Wednesday, September 05, 2018

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

Posted by Oren Perez on September 5, 2018 at 01:35 AM in Article Spotlight, Information and Technology, Life of Law Schools | Permalink | Comments (15)

Monday, September 03, 2018

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (6)

Wednesday, August 29, 2018

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t.  And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class.  I’m not in a position to assess the methodology or limitations of that study.  But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools.  According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument.  The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money.  So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15?  Or 35?  Or 42?

I’ll admit that I feel somewhat defensive about this topic.  But I want to be very clear about *why* I feel defensive.  I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich.  (And there is a best-selling book out there right now that seems to say it is.)  And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume.  The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school.  And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind  of crappy.  As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money.  They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree.  And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article.  The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class.  And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success.  I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves.  For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know.  And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have.  There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky.  And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring.  There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30.  But it’s not entirely clear why it is easier.  If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed.  But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem.  Is it because Harvard and Yale have better networks for their grads?  Is it because they do a better job teaching their students about academic writing?  Or is it some form of discrimination?  It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made.  In fact, I think it can.  And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion.  We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about.  But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class.  It simply isn’t true.  And it prevents us from having a better discussion about the issue.

Posted by Carissa Byrne Hessick on August 29, 2018 at 10:14 AM in Carissa Byrne Hessick, Life of Law Schools, Teaching Law | Permalink | Comments (41)

Sunday, August 26, 2018

A Guide for the Perplexed - Law Professor Careers Edition

220px-Guide_for_the_Perplexed_by_MaimonidesWith sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On.  I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.  

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made.  (Disclaimer:  what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.)  So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

  • Why are you writing?  Presumably it's because you like doing it and see it as a way of making a difference in the world.  But from a career advancement standpoint, you do it for one of three reasons:  to get hired, to get tenure, or to move laterally.  What I'm about to say is based on intuitions about data because the data is not readily available.  The first and the last of those career objectives are difficult; the middle one, at all but a handful of institutions, is relatively easy.  My suspicion is that the lateral market is far less important as a factor in career advancement than it might otherwise seem - again the availability heuristic at work.  The AALS reports that there are over 10,000 full-time tenured or tenure-track law professors (makes sense - about 200 schools at an average of 50 faculty members).  Maybe there are 100 lateral moves a year?  A very well-known senior law professor/scholar told me years ago not to expect to move laterally - this person had spent 17 years at a lower top 100 school before making a series of significant jumps up the food chain.  My intuition (which I could test if I didn't think it was undue navel-gazing) is that the farther you go down the rankings, the higher the percentage of faculty that have spent their entire career at the school.
  • CVs provide a gestalt.  My own experience is that I take it in as a whole and don't react to any particular item unless there is something truly exceptional about it.  For my money, the angst and mental energy I see reflected on this blog with respect to article placement is barely worth the effort.  The names of law reviews in which you've published are visceral heuristics that, in my experience, matter only when one is flipping through hundreds of FAR submissions.  Even then, it matters only to an extent and not at the level of granularity that people seem to think makes a difference.  Per the lumping of peer reputation scores I've highlighted before, if you've published in the elites it would cause me to notice, and it would probably cause me to notice if you published nowhere but specialty journals in the unranked USNWR category of law schools, but little else matters viscerally.  I don't keep a US News or Washington & Lee ranking in my head, and couldn't tell you where Tulane ranks in relation to Colorado to Temple.  And even noticing isn't the same thing as making an informed judgment that involves the subject matter of the writing, the apparent sophistication of the work (if one can tell from the title), or its originality, even if I make the judgment quickly.
  • Once you get past the visceral, here's what I think really happens.  As Paul Caron wrote in an article over ten years ago, legal scholarship has an exceedingly long tail.  Paul relied on research done by Tom Smith at San Diego.  The top half percent of articles get 18% of all citations, the top 5.2% get 50% of all citations, and the tail gets truncated quickly as 40% of all articles never get cited.  I'm assuming that there is a relationship between citation and articles even getting read.  The times you can be sure some or all of your work will be read is when you've made it through the callbacks and are into the final several people being considered for the spot, when you are being reviewed for promotion or tenure, and if and when you were ever in the final stages of the lateral process.  Generally speaking, people doing that reading aren't idiots, and know exactly how the system works.  If the piece sucks, but somehow you managed to get it through the editorial board at take-your-pick top 50 flagship, very few people who know the area in which you are writing are going to think to themselves, "Hmm, this person missed the really important work on this subject and skated over the hardest responses to the argument, but my gosh it was placed in the Big Ten Other Than Michigan Law Review, so it must be good."
  • While being perceived as a competent scholar is a but-for in the hiring, tenuring, and lateraling milieus, the make-or-break consideration is being perceived as a productive scholar.  If there is anything I find meaningful in visceral impressions, again it is the gestalt of a CV with a healthy list of publications the dates of which show consistency, all appropriately adjusted for the length of one's career.
  • In creating the gestalt, aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this, as are the "essay" sections of traditional law reviews.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
  • With the shorter pieces, take a shot at a peer reviewed journal.  I really like the courage it shows. (Most peer reviewed journals have a word limit - usually no more than 10,000.).  It takes longer to place them, but it really is a professional affirmation.  And since it's likely that they don't count as "tenure pieces" under many schools' tenure standards, the wait doesn't matter so much.  Steel yourself, however, for what academics in other disciplines experience:  evil reviewer #2 who hates your piece, your school, and you, "revise and resubmit," and Chicago Manual of Style footnotes. 
  • My thoughts on the substance of what gets written and the relationship of that substance to career advancement - issues of cross-disciplinarity, normativity, conformity, etc. - are at pages 71-80 of Retire and Teach: Six Years On, and I won't repeat them here.
  • Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
  • Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.
  • Finally, a pet peeve. When you submit, you certainly can play the expedite game, but my personal view is that it’s inappropriate to submit to law reviews for which you would not accept an offer if it were the only one you got.  If somebody at my school were to tell me they were doing that, I would probably raise my eyebrows and look askance.

Posted by Jeff Lipshaw on August 26, 2018 at 10:42 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (3)

Thursday, August 16, 2018

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining:  "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty:  I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline.  I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time.  As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.'  I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression:  "Dear Professor:  Thank you for submitting your article to the Very Highly Ranked Flagship Law Review.  Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion.  We wish you the best of luck in your placement of the article.  We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger:  "Ungrateful little shits."

Acceptance:  American Samoa Journal of Bible Studies and Blockchain Technology.

[I promise more serious advice in a future post.]

Posted by Jeff Lipshaw on August 16, 2018 at 10:45 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (3)

Monday, August 13, 2018

Submission Angsting and the Availability Heuristic

Slide1I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years.  I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school.  I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75.  Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top.  I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind.  Hence, we bias our judgments based on available information.

Having said that, here goes.  One of the most available pieces of information is the linear ranking in US News.  It's really available.  It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles.  What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8.  You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly.  It's pretty clear that whatever peer assessment means, the top 17 are in their own world.  As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40.  That effect is even more dramatic in the 50-100 range.  The point is that the rankings are linear, but the actual data sits on a curve.  So the differences between linear rankings mean different things at different levels.  (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125.  Yes, the data are meaningful when you jump from 105 to 18 or vice versa.  But not when you "sank" from 50 to 62.

Okay, that's it.  Back to our regularly scheduled blogging.

UPDATE:  I'm going to close the comments here.  If this merits any discussion, it probably ought to occur at the angsting post.  

Posted by Jeff Lipshaw on August 13, 2018 at 03:12 PM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw | Permalink | Comments (0)

Friday, August 03, 2018

Liz Magill, Stanford Law Dean, to Become UVA Provost

M-elizabeth-magill-5-400x400Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia.  She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).  

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

Posted by Jeff Lipshaw on August 3, 2018 at 02:45 PM in Life of Law Schools, Lipshaw | Permalink | Comments (0)

Thursday, July 26, 2018

Law School Classroom Techniques: Myth- or Reality-Based?

IMG_0162My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Posted by Jeff Lipshaw on July 26, 2018 at 03:09 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (12)

Ode to Law School

I loved law school.  It was the most fantastic, rewarding, engaging, and challenging of experiences.  My group of friends in law school included a medical student.  As graduation approached, my med school friend and I went to lunch, where she declared that I was the only one of the bunch who really, genuinely loved the law.  While I’m not sure if that is an accurate assessment, it is certainly true that I love the law. 

