversity, and freedom of thought if our main ways of evaluating our success are economistic metrics in which such values are merely an afterthought. We should be proud of our civic role—indeed, as Danielle Allen argues, that is what education is for. On that foundation, we can build a clearer case for the type of financing that will support the many public goods now provided by the graduates, faculty, and staff of law schools.

*Michael Waterstone has constructively suggested ways out of that game by observing the broad relevance of legal training beyond such jobs. And I agree with Hari Osofsky that ““JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.”

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 20, 2018 at 07:24 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 19, 2018

The Challenge of Teaching "Internal Administrative Law": Bureaucratic Secrecy

I agree 100% with Gillian Metzger's and Kevin Stack's excellent recent article on "internal administrative law" that the major action in administrative law is within agencies, before any bureaucratic decision is subject to judicial review. As Metzger and Stack note, an elaborate web of rules, guidance documents, MOUs, EOs, and statutory provisions govern the process, substance, and jurisdiction of agencies, and agencies' lawyers, bureau chiefs, and ALJs enforce these internal rules against themselves and each other. The natural conclusion is that we ought to spend more time teaching internal administrative law in our classes.

The big challenge is finding publicly available materials: Bureaucrats tend to hold their internal legal arguments close to their chest. (That's what makes them "internal"). Sure, I can give my students the guidance documents and other rules: These are generally published on the agency's website. But I cannot show them how the bureaucracy implements or argues about or ignores these general rules. Those interpretative arguments take place behind closed doors. Unless one was in the room where it happens, one really does not know how much influence internal law had on the some agency GC's decision regarding one division's jurisdiction or another division's procedures: that's what makes both "internal." By contrast, the briefs and oral arguments presented to courts are available to the public: Outsiders can observe, applaud, criticize, the lawyers' arguments and the judges' responses.

Is there any easy way to overcome bureaucratic secrecy and obtain genuinely "internal" legal reasoning? One could work for an agency -- but then one's internal deliberations are privileged. One can assign excerpts from NPRMs and Final Rules "Bases and Purposes" that focus on agencies' statutory interpretation before a rule reaches the courts. (A great way to find fun leg-reg problems is to do searches on regulations.gov using Latinate canons as search terms. When an agency says "expressio unius" or "noscitur a sociis" in a rule's Basis and Purpose, you know that there is an exam question buried in the rule). But note that the Basis and Purpose is a document drafted in anticipation of judicial review: It really is not "internal" in any meaningful sense. The same goes, of course, for the reasons in ALJs' opinions. (To the extent that Chevron induces ALJs to pay attention exclusively to higher agency tribunals within the agency, I guess that those opinions should approach the status of being genuinely "internal" -- but Chevron is a murky enough line that it is hard to be confident that an ALJ is making a decision on purely internal grounds).

All of this leads me to a request: If any readers out there have syllabi containing genuinely "internal" materials or, better yet, tips on finding such materials (teach a man to fish...), I would be grateful for your sharing them with me (and sharing offline is fine).

Posted by Rick Hills on March 19, 2018 at 08:02 PM | Permalink | Comments (6)

Lega Ed's Futures: No. 27 (Jackie Gardina, guest post)

I want to thank Michael Madison and Dan Rodriguez for inviting me to join this conversation about the future of legal education. I have enjoyed the posts and the insights offered by so many of my colleagues.

I hope I can add a different perspective, one that challenges an explicit or implicit assumption in almost every post – that ABA accreditation is a necessary part of the future of legal education. It’s not. Indeed, in some states graduating from an ABA- accredited law school is not necessary to obtain a license to practice law. If we are willing to look beyond an exclusive ABA model and work with state bars, we may discover that we can address some of the issues raised and engage in the innovation necessary to respond to a changing legal market.

I come to this conversation with some experience. Almost two years ago I left a tenured faculty position at an ABA-accredited law school to become the dean of a small California Accredited Law School (CALS). California is one of a handful of states to allow aspiring lawyers to take the bar exam without going to an ABA- accredited law school. My school, the Santa Barbara and Ventura Colleges of Law (COL), is accredited by the state bar as well as the Western Association of Schools and Colleges.

Although some colleagues questioned my decision, I had no hesitation. I wanted to be part of an institution that lived its mission to provide an affordable, accessible, and quality legal education. I wanted to be part of an institution where the sole focus was on opening the doors to the legal profession and improving student outcomes, untethered to a ranking system. I also wanted to be a part of an institution that embraced innovation.

I have no doubt that I made the right decision.  Since its founding nearly fifty years ago, COL has been committed to creating a pathway to the legal profession for non-traditional students. The school’s demographics data show significant diversity across age, gender, and race. The student population is approximately half men and half women with an average age of 35. Nearly 50 percent of students identify as students of color and a growing number of our students are first-generation college and graduate students.

COL also works to ensure that students have the tools they need to succeed on the bar. The school’s cumulative bar passage rate on the California bar is 70% and 67% of the 2017 graduating class passed the bar, nearly matching the ABA pass rate. Yet, the school does not require an LSAT or GRE score for admission.  Aided by the state bar’s flexible admission standards, the school is able to open the door to the legal profession for a diverse group of individuals.

Importantly in today’s environment, the school is committed to helping individuals meet their goal to obtain a JD without saddling them with seemingly insurmountable student debt. Students at COL currently pay $67,620 for their entire J.D. degree. And all students pay the same tuition rate. While the school and the local legal community offer modest scholarships, the school does not “discount” tuition based on an LSAT score or undergraduate GPA.

Finally, the state bar is also open to innovation in educational models. In August 2018, COL will become the first accredited law school in California to launch a hybrid JD program. In creating this new program, COL sought to address the long-standing critiques of legal education by employing advances in educational research and pedagogy to provide students a solid foundation in the basic skills needed to enter the practice of law as well as succeed on the bar exam. In short, it is built to expand opportunities and improve student outcomes. You can read more about the program and its origin at https://www.collegesoflaw.edu/blog/2018/03/05/hybrid-jd-program-backstory/.

COL is an example of what can happen when a state bar is open to creative pathways to licensure. While currently most state bars require that an applicant graduate from an ABA-accredited law school to sit for the bar, thus providing only one option to enter the legal profession, perhaps the time has come for expanding those options.  

Our discussion about the future of legal education shouldn’t exclusively focus on changing the ABA, but instead it should include challenging state bars to create alternative pathways to licensure.

Jackie Gardina (Santa Barbara & Ventura Colleges of Law)

Posted by Dan Rodriguez on March 19, 2018 at 06:13 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Writing is Architecture First, Interior Design is Secondary: On Trains, Houses & Pyramids

That's a variation on Hemingway, again. I posted a few days ago a fun, though a bit random list of quotes about writing (oh the Internet, where curating quotes has become the soul-less pastime of too many who've never actually read those they quote. May we always quote soulfully is my wish to us prawfs and writers at large...). Hemingway said prose is architecture, not interior design and that the Baroque is over. I think he meant that the substantive of what you want to say needs to guide the writing and that you need to write in a punchy concise way, avoiding fluff for merely decorative purpose. Say what you mean and mean what you say and get rid of all the garnish. I like garnish and I think interior design is important too. I'd even argue for bringing a bit of Baroque back (Bach J), carefully . But I completely agree that the structure is first and foremost in writing a good article or book. The bare bones are the piece of the writing puzzle that needs to be done right.

Today I spoke with my seminar students about their research projects and I thought I'd offer here, as a second installation of posts about writing, the metaphors I use with my students to help us think about structure. One of my favorite teachers in law school, who later became one of my doctoral advisors, was Martha Minow. I remember her telling us in a seminar on law and social justice, similar to the one I teach today, that you can write a house or a train. I think she said houses are what books look like and trains are articles. I don't agree with that division, I think both articles and books can be houses or trains. But the visual I've always found useful in thinking about what I am doing and how to build my project. If you are building a house, you take the reader with you through a pathway into a place where you have a nice entrance, a main hall and some public spaces, and then doors, and windows into rooms, each holding an interesting set of ideas about a related topic. Together the house makes sense but each room also stands on its own. If you are building a train, you think linearly about your project. It could be chronological or it could be a problem in search of a solution and the solution unfolds as your present and analyze layers of evidence, perhaps empirical data, theoretical arguments, policy claims. To the houses and trains I added today in class the visuals of pyramids and reverse pyramids. In every discipline, a good portion of research involves the qualities of lumping or splitting. In legal scholarship, often insights come from taking a broad issue, a broad base of a pyramid, a classifying and regrouping the issues to show how we actually have separate questions emerging from different subcategories and these should be addressed distinctly. We also often have insights when we look sideways, from a reverse pyramid narrow tip into horizontal fields, related topics that offer new insights. Research is often an import-export business.

I don’t know if these visuals are useful only to me or beyond but I’ve found that sketching my next writing project, including actually drawing stuff, not just outlining gets me into better architectural shape and only then can I begin to think about the décor.  

Posted by Orly Lobel on March 19, 2018 at 05:22 PM in 2018 Symposium: Future of Legal Ed, Blogging, Legal Theory, Life of Law Schools, Odd World, Teaching Law | Permalink | Comments (1)

Tulane Forrester Fellowship

From Tulane Law School:

Tulane Law School invites applicants for the Forrester Fellowship. Forrester Fellows are promising legal academics who teach in the first-year legal writing program. Fellows teach legal writing to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are invited to participate in all aspects of the intellectual life of the law school. Fellows are encouraged to present their work at faculty workshops and “brown bags,” and members of the full-time faculty serve as mentors to fellows. Fellows receive a stipend to support travel and research.

Fellows are appointed to a one-year term with the possibility of a single one-year renewal and are expected to enter the law-teaching market.

Applicants must have an outstanding record of academic and professional achievement, a J.D. from an ABA-accredited law school, and at least three years of law-related practice and/or clerkship experience. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Please apply at this link by April 2 and direct any queries to Erin Donelon, director of Tulane Law School’s legal research and writing program.

Posted by Sarah Lawsky on March 19, 2018 at 05:20 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Legal Ed's Futures: No. 26 (Dan Hunter)

Who needs two law degrees?

(Modest Proposal #2)

I’ve been really gratified at the open-mindedness of the commentary around my first modest proposal, to offer an LLB for US entry. Let me offer an another, equally whacky idea about how US law schools might change their value proposition to students.

But first, some context…

Globalisation has been a fundamental feature of economics and geopolitics for decades now. Everyone knows this, everyone understands the effect of global logistics on international trade, and how the development of the EU and China’s entry into the WTO has changed every part of our lives, and so on.[1] Yet the basic approach of law schools is blind to the possibilities that globalisation offers for grads. Forty or fifty years into the globalization revolution, law schools remain basically parochial. Of course, there are a few bits of legal education that recognize the outside world: International law and/or comparative law are taught pretty much everywhere, many schools offer LLMs for international students, and you occasionally see electives that connect students across national boundaries, such as Michele DeStefano’s Law Without Walls. Each initiative exposes students to other legal systems and foreign law students to some extent; but the main focus of the US law degree is always domestic, assuming that grads will practice US law, probably locally. Maybe if they are very adventurous or go to a “national” school they’ll move interstate to one of the big US cities.

With the exception of maybe one or two schools, no-one seems to be focused on the possibility that its grads might want to practise law in multiple jurisdictions.[2] And yet this is the reality of many smart grads from a range of places, who leave their home jurisdictions to work in the world’s commercial and financial centers, typically taking years to retrain when they get there. These grads have to work out how to do this for themselves, because no school sets out a pathway for them to practise in multiple jurisdictions from the jump. This proposal does that. And at the same time, it presents a way for US law students to get themselves qualified two years faster than currently possible...

Modest proposal #2:

The dean of a US law school should work with me to design a combined LLB/JD, that satisfies the admission requirements of both US and Australian practice, and avoids the need of students to do a pointless undergrad degree.

It looks a bit like this:

  1. A US college student doesn’t do a BA (or whatever) at a US college. Instead they enrol in my Australian LLB. They study the first year of this degree in the US, at your school. This is mostly so that parents (and your school administrators) don’t fret about sending their kids off to me to be brainwashed. (You can brainwash them first! And take their money :) It doesn’t have to be a whole year, but let’s work with that for the sake of simplicity. By way of background, there is no fundamental reason why I can’t offer my LLB for overseas students in a foreign location; although it takes a bit of fancy footwork with my accrediting agency to make work. Leave that to me.
  2. After one year in the States, the students come to Australia to do the next one or two years of their LLB. The course of study in this LLB will comprise half mandatory Australian legal subjects, and half classes on US law. Because of the way that Australia regulates admission to practice, students essentially have to do 11 or 12 mandatory classes on core Australian law. Once these subjects are completed, the Australian regulators are basically fine with more-or-less whatever electives the schools wants to provide. These electives can easily be US law classes, including all of the ones that the ABA really cares about. So, the US students in the program can do a year (or two) at my school completing these classes.
  3. This means that for the last year of their LLB degree, students could return to the States and study your standard first year JD classes. Once this is done students will have completed an undergrad degree, thereby satisfying the eligibility requirements of the ABA for entry into the JD. There will need to be some discussion with the ABA about accepting Australian bachelor degrees for entry into the JD, but I don’t think this will be a really big deal.
  4. Students then complete the last two years of their JD at your US school.
  5. The only tricky bit is to ask the ABA to credit the last year of my LLB as the first year of your JD. But I’m prepared to bet that we could convince the ABA that this is ok. It’s basically a sub-matriculation program, which is often recognized by regulatory bodies. We’ll have to fight for this, of course, and I’d be interested in commentator’s views about whether this is winnable. But I have to believe it is, especially these days, given the state of perpetual crisis in US legal ed that we’ve been hearing all about during this symposium.

So what does this all mean? The short version is that together we would graduate students in five years from the date of their entry to college, cutting two years of tuition from the total cost of getting to bar eligibility. In those five years we would be able to give them rights of admission to practice in two jurisdictions, not one. Students would be dual-qualified, more internationally mobile, and more domestically interesting and capable; all for $100K less than their current cost to be qualified in your jurisdiction. Actually, it will probably be more, because my undergrad degree is actually cheaper than a US degree, especially with the current exchange rate.

I’d be interested to hear why this idea can’t work. I imagine that some people will bring up the example of Peking University School of Transnational Law and other offshore schools that ran into a bandsaw a few years ago, because they couldn’t convince the ABA to accredit their JD for US practice. But, as I understand it, these proposals failed for trade protection concerns, because the ABA was worried about a flood of foreign lawyers into the US. This proposal doesn’t have that problem, since it’s aimed at American students.[3]

Of course, the smart US dean will realize that she could do exactly the same thing with schools in other jurisdictions that offer an undergrad law degree, swapping out my LLB for the same degree in those places. Although I don’t have a horse in that race, for her edification I’d suggest that the best ones to shoot for would be the UK, Singapore and Hong Kong. Combined with my LLB, this combo would give her grads the ability to choose to gain transnational right of practice in four major international jurisdictions.

Imagine a US school that offered students the option of studying in exotic locales, getting dual-qualified in a range of interesting and useful jurisdictions, all at $100K less than doing the usual BA-followed-by-a-JD.

Yup, sounds like a crazy idea to me. Crazy like a fox.


[1] Globalization is, of course, responsible for the current turn to populism and protectionism in domestic politics across the globe. I’m just glad that Dan Rodriguez turned off comments for these posts, because I can only imagine the pointless trolling and flame war that would erupt from any post that talks about globalization…

[2] The only one that I can think of is Peking University School of Transnational Law, which offers a Chinese accredited law degree to Chinese student, along with a sort-of-accredited US JD degree. A few schools teach their local degrees in a foreign jurisdiction—like UNSW teaching its Australian law degree to Chinese students, in China. 

[3] I haven’t spoken here about the reciprocal opportunity, for Australian students to be a part of this program. I won’t go into it here, but it’s basically the same deal, with slightly different economics. The interested law school dean can ping me for the details of this, since it would guarantee a new stream of Australian students into her JD program …

Dan Hunter (Swinburne, Australia)


Posted by Dan Rodriguez on March 19, 2018 at 01:25 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Argument preview: U.S. v. Sanchez-Gomez

I have a SCOTUSBlog preview on next Monday's argument in United States v. Sanchez-Gomez, which considers issues of appealability, mandamus, and mootness in a case arising from a district policy of placing all defendants in five-point restraints for non-jury proceedings. (The Court denied cert. on the constitutional merits).

Posted by Howard Wasserman on March 19, 2018 at 12:07 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Hughes v. United States and the Effects of the Marks Rule  

Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.

Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.

One interesting aspect of the briefing has to do with the Marks rule’s effects, particularly whether the rule tends to clarify or confuse the law. At one point, the United States cited my forthcoming paper to argue that Marks has proven workable:

Courts of appeals have issued more than 400 decisions in the past several decades applying Marks to interpret more than 100 divided decisions of this Court. Richard M. Re, Beyond the Marks Rule 11 [cite omitted]. Their ability to apply Marks in this way demonstrates that Marks is not difficult to apply in the mine-run of cases.

