Friday, June 23, 2017

The exodus of high-band LSAT students

This is an extraordinary graph.

It describes the big decline in applicants in the high band of LSAT scores.  Of course, these are the students who would be admitted to top law schools and/or strong performing law schools with significant merit scholarships.  In short, the most sought after students are saying "no thanks" to law school.  

This is one of the two big, and often neglected, stories in contemporary law student enrollment & recruitment.  (The other is the spiraling discount rate resulting from the increasing arms race among reasonably well-resourced law schools for a smaller pool of students).

The AALS has embarked on an ambitious "before the JD" study to explore how college students and graduates are thinking about law school and the prospects for success (on many relevant measures) in the profession.  Presumably other investigations, some empirical, some more speculative, are underway.  Without claiming that the high band exodus is more important to consider than other phenomena at work in applicant and enrollment patterns, it is an interesting question nonetheless.  How do students who would, ceteris paribus, come to law school with less debt and/or more professional choice still move away from law school toward other options, educationally, professionally, or otherwise?  It his a story about obstinate law schools? About the success of greater transparency or, if you want to see it this way, anti-law school invective?  Or about the state of the legal profession?  

These are questions which obviously loom large for those leading and working in law schools.  Yet they are also relevant if and insofar as one believes that a robust legal profession and a continuing commitment to the rule of law and access to justice depends upon very accomplished college graduates seriously considering legal education.  Even if one is highly critical of students choosing law school, we should better understand why students do or do not make this choice.  Plenty of folks have a dog in this fight and so we need not feign pure objectivity.  But we can agree that data and empirical analysis is warranted and timely so ask to illuminate these important issues.

Posted by Dan Rodriguez on June 23, 2017 at 10:05 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

Tuesday, June 20, 2017

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations.  The caution has stemmed, broadly speaking, from two concerns:   First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative.  The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning.  It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization.  Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.  

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases.  We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence.  True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history.  Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end.  We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination.  But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics?  Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

We will be watching closely for sure! 

 

 

Posted by Dan Rodriguez on June 20, 2017 at 11:22 AM in 2016-17 End of Term, Constitutional thoughts, Daniel Rodriguez | Permalink | Comments (8)

Monday, June 19, 2017

ABA accreditation regs: proposed adjunct rule rollback

The Council on Legal Education has out for public comment a significant proposed change to its regulation on the amount of teaching non-full-time faculty a law school can do.  Under current rules, there is a significant cap -- no more than one-third of all student contact hours (credits) -- on teaching by adjuncts.  This rule has been a longstanding thorn in the side of law schools which might otherwise increase the number of lawyers, judges, and other qualified professionals teaching their law students.

This regulatory rollback is an idea whose time has come.  The rollback would be a meaningful improvement in legal education.  This is so in three ways:

First, this revision is another step in what has been a salutary, and frankly rather unexpected, shift in focus on the part of the Council from input measures to a focus on outcomes.  The empirical basis for the idea that student learning is improved by a heavy-handed cap on the number of courses taught by part-time teachers is thin -- indeed, I am not aware of any law school-specific study that tests the claim that full-time residential faculty are superior to adjuncts upon criteria that matter to student learning and professional training.  By looking at outcomes (as does the other proposal before the Council this round, that dealing with bar passage), the ABA is looking at the right question -- what is the connection between teaching staff and educational outcomes?  To be sure, a career as a full-time residential faculty on the tenure track has given me confidence (perhaps, candidly, a bias) that students benefit from close quarters mentoring by legal educators who have made a professional investment in learning and improving our craft.  Moreover, I would expect that many, if not most, law schools would continue after this revision to staff their faculty with residential faculty (whether or not on the tenure-track) in order to create a learning community and to engage in serious legal scholarship with individuals who have the skills, inclination, incentives, and time to do exactly that.  However, law schools who look to the bench and bar to provide valuable courses, especially but not limited to experiential learning/skills-based education should be given that latitude. This is what a growing number of students say they want; this is what the profession is demanding.

Second, the issue of law school cost looms large.  Creating the space in which law schools can make economically sensible choices by allocating teaching credits to adjuncts whose professional circumstances allow them to teach for very little is a move in the direction of reducing the fixed costs of law schools and thereby passing the benefit onto students.  Notice that this rollback does not implicate the separate and difficult question of whether and to what extent law schools should hive off tenure-line faculty, replacing them with full-time residential faculty who come cheaper.  The capacious definition of full time residential faculty in 403 makes this issue orthogonal to the question of adjunct teaching; in other words, you can satisfy the existing 403 with tenure-track or non-tenure-track faculty.  But what an expansion of the adjunct curricular space does is to give law schools room to make an economic decision which is significant and potentially beneficial to students whose financial predicament is severe.  Once again, the shift from inputs to outputs portends a meaningful shift in the direction of law school efficiency.  Whether and to what extent this efficiency is purchased at the price of sound pedagogy is ultimately a question for the marketplace, that is, for the law schools who consider carefully this tradeoff.  

Finally, there are good reasons to believe that removing the mechanical shackles on adjunct teaching will encourage innovation.  In a world in which traditional lawyering bumps up against the dynamic shift toward more synergistic, de-siloid professional training, and in which lawyers will need and want to work at the intersection of law, business, and technology, it could make sense for an innovative law school to decide that professionals deeply embedded in this brave new world might have much to offer for their law students.  We should note the fine print in the 403 rollback:  The foundational first-year courses remain subject to the rule that full-time faculty provide the bulk of the instruction, this acknowledging (sensibly, in my view) that the curricular core should be taught by faculty members who are immersed in the serious study of law as a coherent discipline and will invest themselves in students' foundational learning.  What relaxing the adjunct rule does is to create potentially exciting opportunities for law schools to benefit in the second and (especially) the third year.  New courses in, say, law & technology, business planning, entrepreneurship, law firm organization, applied legal ethics, judicial decisionamking, etc.,  would likely profit from an experienced cadre of practicing lawyers, judges, and even folks outside the law altogether.  At the very least, wouldn't we want to see this as a natural experiment?