I have, however, been frustrated lately, because I have spent weeks trying to rewrite the introduction to a paper.  A paper I started working on two years ago.  I’m actually still excited about the paper and its potential, but this is way too long to be tinkering with an introduction.  So long that I’ve started to wonder whether I should drag the file to the recycle bin, declare it a lost cause, and move on to different half-written project.

But today, my frustration left.  Today, there has been a line of iCLEO students sitting outside my colleague’s door to discuss their exams, and it reminded me of what it felt like to be an idealistic, incoming law student.  It also reminded me that in a few weeks what is currently a sleepy, quiet building will be bustling with activity and excitement.  A whole new group of students will be here and at least some of them will end up loving the law as much as I do.  Just the thought makes me smile.

So as I contemplate the fact that I’m almost a month in to my seventh year in this particular office, on what is a truly beautiful camps, I am going to try really hard to channel my joy of law school.  And finish this darn introduction.

Posted by Veronica Root on July 26, 2018 at 02:55 PM in Life of Law Schools | Permalink | Comments (1)

Wednesday, May 30, 2018

How to make a better law review

Law reviews are doing more than ever these days. They don't simply solicit articles for publication and host an annual symposium. They have social media accounts, podcasts, online supplements, exclusive submission windows, and more.

But with more than ever, I wonder if somethings journals aren't simply doing something because they feel they ought to be doing something. So, what does a good law review do these days? Following up on some good thoughts at The Faculty Lounge a couple of years ago, I offer my own here. A good law review should think about a few things--and perhaps even do some of them. (I should add that I'm not an advisor to any journal but have served in that role in the past.)

But full disclosure to set expectations: I'll avoid the biggies, like "revamp the submission cycle"....

1. A good law review starts with a good website. It means it has regularly updated content and decent navigation. It means it has a good RSS feed that pipes out content. If a law review website is poor, social media cannot cure it. If your website is primarily stock photos, or a sub-page of your law school's site... it's probably not interesting anyone.

And the failure to update content? Even worse. You've exerted such terrific time, effort, and resources to select, edit, and publish this content. Why, then, in the last mile--really, the last few yards--fail to put it out there for everyone to read it?

I'm sure some readers scoff, "I thought RSS was dead?" Not for power users--that is, the people who are the most likely to find and share your content. Which group of users do you anticipate is most likely to share your work: the casual observer who stumbles on your page one day, or the person who sees the resent articles pop up in her Feedly feed in almost real time? (James Grimmelmann's comments at The Faculty Lounge capture this quite well.) I've worked to aggregate some RSS feeds of journals, but you can see some don't have one, and I've only just begun.

2. Promote articles, not journal issues. I know that law review staffers are obsessed with the issues in their volume. When an issue comes out in print, it's a really big deal. It's understandable to get excited about it! But think about how promotion in social media compares when promoting issues, not articles.

To pick one account's tweets consider the information communicated with a tweet like this:

This tweet is just fine. But... what's in the issue? That's what people care about! It might be that some people will engage with this tweet. But on its face, it's not immediately clear who published what, or why someone would care--except if you were really intent on viewing a new (generic) issue of the law review. Consider instead:

Notice what's included and not included. First, it includes a description of the piece, not the title. Titles of articles can be fine, but sometimes they are insufficiently descriptive, or too bulky for the medium. Second, the author is tagged! That's important, because, let's face it, my vanity on social media is the driving force for creating and promoting content (alas). But it also alerts your authors that you're out their promoting their work--and that it's available on their good, up-to-date website. If you can tag the author's institution (particularly if that author lacks a social media account), all the better.

3. Timing matters. I'm fairly consistently surprised to see my RSS feed update at 12:30 am ET on a Sunday, or tweets pushed out at 10 pm on a Friday. There are optimal times to release and promote content--usually peak business hours during weekdays. Pausing a few hours or days to update the website, or using a timed Twitter platform, can help maximize the opportunity to share content.

4. Consider whether and why other content exists. I've listened to many podcasts put out by journals. I've seen online supplements born, renamed, languish, reborn, reformatted, and languish again. There are law review blogs, or Twitter symposia, or live streaming symposia. In short, journals are doing lots of things we might loosely tag as "innovation."

But, why? To what end? Often, this other content feels like innovating for innovation's sake. It's sometimes tacked on, as if it isn't integrated with the rest of the stuff the journal is doing. Before launching into one of these labor-intensive endeavors, it might be worth considering what these other items of content are supposed to be doing. That I can't answer--it's an existential question that may vary from journal to journal. But, it can probably also help with the next piece....

5. A faculty advisor must help continuity and vision. Law reviews are student-run, and I think that's a good thing. (I won't wade into the debates here and elsewhere months ago about peer-reviewed v. student-edited; I'll leave my comments at this!) But often, new projects like podcasts, more novel content like online supplements, or even more longstanding elements like using the Twitter account and updating the website--often, these things can get lost in the transition from one editorial board to another. The vision might be lost, because the vision didn't reside in the journal but with one 3L who's moved on. The content might suffer because information simply isn't transferred from one board to another.

I'm sure faculty advisors have wildly different relationships with their journals. But from an institutional perspective of the law school, the law review can be one of the most valuable and visible assets of the school. It's also one of the greatest ways the school contributes to the scholarly enterprise and looks to create new knowledge. While I strongly endorse student-run journals, faculty guidance and leadership can help make sure that these journals are doing their very best work.

Many journals do many of these things quite well. But maybe there are a few things here that could help some journals improve.

Posted by Derek Muller on May 30, 2018 at 11:08 AM in Law Review Review, Life of Law Schools | Permalink | Comments (3)

Tuesday, May 22, 2018

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Typically, "disruption" is the idea of a new player dramatically changing how an existing enterprise operates: Netflix to home movies and cable, Uber to taxis, and so on.

Law schools are understandably clamoring for outlets to earn revenue. The dramatic spike in innovative non-JD degree offerings from law schools is a testament to that. (The value proposition of these degrees remains deeply underexamined.) Some of these are online degrees.

But the JD has remained a largely brick-and-mortar, in-person experience. Schools have done some things to innovate in this area, including broadening externship opportunities and field placements. They have even recently permitted students to receive academic credit for paid externships.

The recent innovation has been led by schools like Syracuse proposing a mostly-online JD, and Mitchell|Hamline (or its predecessor) has offered one for some time.

But existing schools would be building on infrastructure that is decidedly not optimized for online legal education. And they risk demonstrating how their costly existing model is--perhaps undermining their own JD programs in the process. That is, if students are attracted to a significant component of the JD online, what happens to the much more expensive in-person JD experience?

The online JD has significant cost advantages for schools (that, presumably, will offer the program at the same price as in-person courses). Once an asynchronous course in contracts or torts is recorded, it rarely has to be updated or altered. And once the course is "built," it becomes fairly easy to teach repeatedly.

To the extent there are such asynchronous course offers or lecture-based presentations, what's the purpose of that "old-fashioned" law school experience--showing up, sitting in classes, costly enterprises?

Of course, I think there's value in the Socratic method (requiring interactive Q&A), and occasionally small group discussions, and other live and interactive components. Online JDs would eschew all these elements--or, at least, convert them into online experiences when offered in synchronous courses.

It might be that some schools will survive by converting their models into online ones, with dramatically lower overhead and greater ability to scale. That is, as they vie for enrollment, online components might be a way of attracting a new cohort of students.

This isn't to say that online JDs are good or bad. It's simply to indicate they're different--in particular, cheaper for law schools to operate in the long run. And if they're cheaper, what might that do to legal education?

One is the price might drop for legal education, but that seems highly unlikely--recall, schools are built on the brick-and-mortar experience, and they're not winding down those high-priced operations anytime soon.

It might "normalize," in a way, the online JD experience, to the extent that matters to prospective law students. And that might pressure many other law schools to follow suit.

It might also incentive new law schools--built on a lower cost, lower tuition model--to pop up and perhaps undercut existing law schools. That is, law schools might disrupt themselves by creating partly online JDs, making them perfectly ordinary for prospective students, and incentivizing new schools to undercut them in price in the future.

Then again, we might see the signaling function of attending a brick-and-mortar institutions, or at least the institutions that have been around for a long time. Perhaps we'll see a strata of separation between those with the luxury of a costly in-person JD degree (with all the benefits of three years in a social setting physically with other students), and perhaps the future legal services market might reflect that.