While I am flattered that the government cited my work, the reasoning in the above paragraph strikes me as unpersuasive. The fact that the Marks rule is often cited might show that courts view it as binding but has little bearing on whether the rule is “difficult to apply in the mine-run of cases.” And, in fact, my research suggests that Marks tends to generate confusion and disagreement. The petitioner’s reply brief makes essentially that point, citing my amicus brief. Here is the relevant passage (with some cites omitted):

The best alternative to the logical-subset test is not the government’s; it would be returning to true majority rule. Marks has generated uncertainty and confusion. The government responds that Marks is cited a lot. RB32 (citing Richard Re, Beyond the Marks Rule 11 (Jan. 5, 2018) (forthcoming Harv. L. Rev.)). But the scholar who compiled those citations explains that they reflect widespread confusion: “[T]he cases that are most often ‘Marks’d’ have tended to generate intractable circuit splits,” and “[o]ther frequently Marks’d cases ... have yielded little guidance.” Re Br. 16.

The extensive confusion occasioned by Marks could be taken as a reason to abandon it (as I argue) or as a warrant for clarification. Either way, Marks’s effects suggest that the Court should take seriously its opportunity to provide guidance in this important area. 

Posted by Richard M. Re on March 19, 2018 at 08:30 AM | Permalink | Comments (2)

Legal Ed's Futures: No. 25 (guest post, Brian Farkas)

Syllabus Surgery: Integrating Arbitration and Mediation into Modern Curricula

The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.

Arbitration and mediation have traditionally been viewed as elective courses. Sometimes they are lumped together into a single course, called something like Alternative Dispute Resolution or ADR. The “alternative” moniker implies that these methods of conflict resolution stand in contrast to litigation, or somehow involve different types of disputes than the disputes that are litigated. Most curricula view them as optional complements to the “real” litigation courses like Civil Procedure, Evidence, Federal Courts, Conflict of Laws, and Remedies.

Anyone who has ever litigated knows that this is a fundamentally false framing. First, mediation and arbitration are no longer “alternatives.” They’ve been mainstreamed over the past several decades. And while frequency varies by practice area, most litigators are likely to spend a substantial amount of their time in non-judicial fora. Second, these processes can’t be lumped together into a single unit or class on “ADR.” They’re entirely distinct processes that are used for different reasons.

Let’s start with frequency. Mediation now occurs in almost every litigated commercial case as well as many non-commercial cases. Courts increasingly require it, and parties (including insurance companies) welcome it. It is a well-known statistic that some 95-98% of cases settle before trial, and many of those settlements occur via mediation. Arbitration, by contrast, generally occurs when the parties have a pre-dispute arbitration clause in their contract, or a post-dispute arbitration agreement. All data suggest that the number of arbitration filings continues to increase over time. The reasons for arbitration’s popularity include its relative speed, cost, and finality. Companies are increasingly placing binding arbitration clauses into consumer and employee contracts (and, for better or worse, courts largely uphold such clauses). Simply put, mediation and arbitration are central parts of our modern legal system.

Yet traditional doctrinal courses spend the vast majority of their time – maybe all of their time – on issues arising under the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Schools have countless trial advocacy classes, appellate boot camps, and moot court teams to reinforce courtroom advocacy skills.

But where do students learn about effective representation of clients in mediation? Where do students learn to write a pre-mediation statement to frame issues effectively for the mediator? Where do students learn the procedural rules that govern arbitration? Where do students learn how to present a case in arbitration? Where do students discuss the ethical boundaries within ADR procedures? Where do students learn to advise clients on which type of dispute resolution might be most appropriate? Unless the students take an elective course, the answer to these questions is often “never.”

Admittedly, not every law school has the resources to offer (much less require) separate two-or-three credit discrete courses on Arbitration and Mediation. Several years ago, I explored these ideas at greater length with my Cardozo Law School colleague, Lela P. Love (see, Silver Linings: Reimagining the Role of ADR Education in the Wake of the Great Recession, 6 Ne. U. L.J. 221 (2013)). The financial crisis – and law school budget cuts – formed the backdrop for that article, which suggested that the Great Recession offered an opportunity to integrate ADR into doctrinal courses more intentionally. 

So, here is my modest proposal: Traditional doctrinal courses need to integrate arbitration and mediation, so that students understand how these increasingly prevalent processes fit into lawyering. A Civil Procedure course should discuss court requirements for good faith mediation. An Evidence course should discuss arbitrators’ ability (and tendency) to limit pre-hearing discovery and set aside traditional evidentiary requirements. A Federal Courts course should discuss the procedural motions that are commonly made with respect to arbitration – motions to compel or stay arbitration, motions to confirm awards, and motions to vacate awards.

The traditional 1L “Legal Writing and Lawyering Skills” course should be broadened to reflect that litigation lives alongside mediation and arbitration. Many creative legal writing professors already introduce some elements of negotiation and demand-letter writing into the curriculum. But process choice should also be introduced from the beginning in a more holistic manner.

In the 21st century, does any litigator really believe that arbitration and mediation are “elective” skills? Litigators don’t advocate exclusively, or even predominantly, in trial courts. Yet most law schools continue to treat arbitration and mediation as “alternative” models of lawyering – cool electives to be taken if one has the time. In fact, familiarity with these modes of conflict resolution is now essential. As we think about the Future of Legal Education, our syllabi might need some surgery to reflect this reality.

Brian Farkas (Cardozo, Adjunct Prof.)


Posted by Dan Rodriguez on March 19, 2018 at 08:23 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 24 (Hari Osofsky)

Moving Forward Together

 I have very much appreciated the rich interchanges in this virtual symposium thus far.  This post builds on that discussion by focusing on the key role that collaboration plays in achieving needed progress.  It argues that establishing cultures and patterns to encourage and celebrate needed innovation – ones in which it’s ok to try things that might not work – is deeply intertwined with effective approaches to collaboration.

A number of the posts have implied a somewhat atomistic view of innovation in which a limited set of people advance innovation and strategies must work around those who stand in its way. For example, posts have discussed the headwinds created by those who oppose change and called for hiring new types of faculty.

Similarly, posts have highlighted individual innovative initiatives at particular institutions without much focus on those ways those institutions currently do, or should in the future, collaborate. Although I agree with Mark Tushnet that institutional pluralism is needed, I worry that we often reinvent wheels separately without learning from one another.

This post makes the case for moving forward together.  It argues that multiple forms of effective collaboration are needed to help create legal education for a changing society. Although I acknowledge that barriers to change are real and that collaboration can be difficult, we will make more progress through prioritizing interconnection.  The post highlights four areas in which I think fostering collaboration is crucial.

  • Collaborative Faculty Governance

Collaborative faculty governance has not gotten much mention in this symposium thus far. But in my view, strong collaborative faculty governance cultures and processes are critical to accomplishing effective change. Having taught on the tenure track at four quite different law schools, and now as dean of another, I have become convinced that transparency, inclusiveness, fairhandedness, and opportunities for meaningful input and discussion are not simply positive values; they contribute in practical ways to progress. 

In my experience, in a healthy faculty culture, talking through disagreements is a crucial component of getting to an approach that the faculty is broadly comfortable with. Collaborative governance processes should provide iterative mechanisms for hearing legitimate concerns and thinking through how they might be addressed. Moreover, all key constituencies should be consulted, which depending on the initiative, may include lead staff, students, school advisors, university partners and leaders, externals partners, etc. These conversations are not always easy and consensus is not always possible, but what emerges from such a process is generally a better approach and a less controversial one.

In my view, collaborative processes are especially important in the innovation space. Substantial scholarly literature supports the idea that successful innovation is often built on repeated failures.  Having a culture in which in which we support trying things without being sure they will succeed is therefore crucial.

Some of the ways in which I personally try to foster this culture as a leader include articulating a philosophy of learning leadership, highlighting when I make mistakes and how I plan to learn from them, and valuing pilot projects.  But my support is made substantially more effective and powerful if it’s grounded in a shared understanding of our goals and why we are trying particular things. Collective discussion of new experiments, and what that means in practical terms at that institution, helps to make needed innovation possible. A resulting shift in the action plan to address a concern or reflect an understanding of an experiment’s parameters can help to create broader support.

  • Interdisciplinary and Other Collaborations Within Universities

I have been delighted to see a number of other posts, such as Dan Filler’s, emphasize the key role of interdisciplinary collaboration in moving forward.  I want to highlight here the many forms that helpful collaboration can take within a university.

Interdisciplinary partnerships can occur at an individual course or project level; between units in a variety of ways; and on university-level cross-cutting initiatives.  We have each of those at Penn State and they operate synergistically.  For example, our entrepreneur assistance and IP clinics are embedded in the university’s “LaunchBox” incubators, and our veterans and servicemembers clinic partners with the College of Nursing to integrate health assistance with legal assistance.  We are developing a comprehensive partnership with the College of Engineering and the School of International Affairs in Law, Policy, and Engineering which will include multiple academic programs and research opportunities, and at the same time are making our first cohire with the College of Medicine to help us develop innovative new partnerships.  And we are playing leadership roles in the new Center for Security Research and Education and Center for Energy Law and Policy.

But we need to think beyond just interdisciplinarity to achieve the full collaborative possibilities within universities. For example, Penn State has 24 campuses, many of which are in rural communities. Our collaborations with the campuses are crucial to our efforts to help address the access to justice gap – our entrepreneur assistance clinic uses distance learning technology to serve clients in those communities; we are working with campuses to ensure that their students receive effective advising on legal education and careers; and campuses are partnering with us on a number of our interdisciplinary initiatives, such as the Center for Energy Law and Policy. Or to give another type of example, World Campus (Penn State’s online campus), university-level IT and educational technology, and Global Programs are all important partners in our technology and other initiatives. And in yet another variation, I have been encouraging us to think in trans-substantive terms; for example, parallel issues arise in many of the Law-STEM areas such as health, energy, IP, cyber, but those scholars and practitioners often don’t talk with one another.

  • Collaborations Among Universities

One of my great frustrations over the years has been watching the amount of resources we waste creating parallel programs with limited collaboration at multiple law schools. For example, in my field of energy/climate change/environment, we often have programs tracking similar data or making similar policy interventions in parallel.  While certainly these types of collaborations sometimes happen and there are often good reasons why individual schools need separate programs, we could do a lot more to combine resources and work together.

Consider for example law schools’ efforts to understand and prepare their graduates for fast-moving technology. Posts by Dan Hunter, Andy Perlman, and Frank Pasquale highlight some of the innovations taking place and needed in this space, and there are many technologies and innovative programs continuing to emerge as we write that these posts don’t capture (this space is moving fast!). We need to make sure that these programs learn from one another and work together when possible. I created a new associate dean role focused on technology and innovation at Penn State Law to both shepherd our technology initiative and make sure we ground our efforts to develop legal education for a changing society in an understanding of the most innovative things that law schools are doing.

I think we need more exploration among deans and other key administrators and among faculty and staff of innovative ways of collaborating in new and existing initiatives. This will save resources and create better programs. Please consider this an open invitation to dialogue about such new collaborations with Penn State Law in University Park.

  • Collaborations with Legal Practitioners, Businesses, Governments, and Non-Profits

The kinds of needed innovation we are discussing require strong collaboration with the bench and bar, businesses, governments, and non-profits. Law schools need to make decisions grounded in the reality of evolving needs for legal services and information and serve their communities. Like with the previous three types of collaboration, we can maximize positive impact through working together.

These collaborations can take a lot of different forms. For example, our clinics at Penn State Law and other law schools already work with a range of organizational clients in addition to individual ones.  We are working to build partnerships with legal-tech companies to help us tailor our technology initiative to evolving realities and provide our students with access to the technology they are developing.

Working together can be as simple as receiving advice. On the topic of legal education for non-lawyers that Michael Waterstone was raising, we are working to develop online courses for non-lawyers based on advice we are receiving from them on what they need to know about law.  Our interdisciplinary efforts, such as in Law, Policy, and Engineering, are being created through listening to lawyers and engineers (and people who are both) about what the synergies do and should look like.

Bottom line: collaboration is not just a positive way of interacting, but a practical strategic tool.  The more we can work together, learn from each other, and take steps forward informed by varying perspectives, the better we will serve our students and society. This approach is not always easy, but the future of legal education depends on it.

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 19, 2018 at 08:16 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Saturday, March 17, 2018

Legal Ed's Futures: No. 23

Law Schools Teaching Non-Lawyers

I was recently asked to chair the search for a new Dean for the Business School.  It was a fascinating process, and I was struck by the diversity of programming and expansive way in which many business schools think about education.  Executive programs.  Part time programs.  Partnerships with business and industry. 

This experience enriched an important question I had been thinking about and building structures around as a new Dean: should the “futures” of legal education include an expanded focus on legal education for individuals who are not – and will likely never become – US lawyers?  In some circumstances, this move may have the potential to help law schools financially.  But for this post, let’s put that aside – assume that such a change would be at least revenue-neutral, to focus the real discussion on whether it’s a good idea.

The range of potential students of law, beyond the familiar “law students,” is enormous.  Foreign trained attorneys (although many are interested in taking the bar, usually either in California or New York).  Undergraduate students with an interest in law.  Executives who are not lawyers but interact with lawyers and want to be more sophisticated consumers of legal products and services.  Professionals who are looking to get closer to the legal department without joining it.  Journalists who cover legal issues.  Citizens with an ambition to become lawmakers, or those tasked with administering the law. Those who are just curious about law.  And so on.  Existing LLM and MLS degrees serve some of these individuals, but certainly not all.

Although these groups are all different, some common questions include:

  • Should we be doing this? To those who say yes, this is a move completely in line with developments in the legal profession – unbundling, commodification, technological developments, etc.  And to the extent that this sort of education trains future clients or colleagues of future JDs, it helps build a more informed market for the core of what law schools do.  To those that say no, there can and will be other educational opportunities for these students outside of traditional legal education, and prioritizing time and resources in this direction takes away from the important and core work of educating our JD students.  Count me firmly in the “yes” category.
  • Should we be doing this? That is, do law schools have advantages over other educators in this space?  Certainly we can claim a competitive advantage in teaching students to be lawyers (and although I believe we do it well, the reality is we basically get to dominate because of regulation).  And we have the ability to think deeply about areas of law and the modes of legal reasoning, and both influence its development and pass on that knowledge to students.  Is that needed or desirable when legal education is moved outside of the JD context?  Here too, I think so.  Just because other students will not become lawyers does not mean that they do not benefit from learning from those with subject matter and pedagogical mastery.
  • Related, residential faculty or adjunct faculty? Working more now with the rest of the University, I have been struck by how uniquely situated we are regarding adjunct faculty.  At least for those of us in major metropolitan areas, we have large numbers of highly experienced experts who are simply not primarily motivated by money when they seek to teach students.  And we have become adept at discerning which of these experts are also skilled in the classroom.  Should they be deployed to these new audiences?  I think yes, supplementing residential faculty, carefully.
  • Should these students be integrated into JD classes, or should there be separate instruction? At most schools, I think it is fair to say the JD is what we do best.  So anything we attempt to build for these other audiences – while maybe great in and of itself – probably won’t be as good, at least at first.  It will take experimentation and improvements to perfect.  Some of these audiences (many, I believe) will benefit from interaction with our JD students, and vice-versa.  Accreditation issues limit some of this, but those regulations are also always evolving. 

 Business schools are different from law schools.  But the delivery of education outside of what was considered a core audience is thought provoking. A great law school of the future (and perhaps even the present) will be about more than educating JD students.

Michael Waterstone (Loyola L.A.)

Posted by Dan Rodriguez on March 17, 2018 at 11:11 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, March 15, 2018

Legal Ed's Futures: No. 22 (guest post)

In Legal Ed’s Futures #14, Dan Hunter makes the “modest proposal” of allowing universities to offer a Bachelor of Laws (LLB) degree leading to the practice of law. My experience with this in a wide variety of other countries and cultures indicates that such reform might be much easier than one might first imagine.

Many proposed law school reforms, such as shortening the JD to 2 years, or replacing the third year with an externship, face considerable headwinds from existing faculty (and law school finances) for whom such reforms would threaten job and financial stability. Such reforms also would face headwinds from existing lawyers who would perceive the reforms as threatening their own status, prestige, and income. However, similar challenges to an LLB program are far from insurmountable.

From an institutional perspective, my experience in countries with LLBs is that the number of students in such programs exceeds by several factors the number of students in traditional J.D. or J.D.-equivalent programs. Many if not most LLB students do not intend to take the bar exam, but see the LLB as preparation for a job in civil service, middle management, or public advocacy. For universities with or without existing law schools, the LLB market is a huge potential untapped revenue stream. For universities with a law school, the LLB is an ideal feeder program -- and it provides advantages of scale because JD and LLB students can sometimes be enrolled in the same course.