The ABA Council has heeded the call toward more innovation and, likewise, for revisiting command-and-control regulation.  This call should be applauded, here in the context of 403's adjunct rule rollback.

Posted by Dan Rodriguez on June 19, 2017 at 10:18 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (25)

Tuesday, June 06, 2017

Master of Science in Law

On the Faculty Lounge is a report of a new Master of Science of Law initiative at the University of Maryland.  Pleased to see this.  At Northwestern Pritzker School of Law, we are beginning the fourth year of our MSL program for STEM professionals.  There have been various news items on this unique program during its short life span. Check out this podcast for a good overview.  Here is the MSL 360 blog.  And here is a Chronicle of Higher Education article which puts this and related initiatives into a broader context.

At fall enrollment, we will have had over 200 students in this program, on a full-time and part-time platform.  The students come from a variety of professional and educational backgrounds -- bench scientists, technology managers, post-docs in various fields, including biotech, engineering, nanotechnology, etc., and pre-med students.  Many are international.  They are racially and ethnically diverse, more so than our JD class. Graduates of this program have gone into terrificly interesting careers, in law firms, high-tech companies, big corporations (including interesting jobs in the sharing economy), health care organizations, consulting firms, etc.  A handful have pursued additional education, in Medical School, Business School, and Law School.

Paul Horwitz in his comment to the Maryland post inquires rightly into the purpose of these programs, adding a bit of skepticism, which is fair, given the emerging multiple mission of law schools in the difficult environment.  I will say on behalf of our program, this:

We view our MSL as grounded in a vision of professional work in which the traditional silos among law, business, and technology are eroding, and in which T-shaped professionals can and do work constructively with multidisciplinary skills.  Our MSL courses (and there nearly 50) are open only to students in this program; so we are not using excess capacity in law courses for these students.  The faculty for this program includes full-time law faculty, teachers from other departments at Northwestern, including Kellogg, our school of engineering, and elsewhere, and expert adjunct faculty.  There is ample student services and career services support.  

What is remarkable about this program for the Law School generally is that these MSL students are well integrated into the life and community of the student body.  JD students benefit from the presence of these STEM trained students; and the MSL students benefit from working with and around JD students.  They participate in journals, student organizations, and myriad intra and extra curricular activities.  We have experimented with a few courses, including an Innovation Lab, which brings MSL students together with JD and LLM students.  This facilitates the kind of collaboration which they will find in their working lives.

The future of legal education? I won't hazard such a bold prediction.  But I am confident in predicting that you will see more programs like ours -- the first of its kind, but far from the last. Other programs will fashion initiatives that are unique and appropriate to their mission and strategies.  This new model of multidisciplinary professional education is built on sound educational and professional strategies.  It is feasible, financially viable, and responsive to the marketplace.  Isn't that what we want and expect out of legal education in this new world?  Whether and to what extent one or another law school looks to an MSL simply to raise revenue -- as Paul hints in his post -- is a fair question to investigate.  But I can say about our program that its principal purpose is to deliver education to a cohort of STEM trained students who are entering a world in which law, business, and technology intersects and interfaces. I suspect Maryland's program, and others in the planning stages, have a quite similar orientation and mission.   

 

Posted by Dan Rodriguez on June 6, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools, Science | Permalink | Comments (13)

Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!

INAUGURAL JUNIOR FACULTY FORUM FOR LAW AND STEM

University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers

 

 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • Artificial intelligence
  • Assisted reproduction
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Epigenetics
  • Genomics: Human and Non-Human
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Smart contracting and automated analysis of legal texts
  • Stem cell research
  • Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at ctic@law.upenn.edu

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Dan Rodriguez on May 1, 2017 at 05:48 PM in Daniel Rodriguez, Information and Technology, Symposium | Permalink | Comments (0)

Tuesday, April 25, 2017

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing.  Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer.  So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines.  Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch.  Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups.  I, too, worry about that.  On a professional level.  On a personal level.  From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action.  But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands.  Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one.  And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction.  And we should both note it and applaud it.  For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity.  This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity.  I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance.  Both law schools maintain that this broadening criteria for admission will help with access.  Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large.  The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.  

But not to meander to far from the point:  The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development.  I joined a letter  from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support.  That is not inconsistent with the position in favor of more accountability.  And, indeed, the revised standard on the table is to me clearly better than the status quo.

 The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability.  Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Posted by Dan Rodriguez on April 25, 2017 at 01:42 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (13)

Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role.  I am not an alumnus, nor am I affiliated in any way with the university.  Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment?  Whittier's sudden closing is obviously a tough thing for current students and faculty.  Perhaps the decision will be unraveled in the face of public pressure or via littigation.  Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle.  Perhaps bloggers should neither aid nor abet these efforts.

The hubris of the unknowing. 

 

Posted by Dan Rodriguez on April 23, 2017 at 03:06 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (51)

Wednesday, April 19, 2017

In honor of national haiku poetry day

Problems to be solved                 

New legal education

Windows not boxes

 

Law's creeping mission

Turning lawyers inside out

Changing the frameworks

 

ABA evolves

Must meet our changing landscape

Modern modes prevail

 

Knowledge so diverse

Integrating disciplines

Law as just one part

 

Injustice matters

Demanding change in our time

Teaching law for real

 

Scholars in situ

Researchers ever searching

New wisdom at hand

 

 

 

 

Posted by Dan Rodriguez on April 19, 2017 at 11:26 AM in Daniel Rodriguez | Permalink | Comments (11)