It's worth emphasizing perhaps I'm overreading this. It's only a partially-online JD component; it requires school buy-in; it may be that for students externing or studying abroad or moving to a city to work and complete classes in their final year, that these online JD elements are simply convenient devices for schools. And online degree-seekers are recruited mostly locally, anyway; spend a few minutes reading SEC filings with online education companies to see why they develop relationships with so many geographically different universities.

I've offered enough (rampant) speculation about the potential future impact of online components of a JD. But all that is to say that the future impact of online JDs, even as components of a mostly in-person experience, turns mostly on what law schools do with them. If they supplement existing programs, it may have a very modest impact; if they seek to replace existing programs and attract new cohorts of students, they might dramatically alter the landscape of legal education in the next 30 years.

 

Posted by Derek Muller on May 22, 2018 at 11:58 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Thursday, May 17, 2018

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Current admissions standards require admission of applicants "who appear capable of satisfactorily completing its program of legal education and being admitted to the bar" (Standard 501(b)), which "may" include considering admissions test scores (Interpretation 501-2). Beyond that is a separate requirement for a "valid and reliable admission test" (Standard 503). If a school uses something other than the LSAT, the school "shall demonstrate that such other test is a valid and reliable test" (Interpretation 503-1).

My eyes sometimes glaze over reading string cites to ABA standards, so I'll break in here. These rules simply put schools in the position of having to demonstrate that it's okay to use another test, like the GRE. Inertia, then, has been a major reason why schools mostly stuck with the LSAT. They always could've done something else, but it would require some work.

When the University of Arizona took the lead considering the GRE a few years ago, it had to carry a new burden to prove compliance. But given the sharp decline in applicants and LSAT test-takers over the last decade (improving this year), it seemed like a sensible move. Here was a pool of test-takers more than twice as large as the LSAT pool. Capturing a small percentage of them would be a tremendous advantage. Other schools soon followed suit.

But the burden to "demonstrate" that the test is "valid and reliable" has caused some concern. To start, the ABA hasn't offered much in the way of explaining what the evidence would look like. Schools could offer their best evidence from students who took both the LSAT & GRE, but others were worried whether that might be enough. ETS, which administers the GRE, came out with its own study to show that the test was as reliable, but then others wondered whether that would be enough.

It's worth pausing to note that there are already exemptions from the LSAT requirement. While schools under Standard 503 must require each applicant take a test, there's no rule as to how much weight that test score should receive (Interpretation 503-2). If you are a law school at a university admitting a student from your undergraduate program or another graduate program, you can admit that student without an LSAT score as long as the student scored in the 85th percentile of the ACT/SAT/GRE/GMAT, or was in the top 10% of the class, or had a 3.5 undergraduate GPA (Interpretation 503-3).

Furthermore, the LSAT is less effective than it once was. LSAC reports the highest score, which is less reliable than the average score of repeaters (UPDATE: it's worth emphasizing that schools also still receive the average of all scores and each score from each test; the ABA and USNWR permit using the highest score instead of the average, too); it now also permits unlimited retakes. LSAT is still a much better tool than, say, undergraduate GPA, and it offers (some) pretty good predictive value.

But the recommendation approved this week from the Council that may become final soon would abolish Standard 503 and all its interpretations. Instead, there'd just be 501: demonstrate that you have sound practices. It would also add an interpretation, newly renumbered at Interpretation 501-3: "Failure to include a valid and reliable admission test as a part of the admissions process creates a rebuttable presumption that a law school is not in compliance with Standard 501."

It's not terribly different from the previous rule, except that instead of "shall demonstrate," it's simply that schools have a presumption to rebut--no need to demonstrate a valid and reliable admission test. Demonstrating compliance by showing, say, low attrition rates and high bar passage rates may well be enough. Or, showing that your alternative test is valid and reliable would mean there's no presumption to rebut. (It's worth noting this also abolishes those other rules about taking from your own undergraduate institution--it's all in the same holistic bucket.)

I doubt this will suddenly be a race to the bottom--the bar pass rates and recent enforcement from the ABA should prevent much of that. So, the experimentation can truly begin. That I emphatically support. But will they?

I think many schools will be reluctant to do too much too drastically (but, I think, a few brave ones will!). Inertia matters. Rebutting a presumption matters. And risk-averse schools may become nervous about big changes to their admissions programs, only to see attrition one year later or bar passage rates three years later worsen and having to undo policies.

But beyond all this, USNWR will likely (unfortunately) drive a lot of decision-making. USNWR already converts GRE scores into their percentile equivalents for reporting LSAT medians. I'm not familiar with any evidence that this practice is warranted--I don't know if a 75th percentile score on the GRE is the same, worse, or better, than the 75th percentile on the LSAT. But, to the extent schools are driven by USWNR, they are likely to keep GRE scores, on percentile terms, roughly correlated with LSAT.

It also means that how USNWR in the future decides to handle bodies of students without any test score will be the true test of experimentation. Of course, if brave schools choose to do what they think is best for their students, USNWR be damned... but that's the stuff of rampant speculation.

Posted by Derek Muller on May 17, 2018 at 11:40 AM in Life of Law Schools | Permalink | Comments (4)

Friday, May 04, 2018

The best employment outcomes for law students

Law schools disclose somewhat granular employment statistics to the American Bar Association as a result of increased and improved transparency efforts in the last decade. Over at my blog, I've looked at region-specific figures, the overall market, and industry-specific outcomes. (In short, things are looking up this year!)

But after churning through these figures for several years, I realize that we (the writ-large legal academy) make a number of assumptions about these outcomes. These assumptions are heavily influenced by what USNWR does, what "scam bloggers" and "transparency" advocates endorse (ed.: guilty of scare-quoting...), and even by the very ABA forms themselves. When I aggregate the data, I expressly qualify that I'm making some assumptions based on what USNWR does, as it's one of the more generally-accepted practices: give "full weight" to jobs that are full-time, long-term, and are bar passage-required or J.D.-advantage; give some less weight to school-funded positions in those categories; and heavily discount (and others would outright ignore) all other outcomes.

There are raging debates about each of these categories as we try to figure out whether students have "good" or the "best" employment outcomes. Are J.D.-advantage jobs really equivalent to bar passage-required jobs? (Answer: it depends, but certainly not perfectly equivalent.) Should full-time school-funded jobs be discounted? (Answer: maybe the status of these positions has changed over the last few years, and we could use more information.)

But the one nagging question is one that's unanswerable from these debate (which, in my view, have huge amounts of uncertainty!). Instead, I think the most salient question to address the question of whether law students are graduating with the best employment outcomes. And that's a question that looks like this: "Are you satisfied with your employment outcome?"

There are huge problems with this question. Students can have dramatically unrealistic expectations. We know from survey data that a lot of entry-level attorneys are often already looking for their next job, some of them because they viewed the first job as a stepping stone, but others assuredly because of disappointment. Region, salary, debt loans, class rank--lots of things can factor into satisfaction.

Still, shouldn't we be asking this question of our graduates? If a student want to work part time, or has a dream professional (non-J.D.-advantage), or is happily enrolled in a PhD program, we'd like to know that. And if a student is in a 3-person law firm with the credentials that suggest the student has been "underplaced," we'd like to know that, too.

Perhaps schools are already internally asking these questions. Perhaps the huge problems are insurmountable, and it'd just be one more data point that only creates more questions rather than illuminates anything of too much value. Nevertheless, given that many of our other assumption of "good" or "best" employment outcomes seem to assume graduate satisfaction, perhaps there are better--if not outright direct--ways of determining that.

Posted by Derek Muller on May 4, 2018 at 12:09 PM in Life of Law Schools | Permalink | Comments (3)

Monday, April 09, 2018

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal.  It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship.  Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process.  Some of these criticisms were entirely fair.  Anthony Kreis, for example, made a strong case for blind review of all law review article submissions.  But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.  And to say that those ideas ought to be turned into books ignores real differences between books and law review articles.  For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments.  That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers.  For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles.  Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers.  Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

That isn’t to say that some law review articles couldn’t benefit from some editing that condensed their length.  And I am quite glad that we no longer live in a world in which 90 and 100 page articles are the norm.  But that is a far cry from saying that the 50-65 page article genre ought to be abandoned in favor of a significantly shorter one.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public.  Eric Segall made this point quite forcefully at the conference when he said that the essays that he has written for mainstream media outlets have had more impact than his law review articles.  Because of the difference in impact, he argued that law schools ought to change their promotion and tenure standards in order to create more incentives for law professors to write shorter pieces aimed at general audiences.