From a faculty perspective, the exponential expansion in law student enrollment would commensurately expand teaching opportunities. One possible rub would be stratification – in prestige, teaching load, class size, research expectations/opportunities – between faculty teaching in the LLB program versus faculty teaching in the JD program. However, again, this problem is hardly insurmountable. At universities with both JD and LLB programs, teaching and research responsibilities could be spread equitably, or could be divided based in part on expertise or qualifications (however defined) or seniority.

From the perspective of existing JD graduates, one would expect much short-term wailing and gnashing of teeth as JD-holders complain that the market is about to be flooded with unqualified new entrants. Within a few short years, however, I expect that the market will become self-correcting via job-qualification stratification. Similarly, Career Services offices will need to plan proactively to help facilitate demand for a new degree for which the job market is not currently accustomed.

Megan Carpenter, Kellye Testy, Deborah Merritt, and others writing on this thread of Legal Ed’s Futures all have made the basic (and very accurate) point that legal education has priced itself (in both pecuniary and opportunity costs) out of all but the most lucrative markets, to the detriment of society generally. Permitting an LLB as Dan suggests would go a long way toward righting that ship.

Rick Bales (Ohio Northern)

Posted by Dan Rodriguez on March 15, 2018 at 10:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 21

At the outset, I will confess to two biases that likely color my view of the futures of legal education.  First, I am a former deputy managing director of the ABA Section of Legal Education, and so am prone to see many of the opportunities and challenges facing legal education through a regulatory prism.  Second, I am pessimistic about the futures of legal education, at least in the short and medium terms.  Change will come, but I believe it is likely to entail the demise of many of the existing structures, and so will be resisted fiercely and for as long as possible.  On the bright side, this dire outlook should help to reinforce Mike Madison’s premise that the need for change in legal education is urgent.

Symposium contributions so far have assumed but not explicitly detailed what I think most of us would agree are the two biggest problems facing most of our students: (1) the exorbitant cost of legal education, and the associated debt burdens; and (2) too many graduates chasing too few entry-level law jobs.  (I will not repeat the numbers here, but for those who are interested, I have collected and presented the relevant data in a paper to be published in the Journal of Legal Education, a draft of which is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2998306.)  Add to this a rankings system that dominates student decisions about where to go to law school, and thus seemingly compels schools to pursue admissions, financial aid, faculty hiring, spending, and curriculum policies that preserve the status quo and make legal education an engine of wealth inequality.  At the same time, there is an appalling access to justice gap for millions and millions of people who cannot afford lawyers or obtain publicly subsidized legal services.

I would echo the comments of several others so far that curricular innovations within individual schools are not likely lead to a transformation of legal education. This is mainly because such innovations have only a very marginal impact on students’ decisions about where to go to law school.  Ranking, geography, scholarship offers/cost, and bar pass and employment outcomes (with these outcomes being a sizeable factor in rankings) drive enrollment decisions, while curricular innovations are relevant to only a few students and then only when they are deciding on which of a few schools in the same rankings band to attend.  Moreover, curricular innovations, including expanding distance education, are just as likely to add to the cost of legal education as to reduce it. 

There is one idea that I have seen so far in the symposium that has the potential to significantly reduce cost and debt (and thereby potentially address some of the access to justice gap).  Dean Hunter has suggested the “modest proposal” of making the law degree an undergraduate degree instead of a graduate degree.  He suggests that a university without a law school would be a more likely place to start the experiment, but the idea should be attractive to universities with law schools, too, if they think they could replace current net revenues from the law school (or stem the red ink). 

There are serious practical impediments to the idea, but they could conceivably be overcome.  Perhaps the two most significant are that (1) the ABA’s accreditation authority as granted by the Department of Education (ED) is for the JD degree; and, (2) because graduation from an ABA school qualifies graduates to sit for the bar in all U.S. jurisdictions, state supreme courts and bar admissions authorities would have to be assured that the preparation of a graduate with a B.A. in law would be reasonably comparable to that of J.D. holders.  While it would be possible for universities to add a B.A. in law that is regionally but not ABA accredited, as the University of Arizona has done, ABA approval generally is necessary in order for graduates to sit for a bar exam.  The ABA could seek to have its ED accreditation authority expanded to cover a B.A. degree in law.  If and when that is accomplished, the ABA Standards would have to be changed to eliminate the requirement that applicants have a B.A. and perhaps also the requirement of an LSAT score (which is currently under consideration by the ABA).  I’m not sure how best to go about assuring state supreme courts and bar admissions authorities that the B.A. graduate will be as competent as the J.D. graduate, but if they are taking the same bar exam, that would not seem to be an insurmountable problem.

Another “idea” that would dramatically change the cost/debt and graduate employment rate crises is for the federal government to put a cap on what law students can borrow under the title IV student loan programs.  This seems to be the elephant in the room that no one wants to talk about, but it is exactly what the House of Representatives Committee on Education and Workforce has approved in its Higher Education Act reauthorization bill, setting the cap at $28,000 per year for tuition and other costs of attendance combined.  Knowledgeable observers say that there is a reasonable chance that the Senate bill will include a cap, too, setting it at closer to $40,000.  A cap in either amount (or even $50,000 or $60,000) would immediately and dramatically impact non-elite law schools in direct relation to their costs of attendance.  Students would be forced into the private lending market for every dollar above the cap that they need to borrow in order to attend law school.  Unlike the federal loan program, private lenders underwrite their loans, which would likely mean that schools would have to reduce costs to below the cap or guarantee repayment on behalf of their students.  While making schools put some “skin in the game” would be a good idea in principal, they would bear the burden of proving the value proposition of their programs and almost certainly scores of schools would be unable to do that.  At more than a few schools today, the large majority of graduates likely qualify for an Income Driven Repayment plan.  On the other hand, a carefully calibrated cap could well have a healthy impact on both cost/debt and the mismatch between the numbers of law graduates and the numbers of available entry-level law jobs.

If legal education does not act to get a meaningful grip on high debt and poor employment outcomes for so many law graduates, it is more likely that a draconian solution such as a federal lending cap will be imposed on us.  What can we do to solve these challenges before a potentially disastrous solution is imposed from outside?  In the spirit of previous posts, here are a few ideas – I’ll call them less-than-modest proposals:

  1. Law schools should stop participating in the rankings.  The pernicious impact that they have on almost every aspect of the law school program, from admissions and financial aid decisions to the phenomenon of law school funded graduate employment, is almost universally acknowledged.  They have rewarded schools that increase per-student expenditures, fueling increases in tuition; and brought about the demise of need-based financial aid, restricting access to the profession by lower-income and minority students.  While we may have started down the rankings road innocently enough, the world we have created makes continued collaboration with US News ethically dubious at best.  A rankings boycott is not a new idea, and the conventional wisdom is that the prisoner’s dilemma cannot be solved, but perhaps we are finally at the breaking point.
  1. Do not increase enrollments along with the increase in applicants this year.  It is very good news that both the number of applicants and their scores on the LSAT are up this year.  But it would be a grave mistake for schools to increase enrollments where there is no evidence that the number of entry-level law jobs will increase in the foreseeable future.  Another prisoner’s dilemma.
  1. Work to change the culture around student borrowing within schools.  At Michigan State, a well-conceived and carefully-implemented plan brought average student borrowing down significantly over several years without increased tuition discounting.  

Scott Norberg (Florida International)

Posted by Dan Rodriguez on March 15, 2018 at 09:25 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The President as Fiduciary

Jed Shugerman and I have an op-ed in today’s Washington Post, highlighting why the president’s pardon power and removal authority might be constrained by the fiduciary principles of his oath and his office.  If you have used up your free articles from WaPo this month: Download The Constitution could stop Trump from ..

Posted by Ethan Leib on March 14, 2018 at 03:58 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 20 (guest post)

New Interdisciplinary Horizons

We are in an interdisciplinary moment, and not just the Law & Econ or Berkeley Jurisprudence and Social Policy sense.  So many of the concerns we feel for the future of legal education – and for the future of practice writ large – are directly related to the work our colleagues are doing down the street, in computer sciences, math, engineering, and other departments.  If the old interdisciplinary tool was often critique – how should we understand law  in light of economics, political science or sociology – the new one has great potential to be actionable collaboration.  I’d love to see my colleagues working with those computer scientists producing analytical tools that search web comments for common linguistic strands – the better to identify individuals who present genuine threats to society.  I’d like to see them working with the folks in engineering as they develop cybersecurity interventions that intercept data at an early point before it can do its damage.  I’d like to see my law faculty colleagues working with the AI experts, the driverless car folks, the pharma researchers creating digital pills that send an “I’m here” signal to a smartphone app when they hit the digestive track.  Of course I know that a few legal scholars have made this move – but truly, very few.

There is so much to be gained by growing this part of our research capacity.  Our faculty quite literally could work on the cutting edge of the law.  They’ll have the potential of making a real difference in how we think about, and regulate, the immersion of new tech into society.  They’ll be more relevant for their students.  And that’s only the beginning.

Amazingly enough, there is even scaffolding for this future – in the form of the same grants our colleagues receive for their research.  Many of the granting organizations and institutes have already expressed a keen interest in interdisciplinary teams – and law faculty are a logical fit.  I take Dan Hunter’s concern about lawyers and law students seriously – many lawyers got into the business precisely because we weren’t meant to code.   But on these interdisciplinary teams, law faculty won’t have to do the technical work.  They’ll just have to understand it enough to offer thoughtful interventions.  They can use their cognate PhD if they have one, bringing in insights from economics, sociology or political science.  But this interdisciplinary work is really open to all comers because, in many cases, the skills required here are awfully similar to those of a sophisticated litigator. 

All of which is to offer up my call for a new kind of interdisciplinarity – not to displace the law/social science combinations we know well, but to supplement them.  If we’re looking to build bridges to the future, what better place to turn than to the folks right down the street who are building much of that future this very moment.

Dan Filler (Drexel)

Posted by Dan Rodriguez on March 14, 2018 at 11:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 19

Artificial Intelligence and Platforms

About a thousand years ago I used to do research in artificial intelligence and law. It was kinda cool back in those times, at least for a while, and then, all of a sudden, it was wasn’t. At the time the perception was that AI applications didn’t really live up to their promise, certainly not to the point where they could be called “intelligent.” So, the hype cycle moved on to newer, more interesting computer science areas like agent-based systems, cloud computing, and big data.

Having lived through the last twenty years of what is often called the “AI winter”, it’s remarkable how often nowadays that I get asked to talk about the impact of AI on legal education and legal practice. This is almost entirely due to the remarkable advances that have been made in one technology, deep neural networks. Gideon Lewis-Krause gives a nice history of this technology here: https://www.nytimes.com/2016/12/14/magazine/the-great-ai-awakening.html

Deep neural networks (aka convolutional neural nets) have made good on the promise that one day machines could actually learn. The areas where we see this most obviously are in machine vision and speech, and the headline applications of this are, of course, self-driving cars, voice recognition systems, speech production, and game playing. Other advances in semantic representation and analysis have tied neural networks to data systems like the web or music databases; giving us the miracle of Pixel2 earphones able to do translations on the fly, or having Alexa play Tom Waits when I say, “Play some music that I like.”

Although it’s impossible to know exactly how these advances will affect law, we can get a decent view of which areas of legal practice will be affected by focusing on how the technology works. By extension, we can get a decent sense of how we should be re-thinking legal education.

First off, we can say that anything which is simple to codify and which has a consumer focus is probably not a good area of practice to be betting on in the next ten years. Things like property transactions, probate, family law, and lots of criminal law, are going to be automated. Oddly enough, this isn’t actually so much to do with neural networks, but rather the twin effects of venture capital and rule-based computer systems (which is actually an old form of AI). Where the law is simple, and where there are lots of potential consumers, we can expect to see well-funded entrepreneurs swoop in with automation solutions that will supplant lawyers. This will involve a lot of basic document automation, chatbots (once they get better at sentence parsing, only a matter of time), and mobile apps. This development will be a particular problem for schools where grads expect to be main street lawyers, because main street lawyers are particularly at risk. But there is an upside for society, if not for grads: In the very many under-lawyered parts of society the huge unmet need for legal services will, in time, be satisfied. But by computers, not by humans.

BigLaw will be affected in a range of ways by AI and the next wave of computerisation. Predictive coding in e-discovery is already the most obvious example of neural nets in law. In these systems, litigation managers show the neural net a set of documents that are relevant to the discovery question, and then let it loose on a set of unknown documents. Lawyers check to see how many relevant documents the neural net identified from this new batch. They then retrain it, telling it which ones it got right this time, and which ones it got wrong. After numerous iterations, this rinse-and-repeat cycle results in a system that generates better discovery reports than any group of lawyers, at a much cheaper price. Similar neural nets operate in areas like contract review and M&A due diligence, although the systems available (e.g. RAVN, KIRA, Lawgeex, Luminance) have been hamstrung by spotty or small training datasets. But the thing about data-centric systems is that they inevitably get better with more data. So, it’s only a matter of time before these sorts of technologies start affecting the bottom line of litigation departments, legal process outsourcers, and the contract lawyer industry.

Separately from AI, the rise of platform technologies is likely to affect the nature of the law firm. As Adam Smith taught us, the organizational structure of the firm emerged to solve the coordination problem between the various specialist activities that the Industrial Revolution made possible. As we’ve seen with Uber, AirBnB and TaskRabbit, mobile/net-based digital platforms can effectively coordinate the efforts of large numbers of independent contractors without the coordinating structure of the firm. The uber-ization of legal services is already underway, with the development of digital platforms like Avvo and service providers like Lawyers On Demand, Axiom, and Vario. The days of the law firm are numbered. Law grads of the next ten years are extremely likely to work within a gig economy framework, and should not expect to work their way up from document review to the corner office. Because there won’t be a corner office. There will be rainmakers sitting in mansions, and a huge group of supporting attorneys working freelance in WeWork cubicles.

The combination of AI and platforms will have a huge effect on the training of lawyers and the transmission of legal culture. It was once the case that grads would emerge from law school like toddlers, unformed and blinking, and be taken into law firms to grow up slowly, to learn not only how to practice law but also how to be a functioning member of the legal community, alive to the vital role that lawyers have in our society. This process has been undermined over the last few years, especially since the GFC, as clients have resisted paying to train junior attorneys, and firms have reduced their grad recruitment numbers. As AI technology reduces the amount of introductory-level work available to young lawyers, and as platform technology hollows out the firm, we will see a “valley of death” emerge between law school graduation and the point when the attorney is capable of effectively handling client matters and making a living. There is no part of this which will be a good thing for anyone, except maybe the technology providers and the owners of co-working spaces.

All of these changes need to be recognized by those who purport to train the next generation of lawyers. Law school professors and deans can’t just assume that the future will look like the past, because it won’t. And these problems won’t just take care of themselves.

What then is to be done?

Concretely, I believe that we have an ethical obligation to change our curricula to give our students the tools to be able to navigate this new world. This symposium is a good start in discussing the challenges and responses; but obviously there is a lot more that needs to be said. It saddens me that most law professors and many law deans don’t really want to engage in this discussion. There are many reasons for this, of course, but the main ones seem to be a lack of understanding about the pace of change, a disconnect between the classroom and the reality of the legal service market, and a (vain) hope that maybe, just maybe, the status quo will hold. This doesn’t help our students much, it seems to me.

Further, I believe that we need to start a conversation with the profession, the regulators, and disruptive legaltech players about how legal knowledge and culture can be transmitted in a world that is about to suffer a big disconnect between how law was done before, and how it is about to be done. Law schools need to start thinking about the role that we play in training lawyers all the way through their lives, and what law in society should be. I don’t know what this conversation will look like. I do know that it’s not happening at the moment.

I agree with Michele Pistone’s earlier observations in this symposium; although I am perhaps more hopeful that the cultural shift can happen in law school. Either way, if we don’t tackle these problems, then we will soon have grads with no job prospects, and a legal system that is profoundly broken.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 14, 2018 at 10:09 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 13, 2018

Legal Ed's Futures: No. 18

The Technology Community Needs Legal Expertise as Much as the Legal Community Needs Technology

in his invitation, Mike mentions the possibility of a computer program ultimately being able to compose a legal memo or brief. Mike’s considered reflections on the future development of legal technology are a refreshing break from the usual hype about robot lawyers. I’d like to go a bit further, expressing more skepticism about technological determinism in the legal field.

Three years ago, when I was co-authoring the essay Four Futures of Legal Automation, there was a wave of articles and books predicting that the professions were about to be automated. A fair amount of the hype came from software vendors looking to profit by overclaiming for their own products and denigrating the work of current attorneys. A trade press eager for ad revenue from such vendors quickly hopped on the bandwagon. As Riika Koulu, Lila Kallio, and Jenni Hakkarainen have observed, there has been “a severe lack of unbiased information available on the consequences of digital shift for the practice and study of law.”