I strongly disagree.  There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.

More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article.  Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue.  To be sure, we can distill our expertise into op eds or commentary.  But if we write essays or op eds that do not significantly draw on that expertise, then we are no different than a pundit.  This country already has a lot of very good legal pundits.  What law professors can add to the public discussion is our expertise.  We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.

There are plenty of other criticisms of law review articles.  And I may someday write a defense (at least a half-hearted one) about the law review submission/acceptance process.  But for now I’ll simply close by saying that we ought not lose sight of the real strengths of law review articles in our haste to criticize the genre.

Posted by Carissa Byrne Hessick on April 9, 2018 at 01:19 PM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (24)

Monday, March 19, 2018

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 Blogging, Legal Theory, Life of Law Schools, Odd World, Teaching Law | Permalink | Comments (1)

Monday, March 12, 2018

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 (12)

Sunday, December 31, 2017

Law Professors on Twitter

Like many law professors, I am on Twitter. And like many law professors, I often question whether being on Twitter is a particularly good idea.  Among other things, I enjoy Twitter because it allows me to read the tweets of other law professors and to engage with law professors about their tweets and mine.  But while reading those tweets and having that engagement can be quite enjoyable, it can also be quite the opposite.

In the past few months I have had several conversations with other law professors in which they expressed surprise and disappointment in how other professors have used the Twitter platform.  There are a variety of complaints—some professors use the platform to tweet intemperately about political views, some use it for over-the-top self-promotion, some use it to express legal views far outside of their areas of expertise. One common complaint I have heard—and one that I share—is that law professors use the platform to engage in increasingly confrontational and rude ways with one another.  Professors should always be willing to engage with those who don’t agree with them. And we should always expect our opinions to be challenged.  But Twitter appears to have made the tone of those disagreements much coarser and their occurrence more frequent.

I don’t know how to fix the many problems that Twitter causes in legal discourse. But I’ve drafted a short essay on the topic—which can be found here—and I’d be very grateful for feedback on how to improve the essay.  In the meantime, let’s try to be kinder to each other in 2018.

Posted by Carissa Byrne Hessick on December 31, 2017 at 05:41 PM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (8)

Wednesday, December 20, 2017

Northwestern Law -- Deanship

This is a great opportunity to lead an extraordinary law school at a propitious time.  

I say this unequivocally from the vantage point of someone who has had the privilege of serving in this role for now six years.  The job announcement fills in much of the detail and, of course, has a nice pitch.  It bears a close look.  I would add this:  Our law school has been steadily building a reputation for serious innovation in education in a dynamic world, one in which our graduates will need skills to enable them to prosper at the intersection of law, business, & technology.  To that end, we have been collaborating actively with our renowned business school, Kellogg, our Engineering and Medical Schools and various other parts of our major research university.  Moreover, we have established key partnerships with innovators and entrepreneurs in the law-tech space (ROSS intelligence, for example, and also the ABA Center on Innovation).  Law is changing rapidly, and legal education is changing along with it.  Northwestern is forging a path toward innovation within the ambitions of elite legal education and multidisciplinary instruction.  Exciting to be a part of this; and I am truly excited about the next era under able new leadership.

And because this is a law professors blog, I should add that we have a terrific faculty, filled with extraordinary teachers and scholars, with special leadership in the area of empirical law studies.  And we have one of the largest, comprehensive, and renowned clinical programs in the nation.

So, within the next month roughly, the powers that be (not including me, to be sure!) will be collecting and vetting nominations.  I urge you to consider nominating exemplary legal educators and also considering this opportunity yourself.  I would be pleased to chat privately with folks about this opportunity. Just drop me a note). 

 

Posted by Dan Rodriguez on December 20, 2017 at 12:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Thursday, December 07, 2017

Debt Limits, Tuition Discounting, and Legal Education

Almost six years ago, I participated in an online symposium on the future of legal education at the Legal Ethics Forum. At the time, I examined the possibility of government-instituted caps on lending for graduate education, a proposal earlier put forward by Brian Tamanaha.

A lot has changed in those six years, but the proposed PROSPER Act now recommends a cap of $150,000 for graduate education. On the whole, I think that loan limits are a good idea, though a $150,000 cap would have a significant impact on law school finance. For example, the USNEWS ranking of law schools by average debt shows that the average law-school debt at 23 law schools is already more than $150,000. High-debt schools are found at all levels of the prestige hierarchy, including Thomas Jefferson (with an average law-school debt of $182,411) and Columbia (average debt $159,769). With a hard lending cap from the federal government, I would expect that private lenders would be willing to fill the gap at schools like Columbia. I don't believe they would so at schools like Thomas Jefferson. Private lender SoFi, for example, will refinance some law-school loans, but it also ranks schools by an estimated return on investment, and recommends that students "steer clear of the law school programs on our list with a 0.6 or lower salary-to-debt ratio." It is unlikely that SoFi or other private lenders would willingly provide financing for such programs. It certainly would not do so at the same rates offered by the federal government.

Even schools that have an average law-school debt load lower than $150,000 are still likely to have a significant number of students who take out much more than $150,000. It is true that law-school discount rates are relatively high. A recent report from NACUBO  and AccessLex found that the discount rate "for all JD students rose slightly from 47 percent in Fall 2015 to 48 percent in Fall 2016," and "[o]ver the same time, the average student tuition discount rate for 1Ls across participating institutions fell from 58 percent to 50 percent." However, those discount rates do not reach everyone: only "[a]bout two-thirds of all JD students and three-quarters of 1Ls received institutional grant aid."

Who are the one-third of JD students not receiving discounted tuition? A study from the Law School Survey of Student Engagement, titled “Law School Scholarship Policies: Engines of Inequity,” found that economically disadvantaged and minority students bear a disproportionately high share of those costs, often subsidizing "merit" scholarships awarded to students from wealthier backgrounds

Although I believe that lending caps can help reduce the harm from inequitable discounting, the PROSPER Act as a whole is troubling and not good for education. It would eliminate Public Service Loan Forgiveness, which would harm graduates' ability to take low-paying jobs in the nonprofit sector, and it would abolish gainful employment metrics and the 90/10 rule for for-profit institutions of higher education,  allowing greater federal subsidies for for-profit education (changes that, taken together, would move federal funds away from subsidizing graduates who go work for cash-strapped public defender offices in order to increase funding that primarily benefits shareholders of for-profit institutions). I believe a much better position, as I argued six years ago, is to instead expand the gainful-employment rule to cover both the for-profit and non-profit sector, and to prioritize federal funding for the schools who successfully place their graduates in employment related to their graduate education.

Whether the PROSPER Act passes or not, however, it's clear that funding for higher education is going to be on the table going forward. It's long past time for schools to have a hard look at the ethics of tuition discounting.

Posted by Cassandra Burke Robertson on December 7, 2017 at 03:24 PM in Life of Law Schools | Permalink | Comments (6)

Thursday, November 30, 2017

You're Invited! AALS 2018 in America's Finest City

The 2018 AALS Annual Meeting is just around the corner. And it's happening here in San Diego. So I naturally should bring my hosting skills. I plan to post about top things to do in San Diego [here's something not to do: do not bring your winter coats even though the conference is Jan 3-6]. Whether you are coming with a family or on your own there is something here for everybody. Do you love beaches or cities? upscale or hole in the wall eateries? the desert or the mountains?  Here in San Diego, why choose? everything is close by. Below is a picture I snapped of one of my regular running trails (can you spot my running buddy?). Along with fellow prawfs I hope to also plan our traditional MarkelFest one of the conference evenings. 

I also want to share a few of the exciting events that I am taking part in and would absolutely love to have everyone attend. First -- You gotta come celebrate with me! On Friday Jan 5, 5:30-7 USD Law is holding a reception celebration for my book (and I will talk about it a bit) You Don't Own Me and everyone is invited. My colleague Roy Brooks also has a new book out about racial justice and will speak as well. We have a beautiful campus and it's close to Old Town if you feel like having fresh made tacos and margaritas afterwards.

Second event, in which I become evil: The IP Evil Twin Debate is an annual debate, serious in substance but lighthearted in tone, we all wait for (a highlight - we get to write up (a parody of) our evil twin's bio). Last year it was Mark Lemley v. his evil twin Rebecca Tushnet debating patent law and at the 2016 event Pamela Samuelson took on her evil twin Randy Picker on copyright. This year Michael Risch is pure evil while I stand for everything that's good in a debate about trade secrecy. Christopher Cotropia is our fierce moderator. It's at Thomas Jefferson Law School Friday 430 to 530 (and then we can go together to my campus for the book event) -  It will be fun! 