At this point, however, the discourse is more reasoned. It’s becoming clearer that lawyers and coders are complements, not substitutes. Two articles in particular have carefully debunked the usual case for rapid automation of law. As Eric L. Talley observes, “the underlying evolutionary process that characterizes legal doctrine and precedent is irreducibly dynamic and complex – traits that are poorly adapted to pure algorithmic decision-making.” Dana Remus and Frank Levy “estimate that automation has an impact on the demand for lawyers’ time that while measurable, is far less significant than popular accounts suggest.”

I have joined the fray again to argue that what Talley, Remus, and Levy describe (about the recalcitrance of our legal system to many forms of automation), is often a good thing that we should cherish, rather than an impediment to progress. Indeed, I plan to speak at ICON-S later this year to explain how many visions of legal automation are little more than an effort to impose “rule by law” in the guise of algorithmic rationalization. Even when they are not, they all too often elide very important steps in the formulation of the purpose of a legal intervention, and the participation of affected stakeholders.

I make these points to raise a broader issue about legal tech. New technology can have some positive impacts upon law. But technology firms need legal guidance and intervention as much, and perhaps more than, lawyers need new technology. Moreover, pathologies found in search engines, social networks, and beyond, threaten to infect the legal sector, if we unreflectively embrace big data, predictive analytics, machine learning, or whatever the latest flavor of the month is. Understanding those problems is just as much a part of our “duty of technological competence,” as any imperative to adopt new software or machine learning methods.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 13, 2018 at 04:00 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (27)

Legal Ed's Futures: No. 17 (guest post)


I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?

There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here.  I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago.  Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years.  Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.

Of course, the same could be said about nearly every other form of professional education.  As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades.  The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.

What should law students learn?

What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught.  This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?

My answer is yes and no.  There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world.  Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, problem solving, document drafting, and client counseling.

These skills are important and necessary, but they are no longer sufficient.  If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper.  Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”

What does this mean specifically?  The answer varies depending on the school, but at my own school (Suffolk), it means exposing students to concepts like legal project management and process improvementlegal design (accompanying story here), automated legal document assembly, expert system toolselectronic discovery, and other areas as well.  We’re also teaching students how to innovate the operations of a law practice to make legal services more affordable for currently underserved clients, and we are giving students paid opportunities to learn about new delivery options.

We’re certainly not the only ones pushing the envelope.  A growing number of law schools (and universities) have developed an expertise in this area and have emphasized a range of related skills, such as legal analytics.  Here’s a partial list of such schools.  (Please feel free to email me I have overlooked a relevant program.)

BYU LawX — Legal Design Lab

Columbia Law School – Lawyering in the Digital Age Clinic

Duke University School of Law – Law Tech Lab

Georgetown University Law School – The Program in Legal Technologies

Harvard – Center on the Legal Profession and LawLab (housed at Harvard’s Berkman Center for Internet & Society, but with many collaborators)

Hofstra University School of Law – Law, Logic, and Technology Research Laboratory

IIT Chicago Kent College of Law – Center for Access to Justice & Technology and The Law Lab

University of Miami School of Law – Law Without Walls

MIT – Computational Law Research and Development

Michigan State University College of Law – LegalRnD

Northeastern University School of Law  – NuLawLab

Northern Kentucky University Chase College of Law – Lunsford Academy for Law, Business, and Technology

Northwestern Pritzker School of Law – Technology, Innovation, and Entrepreneurship Concentration

University of Pittsburgh School of Law – Innovation Practice Institute

Stanford – CodeX The Stanford Center for Legal Informatics and the Legal Design Lab

Suffolk University Law School – Institute on Law Practice Technology & Innovation and Concentration

Vanderbilt University Law School – Program on Law & Innovation

Vermont Law School – Center for Legal Innovation

These innovations are paying off.  Students are getting jobs that did not even exist a few years ago, such as in legal project management, knowledge engineering, and legal solutions architecting.  For example, when my law school graduated its first group of students with some coursework in these new areas, employers specifically reached out to recruit them. (See, e.g., here.)  Granted, this is hardly an empirical study (the sample size is still small), but the available evidence suggests that legal employers are increasingly looking for students who have learned the skills taught at the schools referenced above.

Anticipating Objections

One objection to updating the curriculum in the way that I have outlined here is that law schools should not try to teach all of the knowledge and skills that students need for professional success.  Legal education is premised on the idea that considerable learning takes place on the job, so one could argue that the new areas of study, even though important, should be learned later.

I agree that considerable learning needs to take place on the job, but we should want our students to have learned enough in law school so that, when they see a particular problem or issue in practice, they have a reference point for how to deal with it.  They need to be able to “issue spot.”  The new skills and knowledge described above are simply giving students the ability to engage in a new kind of issue spotting.  That is, students should know these new concepts sufficiently well to identify when they can be deployed to deliver services more effectively and efficiently.

A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice.  Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills.  Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas.  In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.

The flipping of the traditional information flow has another benefit: it increases the relevance of junior lawyers.  At a time when the value of a young associate is increasingly questioned, law schools have an opportunity to give their graduates a knowledge base and skillset that clients increasingly demand and that most legal employers lack.  In short, teaching these new skills will position law schools and their graduates as leaders of a profession at the cusp of significant change.

A second possible objection to this new curriculum is that the skills will be quickly outdated.  This argument, however, proves too much.  In law school, we regularly teach students about doctrines that have changed or are likely to change.  When we teach an area of law (say an older, but now discarded, doctrine), we do so to convey both a conceptual point and a way to think about an issue.  In much the same way, teaching law practice technology and innovation is designed to help students think in new ways about legal services.  The technology will change, but the mindset will serve graduates well throughout their careers by giving them the conceptual tools they need to improve how legal services are delivered and accessed.  This will make them more competitive and better able to serve their clients and the public.  It is hard to think of a better reason to update the law school curriculum than that.


Andrew Perlman (Suffolk; Chair, ABA Center on Innovation)

Posted by Dan Rodriguez on March 13, 2018 at 09:29 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 16

The viewpoints and suggestions offered in this symposium are wonderful for their breadth and thoughtfulness, not to mention passion and immediacy.  Legal education has stewards from literally all over the globe earnestly interested in protecting if not expanding the rule of law, the delivery of legal services, and the education of new generations of lawyers dedicated to a nation aspiring to equal justice under law.  It is unfortunate then that our collective narrative is not more widely shared and internalized by a new generation who might be lawyers.  

We all know the story well – for a half century interest in attending law school increased, as reflected in more and more applications, culminating in just over 600,000 applications for admission in the fall 2010 … but then KABOOM.  The fall off was rapid and dramatic so that, in this case, a picture truly is worth a thousand words.  Here is a depiction of law school 1L enrollment over the last roughly half century:

Those 600,000 applications yielded over 50,000 1L students and then – BUST.  The enrollment growth of almost a half century disappeared in only five years so that by the fall of 2015, 1L enrollment was back to early 1970’s levels.  Ouch.  The modest bump in applications that we currently see this academic year does not mitigate some generally held impressions that we are not likely to return to 2010 any time soon, especially considering demographic predictions for high school and college graduation rates over the next 25 years. 


It is against this backdrop that in 2006 Elon University opened the doors to its new law school.  Starting off strong in an environment of law school fecundity, Elon President Leo Lambert charged founding dean Leary Davis and his successor George Johnson to create a law school with a difference, drawing on a mission based in experiential learning that had brought the University growth and renown over 20 years.  Justice Sandra Day O’Connor, speaking at Elon Law’s initial convocation in 2006, noted that the new Law School had strong bones and already was a “force with which to be reckoned.”  ABA accreditation followed in the shortest time possible.  And then, the bottom fell out. 

I arrived as dean in 2014 amid declining enrollment and budget challenges with a charge to revitalize the enterprise.  I had prepped for this assignment in and out of the academy, which turned out to be a good apprenticeship for this moment in legal education, but most recently had spent some time at Northeastern University School of Law, learning about its unique approach to preparing lawyers through co-operative education.  I was attracted to this pedagogy because I was convinced that the critiques of legal education held some serious validity – too long, too expensive and too disconnected from the profession.  Northeastern had made important strides to address at least the latter issue – by sending students out to work full time, the individual and the institution gained some real world connection that could, if guided, accelerate professional development and maturation.  Study and analysis of Northeastern alums undertaken by Bill Henderson tended to confirm this proposition.  

So, my arrival at Elon Law at the depths of the legal education bust offered an opportunity to reinvigorate the institution by developing these principles, which were entirely consistent with the approach Elon University championed and had infused into its Law School’s mission.  I quickly appointed a faculty committee to explore curriculum changes that might provide some of the advantages of co-op education while pushing those advantages and perhaps concomitantly addressing the cost and time issues as well. 

This committee was small to facilitate accomplishment but reflected diverse aspects of the curriculum, including 1L, upper level, writing and skills components.  This group met regularly for about 6 months, working quickly due to the urgency of the situation but consulting with others about issues like admissions and budget.  Four issues were identified as core to the work, including curriculum, calendar, competencies and communication, which gave rise to the moniker “the 4C Committee.” This group worked from the proposition that was embedded in the Law School’s strategic plan to establish and fulfill an overall curricular goal “to create a bridge from legal theory and doctrine to the practice of law.”  Approaching this mission from an outcomes oriented perspective, the 4C committee essentially worked backward by identifying the skills, knowledge and professional identity that students should acquire by graduation and then building a logical progression of learning to reach those goals. 

The signature experience would be a “directed practice placement,” or residency-in-practice, during which every 2L student would work full-time in a judge’s chamber or law office setting for academic credit.  This placement would differ from Northeastern’s co-op, which is essentially self-directed learning, through an accompanying course that the student would complete to enhance the experiential learning while keeping the student in touch with faculty at the Law School.  A “Bridge to Practice” course after returning to campus but before graduation would provide a capstone experience for the students in conjunction with required bar preparation instruction to ensure proper focus upon graduation.  Labs in the 1L courses starting with Criminal Law also were included to leverage the experiential focus of the curriculum. 

Working in this way, the 4C group deconstructed the calendar and was able to establish a trimester system that provided fewer classes per term, allowing more focus on them, and that allowed for a two and one-half year path to graduation.  The same amount of class time was provided so that credit hours for graduation would not change.  What this did offer was an opportunity to reduce tuition, and hopefully debt, for our students while diminishing the lost opportunity cost of being in law school for three years. 

This proposal generated significant debate, as anticipated and hoped for.  Over the course of several faculty meetings, the advantages and disadvantages were discussed as were alternative proposals.  In the end the 4C committee’s proposal was adopted by a two-thirds majority of the faculty.  Recognition that the law school with a difference should be even more different than it already was provided some support for the proposal but the real underlying theme around adoption was a palpable desire to create a more guided and pointed experiential curriculum that led students to capability for practice.  And so with the curriculum adopted, implementation became our focus.  My next post will describe how Elon Law turned thinking into doing. 

Luke Bierman (Elon)

Posted by Dan Rodriguez on March 13, 2018 at 09:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

Let me explore this point in the context of criminal justice, a field I know relatively well. Better funding for public defenders certainly would improve access to justice. But there is much that law schools could do without that funding. I outline here the flaws in our current curriculum; in my next post I’ll suggest some solutions.

  1. We educate prosecutors poorly. Prosecutors are the most powerful people in the criminal justice system: They have the power to dismiss charges, fashion plea deals, withhold evidence, and shape a defendant’s future. Prosecutors also hold a unique role among litigators: they are supposed to seek justice, rather than zealously advocate for a client.

Law schools do almost nothing to prepare prosecutors for this powerful, distinctive role. We steep future prosecutors, like the rest of their classmates, in the adversarial process. Throughout the curriculum, we urge them to “make the best case for their client.” We applaud arguments that push the boundaries of the law or skirt ethical constraints. Our focus on appellate cases ignores the intricacies of plea bargaining and the special responsibilities that prosecutors shoulder in that process. Even negotiation courses tend to focus on civil problems rather than criminal pleas.

We don’t teach law students much about interviewing witnesses; we certainly don’t teach them to interview with the skepticism a good prosecutor needs. Lessons in fact investigation and interacting with non-lawyers occupy marginal places in the curriculum. Nor do we provide the interdisciplinary courses that students need to become good prosecutors: classes on the causes and treatments for substance abuse, mental health problems, and domestic violence; courses on the limits of common forensic techniques; and cognitive science offerings that explore both the prevalence of unconscious bias and ways to fight that bias. Some schools offer some of these courses, but rarely in a systematic way that attracts and develops good prosecutors.


  1. We educate defense lawyers even more poorly. Our adversarial culture is appropriate for criminal defense lawyers: they should press zealously for their clients. But other parts of the curriculum fail these students. Future defense lawyers need courses on effective plea bargaining, fact investigation, witness interviewing, client counseling, mental health and substance abuse, forensic science, and bias even more than future prosecutors need those courses. Prosecutors have the full power of the state behind them; to counter that power, defense attorneys need the best preparation they can garner.

First-rate public defender offices teach many of these missing elements, but why should they bear that burden? We know that public defenders are overworked and underpaid: why should they spend their time and dollars on foundational education we could provide in law school? Many counties, moreover, lack organized public defender offices; in those counties, courts appoint counsel for indigent defendants. Too often, those lawyers are recent law school graduates who lack the skills they need for effective representation.

  1. We focus on felonies. The bar exam features more questions on homicide than any other crime—even though new lawyers rarely participate in homicide cases. Law schools, similarly, focus on murder, rape, armed robbery, and white collar felonies. Yet misdemeanor charges make up the bulk of criminal cases, and those are the crimes new lawyers will prosecute or defend. These crimes are far from trivial: misdemeanor convictions have a lasting impact on employment, housing, immigration status, eligibility for student loans, and other life essentials. These crimes also embody the systemic biases in our criminal justice system—often more clearly than felony prosecutions do.


Misdemeanors are not just “little felonies.” They involve different laws, different styles of plea bargaining, and more varied outcomes. A well prepared misdemeanor defense lawyer often spells the difference between a damaging conviction and a clean record. Our curriculum is topsy-turvy: We should prepare students to handle misdemeanors, then let them learn felony work in practice.

  1. We ignore the police. Several symposium participants have noted the growing number of workers who engage in law-related work without obtaining a JD or law license. Those workers are employed directly by their client (usually a business or government agency), which allows them to avoid restrictions on the unauthorized practice of law. Police officers count among these workers: they regularly apply legal principles to the facts of new cases. The police decide whether circumstances allow a warrantless search; they also decide whether the facts before them support an arrest. For felonies, the police sometimes consult prosecutors on these matters but in misdemeanor cases they act largely on their own. Indeed, in the two counties where I practice, the police even file the charging instrument for misdemeanors. A prosecutor can amend or dismiss the charges, but the arrest and initial charges remain a matter of public record.


Police officers, in other words, daily resolve the kind of questions we pose on law school exams—yet they lack all but the most basic legal training provided in police academies or undergraduate criminal justice courses. Why aren’t law schools more interested in how police officers are educated?

I’ll explore in my next post how law schools might tackle these problems. Education is powerful; if properly administered, it is our greatest weapon against injustice, poverty, and other social ills.

Deborah Jones Merritt (The Ohio State University Moritz College of Law)

Posted by Dan Rodriguez on March 12, 2018 at 03:57 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Futures of Legal Ed

We are one week into the March symposium on "the futures of legal education" and I hope that the various posts are generating interest and motivating thoughts among readers of this blog.  In the vein, I would like to urge you to send along posts with your own reflections.  I will not edit for content, but only for spelling.

The posts thus far been have eclectic and wide-ranging, but we would surely benefit from an even more diverse set of reflections and also of backgrounds.  I hope you will consider engaging actively with this big topic and I look forward to your posts.  You can send to me at daniel.rodriguez@law.northwestern.edu.


Posted by Dan Rodriguez on March 12, 2018 at 09:03 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 14

Modest Proposal #1

My first couple of posts have been about how we’re doing things at my school to deal with innovation and technology. I want to shift the focus and start to address the observation I made in my first post about how the institutional form of the law school is a path dependent accident. Specifically, I want to start looking at the structural inefficiencies of law schools, and how the path dependency has led to a mismatch between the social need for legal knowledge and the way we deliver it.

I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.

Modest proposal #1:

A smart provost at a college/university that doesn’t have a law school should propose to the ABA that their university should be allowed to offer a Bachelor of Laws (LLB) leading to the practice of law. [1]

This idea seems so obvious, I feel that there must be a slew of reasons why it isn’t being done all across the States. The JD is a relatively recent phenomenon (https://asklib.law.harvard.edu/faq/115308) and I seem to recall reading that the main reason for the shift from the LLB to the JD in the late sixties was that entry in a grad degree guaranteed a Vietnam War draft deferral. My recollection here may well be wrong—I’m traveling at the moment, and don’t have access to the work I recall reading it in. Even if I’m wrong, it doesn’t change the fundamental point that although the regulators/accreditors may currently require a JD to be bar-eligible, there are good reasons to think that now may be the time to consider reintroducing the LLB to US legal education.