Third event, a timely serious panel moderated by Ed Rubin (Vanderbilt) with Robert Post (Yale), Will Forbath (Univ. of Texas), Jide Nzelibe (Northwestern), and myself speaking about the role of the scholar in the larger society, both in general and in response to Trump's election.  This will include questions about scholarly agendas and standards of objectivity as well as our normative obligations to our students and our ability to be neutral in highly political climates. Jan 3 at 1:30.

*** Update Will Forbath won't be making it to San Diego; Erwin Chemrinsky (Berkeley) has joined the panel instead.

Fourth event, not to neglect my employment law side -- I am part of the Employment and Labor law's section panel on The American Workplace in the Trump Era, Jan 5, 1:30. Hot-button issues - enforceability of class action waivers in arbitration agreements, discrimination on the basis of sexual orientation, joint employment doctrine, public employee speech, whistleblowing, NDAs and confidential settlements and more. 

 Other than that my dance card is completely empty - I look forward to seeing everyone!

 

San diego sunset

 

Posted by Orly Lobel on November 30, 2017 at 11:46 PM in Life of Law Schools, Orly Lobel, Things You Oughta Know if You Teach X, Travel | Permalink | Comments (4)

Wednesday, October 18, 2017

My Student Guide to Judicial Clerkships

Around this time of the semester I meet with a lot of students who are interested in post-graduation judicial clerkships. UK Law does quite well at placing our students in federal clerkships, so I am happy that there is a buzz among our students about this career path. 

Because my individual meetings with students tend to be quite similar, in that they often have very similar questions, I prepared a guide for them to read before they come to meet with me. It answers some of the most frequent questions I receive. Because I bet that others could also benefit from this guide, I am reproducing it below.

A few caveats: first, some of the advice is specific to Kentucky. Second, these are just my views, so as the kids say, YMMV. Third, I frequently update this guide, so what is below is simply the current version.

With that said, feel free to share with those who may be interested.

Professor Douglas’s Handy-Dandy Guide to Federal Judicial Clerkships

            I am so glad you are considering applying for a federal judicial clerkship! Post-graduation clerkships are amazing jobs. They offer an inside look at judicial decision making, which will help your career no matter what you decide to do. You’ll work side-by-side with a judge who will serve as your guide and mentor. Your writing will improve dramatically. Some people say that a clerkship was the best job they ever had. All in all, if you have the opportunity for a judicial clerkship, then you should go for it!

            Many students ask to meet with me to discuss clerking. I am more than happy to meet, but I ask you read this guide first, as it will likely answer many of your questions. This guide should not serve as a substitute for a meeting; I definitely want to meet with you! But it will hopefully answer some of your initial questions so that we can focus on your specific situation when we meet.

What follows is simply my advice, based on my own clerkship experience and several years of advising students. Others may have different views, and I encourage you to talk to other professors and the Career Development Office for their perspective.

  1. Why should I clerk?

            See above. Clerking is an incredible experience. I use what I learned during my clerkship (for a 5th Circuit judge in Texas) almost every day. And I talk to my judge at least once a month. By clerking you become part of a “clerk family” (notice how I wrote “my judge”). Your co-clerks will become lifelong friends. Clerking can help no matter your ultimate career goals. It will open doors. It will improve your writing. It gives you an instant credibility boost in the eyes of employers. And it will stick with you for your entire career. Notice how every time someone is nominated to the Supreme Court, the media mentions where the person clerked. From a long-range perspective, clerking is an excellent way to begin your career. I have never talked to someone who regretted clerking before starting at a law firm, public interest organization, or other legal employer.

  1. What should I do if I already have an offer at a law firm or other organization?

            Speak with them about your desire to clerk. Most law firms highly value the experience and will hold your spot, at least for a year or two. If you explain your long-term dedication to the firm, they will not think poorly of you for at least exploring the opportunity to clerk. And some firms (though typically not the ones in Kentucky) will even pay a clerkship bonus.

            In addition, more opportunities are likely to arise because you have a clerkship on your resume. A clerkship, then, can improve your future employment prospects.

            That said, the salary of a judicial clerk is nowhere near as high as that of an associate at a law firm, and financial issues are important to consider. Just remember that there’s a long-term payoff, in terms of your overall career, to foregoing the law firm salary for a year if you are able to do so.

  1. Where should I clerk?

            My advice is to apply as broad geographically as you are willing to go for a year or two. If you don’t apply, then there’s a zero percent chance of landing the position (that’s just math!). When I went through the process I applied to about 200 judges all across the country. I really wanted a federal appellate clerkship, so I took a list of all federal appellate judges and deleted those in places where I could not see myself ever moving, even for a year or two. I then added some district court judges in certain geographic locations.

            I would start by thinking about where you have a geographic connection. Did you go to school in another state? Does your best friend live in Wyoming? Do you have a long-lost cousin in South Carolina? Any of these geographic connections can give you a leg up when you are applying. Of course, if you want to stay in Kentucky, then by all means focus on the Kentucky judges. But don’t discount going out of state for a year or two, especially if you can create a geographic connection to the area.

            Another question you may have is what level of judge to target. Generally speaking, federal circuit court clerkships are harder to obtain than federal district court clerkships, which are slightly harder than magistrate and bankruptcy court clerkships. All offer great experiences. Circuit court clerkships tend to be a little more isolated, where you will spend most of your time in chambers, but you can sometimes travel to cool cities for oral argument. These clerkships allow you to dive deeply into tough legal issues. District court and magistrate clerkships tend to have more interaction with lawyers and more time in court, and you’ll learn all about managing a docket. Any of these clerkships will provide tons of interaction with your judge. Come chat with me if you want to discuss this more.

  1. When should I apply?

            Many (but not all) Kentucky federal judges want to see at least three semesters’ worth of grades, which means they will start taking applications after the first semester of your second year. But many out-of-state judges hire even earlier! The best time to begin thinking about clerkships is during the first semester of your second year. You may want to send out some applications in October or November if judges you are targeting are open, while you can send the bulk of the applications after your 2L first semester grades are in.

            Look on Oscar to see which judges are accepting applications now. It’s also ok to call the chambers of a particular judge to see when that judge will start reviewing applications. You’ll most likely speak with the judicial assistant, who is used to receiving these calls.

            It is fine to apply early and then update your application with new information, such as grades, a new writing sample, etc. It is best to have your materials into the chambers as soon as the judge plans to consider applications.

            By the way, state court clerkships are also really great positions. State judges tend to hire later in the process, however, so it is generally ok to apply to federal judges first, and if it does not work out, you can then use your same materials (after updating them) to apply to state court judges.

  1. What should go in my application?
  • A cover letter (letter of transmittal)
  • Resume (one page, unless there are extraordinary circumstances for why you should go onto a second page)
  • Grade sheet (unofficial transcript)
  • Writing sample (your best possible writing)
  • 3 letters of recommendation
  1. What do you mean by “letter of transmittal”?

            Your cover letter should generally do nothing beyond introducing yourself and saying that your application materials are attached. This is not the place to make a case for yourself, explain that you are a strong writer, etc. Almost everyone applying has those same attributes. Ask me sometime to tell you about the ridiculous “Campbell’s Soup” cover letter I once saw. You don’t want to have that letter!

            The one exception here is that your cover letter should explain any geographic connection (or other connection) you may have with that judge. Essentially, you can use 1-3 sentences to explain why specifically you are applying to that judge. If you don’t have a particular reason for targeting that judge, then you do not need to add anything else.

  1. What should I use as a writing sample?

            Your writing sample should be your absolute best writing. What it is is far less important that how good it is. Many judges prefer a student Note, so if that’s ready, you can use it. But you may want to send some applications before it is done. That’s fine. You can use your appellate brief from 1L year, something you wrote over the summer (if your employer gives you permission), etc. The key here is that the writing sample should be flawless – especially on the first few pages and the last page (often judges won’t read beyond that). In terms of length, 10-15 pages is about right, so if your writing sample is longer it is ok to provide an excerpt with a cover letter explaining what it is and saying that the full version is available upon request.

  1. Who should write my letters of recommendation?

            You need at least three letters of recommendation. At least two should be from law professors who had you in class. The third also can be from a law professor (and in most cases that is best), but it is ok to ask someone else if that person is going to write you a glowing letter.

            Generally, you want someone who will write at least two pages about how great of a student you are and how you will be an amazing law clerk. Think about who knows you well, both inside and outside of the classroom. A letter that discusses various aspects of your performance, while also diving into strong personal attributes, is much better than a letter that simply says “this person was in my class and did really well.”

            I ask students who want me to write them a letter to prepare a 1-2 page memo telling me about them: Why did you go to law school? Why do you want to clerk? What are your ultimate career goals? What are your interests? What are some meaningful interactions we have had?

            Professor Chris Walker at Ohio State tweeted some advice for students seeking letters of recommendation. I wholeheartedly agree with his thoughts, which I reproduce in full here:

(1) When reaching out, please include resume, transcript, and talking points.

(2) Talking points should tell me what you want me to cover substantively and bonus points if in a format I could cut and paste into letter.

(3) Talking points are even better if they situate my letter within the context of any other letters, personal statement, etc.

(4) Talking points should include as much detail of our substantive interactions as possible, as that detail really makes the letter.

(5) Don’t assume I'll remember the highlights of our interactions. Remind me. Even when I do remember, your framing is often much better.

(6) Make very clear the deadline, and don’t hesitate to remind me as the date approaches.

(7) Also, if possible, give me the email and phone number of the Judge/partner/etc., so that it makes it easier for me to put in a good word.

(8) Once app submitted, keep your whole team posted on any developments.

(9) If you get an interview or make it to next round, email me again and include email/phone of employer to make it easy to reach out.

(10) Send thank you note once application is submitted. It means a lot for us old fashioned folks, esp hard copy under door makes my day.

(11) Finally, add your references to your holiday card list and let them know of any big life events or achievements over the years. I still let my college and grad school mentors know of life events, and they keep helping me advance in my career. /end

  1. Should I use Oscar or send paper applications?

            Oscar makes it really easy to submit applications to many judges at once. But is also allows judges, on their end, to filter out applications so they see only applicants from certain schools, of a certain GPA, etc. My advice, then, is to send paper applications if the judge accepts both Oscar and paper applications. That way you know that someone in the chambers will actually look at your application.

            That said, paper applications take time and money. You have to compile all of your materials, stuff envelopes, and mail them out. You can assume that you’ll need to spend $2-3 per application, and that can add up! You’ll therefore need to use your judgment on which ones to submit via mail and when to use Oscar.

            As for your recommendations, your professors will receive an email notice for Oscar applications, and we can take care of it from there. You should send us a spreadsheet with judges and addresses for any paper applications. If the letters are ready in time, we can seal them in envelopes and give them to you to put into the packet to mail out. But don’t wait for recommendations if the rest of your application is ready to go; we can send them separately.

  1. What’s next?

            You first task should be to identify who you want to ask for letters of recommendation and contact those people. That’s the only part of the application that you cannot control yourself. It’s ok to give your professors a deadline for the recommendation letter, so long as it is reasonable (a few weeks is about right).

            Your second task should be to decide what you will use as a writing sample and to clean it up to make it as perfect as possible.

            Your third task is to start creating a judge list.

            By this point you’ll be well on your way to applying for clerkships!

            Please come see me if this guide did not answer your question, if you have additional questions, or if you just want to chat about the process.

            Then, please let me know once you’ve applied to judges. And once you receive interview requests, come see me and we can chat about the interview process.

            Good luck!

Posted by Josh Douglas on October 18, 2017 at 10:49 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Friday, August 11, 2017

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT.  Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students. 

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools.  Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality.  Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession.  Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school.  Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.

 

Posted by Dan Rodriguez on August 11, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

Tuesday, August 08, 2017

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

Posted by Howard Wasserman on August 8, 2017 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (4)

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)

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)

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Carissa Byrne Hessick, Culture, Law and Politics, Life of Law Schools | Permalink | Comments (12)

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 (61)

Monday, May 15, 2017

The Half-Sized Law School and the Cost in New Prawfs

Two years ago I asked the question: should we have fewer law schools or fewer students per school?  I think there are normative arguments for either approach: more schools means more geographic diversity but fewer economies of scale.  The legal academy has clearly chosen the "more schools" approach.  As Derek Muller documents in "The Incredible Shrinking Law School,"  law school graduating classes dropped from an average of 206 graduates in 2013 to 161 last year.  These numbers back up the myriad of anecdotal pieces about shrinking class sizes that have, frankly, lost their newsworthiness.  Meanwhile, despite some initial claims that as many as one-third of law schools would close, we've seen almost the other end of the spectrum.  Two schools have merged, one school has shut down, and one other is likely in the process of shutting down.  More may be on the way, but thus far fewer students per school has clearly won out.

One ramification of this approach has been the loss of jobs for new law profs.  As documented in Sarah Lawsky's annual census, the numbers went from annual hiring in the 150s to a low of 70 new hires in 2015.  This, too, is old news.  But I think the connection between the "fewer students" and the "fewer entry-level hires" has not necessarily been made.  Yes -- under either approach, there would be fewer law profs.  But when schools close, law professors of all ages lose their jobs.  When schools shrink, the first jobs to go are the hires that haven't yet happened.

I've blogged before about law school sustainability, and I think legal academia needs to recognize this big drop in hiring as a sustainability problem.  There has been some attention paid to the bubble of hires made in the 1970s and the effect of those hires on law schools now.  But there has been comparatively little attention paid to the folks like me who populate this blog's masthead and were hired between 2000 and 2010.  We too are something of a bubble.  And we are a longer-term problem, if only because we are earlier in our careers.

So, what should be done?  Should there be stronger post-tenure review to push out those "bubble" hires who are taking the place of a new and more productive hire?  That seems extremely unlikely to me.  Similarly, it seems more likely that schools will continue to shrink rather than close.  But there is unquestionably a "decade of hiring" effect within legal academia, and the academy should be thinking of ways to deal with this generational disparity.  Otherwise, we are depriving our students and our field of contributions from the next wave of academic innovators.

UPDATE: Rick Bales made the same point here.

Posted by Matt Bodie on May 15, 2017 at 10:47 AM in Life of Law Schools | Permalink | Comments (4)

Friday, May 12, 2017

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Posted by Orly Lobel on May 12, 2017 at 04:42 PM in Books, Employment and Labor Law, Life of Law Schools, Orly Lobel, Workplace Law | 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)

Thursday, April 06, 2017

law reviews, the law schools that house them, and the academy that depends upon them

It's common for legal academics to complain about law reviews. Some law professors might defend the model of the student-edited journal against the differently flawed model of peer-edited journals owned and operated by for-profit firms. But I would estimate that nearly zero legal academics go through their careers without some frustration about something that occurred in publishing a law review article -- the submission and selection process, editing, footnotes, etc. -- and no one would characterize the current model as perfect.

I want to consider the model's flaws by asking what could we, rather than the editors, do? 

We could, I think, look to and at ourselves.


I am completing my first year as law review advisor. I have been struck, for no reason other than my previous ignorance, by the student editors' commitment to their work, to their journal, and to the contributions they make to the field by their efforts. Rarely do our frustrations come from the students’ apathy or lack of effort. 

I have also been struck by how little structure there is for the students' work. From what I can tell, there isn't much communication among journals[fn1]; there are minimal spaces for discussion among journals about shared issues; there are few easily available shared forms (e.g., for publishing agreements with authors); and, much to my shock, there is neither an AALS-sponsored committee or interest group nor even a listserv for law review advisors. Executive editors at law reviews serve for one year, their last in the law school, and then move on. Their incentive is to do a good job with their volume using the tools, bylaws, and processes handed down to them from the previous editors. They make incremental improvements to the journal, enjoy the camaraderie of their peers under the shared burden of their work, and, hopefully, get to partake in the fruits that the law revuew credential promises. They have very little incentive to think big thoughts about the institutions and processes of law reviews. 

By contrast, the faculty and administrators who depend upon the reviews to publish and distribute their scholarship at remarkably minimal cost to themselves and their libraries have every incentive to think big thoughts and do something. And yet they/ we too rarely do.

A quick example. In the past year, the journal I advise faced a question about its internal operation and another about the royalty rate one of the commercial legal research databases offers to other law reviews. Figuring out how to address these issues required more than internal deliberation — the journal needed information about what other journals and schools do. There was neither institutional support among the law reviews nor any from AALS to gather this information. To their credit, the law review editors did their best to contact editors at other schools to try to gather information so that our school’s journal could figure out the best way to address the issue and the best way to negotiate with the database. But the information is incomplete and somewhat random — not just noise, but certainly not data, gathered at the expense of great labor. If something like this arose for law school administrators or faculty, they would have numerous resources to which to turn to learn best practices. The students had none.