First off, the ABA/AALS/State Bar Associations are rightly concerned about the cost of law degrees, and they need to be seen to be doing something here. The fundamental problem with the JD degree isn’t (I think) the sticker cost, or the cost of delivery, or even its relevance to the legal service market—it’s the fact that it adds three unnecessary years to the value proposition for the higher educational journey of a law grad. It generally takes a minimum of seven years of instruction to be eligible to sit the bar exam, of which four years is utterly unrelated to law. It’s great that college grads with a BA in poly sci or economics or a BS majoring in biology have other skills and knowledge, and certainly it’s true that the college experience is a worthwhile rite of generational passage. But in an era when law grads can expect to carry anything from $100k to $300k in debt, we clearly need a better answer than “well, those four years of college weren’t a complete waste of time, Jenny did learn about sunk costs...”

The second reason that I think that this can work, is that it’s been working for ages in other jurisdictions. Essentially every other common law country makes do with the LLB, and these countries seem to have pretty decent legal systems and functional legal education systems. Places like South Africa, Hong Kong, Singapore, Malaysia, and Australia only require students to graduate with a 4 year LLB from an accredited school, before they can undertake the local equivalent of the bar exam. The UK is even more permissive, although its approach is too complicated to explain here. Australian law schools have, over the last ten years, introduced the JD, and begun to charge US prices for the privilege. But this is just because of the peculiar funding system for higher ed in Australia, which means that the schools with JDs can charge three times as much for essentially the same degree as the LLB.

Introducing an undergraduate law degree would cut three years of tuition off the cost of becoming a lawyer, without (it seems to me) affecting in any way the quality of lawyers it graduated or the integrity of the legal profession. Three times the average annual cost of college is a pretty significant amount of money that grads would save. We could expect a range of useful flow-on effects. Numerous underprivileged students to consider law school when they otherwise would dismiss the thought. With lower college/law school loan repayments, the cost of delivery of some legal services could well come down because grads wouldn’t be loading in their loan costs into their client bills . Etc etc.

Of course, in this era of closing law schools it would be a brave provost who suggests opening such a radical law school (or any law school). And there is still the small matter of the regulators like the ABA and AALS, who are going to be pretty seriously hard to convince to this way of thinking. But, actually, I think that these two problems are actually the best reasons for trying this. Disrupting the current status quo in US schools would be really easy, and the new program would be able to grab market share much, much faster than if the legal education system were functioning well. And there is some evidence that some regulators would be open to this, as we are already seeing a number of law schools getting ABA variances for things that would have been inconceivable just a few years ago.

This entry is already too long, so I’ll outline my next modest proposal in another post…


Dan Hunter (Swinburne, Australia)


[1] I suggest that this should happen at a university that doesn’t have a law school because this proposal is almost impossible to imagine at a university with a law school that offers the JD. The channel conflict and professorial agitation at an existing law school would almost certainly make this a non-starter.

Posted by Dan Rodriguez on March 12, 2018 at 08:56 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.

Posted by Howard Wasserman on March 12, 2018 at 08:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

"Write drunk; edit sober." -Ernest Hemingway [1920x1080]

  1. The first draft of everything is shit. -Ernest Hemingway
  2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy
3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

Posted by Orly Lobel on March 12, 2018 at 01:11 AM in Books, Culture, Life of Law Schools, Orly Lobel | Permalink | Comments (11)

Sunday, March 11, 2018

May States Discriminate Against Federal Personnel by Selectively Withholding or Regulating State Property? A Reply to Ilya Somin

Ilya Somin has a thoughtful response to my earlier post about California's recent legislation imposing special duties or limits on people or facilities who assist the feds in implementing immigration law. I argued that the Supremacy clause normally prohibits states from undermining federal policy by discriminating against federal officials. Ilya replies that there is no such "anti-discrimination" principle implied by the Supremacy clause. As he puts it,

There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials. (emphasis added).
I emphasize that last sentence, not only because it highlights Ilya's and my disagreement but also because it shows how our dispute exists in Baseline Hell -- the place where disputants grasp at straws like the "direct" versus "indirect" distinction to distinguish invasions of rights from mere refusals to deal. Ilya takes the position that, just so long as state law does not "directly seize federal assets," state law can freely discriminate against federal officers enforcing federal law, even when the state law has the purpose and effect of impeding federal law enforcement. Precedent and common sense, however, suggest that this position cannot be right.

Start with precedent: SCOTUS has repeatedly that "State law may run afoul of the Supremacy Clause in two distinct ways: the law may regulate the Government directly or discriminate against it, or it may conflict with an affirmative command of Congress." North Dakota v. United States, 495 U.S. 423, 434 (1990) (emphasis added). SCOTUS, in short, expressly recognizes that, in addition to "direct" burdens, the Supremacy clause bars "discriminatory" burdens. Common sense requires this natural extension of intergovernmental immunity: Otherwise, the states could do "indirectly" what they are barred from doing "directly," which, as Ilya and I both know from innumerable other contexts, is the sort of thing that the so-called doctrine of unconstitutional conditions prohibits.

A few hypothetical problems, however, illustrate why one does not need a precedent to see that common sense requires a limit on states' power to impose "indirect" discriminatory burdens on the feds. Imagine that California barred federal employees from driving on state-owned roads: Is Ilya seriously contending that this selective prohibition would not violate the Supremacy clause? Or what about my original hypothetical: Suppose that state courthouses charged federal lawyers and law enforcement officers a special fee to enter state courthouses -- or barred them altogether from entering: Will Ilya bite the bullet by re-affirming his position that the Supremacy clause "does not require [states] to help enforce [federal law] or to give the federal government the same services and assistance available to private parties"? Of course not: these sorts of discriminatory refusals to provide the feds with services extended to all other parties practically amount to fines on the feds. If the "direct" fine is prohibited by the Supremacy clause, then the "indirect" discriminatory refusal to provide services must also be prohibited.

There is a larger point buried in this arcane dispute over the scope of Supremacy: Neither the good old "direct/indirect" distinction nor the good old "non-discrimination" principle can guide us out of Baseline Hell, because that infernal battlefield resist being navigated by merely doctrinal phrases. The point of my original post was to argue that there must be some limit on the Supremacy clause's non-discrimination principle in order to accommodate Printz. The point of Printz, after all, is to allow the states to resist federal policy priorities with which the states disagree, and such resistance requires some sorts of discriminatory refusal to lend state personnel and property to aid those priorities.

But which sorts of refusals are allowed? In Baseline Hell, there cannot be crisp answers to this question. Sure, we will invoke the usual hackneyed legal boilerplate -- "direct/indirect," "similarly situated," "proprietary/governmental," and so forth -- but beneath these phrases lies an inevitably raw policy decision: How much power should the states have to trip up the feds? Twenty years ago, I argued that the answer turns on the monopoly power of the states. Discriminatory refusal of the states to permit their police forces to enforce federal law should probably be fine, because the feds can hire a parallel federal force. Discriminatory refusal to let the feds use state roads, however, is too much state power: The feds cannot build a parallel road system on which to chase the bad guys (especially if the bad guys are driving on the other state-owned road system).

This sort of policy-laden distinction between a state's impeding federal policy "too much" by withholding state-owned resource for which there are insufficient substitutes and the states' impeding federal policy to a permissible degree is just too mushy and policy-laden ever to incorporate directly into the doctrine. The official Supremacy doctrine will, therefore, continue to limp along with conclusory phrases like "discrimination," "generally applicable laws," and so forth. That's how one feels one's way in the murky terrain of Baseline Hell: Pretend to "do law" with canned, empty magic words while legislating incrementally based on one's intuitions about what will make a federal system work.

In the context of these new California laws, the practicalities of the situation probably (IMHO) allow California to withhold the services of their law enforcement officers from detaining people for immigration offenses but do not allow California to harass private detention facilities by imposing additional inspections unjustified by any material difference between facilities that help the feds implement immigration laws and those that do not. (Ilya notes that immigration detainees aree frequently abused in custody. No doubt -- but more than ordinary inmates in California's wretched prison system? I doubt it). But I am not wedded to this ultimate legal conclusion.

The only point on which I will not budge is the general idea that the Supremacy clause contains some sort of "anti-discrimination" principle that imposes some sort of limit on California's power to withhold its property and personnel from the feds. That there is such a principle is simply well-settled law. That the principle's application in any given situation is a muddy mess is equally well-settled. Welcome to Baseline Hell!

Posted by Rick Hills on March 11, 2018 at 01:19 AM | Permalink | Comments (5)

Saturday, March 10, 2018

Legal Ed's Futures: No. 13

I am excited to (however belatedly) join the conversation to which Professor Madison’s postings have so thoughtfully invited all of us.

Over the course of forthcoming posts, I hope to variously engage implications of the world’s growing complexity for the future of legal education; the need for experimentalism in legal education; the importance of law, regulation, and even “legal reasoning” for an ever-widening universe of non-lawyer professionals; the potential benefits of re-thinking the targets of faculty governance, and the place of leadership education in law schools – among other things.  Along the way, I may even try to make the case that we stand on the precipice of a “Golden Age” of legal education.

For the moment, though, let me offer two introductory points:

First, as my talk of a golden age for legal education suggests, I am deeply optimistic about our future.  There is much work to be done, and no assurance of success.  And only those prepared to innovate – sometimes in big ways – are likely to succeed.  For those that are prepared to do so, though, the fundamentals are not merely sound, but very promising.

Professor Madison’s postings, with what he himself describes as their “occasionally grim tone,” might be read to the contrary.  In point of fact, as he likewise highlights in his concluding paragraph, he too is “optimistic about the future.”  And for the same reason:  “I also believe that our collective power to shape our own futures – and that of law and the legal system – is immense.”

Which points to my second introductory offering: 

In his postings, Professor Madison invites us (all) to a kind of “distributed collaboration” model of shaping the future of legal education (and law and the legal system more generally).  As with Wikipedia, Linux, and other settings in which the wisdom of groups serves to generate value, he suggests in Part IV that “[i]f done well, imaginatively and carefully, then extending, distilling and combining conversations [regarding law and legal education] should lead not only to conceptual frameworks for action but also to actionable guidance itself, drawn from multiple perspectives and looking to multiple audiences.”

We have a tendency, as lawyers and perhaps especially as law professors, to reify the value of individual insight and expertise.  And hence to offer our analyses, views, and recommendations as finished products to be either embraced (ordinarily) or rejected (rarely, if ever).  Against that backdrop, Professor Madison’s invitation might offer the opportunity not only to achieve greater insight as to the future of legal education (as well as the “actionable guidance” he describes), but perhaps also to rethink the way we think as lawyers.  And thereby the value that we bring to our social, economic, and political life.  And perhaps even our future.

Robert Ahdieh (Emory)

Posted by Dan Rodriguez on March 10, 2018 at 10:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Friday, March 09, 2018

Legal Ed's Futures: No. 12

Outrunning Niels

A range of commentators in this symposium have identified tech as an important driving force in the changes in legal education. It’s not hard to see that if we’re to make law school more relevant to our students, and if we are serious about making our graduates capable of operating in a fast-changing legal services marketplace, we clearly need to do something about the technology gap in law school education. But what should we do?

One response is to teach law students how to code. Two approaches to this have emerged in law schools. The first—exemplified by the excellent subject called “Computer Programming for Lawyers” run by Paul Ohm at Georgetown (https://cp4l.org/)—is a kind-of standard comp sci “Intro to Programming 101” class, but with a legal tinge. (Not just regular expressions, but regular expressions in legal search, etc) This approach is useful in imparting some new knowledge to law students, gives them a tiny bit of coding skill, and maybe changes their relationship with their computer a little. This approach has utility, I think, in the same way that a really good “Law & Literature” class has utility, providing the student with a bit of diversity of outlook and a welcome break from all those endless rules and cases that they have to study in their black letter classes.

Another approach is to give lawyers some training in how to translate legal rules into an expert system shell or how one can pour legal cases into a neural net simulator. I ran this kind of AI & Law class at Melbourne University Law School and then Chicago-Kent, around 20 years ago. The newer iterations of this sort of approach are exemplified in the Iron Tech/Apps for Justice classes that David Johnson pioneered at the center that I ran at New York Law School about ten years ago, which then found its way to Georgetown, Melbourne Uni, and places in between. This sort of course is useful to teach translational skills—from legal code into computer code—that are of significant value for the law grads who want to work in knowledge management departments or want to code expert systems.

While these approaches create great marketing copy, and are useful in the limited ways I mention above, they are hardly the panacea for students who are graduating into the new legal services marketplace. It is definitely a good thing for a law grad to know how to do code in Python or Neota (or, even better, in R), but that’s like saying it’s a good thing for a student to have taken a negotiation class or been on moot court. Valuable skills, to be sure, but hardly game-changers. I don’t think that one elective in programming is the solution to the problem the students face in navigating the new normal of a legal profession being eaten away at all sides. Also, because it’s an elective in an otherwise traditional JD, only a small number of self-selecting students will ever do it.

What, then, should a law school do?

Our approach has three layers. At the bottom, every student is exposed to (1) the concept of an innovation mindset, and (2) some applications of technology in legal practice. The first aspect focuses them on understanding how careers in law look these days, and seeks to give them some skills around managing their work life in a time of ruthless change. The second aspect is much more practical: in Contract Law we teach them about smart contracts and the blockchain, in Civ Pro we show them e-discovery and explain how predictive coding and AI will affect their early working life as litigators overseeing document review, and so on. These aren’t much, but they provide a foundation for the deeper layers. And they also mean that every student has some basic context of how technology and change will affect them, even if they choose to focus on other aspects or use their law degree for other purposes.

At the next level up, we give students a small range of electives that are focused on technology and innovation within legal services. This means that we have Legal Tech & Innovation units that focus on legal translational work, coding legal materials into computer systems. Students gain familiarity with AI & law, and with inference engines and representational formalisms. We also have a Business of Law class, that is aimed at explaining the structural changes that are going on in the legal profession, so that they know not only the basics of legal practice—can use an LPMS, understand how legal partnerships work, and why they are a poor business structure if you want effective investment in the future, etc—but they also understand the big structural changes that will affect them—the development of the “legal operative”, how managed legal services works, what LPO (legal process outsourcing) to South Africa and India means for them, the rise of private litigation funding firms and its effect on the legal system, and so on. About 30% of our cohort will undertake these sorts of opportunities.

The final layer (which suits about 10% of the class) is a Y Combinator-like incubator/accelerator for law firms, courts, and non-profits. The insight is to have a hosted innovation lab that generates intrapreneurial innovation within the firm/court/agency and which gives our students experience in managing and developing legal innovation. We have students work with a legal technologist, a startup mentor, and faculty from our design school to take the client from ideation through to product/demo. Students work as members of a team, being involved in every stage of the innovation cycle. They get exposed to design thinking, agile management techniques, lean canvas experimentation, coding, and the business challenges of innovating in law. They also typically build proof-of-concept computer systems for the legal client.

Is this the best (or only) way to provide students with the skills to succeed in the new legal environment? Of course not. But at the end of the day, it doesn’t have to be the best of all possible worlds. My approach is structured around the old joke about Albert Einstein and Niels Bohr, who find themselves stalked by a lion. When Albert pulls out his running shoes, Niels says, “Don’t be stupid, Albert, you can’t run faster than a lion.” Albert replies, “I don’t have to run faster than the lion, Niels. Just faster than you.” [1]

My students don’t have to be the platonic ideal of the graduates for the legal future. They just need to be better than grads from my competitors.

And, I’m proud to say, they are.


Dan Hunter (Swinburne Australia)


[1] I have heard this joke told in many different forms, sometimes featuring these two eminent physicists, sometimes just with generic hikers, sometimes with a bear, a tiger, and a lion. I have no idea why the joke is funnier with a lion, Einstein, and Bohr as the protagonists. But it is.

Posted by Dan Rodriguez on March 9, 2018 at 09:28 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

A quick word on the speech controversy at Lewis & Clark

A quick thought on the students at Lewis & Clark Law School protesting Christina Sommers earlier this week. I confess to knowing nothing about Sommers or why she generated such anger from the students. I was surprised by the heat the event generated--the discussion on the ConLawProf listserv became quite stark. People may have been a bit surprised to see this happening at a law school (recall Heather Gerken's argument last summer that the nature of legal education affects how students go about protesting). There was some discussion of whether the protesters' actions warranted school code-of-conduct charges, which must be reported to the Bar and can create longer-term professional headaches than they would for undergrads.

Having watched the several videos, it appears there were two groups of protesters, inside and outside the room and the building. So this case illustrates the vision of counter-speech and heckling I have been trying to formulate. The latter group was engaged in protected activity. Although they made noise and made it more difficult for Sommers to be heard, they were not interfering with her use of a reserved space in which one speaker had priority right. It appears they were in an otherwise public outdoor space (although I do not know the details or rules about spaces at L&C); if so, their speech in that space should receive equal footing with Sommers' speech in the classroom.

Posted by Howard Wasserman on March 9, 2018 at 12:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, March 08, 2018

The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)

I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).

Video of the Event is here.

Spring 2018 Law Review Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity

Date: 1:00pm - 5:00pm PST March 9 Location: Erskine B. Wood Hall



1:00 p.m. PANEL ONE

(Moderator: Associate Dean John Parry)


Kit Johnson


Earl Maltz


Howard Wasserman


Amanda Frost


3:15 p.m. PANEL TWO

(Moderator: Professor Juliet Stumpf)


Susan Dussault


Andrew Hammond


Kari Hong

Posted by Howard Wasserman on March 8, 2018 at 11:50 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Baseline Hell in the Sunshine State: Can California Subject Federal Immigration Agencies to “Special Burdens”?

Suppose that a state law’s restrictions on private persons or its own officials and facilities apply only when those persons, officials, or facilities assist the federal government. Does such a law constitute “discrimination” against the feds that violates the Supremacy clause? If the answer is “always yes,” the state autonomy protected by Printz v. United States could become a dead letter. If the answer is “always no,” then the feds’ immunity from subnational governments’ attacks becomes a dead letter. Between these two answers is “a darkling plain/ Swept with confused alarms of struggle and flight,/Where ignorant armies clash by night.” It is a place I call Baseline Hell.

This infernal battlefield is nicely illustrated by the United States’ lawsuit against California alleging that new state laws violate the Supremacy Clause by imposing discriminatory burdens on facilities and people who help implement immigration law.

AB 103, for instance, requires the California AG to inspect “county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California” to determine the “conditions of [the detainees’] confinement,” the “due process provided” to the detainees, and “the circumstances around their apprehension and transfer to the facility.” AB 450 provides that an employer or its agent “shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant” or consent is “otherwise required by federal law.” The United States argues that these provisions violate the Supremacy clause because they “constitut[e] an obstacle to the United States’ enforcement of the immigration laws and discriminat[e] against federal immigration enforcement” (para 35 of Complaint).

Two legal principles bear on this complaint: The “state autonomy” principle of Printz and the “intergovernmental non-discrimination” principle of the Supremacy Clause. (This latter principle does not have really a “leading case,” given that the role of discrimination in McCulloch’s holding was murky. If one wanted a citation, I’d recommend Davis v. Michigan Dep’t of Treasury, about which more below). The feds may not force the California legislature to enact state laws to help implement federal immigration policy, nor may they force state or local officials to execute federal immigration laws. But California may not single out federal policy for “discriminatory” burdens.

Has California so discriminated by subjecting detention facilities and private employers to a special regulatory regime if and only if they help implement federal immigration law? Ilya Somin has a typically thoughtful post in which he acknowledges that “it is far from clear how the federal courts will rule.“ Eight legal commentators at Vox (including Ilya) offer similarly equivocal conclusions.

I think that that the conflict between the “state autonomy” and “don’t-discriminate-against-the-feds” principles nicely illustrates the uncertainty of baseline hell. Ilya’s defense of AB 103 shows how obscurity of the baseline defining “neutral” treatment of federal policy makes it impossible to reconcile these two doctrines based on existing precedents. According to Ilya, because ”California clearly has the right to inspect its own state and local government facilities at will,“ AB 103 is permissible. But Ilya’s reasoning, I think, assumes that the baseline of neutral treatment is that states can do anything they like with their own property, even if states’ regulation of their own facilities singles out federal interests for discriminatory treatment.

I do not think that this view of the baselines is correct. To see why, consider an easier case. Imagine that California enacted a law requiring state courthouses to impose much more time-consuming TSA-style security checks only on federal officers, requiring federal officers (but no one else) to take off their shoes and take their laptops out of their briefcases before walking through the metal detector to enter the state courthouse. I assume that creating such a special procedure only for the feds would violate the Supremacy clause even though the California legislature would certainly be free to impose such enhanced security on everyone in a non-discriminatory way. Because the discrimination would manifestly serve only the goal of harassing the feds and impeding the execution of federal law, it attacks federal supremacy just as surely as if California had forced the federal officers to pay a special “federal employee fee” whenever they entered state-owned buildings.

So what counts as impermissible “discrimination” against the feds? In some contexts, the SCOTUS has defined impermissible “discrimination” with extraordinary breadth. For instance, in Davis v. MDOT, the SCOTUS held that Michigan’s exempting the income of retired state employees but not retired federal employees from Michigan’s income tax constituted a violation of the “nondiscrimination component of the constitutional immunity doctrine.” (Ilya suggested in Twitter exchange with me that Davis was really just an interpretation of a provision of federal tax law. Davis, however, makes it pretty plain that the decision is rooted in constitutional considerations of supremacy. See, in particular, Davis’s statement at page 813-14 that “[r]egardless of whether §111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same”). As Justice Stevens noted in his dissent, Michigan’s tax exemption did not literally discriminate against the feds, because federal employees received exactly the same tax treatment as private employees. Stevens reasoned that “[w]hen the tax burden is shared equally by federal agents and the vast majority of a State's citizens, ... the nondiscrimination principle is not applicable, and constitutional protection is not necessary” (pages 819). The majority, however, seemed to reason that federal employees were constitutionally entitled to be treated the same as similarly situated non-federal actors. Since there was no constitutionally relevant difference between federal and state retired employees, the former were entitled to the same state tax treatment as the latter.

Applying that reasoning to AB 103, it is easy to see how California law could be said to discriminate unconstitutionally against detention facilities that implement federal law. Yes, of course, the state has a duty to ensure that all state, county, municipal, and private facilities treat their detainees humanely. But why does this duty require that only those facilities housing immigration detainees receive special inspections? Is there some reason to believe that facilities are more likely to abuse their inmates after they enter into an intergovernmental service agreement with the feds? If not, then the Davis principle suggests that subjecting only such facilities to a special inspection regime undermines federal supremacy.

Against this broad understanding of the anti-discrimination policy, however, is the worry that, if taken literally, the broad reading of federal supremacy would undermine the “state autonomy” principle. The point of Printz, after all, is to allow states to pursue their own policy priorities by refusing to expend their resources on federal priorities. If states must implement federal law on exactly the same terms as they implement state law, then Printz is pointless.

Can these two principles be reconciled? Yes, of course: Any two principles can always be reconciled with each other simply by changing one of the principles. As a federalism fan, I would construe the anti-discrimination narrowly and state autonomy broadly, by allowing states to discriminate against federal policies (albeit not federal personnel) in their regulation of their own property, funds, and personnel. This means that AB 103 would be permissible to the extent that it applies to state, county, and municipal facilities but not as it applies to privately owned facilities. (AB 450’s prohibitions on private employers’ cooperating with federal authorities is, alas, an unconstitutional burden on federal supremacy even under my narrow view of federal supremacy).

Such a reconciliation of state autonomy and federal supremacy is messily “legislative.” For frankly policy-oriented reasons, it limits the requirement that states be “neutral” with respect to federal choices in order to preserve a greater power for states to contest those policies using purely state resources. The underlying assumption of this broad reading of state autonomy is that, if the feds care so much about some goal, then they ought to create a parallel governmental system with which to implement the contested federal policy. If this obligation to use purely federal resources practically undermines federal law, well then, tough: Letting states challenge federal policy by withholding the states’ help is part of what makes American federalism a mechanism by which out-of-power parties can raise a little hell.

Note that my suggested reconciliation of state autonomy and federal supremacy is a legislative rather than interpretative choice. One could make a different choice based on different policy priorities. There are more decorous federal regimes — Germany's, for instance — in which subnational jurisdictions’ power to resist the central government is much more limited. (For an excellent discussion of how the German constitutional concept of “bundestreue” bars Länder from adopting a confrontational stance towards federal policy, see Daniel Halberstam’s classic article on the Political Morality of Federal Systems).

In short, the definition of constitutional “neutrality” required of states in the American federal system is up for grabs. It is not decided by Printz or McCulloch or any other precedent. In baseline hell, it is a waste of breath to argue about what the law “really” is. The only answer is that the law is contested and that some frankly legislative choice is needed to resolve a gap in our understanding about how entitlements ought to be divided up.

Posted by Rick Hills on March 8, 2018 at 11:43 PM | Permalink | Comments (5)

Happy International Women's Day and the Future of Pay Equity

I am trying to not blog or be online much at all this week with the goal of getting a good mid-semester spring leap on several of my new research projects. International Women's Day is a good exception though* - and this is an optimistic year for all of us law professors working to promote gender equality.

#metoo has certainly brought momentum to both the public debates and legislative/administrative efforts to create better work environments for all. And my latest book argues that law, including IP, contract law and antitrust laws, can be reformed in ways that would empower expression and disruption of dominant, too often problematic, images and messages that pervade our markets, including concepts of girlhood and womanhood. I've also argued here that by focusing on sexual harassment we should not lose sight of some of the most important aspects of employment discrimination, that are (alas I know this because I teach and write and consult about employment law) less sexy, literally and figuratively. 

I am writing a new law review article tentatively titled Flipping Transparency on its Head: The Future of Pay Equity. And I am honored to be named the keynote speaker in the annual upcoming Pay Equity Day celebration this April at the Lawyer's Club of San Diego. The talk, and this post, will definitely help shape the project. Pay equity, including equitable pay and promotion across non-identical positions, is perhaps the most difficult issue to tackle in the field of gender work discrimination and the contemporary gender pay gaps are even more pronounced when we examine the salaries of women of color. My article a very very (very) drafty draft though I will be happy to circulate some version soon enough, but my general argument is that the underlying logic of a successful pay equity reform will be to flip transparency structures on their head. The reality is that we've had pay equity laws on the books for decades, both federal and state prohibition on pay discrimination. And yet, the gaps persist and basically every economic study agrees that while some gaps can be explained by seemingly "private choices" (a problematic notion in itself) such as education levels, stereotypically gendered careers, and hours and years in the job market, there is a component of the gap that simply cannot be explained away and points to direct discrimination. The new path for pay equity is to look at what happens at the negotiation table and the information that circulates in the job market, including both intra- and inter-firm speech. Several new state laws/bills, some just passed and are taking effect this year (California, NY, Mass., Maryland), prohibit employers from asking prospective employees about their previous salaries and, at the same time, prohibit employers from preventing employees from sharing their salaries with others. The Paycheck Fairness Act which has been introduced in Congress for many years now, most recently in 2017, would also protect employees from being retaliated against when they reveal their pay to others. In the article I draw on the robust research (including my own) on judgement and decision-making and behavioral law to understand how information is exchanged, understood and used in market relations. I also look at NDAs, something that I have been studying extensively in relation to talent mobility and innovation (also see here and here and here), and propose a notice requirement about the ability to discuss pay similar to the NDA whistleblowing exception notice requirement adopted by Congress when it enacted in 2016 the Defend Trade Secrets Act (I've written about this new provision here). My goal is to add meat and layers to the new wisdom of flipping transparency and point out the promises as well as the challenges of current reforms.

Now is the perfect time in the writing to learn from your reactions, thoughts and related works – and so I'm looking forward!

*wow I'm reminded that blogging is super helpful to articulating new projects – I knew there was an exception to my rule about an online detox for my mid-semester jump-start writing week! We prawfs always find the good loopholes [and point out the bad ones]!

Image result for pay equity


Posted by Orly Lobel on March 8, 2018 at 05:15 PM | Permalink | Comments (5)

Legal Ed's Futures: No. 11

Across the discipline of legal education and across law schools, and without the blessing of appointed and delegated leaders, legal educators should act on their power to define, advance, and implement their own visions of law and legal education, in ways that make the changing conditions of the legal profession and its existing institutions relevant but not determinative.

--Mike Madison

In this post, I am conscious of not wanting to author a diatribe in the style of the Unabomber manifesto (read: “The Industrial Revolution and its consequences have been a disaster for the human race.”).  Instead, I’ll offer a more tempered version:  The tradition of legal education and its consequences have created a crisis for civil society.

Those of us in legal education and the legal services industry have for 150 years made legal education a precious commodity.  Jointly and severally, we have isolated the construction, interpretation, and operation of law away from its subjects and objects.  And we have done so at our peril. 

When I was a 1L, a professor remarked to my class that we would now be popular at cocktail parties.  (In retrospect, this could not have been farther from the truth—no matter how fascinating I thought I was, nothing screams “buzzkill” like Palsgraf and the Rule Against Perpetuities.)  But, the implication was that we would now hold the key to answer many questions that plague “regular people.”  While at the time it was heartening to think that I might be popular at cocktail parties, there was something inherently disturbing about the dynamic.  The function of legal education to create those in-the-know (and, consequently, those “out-of-the-know”).  The haves and have-nots. 

The haves and have-nots certainly factor into access to legal services, as well.  This is even true in BigLaw, outside of most access to justice conversations, where I worked in the late 1990s and early 2000s.  Through a series of mergers and acquisitions and the building of a global empire, local clients dropped off, no longer able to afford the services we offered.  Partners who relied on a local client base for business development struggled to find a new direction.

The intersection of the problems in legal education and the legal services industry intersect in the following illustration: A few years ago, I taught a class called Complex IP Problems.  Throughout the semester I brought in a visual artist, an author, the owner of a film production studio, an entrepreneur, and an inventor, all to talk about particular IP problems they had.  Despite the differences in background and interest, each of the class visitors had one surprising thing in common: None of them had consulted a lawyer to help them navigate their issues.  When the students interviewed them, they said things like, “Who can afford a lawyer?” and “Lawyers are the ‘no’ people.”

The market has responded to the precious nature of the law certification, and to the inflation of billing rates for lawyers, by creating an entire market for professions that are law-related but do not require a JD.  The single biggest growth area for law jobs is in jobs that do not require a JD.  A search on LinkedIn for contract manager in the US, a position that involves drafting, negotiating, and interpreting contracts but does not typically require a JD, leads to over 19,000 job postings. 

In his framing post, Mike Madison lists many of the silos we see within legal education these days.  But I want to go a step farther and suggest that the entirety of legal education has been its own silo—an ivory tower, if we want to make the silo fancy.  By keeping legal education for a precious few, and refusing to adapt like, say, the medical industry has, to a variety of roles for different types of legal professionals, we have become stuck in that tower, and the world has started to work around us.

It is a deep irony that while law schools have been isolated from higher education generally either de jure or de facto, law is inherently interdisciplinary.  There are legal issues, consequences, and problems, associated with every area of study.  Yet, a student earning a 4-year university degree may be required to take classes in language, writing, sciences, and math, but may never have any exposure to the legal frameworks and principles within which she lives her life every day.  It is time that law schools recognize that legal education for the people does not threaten the JD—rather, it places it front and center of a series of concentric circles emanating outward.  As leaders in legal education, we must recognize the widespread need for that education.  We must work to offer it to markets both broad and deep.  Legal education is critical for the functioning of civil society, and we must embrace that, or we all lose.  Rapunzel, Rapunzel, let down your hair.

Megan Carpenter (New Hampshire)

Posted by Dan Rodriguez on March 8, 2018 at 12:09 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 10

Growing The Scope Of What We Do

I am grateful for the opportunity to be part of this important conversation.  I especially appreciate the framing - initiating a dialogue as a predicate step for future developments in legal education.  In all our busy lives, I believe we are intensely interested and motivated to work hard on behalf of our students and the profession. But it is useful to force ourselves on occasion to break out of the necessary day-to-day effort on immediate outcomes and pause for a moment to set guideposts for the industry’s future.

What questions do we need to think about in assessing the “futures” of the legal profession?  To open, a few:

Is the profession changing? 

Sure – it has changed before, and will always change.  The harder question is if there are trends that demand particular attention.  Here, I think the answer is clearly yes.

By even casual observation, it is clear that technology is beginning to set its grapple hooks into the business of law.  When I was a baby lawyer, I cut my teeth on discovery, often reviewing lots of documents in windowless rooms.  Now electronic discovery is now being handled in part by machine learning algorithms, which do a much better and more cost-effective job than I ever did.   JP Morgan, for example, has developed a machine learning system called COIN (Contract Intelligence), that purports to reduce to a matter of seconds work that would have taken lawyers 360,000 hours to complete.  A teenager in London created a chatbot lawyer that effortlessly overturned 160,000 parking tickets in New York and London, saving pleaders more than $4 million in fines.  LegalZoom has incorporated more than 1 million businesses through a simple online form, work that used to be the first introduction of a company to an attorney.

Similarly, as other contributors have noted, we have an access to justice crisis in this country.  People who desperately need lawyers cannot afford them.  Three quarters of those who go into state courts do so unrepresented.  Here in California, there is 1 legal aid lawyer for approximately every 20,000 eligible poor people.  People who do not have lawyers will have worse outcomes, and this undermines the legitimacy of our most prized possession, the rule of law.

Does legal education need to adapt?

Also, I believe, an easy “yes.”  We have adapted in the past, and stand poised for even greater innovation. 

An important first step is taking stock of our core values.  American legal education has excelled by teaching a mode of analysis and dispute resolution that works in the world, and I do not see that core mission becoming irrelevant in my professional lifetime.  Law schools deliver some tools and skills that are and will remain essential in any future still bound by law and legal norms, and it is dangerous to neglect that core.  But we ignore the trends above, and others other participants have framed, at our peril.  And although innovation will be non-linear and responses will be varied, I want to suggest a unifying theme:

We must enlarge the scope of what we do to become relevant to a broader universe of people in a complex world and changing profession.