My goal here, and in some follow-up posts, is to try to get legal academics and law schools to take greater responsibility for the publications that provide the lifeblood of what we claim is of paramount importance, scholarship.[fn2] For understandable reasons, the students do not have the time or incentive to create enduring structures and processes that can help tame and rationalize some of the irrationalities of law reviews' selection and editing of academic work and their operation. Some of the sources of our complaints regarding law review practices can be attributed to this lack of structural support and oversight. It’s up to administrators and faculty to support the students’ work.

[fn1] There may well be significant communication among peer journals, especially those at the very top, via existing institutions like The Bluebook or existing social networks from college and high school that leads elite law review editors at different schools to know each other. These institutions and networks are far less prevalent for editors at well-regarded regional schools. Yet the law reviews at these schools (and, really, all law reviews) provide crucial labor in identifying scholarship that elite law reviews then poach. Viewed more broadly, they also provide essential means for new and non-traditional forms of scholarship and scholars to see the light of day. The law review universe is an ecosystem whose parts depend on each other, but like so much of the legal academy (and legal practice), it is highly stratified.

[fn2] I recognize that scholarship’s degree of paramount-ness, and whether it should be paramount at all, is contested; but under the current and still quite functional law school model, we are housed in universities, virtually all of whom at least claim that scholarship is one of their key products and the preeminent means to evaluate faculty.

Posted by Mark Fenster on April 6, 2017 at 02:31 PM in Life of Law Schools | Permalink | Comments (23)

Sunday, April 02, 2017

NYTimes, please

Elizabeth Olson writes a baseless article.  Kudos to Michael Simkovic for spelling this out here.  From her grand perch at the NYTimes and as a seasoned journalist who writes frequently about law school, she should know better.  Legal education has plenty to deal with in the media and blogosphere without rookie errors adding fuel to the fire.  (*This expresses absolutely no view about the controversy at U Cincinnati, the details of which I am no position to evaluate, as I suspect neither is the Times).

Posted by Dan Rodriguez on April 2, 2017 at 10:18 PM in Life of Law Schools | Permalink | Comments (4)

Wednesday, February 08, 2017

Law's New Frontiers: An On-line Symposium

Among the gaggle of recent books on law schools and the challenges to the legal profession, two 2016 books, both from Oxford University Press, stand out for what they teach us about the emerging frontier of law, technology, and professional regulation.  Richard & Daniel Susskind, The Future of the Professions:  How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.  

They point to an interesting future -- dynamic, unstable, and conspicuously multidisciplinary -- and make the none-too-subtle point that professional education must adapt to a new landscape.

Over the next three weeks, a group of commentators, from the U.S. and abroad, will offer their reflections on the themes animate in the Susskind and Hadfield books.  (You'll note that Phil Weiser (former dean, Colorado) happily jumped the gun, with his interesting post from late last week).  I hope that these posts, and the comments they generate, will help advance this very important conversation about how we can move constructively forward as lawyers and legal educators into a world in which technology and the shifting infrastructure of information and expertise propel adaptation (or even failure).

Posted by Dan Rodriguez on February 8, 2017 at 10:58 AM in Information and Technology, Life of Law Schools, Symposium | Permalink | Comments (0)

Friday, February 03, 2017

What a law school world without U.S. News might look like

First, many thanks to Howard Wasserman for inviting me to guest blog. It has been a terrific experience.

Many people in legal education criticize the U.S. News rankings in a variety of ways. I don't want to revisit those criticisms. The question I want to discuss is not whether USN could be better, but whether law schools would be better off without USN. Many people pine for a world in which USN's rankings did not exist at all.

USN rankings are important to schools primarily because they're used by prospective students and employers (including judges), and to a lesser extent by other constituencies such as alumni/ae and prospective faculty members. It is no secret that many schools make operational and strategic decisions based at least in part on the likely effect on the school's USN ranking. As a school's USN ranking declines, its costs go up because its admissions yield usually declines and its tuition discount usually goes up.

USN is, among other things, a proxy for law school prestige. In many other disciplines, prestige is measured more directly by scholarly productivity or, especially in STEM areas, by grant money received. If USN rankings disappeared, there would likely still be a prestige hierarchy of law school. My guess is that most knowledgeable people in legal education would sort law schools by prestige into perhaps four groups: a handful of super elites; another 15 or 20 elite schools; probably 20 to 30 schools regarded as marginal; and the remaining 150 or so deemed middling. My guess also is that there would be relative agreement about that sorting, with the occasional hotly contested bubble school. So, what might the law school world look like if USN's rankings disappeared?

Dental schools actually beat back USN's attempt to rank them. The dental school deans simply and concertedly refused to provide USN with the data that would allow it to create a rankings system. Moreover, dental schools, which tend to have low prestige within their universities, typically do not bring in much research money and their scholarly productivity lags behind that of other disciplines.

Thus, there are no rankings and very little differentiating of dental schools by prestige. When dental schools' admissions collapsed, what did the lack of rankings and prestige mean for the schools?

Roughly 80% of dentists go into solo practice or enter into office-sharing arrangements with other dentists. The prestige or ranking of a new dentist's dental school had no effect on most students' employment prospects. Prospective students choosing a dental school understood that a school's prestige or lack thereof would neither help nor hurt their employment chances.

Prospective dental students cared primarily about tuition cost and the school's location, generally preferring a school close to their current home or one in a location in which they wanted to practice. Dental schools within the same geographic market thus competed largely on price. Employment prospects were seen to be mostly a function of school location and the quality of education was perceived as being essentially comparable across schools.

But lack of prestige and the absence of a ranking system hurt dental schools at universities that were or wanted to be prestigious. Over half of the dental school closings were attributed in part to the dental school's lack of prestige and therefore lack of mission fit.

If USN disappeared, many law schools would be in the same situation as the dental schools. Most acutely, the vast majority of schools (those other than the 20 or 25 that likely would retain some prestige independent of USN) would likely have to compete for students on price and location, as many or most of the currently unranked law schools do now. Schools in desirable locations would compete well compared to those in less desirable places, but would still have to compete mostly on price with comparably located schools. Competing on price is always difficult to sustain because other schools can usually lower their prices, as well.

Moreover, for law schools at a university that cares about prestige, an increase in USN ranking is a salient demonstration to the central university that the school is being run consistently with the university's values. That consonance is a key factor in whether a school is likely to get more resources from its university and, as dental schools can attest, can be important in universities' decisions on whether to close a school.

Moving up in USN, then, may be a game worth winning, even if it is not a game worth playing. Schools that win are likely to attract more and better (by traditional measures) students and to get higher net tuition per student. They're also more likely to gain more resources from their university. A law school world without USN might not be the ideal world many think it would be.

I discuss the importance of U.S. News and prestige on pages 70-76 here.

 

 

Posted by Eric Chiappinelli on February 3, 2017 at 12:08 PM in Life of Law Schools | Permalink | Comments (0)

Tuesday, January 31, 2017

Two things law schools should focus on that will help them stay open and thrive

Law schools are in many ways self-contained. Unlike some other disciplines (e.g., Business) we don't educate undergraduates in addition to graduate or professional students. Our dean is not the dean of a school with many, and disparate, departments. We have our own building with our own library. We have our own admissions and professional development offices. And we usually have relatively autonomous registrar and financial aid services dedicated solely to the law school and housed in our building. We are not unique in these attributes; medicine, dentistry, veterinary medicine and perhaps other units are similarly self-contained. But our insularity may be one reason why law schools may be indifferent to the outside world in ways that work against our long-term viability.

As dental education can attest, and as last Wednesday's Inside Higher Ed/Gallup report on provost attitudes (here) supports, insularity can be deadly. But the experience of dental schools suggests at least two things law schools, and especially their leadership, can do to increase support, which may help some schools to remain open and may help other schools to thrive.

One thing is to ensure that the law school's programs and its focus, especially high-profile initiatives, are consistent with the university's mission. I am not suggesting that a school radically change the nature of its enterprise to align blindly with the university  most current fascination. Nor should a school cease to decide for itself in the first instance what its programs and focus should be. But I am suggesting that, when a school considers new initiatives, it explicitly consider how they fit with the university's overall mission.