This does not mean enlarging JD enrollments – indeed most law schools (including mine) have gone in the opposite direction.  But we have to do more, both within the JD program and outside of it. 

Inside the JD program, we need to train lawyers that have competencies to participate in and even guide the technological developments of the future.  As we know our students will have many jobs over the course of their careers (including some that do not exist yet), we need to invest in treating law school as an exercise in fostering life-long learning.  And a careful examination of access to justice needs to be an essential part of any JD curriculum – we must not only teach, but take advantage of the crucial aspect of professional formation to inspire our students to serve the most vulnerable over the course of their careers.  To accomplish these goals, we need more advanced partnerships – with employers of the future, with non-profit and governmental entities seeking to create a more just world.  We cannot meet these challenges inside our walls.

Outside the JD program, the challenges are even more visible but the opportunities more exciting.  Many schools have already broadened their relevance by taking what we do best as legal educators to new audiences, evidenced in the growth of master’s degrees and LLM programs (conceding that motivation for these have been declining JD enrollments and need to new revenue sources outside the JD program).  But more can and must be done.  Perhaps one day law schools will not be viewed merely as an institution granting JDs after 3 years of study, but rather as an essential core curriculum for professionals in any discipline.  And as more professionals interact with the legal system, we can make people better clients and consumers of legal services.  We will have to grapple with what advantages and capabilities we have in a world of unbundled legal services and where more and more people seek knowledge outside of the world of the traditional university.

I will expand on these themes, and discuss in more depth specific innovations, in future posts.

Michael Waterstone (Loyola - Los Angeles)

Posted by Dan Rodriguez on March 8, 2018 at 10:21 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 9

Let a Thousand (or at least a Hundred or More) Flowers Bloom!

This virtual symposium – and a great deal of writing about legal education – offers readers a lot of really good ideas about innovations in legal education, or extensions of nascent programs already in place somewhere. Indeed, maybe too many in one quite specific sense: It is unimaginable that any single law school will – or would be able to – adopt all or even more than a handful of the ideas.

That’s not a counsel of despair, though. Rather, it’s an argument in favor of institutional pluralism in legal education – an argument that conveniently dovetails with the observation that institutional pluralism exists and isn’t going to go away.

Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (“the provost”) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni “politics” – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss “legal education” tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.

An optimistic social Darwinist or free-marketeer would say (hope?) that all will work out fine in the end. The ideas that turn out to work well will spread and those that don’t work will drop out of the competition. I’m not in either of those camps, in part because I think that the “environmental” conditions for legal education change too rapidly for evolutionary adaptation – a not terribly nimble process – to work well. Rather, we’re going to see repeated episodes of innovation, change, success and failure – not even cycles but simply episodes.

And, again, that’s either all to the good or a matter of indifference. All to the good because there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).[1] Or a matter of indifference because in an institutionally pluralist world, lots of people (law students, faculty members, those in the general society) will be able to get a lot of what they value from legal education even if no one gets everything she wants from any specific law school.

Mark Tushnet (Harvard)

[1] In an attempt to preempt some kinds of criticism (of the Association of American Law Schools among others), I note that the words “all” and “indistinguishable” carry a lot of weight in my formulation.

Posted by Dan Rodriguez on March 8, 2018 at 09:42 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 07, 2018

Legal Ed's Futures: No. 8

Legal Education for a Changing Society


I am grateful to Dan Rodriguez for organizing and Mike Madison for inspiring this virtual symposium and including me. The very choice to make this symposium virtual embodies the important issue we will be reflecting on this month—how should legal education and scholarship evolve synergistically with our changing society?

As a first-year dean at a young law school within a public, land-grant Research 1 university (Penn State Law in University Park, PA), I am excited to have a chance to dialogue with this group of thought leaders and other thought leaders who join the conversation about the answers to this question.  I chose to become a dean because I hope to help us make progress on legal education for a changing society at my institution and beyond.

We are at a moment of profound social change in which technology, globalization and the need for cross-cutting knowledge are transforming the practice of law and the nature of legal services and information. It is crucial for law schools to acknowledge that change, and not simply respond, but lead in the face of it. Drawing from the themes of Mike’s posts and those so far, my first post will highlight four issues I would like to explore in more depth (among others) over the course of our conversation.

  • Transforming Legal Job Markets

I often say that as professional schools, law schools have an ethical obligation to prepare our students for their licensing exam and to help them launch fulfilling careers. But as Mike and others have detailed, career paths are rapidly evolving. Law firm jobs have not fully recovered post-recession and public interest jobs have remained a stable percentage. But “JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.  While some of these jobs may not be positive pathways to fulfilling careers, others are and the preparation for them may look different than for traditional legal practice jobs.

Beyond the curricular implications of this transition that I hope we will discuss over the course of this symposium, I think it also needs to guide an evolving approach to career services.  At Penn State Law, we are examining how we can work more effectively in an individualized way with students to help support multiple kinds of career paths in a wide range of locations. An important piece of that is our initiative to provide comprehensive mentoring that begins at admissions.  I think that mentoring plays a critical role in supporting our students in a changing society.

  • Technology

The pace of technological change and its implications for law are staggering. I knew that before I started as a dean, but my conversations with practitioners and corporate leaders these last few months have reinforced that the pace of change is even faster than I had imagined. Artificial intelligence and machine learning, immersive technology, 3-D printing, blockchain, and technologies I am not even envisioning yet are both transforming legal practice and raising important legal issues that existing frameworks are not prepared to address. Online education and distance learning technology can play important roles in allowing us to innovate pedagogically and in how we support access to justice.

I look forward to learning from all of you about cutting-edge efforts in the legal-tech space. At Penn State Law, we have a major technology initiative that includes creating modular online courses for nonlawyers (with a shout-out to symposium participant Michele Pistone for inspiring this idea); exploring innovative uses of our advanced distance learning technology (externships everywhere, virtual conference, new partnerships); and launching a Legal-Tech Virtual Lab.

  • Interdisciplinary Partnerships

Law schools’ place in their universities (for those that aren’t stand-alone) has long been complex. A dichotomy has often been posed between practical education preparing students for a licensed profession and interdisciplinary scholarship and collaboration. However, in my view, building bridges between law and other disciplines is crucial to preparing our students for fulfilling careers and solving the world’s important problems. My conversations with practitioners and business leaders have only reinforced my sense that our next generation needs cross-cutting knowledge to lead, particularly at the interface of law with STEM.

 I am interested in perspectives on how this can be done well. At Penn State Law, one of our great assets is being on Penn State’s University Park campus and having the chance to collaborate across our colleges and campuses. These partnerships are crucial to the Legal-Tech Virtual Lab, major new centers we are launching in energy and security, our innovative approach to experiential education, and our collaborations in health, entrepreneurship, and engineering (just to name a few). I anticipate these partnerships not only producing cutting-edge research, but also practically preparing Penn State students to lead.

  • Leadership

I agree with Mike for the need for bottom-up efforts and believe deeply in collaborative governance. But I also want to reinforce that leadership matters and that we need talented innovators to lean in and lead. I was a reluctant dean candidate not simply because I needed to be convinced that I could contribute as much in this role—I also had decided I was not qualified.

I worry that many potential leaders, particularly women and people of color, opt themselves out for this reason. I have been going around the country sharing my story and encouraging people who are interested in leadership, but worry they are unqualified, to talk confidentially with me. I have been simultaneously heartened and concerned by the strength of the response—excited to talk with these potential new leaders and worried about how many talented leaders we lose. 

I reiterate an open invitation here to anyone (including those who are very junior) who thinks he or she might be interested in being a dean to reach out to me, hmo8@psu.edu.  I am happy to dialogue with you about your ideas and your concerns, and about how to gain the experiences that help prepare you for this role.

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 7, 2018 at 03:31 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 7

A Fine Mess

With all the necessary thanks to the editors of Prawfsblawg and to Dan R and Mike M for organizing this symposium on the future of legal education, let me begin by making two obvious observations:

  1. The way that law schools are structured is a path-dependent accident; and
  2. The future of the legal services market doesn’t look like the past of the legal profession.

These two aspects are self-evident, and my colleagues in this virtual symposium will, no doubt, pull these ideas apart better than me. But I wanted to state them at the beginning of my posts in this symposium, because they are the twin suns by which I am going to navigate —my North and South Stars, if you will. Indeed, they are the two fixed points that have defined my current job.

I’m the foundation dean of a new law school, on the other side of the world. In a period when US law schools are closing, it might seem that I don’t have much to say about the future of US legal education. But the structural problems that the US system “enjoys” are the same ones that we enjoy here in Australia. (And I spent thirteen years working in the States, at Wharton and New York Law School, so I know the US system really well.) And I am more aware of these problems than most: When I agreed to start a new law school four years ago, there were already seven other law schools in Melbourne and there was a huge oversupply of law graduates. According to some commentators, as many law students graduate each year in Australia as there are practising lawyers. So, when I took on the job of foundation dean, literally no-one said “ah, just what we need, another law school.”

But this is a blessing, and not a curse. It’s great being a late entrant to a market (the runt of the litter, as I sometimes describe us): You have to work harder to get enough to eat, and literally no-one will cut you a break. This concentrates the mind wonderfully.

My background is computer science and artificial intelligence, and my university is one that has “Of Technology” in its formal title. (We’re like MIT and Caltech, just without any of the money or prestige or Nobel laureates.) Thus, the plan when we started the law school was to have technology and intellectual property in the core of our degree. I started with the idea that every one of my students would want to be like me, moving back-and-forth across the boundary between technology and law, for the course of their careers.  Surely, this is what a new, vibrant, technology-focused law school really needs to provide to its students?

Well, no.

The thing of it is that students come to law school for a range of reasons—and exactly none of them is because they were fantastic at math or computers at school or college, and so decided that the perfect use of their STEMM talents was to become a lawyer. I quickly discovered that most of my students didn’t want to study technology, few of them had much of an idea about legal practice management systems or predictive coding, and none of them saw themselves as primarily technologists.

At the same time, I was spending a lot of time talking to the legal profession and the judiciary and various other players in the law-space, in an effort to introduce them to my new school, and also to get an idea of how various legal actors saw technology, and what knowledge, skills and dispositions they wanted my graduates to have. I discovered that tech doesn’t have much of a foothold in the profession, and the real motivating force is change. Or, more specifically, fear of change. They see a range of “innovations” on the horizon, and they have no way of responding meaningfully to these changes. The legal profession doesn’t actually innovate, not the way that Silicon Valley and Shenzen and Tel Aviv do. There we see endless streams of 26 year olds, backed by VC or PE money, anxious to move fast and break things—things like the legal system. In law, we don’t see this so much. I often show two slides in my presentations about legal innovation. The first slide shows a depiction of a 17th C hospital, contrasted with a 21st C hospital. They are unrecognizably different. The next slide shows a picture of a 17th C court and a 21st C court. The main difference here is that the 21st C court doesn’t feature as many horsehair wigs.

Everyone I spoke with in the initial few years agreed that the legal profession is going to change. The most foresighted commentators recognized that the provision of legal services in the future will not be confined to lawyers from an anachronistic legal profession—instead, practising law will include new approaches and new entities, from technology companies delivering document generation systems and artificially-intelligent legal support systems, to multi-disciplinary practices providing a combination of professional services that defy 19th century conventions. Offshoring firms will be widespread, delivering technologically-mediated legal solutions across the globe, using the cheapest-and-best legal operators. Large companies will adopt a managed-service approach for their legal needs, an approach that doesn’t necessarily involve the law firm, or even lawyers.

Against this reality, law schools still look like something out of the early-20th century. They teach an old-fashioned curriculum in an old-fashioned way. They are extremely conservative, focusing on the transmission of legal content modelled on established law schools from the 19th or early 20th centuries, in order to appear “rigorous” and “professional.” Apart from some worthy experiments undertaken by motivated individual academics, the most significant innovations within law schools in the last twenty years are: (1) a greater commitment to skills; and (2) some limited use of online teaching. (Although, of course, US schools are waaaaaaaay behind on this front. Thanks, ABA.) As for involving technology in the curriculum, schools rarely commit resources to this arena, preferring instead to engage in a kind of innovation cabaret, creating media-friendly events like two day “legal hackathons,” or offering vendor-sponsored coding electives that provide no long-term value to law students.

So, this is the reality we face, or specifically what I face as the dean of a new school. This reality will form the background to what I want to talk about in subsequent posts. I want to focus on the obvious challenges that confront legal education globally, and discuss how we have approached these challenges/opportunities at my law school. I’ll focus on the two observations I opened this post with, and will chat about three main challenges to the legal profession and the law schools that serve it:

  1. The development of legal technology (and, in time, artificial intelligence systems) that supplant the special skills of legal graduates;
  2. The likelihood of systemic casualization of the legal profession, along with the increased cost of delivery of legal education; and
  3. The rise of transnational lawyering, where low-cost providers of legal services will be able to market directly into traditionally-protected high-cost and high-value jurisdictions.

Along the way, I plan on discussing how artificial intelligence actually works (and, as a result, which parts of the profession are going to die), why “programming for lawyers” electives aren’t a good answer to the question “what is to be done?”, and I’ll make some modest proposals about how US law schools can reduce the cost of delivery of legal educations. Maybe to zero…

Thanks for having me along for the ride.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 7, 2018 at 09:51 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 6

As Michael “imagin[es] the future” of legal education, he does a great job imaging varying paths that the future might take.  I want to suggest that, in every case Michael presents, the most likely future path is the most pessimistic one. 

Law school culture is very strong.  As Michael notes, we basically still reside in the institution created by Langdell a century and a half ago.  That kind of institutional stability only happens when a strong institutional culture exists.  Now, as Michael also (correctly) notes, we live in a time when the necessity for change is “urgent.”  Who are the people who are going to act urgently to bring about this change?  Could it be the very same people who are the products of a strong culture of conformity and statis?  The possibility is extremely remote, and we would recognize it as such in almost any other context. 

In my view, law schools are unlikely to be up to the challenge of effecting necessary change absent a deliberate choice to hire people who provide some strong indication that they both disagree with mayor aspects of law school culture and appear willing to do something about it.  As they say in Washington, D.C. “personnel is policy.” I concede that my remedy is an unnatural one, for organizational cultures exist in order to replicate themselves.  The prevailing law school culture today highly favors the same qualifications it did twenty years ago, and thirty years ago, and forty years ago, and on and on (law review membership, prestigious clerkship, highly ranked law school and high class rank).  But persons with these qualifications are the very people who are most likely to find comfort in the existing system – after all, the existing system was made by and for people just like them.  Go ahead and hire Supreme Court clerks if you like, but only those willing to be, so to speak, “traitors to their class.”  Otherwise, find some less credentialed “rebels” instead.  If we really believe change is urgent, we have no other choice.  Only “traitors” and “rebels” will provide the ideas and energy needed to act urgently to overcome the inertia of the prevailing law school culture

Michele Pistone (Villanova)

Posted by Dan Rodriguez on March 7, 2018 at 08:57 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 06, 2018

Legal Ed's Futures: No. 5

There are many promising ideas and invitations in Professor Madison’s recent postings about law’s future(s).  While continuing to appreciate the many and varied contributions that U.S. law schools make to law and justice, I share Professor Madison’s view that there is more we can do to better serve society.  Changes in the legal profession and broader challenges to law’s role in society are indeed upon us; the question is not so much whether those will continue but whether legal educators will participate as well as we might in steering toward positive directions.

To do so, we will need to embrace a refreshing aspect of the conversation Professor Madison has opened:  recognizing the complexity of the task of meaningful “constitutional” reform.  Many current reform efforts and conversations have failed to confront this complexity and, as a result, have been and are unlikely to be up to the task.  For instance, neither alone nor together are changes (or proposed changes) such as the following likely to accomplish much to celebrate:  e.g.,

  • teaching law students coding skills;
  • adding a few more required “skills” credits;
  • adding a new Leg/Reg (or any other single) required course;
  • recruiting more STEM students;
  • using a different or no admission test;
  • reducing ABA accreditation to narrow outcome measures such as bar pass rates;
  • or changing the credit allocation in first-year courses (again!).

To address wide justice gaps, keep up with technological innovations, and account for an increasingly global marketplace for all products and services, including law, changes will indeed need to be more constitutional in nature.  That does not mean that there are not strong aspects of our current system that should be retained.  But while we may all agree that we don’t want to toss the proverbial baby with the bathwater, we may not agree on which is which.  Complexity can be, well, frustratingly complex.  With that in view, we must start somewhere, so in the spirit of beginnings, I offer the following initial ideas (in briefest outline) for reform that might move us more toward the nature of change Professor Madison contemplates:

  1. Reframe legal education’s focus from educating lawyers to teaching law more broadly. This would de-center the JD focus in favor of a wider suite of degree and credential offerings along the entire educational spectrum and would also better accommodate the many students who use their legal education to advance careers outside of law practice.
  2. Refocus state bar organizations on professional development and move licensing to the national level; permit licensing of a wider range of legal services providers; require licensing processes to meet best practices in the assessment industry.
  3. Restructure university school/college organization to unite fields that would benefit intellectually from closer association, to provide more diverse revenue bases to support overall quality, and to better build the pipeline of talent for those fields (e.g., law, public policy/affairs, government/governance, economics, political science, criminal justice, international relations/affairs).
  4. Focus on fundamental skills and competencies required for success in these fields that will stand the test of continued advances in machine learning (e.g., critical and creative thinking, complex problem solving, compassion, resilience, teamwork) and align admission requirements, program expectations, and licensing standards with assessment of and learning in those skills and competencies.
  5. Encourage formation of the legal equivalent of “teaching hospitals” at major universities to recognize that legal services are likewise critical to the health of people and society.
  6. Redesign the role of law faculty so that duties include serving clients (defined broadly), educating students, and improving law through scholarship and research.
  7. Refocus government and foundation funding of academic research to include law and justice on equal footing with scientific and medical research.
  8. Redesign an accrediting system so that instead of one category of “ABA-Approved” there are multiple designations that convey meaningful differences in quality and mission to guide the public and institutional design.

These are surely not the only areas that need attention; I’ve confined my list to some most directly related to legal education.  In follow up posts, I’ll address ideas for change that reach outside of legal education to law more generally, including the structure of law practice, judicial appointments, funding for legal services, and legal technology.

Kellye Testy (Law School Admissions Council; University of Washington)

Posted by Dan Rodriguez on March 6, 2018 at 11:06 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 4

How interesting for a symposium, and a virtual one at that, to be christened with calls to action.  But thanks to Mike Madison for encouraging us not just to expound, the usual focal point of symposia, but to act, for we in legal education should be ready for action.  There is much to be done.  I am reminded that here in North Carolina, our largest public university has adopted the mantra of “think and do,” a legacy of one of North Carolina State University’s most illustrious graduates, the former Governor James B. Hunt, Jr., known for his dedication to public education as the great equalizer.

With the guideposts of a call to action and a local educational focus on thinking and doing, I note that we as legal educators have spent much time recently thinking and expounding about our enterprise.  Indeed, the cottage industry that has arisen over the critique of legal education has spawned a robust debate over the focus and value of law school while contributing to a literature that need not be recited or repeated here.  Suffice it to say that the critics and supporters of what we do as legal educators are many and varied, bringing a passion to our work that informs the thinking about what we do, what we should do and how we should do it. 

This conversation of course is not limited to individual administrators, teachers, scholars and popular commentators (and even one President of the United States) but has attracted the attention and resources of the ABA (no fewer than 4 presidential activities devoted to legal education in less than a decade), AALS (at least one major study and public relations campaigns), LSAC (more frequent testing opportunities and greater data sharing), NCBE (participation in debates if not arguments over the causes of bar passage declines), and NALP (surveys to populate major studies on trends in employment).  As we undertake this virtual symposium some 150 years since the basics of our current system of legal education were implemented by Christopher Columbus Langdell, there is no shortage of expounding. 


What there may be, however, is a shortage of action, or at least action resulting in more fundamental change.  While even a quick perusal of viewbooks and websites and the dreaded “lawporn” that descends upon USN&WR voters each fall reveals much discussion of action masquerading as innovation in legal education, it is unclear that we collectively are undertaking little more than what Professor Madison might characterize as silos in action.  Much of that action refers to innovation through a new clinic or a new program that may offer a version of something new but does not really get to the fundamental aspects of teaching and learning and preparing students to practice.  The 1L year looks pretty much like it did when I started law school almost 40 years ago, let alone when my dad started law school almost 70 years ago or my grandfather almost 100 years ago.  Torts, Contracts, Civil Procedure and the rest taught in large sections with some legal writing thrown in remain the constant.  2L offers some opportunity for practical experiences with a few credits for clinical classes or moot court and 3L continues as an amalgam of electives while looking for a job.   

This aversion to serious action addressing the critiques of contemporary legal education that are bandied about is understandable if not lamentable.  For example, the dreaded bar exam, our profession’s barrier to membership, is stuck in the past with testing by and grading of antiquated essays and multiple choice questions rather than modern testing devices assessing capability to serve clients.  And isn’t that ultimately the rub?  Are we preparing lawyers capable of serving clients or are we educating for something else?   

This conundrum reflects the technological advancements of the information age over the past generation whereby legal information now is readily available to the masses, no longer limited to the confines of law libraries.  This trend means that law schools must do more than transfer “the law” from one generation of teachers to another generation of students aspiring to be lawyers.  Our task as legal educators now must be different, teaching use of the law, or what may be characterized as judgment.  Not all agree, of course, and so goes the conundrum, well described by Jerry Organ’s first post in this symposium.

Assuming that at least some of us adopt the perspective that our job as law teachers is changing due to this fundamental generational shift, then a call to action is apt.  But action to what?  Surely this action cannot mean doing more of the same, by just adding that extra clinic or another institute.  Rather our direction must be guided by more fundamental adjustments in our curriculum so that we can affect positively the preparation of our students to be lawyers and not just knowers of “the law.” To accomplish this task, we must act in ways that will accelerate our students’ professional maturation.  We must have them work not like the law students we were bellowing our newly learned rules of law but rather like the lawyers they wish to become. 

At Elon University School of Law, where I have served as dean since 2014, we have undertaken to do just that.  Our guiding principle is to address the prominent critiques of legal education as being too disconnected from the practice of law, too expensive and too long.  So we decided to think and do – we thought about those critiques and then we acted. 

Over the past four years, we have changed our curriculum to accelerate professional development through a logical progression of learning that requires each student first to observe, then to simulate, and finally to complete a full time residency-in-practice in a law office or judge’s chambers for academic credit.  This highly experiential curriculum, fully compliant with ABA standards, is accomplished in two and one half years, allowing us to reduce per student average debt by some 20%.  Having graduated the first class in this new curriculum last December, Elon Law stands in response to Professor Madison’s call to action.  We know we are not alone and are encouraged by efforts of some other law schools to alter traditional ways of preparing lawyers and thereby prove it is possible not just to think but also to do.  

In posts following, I will share the process by which we came to amend our curriculum, how we are assessing it, and what other activities remain to round out Elon Law’s efforts to act – to think and do so that we offer a contemporary path to our students’ preparation for a life at the bar. 

Luke Bierman (Elon)


Posted by Dan Rodriguez on March 6, 2018 at 08:50 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 05, 2018

Legal Ed's Futures: No. 3

Who Do We Serve?

 The structure of our legal profession increasingly benefits elites. Although large companies and wealthy individuals grumble about the cost of legal services, they can afford the very best. Attorneys for these elites are accomplished professionals: highly educated, carefully mentored, and superbly connected (often through their elite academic backgrounds). Businesses, moreover, can complement their legal assistance with armies of non-lawyers performing legal tasks. Contract managers, compliance officers, HR specialists, and other employees do legal work for these companies without the higher salaries demanded by lawyers. These businesses are also in the best position to take advantage of technologies that streamline law-related tasks.

The majority of individuals living within the United States lack these advantages. Too often, they cannot afford to hire any lawyer—even when coping with life-changing circumstances like divorce, child custody, home foreclosure, or deportation. When these individuals receive legal assistance, their lawyers may lack the training, institutional support, and time to offer the first-class legal assistance routinely provided to elites. Most frustrating, individuals cannot purchase legal assistance from non-lawyers who could provide fruitful assistance. Our prohibitions on the unauthorized practice of law primarily harm individuals; companies avoid those restrictions by hiring non-lawyers as employees. Nor do individual clients have access to the technologies that help businesses meet their legal needs efficiently—often because bar associations aggressively attack non-lawyers who try to offer those technologies.

Law schools, sadly, have done little to disrupt this structure. The Rules of Professional Conduct languish in a doctrinal backwater at many schools; most professors lack basic knowledge about the structure of our profession and the rules that govern us. Only a few innovative schools and scholars are seriously exploring new means of delivering high-quality, affordable legal services to individual clients. Even fewer are challenging the assumptions of a profession that jealously guards its exclusive right to practice law—while failing to serve the majority of individuals who need legal services.

As law schools look to the future, we need to ask these very basic questions: Who does the legal profession serve? Who should it serve? How can we design educational paths that graduate professionals capable of offering those services? Is it time to abandon our cherished belief in a general law degree, rather than one that allows focus and specialization? Is it time to recognize that individuals with an appropriate college degree may be capable of offering a wide range of basic legal services to individuals—just as they currently offer law-related services to businesses in their compliance, contract management, and HR roles? What other educational paths would help fill the gap in legal services?

As the price of legal education continues to climb, the percentage of graduates employed in lucrative jobs stagnates, and enthusiasm for law school wanes, I fear that our profession will lapse into ever-greater service to elite clients. We will continue to feel good about high-profile pro bono efforts, but pro se litigants will continue to flood the courthouses while other individuals fail even to seek justice. How can we turn this tide?

Deborah Merritt (Ohio State)

Posted by Dan Rodriguez on March 5, 2018 at 04:39 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Request for Course or Bibliographical Information: "Law and Public Policy"

I am teaching a course in the fall titled “Law and Public Policy.” My rough goal is to give students a basic vocabulary with which to analyze, discuss, and advocate for or against laws and other public policy decisions and issues. Although there is of course great variation among the slowly growing number of Leg-Reg casebooks, part of my motivation was that the Leg-Reg casebook I used last year, although very good on issues like statutory interpretation, was not so good on the political process (roughly two pages in the casebook), or on public policy or regulatory analysis more generally.

My long-term goal is to put together an edited collection—not substantial essays, but an A-Z book of short explanatory descriptions of public policy terms and topics, forming a kind of “Public Policy for Lawyers: A Primer” text, similar to but no doubt less sophisticated than Jon Elster’s book(s) on Nuts and Bolts for the Social Sciences, and similar but more public-law and public-policy-oriented than Ward Farnsworth's The Legal Analyst—that might serve as an inexpensive supplemental text for teachers of Leg-Reg or other public law courses.

With that background (and implicit call for interested contributors to such a primer to reach out and let me know of their interest) in mind, I wonder if any readers can point me toward courses or syllabi at law schools on Law and Public Policy. My brief search found very few, although it found several on specific subjects, such as environmental law and public policy. There were far more “hits” for courses of this sort at schools of government or public administration than at law schools. Similarly, a search on Amazon found very little, and what there was was geared toward MPA students and students in similar programs.

Private emails are welcome, of course, in addition to contributions in the comments.

P.S.: I took “Foundations of the Regulatory State” from Prof. Richard Pierce as a 1L at Columbia, and found it immensely useful for the vocabulary it gave me. Without speaking for him, I gather that Pierce was not crazy about that short-lived curricular experiment. But he should know that at least one former student thought it was very good.  


Posted by Paul Horwitz on March 5, 2018 at 02:44 PM | Permalink | Comments (10)

Legal Ed's Futures: No. 2

The Importance of Focusing on “Being a Lawyer” – Professional Identity Formation in the 21st Century

In Part III of his series, Professor Madison discusses five themes that are the focus of “conversations about the state and future of legal education, and by extension about law and the legal profession as a whole.”  One of those themes is professional identity, a theme I believe is of profound importance but until recently has been underemphasized within legal education.

In the last millennium, when most of us went to law school, the lawyer identity was shaped largely by BOTH the legal profession’s monopoly on knowledge of and understanding of the law AND the legal profession’s monopoly on the provision of legal services.  Being a great lawyer meant one could focus largely on “thinking like a lawyer” because there was no one who could compete with lawyers for providing access to the law and to understanding what the law meant for a specific client in a specific situation.  This understanding of professional identity is the “first apprenticeship” mentioned in Educating LawyersEducating Lawyers highlighted that this was the “dominant” aspect of professional identity within legal education, which placed much more emphasis on “thinking like a lawyer” than “being a lawyer” -- much more emphasis on critical thinking and analysis than on developing a “fiduciary disposition,” and understanding the importance of relationship skills in building the trust relationship essential to provide wise counsel to clients.

As we move past the halfway point of the first-third of the 21st  Century, that first monopoly has disappeared completely as a result of technology and the internet.  Access to the law is now widespread and inexpensive.  Indeed, advances in coding and artificial intelligence are making it easier and easier for lay people not only to “find the law” but to get some idea of how it applies to them and their situation.  A well-structured series of yes/no questions can inform someone if their situation implicates a given statute or regulation.

But clients frequently need to know more than what the law allows or prohibits.  They frequently need to understand which of a range of allowable options makes the most sense given the clients specific interests and concerns.

For lawyers to have distinctive value in an artificial intelligence world, it will no longer be sufficient for law schools to produce graduates adept at “thinking like a lawyer.”  This will be necessary, but not sufficient.  Legal education will increasingly have to help produce graduates who are capable at “being a lawyer” – providing great client service in the interstitial spaces where they help clients explore among a range of legal options.

Lawyers are no longer going to be adding value by helping clients answer whether they “can” do something – whether the law allows them to do something.  Clients will be able to do more and more of this on their own.  Where lawyers are adding value and increasingly will be adding value is by helping clients work through the “should” questions.  Among a range of possible options, which “should” the client select given the client’s legal and non-legal interests and concerns.  “Being a lawyer” involves these type of “wise counsel” situations that require one to “think like a lawyer,” but even moreso require relationship skills – active listening, empathy, responsiveness, effective framing and exploration of alternatives.  These are the skills of “being a lawyer” – of building relationships of trust with clients in which they feel heard and believe their lawyers understand their interests and concerns and are helping them effectively and efficiently make decisions that will best serve their interests and concerns.

While the published learning outcomes of many law schools indicate that there may be a growing interest in many of these relationship competencies, whether law schools will invest in the educational and assessment infrastructure to make sure their graduates develop these relationship competencies remains to be seen. 

Jerry Organ (University of St. Thomas (Minnesota))

Posted by Dan Rodriguez on March 5, 2018 at 12:14 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No.1

The posts for this symposium will be listed in order just by a number, with the author & affiliation at the end of the post

The Real Barriers to Access to Justice

               It’s an honor to comment on Mike Madison’s reflective manifesto on the future of legal education. Mike introduced me to legal blogging 12 years ago, and I have learned so much from him along the way. Few law professors better balance the scholarly detachment and commitment to justice that are the hallmarks of our profession. Mike’s humane invitation to imagine better methods in legal education is inclusive, timely, and well-informed. I hope he’ll forgive me for trying the broaden the conversation beyond his already expansive scope.

               I share Mike’s concerns about the need to adapt the legal profession to changing technology. I have written and taught extensively about the relationship between coders, managers, and lawyers in data-driven areas of finance and law. I teach venerable cases in my health law courses, but also keep up with the alphabet soup of highly technical ATCBs, RACs, and QIOs in the world of big data driven health care. We need to recognize where law schools are trying to meet this new reality, and to build awareness of that work. I agree with Mike that the median law school needs to do more to keep up with technological change—both because of the functional sovereignty of large firms, and the ways that software and data are changing legal practice.

However, I think Mike’s “Invitation” could benefit from a bit more realpolitik. In this document, the legal profession itself stars as the key barrier to access to justice: it is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted, to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

Moreover, even on the criminal side, we cannot begin to have a serious discussion about access to justice as a supply-side issue, without acknowledging the role of the powerful in society in reducing effective demand for these legal services. We could abolish licensure tomorrow, and let every person hang out a shingle—but there won’t be a proper level of work for, say, attorneys defending the wrongly accused (or excessively punished) if punitive neoliberalism simultaneously expands the criminal justice apparatus while cutting funding to defense attorneys (or capturing the resources of the accused via civil forfeiture). We will never have an optimal supply of lawyers promoting workplace rights, if the effective penalties for violating the law are negligible, or if litigation is too chancy and slow to guarantee some reasonable return for one’s efforts over time.

So I’d propose that we think more about the real barriers to access to justice. To be sure, many law schools could do more clinical work to help the poor in their community—but let’s always remember what happened to Tulane when they offended Louisiana polyvinyl chloride barons. Legal scholars can do more to identify structural injustice—but let’s also remember the BigLaw fixers who stand at the ready to deflect even minimalist reforms.

We can’t formulate solutions together if we don’t grasp a common set of problems. We can’t imagine a better future without an honest accounting of the present. But once we do, I think we can develop some visions for better legal practice that will respond to some of the key concerns raised by Mike—as I plan to do in a later post on AI & law.

* In academic work, I have challenged each of these characterizations, observing the ways in which parts of the profession have promoted troubling technology, ignored the real value of licensure, and embraced disastrously algorithmic forms of regulation. I realize that there are other examples that vindicate Mike’s telling, and they could outweigh mine. I just want to mark this disagreement on emphasis.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 5, 2018 at 08:07 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)