More critically, I am suggesting that an important task for the dean is to demonstrate, repeatedly, to the university the ways in which what the law school does is consonant with what the university values. At least one dental school,  at Northwestern, was closed in part because the university concluded that the school was not aligned with the university's mission.

Last Wednesday's report on provost attitudes reinforces the importance of aligning the law school with the university and, as important, ensuring that the university realizes that fact. Ninety percent of all provosts surveyed (and 98% of provosts at public doctoral universities) said they plan to increase their emphasis on funding programs based on alignment with mission. A law school that finds itself in need of university support, either to expand or, more likely, to avoid even more cutbacks than the law school has already made, is obviously in a much better position to request that help if the university has confidence that the law school truly furthers the university's mission and its values. That confidence is most effective if it is built up over time.

A second thing law schools should focus on is engaging with constituencies outside the law school. Alumni/ae and the local and state bar and judiciary are obvious constituencies, but there are other important groups, frequently overlooked by law schools. Non-lawyer state and local political figures can be important to law schools, private as well as public. If the law school has an active clinic, greater school outreach to the communities the clinic serves can help the law school. This kind of non-lawyer support typically would take the form of vouching for the law school's value to the community, which is usually (though not always) part of the university's mission. Dental schools were often connected with the communities their clinics served, and those communities brought pressure on the university to keep the dental school open, though that pressure was not always successful. In the case of Georgetown's dental school, the dental clinic's community of patients was quite vocal in its support of the school and quite critical of the university's decision to close the school. In the end, the school was closed, but the community's protests made that process more public and more contentious than it otherwise would have been. Dental schools, in general, did not maintain close relations with their alumni/ae or with their local dental community and thus did not have those constituencies to call upon for help when the question of closing the school was on the table.

Perhaps the most important and under-recognized constituency is university administrators beyond the president and provost. The CFO, the head of university advancement, and the deans of the university's other schools and colleges are all key figures and the law school dean should make sure those administrators know what is happening in the law school and how the law school fits in the overall plan of the university.

I discuss these issues on pages 60-70 here.

Posted by Eric Chiappinelli on January 31, 2017 at 12:18 PM in Life of Law Schools | Permalink | Comments (3)

Thursday, January 26, 2017

Some of the things law schools do that probably won't help them stay open (but some might be good things to do anyway)

As law schools struggle with fewer resources they are increasingly focused on activities either designed to increase revenue directly or designed to attract students who might otherwise go elsewhere. My sense is that at some schools, especially those that see themselves as vulnerable to being closed or merged with another law school, these initiatives are also taken with one eye on the central administration, the idea being that such actions will at least show that the law school is doing everything it can to alleviate the decline in JD tuition revenues.

But these efforts are unlikely to help a school stay open. In some instances, though, schools should be devoting time, effort, and resources to these initiatives because they will redound to the benefit of their students and the institution.

One such area is the curriculum. There are very good reasons for schools to have a continual, or at least frequent, review of the curriculum, but attracting significantly more students or improving the reputation of the school in the university's eyes are not among them. Especially in the professional school setting, I believe most prospective students are unlikely to be attracted to a curriculum they perceive as innovative or out of the mainstream unless that school can credibly provide evidence that is approach has measurable benefits for employment or for practice.

University administrators, I suspect, would look askance at a professional school that did not periodically review its curriculum, but I doubt that a school that touts its curricular revisions gains status with administrators for that reason alone. Certainly, in the dental school turmoil, curricular reform played no part in predicting which schools would close and which would survive.

Another area that some schools focus on as a way out of their problems is fundraising. That focus is almost always misguided. Except for truly transformational gifts, fundraising is unlikely to keep a school financially afloat. Moreover, donors, especially those capable of making major gifts, tend to shy away from giving when the purpose is to help a struggling institution. Rather, they prefer to give to schools they perceive as already successful; a school that uses gifts to springboard to even greater success. Dental school deans increased their fundraising as a way out of their problems, but even after years of efforts, gifts remained less than 5% of the schools' total revenue. Development work is something schools should devote time and effort to, but they should understand that it is unlikely to be a source of unrestricted funds that can replace lost tuition revenues.

Perhaps the two most common initiatives that schools consider as ways to replace traditional JD tuition dollars are distance education and non-JD programs, which include certificate programs and degree programs that lead to the LLM (or another Masters degree). Both of these approaches resonate with provosts, but neither is likely to help the law school significantly. Here, there is not a good analogy to the dental education crisis. That crisis happened before online learning existed and, while there is post-DDS education, most dental schools did not explore starting or expanding those programs, probably because it would have entailed hiring new faculty members and developing new courses.

For both distance education and non-JD programs, the siren song for institutions is increased revenue with very little additional cost. In executing those programs, though, experience suggests that costs are larger than schools anticipate. And, in the law school setting, the potential revenues are probably less than schools optimistically imagine, in part because the market is more limited than one might hope, and in part because competition is stronger than one might anticipate.

I discuss these issues in more detail on pages 49-60 here.

Posted by Eric Chiappinelli on January 26, 2017 at 09:26 AM in Life of Law Schools | Permalink | Comments (0)

Wednesday, January 18, 2017

Now that some law schools are really closing, what will make other universities pull the trigger?

After years of speculation, law schools are actually closing and that is big news. Most saliently, Indiana Tech announced that its law school will close at the end of this academic year at a loss of $20 million (here), a story the National Law Journal named as one of its top five stories of the year on legal education (here). Charlotte School of Law's continued existence is in significant doubt because it can no longer participate in federal student aid programs. (here and here). Hamline University closed its law school with more stealth, but no less certainty, by giving or selling it to William Mitchell College of Law, a cross-town competitor (here and here).

It is tempting to extrapolate from these schools and predict that universities will be most likely to close law schools that (a) are start-ups, (b) have low admissions criteria coupled with poor bar passage, (c) are not the most prestigious school in a crowded regional market, or (d) are losing considerable amounts of money. But the experience of dentistry, where 12% of schools closed -- equivalent to 24 law schools -- suggests that these factors will not be the crucial ones in predicting which law schools are at risk of closing.

In both dentistry and law, a tectonic shift and contraction in the profession led to a collapse in the admissions market and a crisis in the professional schools. That crisis caused several universities to close their dental schools.

But only one of the seven dental schools to close was a start-up. Oral Roberts University's dental school had been in operation for only five years when the board made the decision to close the school. None of the schools had admissions policies that were significantly more lax than schools that remained in operation. None of the schools had a significantly worse track record in regard to students' performance on the national dental licensing exams than other schools, although the performance of dental graduates overall fell considerably during the crisis in dental education.

Rather than being at generic institutions, most of the closed dental schools were located within prestigious universities. Northwestern, Georgetown, Emory, and Washington University all closed their dental schools, as did Fairleigh Dickinson and Loyola University in Chicago. Perhaps paradoxically, one of the reasons cited for closing Washington University's dental school was that it was the high-end dental school in its region.

Most of the seven shuttered schools were losing money, but not all of them. More critically in terms of predicting closure, the great majority of dental schools nationally lost money, yet only seven were closed. In fact, two of those, Oral Roberts and Fairleigh Dickinson, were closed in large part because of financial trouble within the university, not the dental school.

I discuss the crisis in dental education and the closing of dental schools in more detail on pages 21-40 here.

Posted by Eric Chiappinelli on January 18, 2017 at 04:49 PM in Life of Law Schools | Permalink | Comments (8)

Tuesday, January 17, 2017

AALS: A Learned Society still Learning!

I am happy to align myself 100% with Paul Horwitz in his magnificent post (a Jerry Maguirean Manifesto, perhaps?).   Yes, yes, and again yes, to everything he says.

Having insisted, with Mark Tushnet, that the AALS is a trade ass'n advocating vigorously on behalf of its member schools, Paul (and Orin, too) rightly insist that the organization can and should function as a learned society, this for the benefit of the hard-working law profs whose skills, energies, and commitments are essential to our collective mission.  To be sure, "can function" doesn't mean "does function" and the extensive constructive suggestions about to improve both the performance of the AALS and, in particular, the annual meeting, should be welcome by anyone -- especially by the volunteers who after all configure nearly every one of the panels and also the meeting's theme -- who cares about our learned profession.  Let's all get to work on making the meeting great . . . nope, I won't go there.

Where I would like to pivot next, in some other posts, is how the association's role as advocate for its member law schools can be reconciled with two important considerations: (1) the welfare of the community of law profs who work within these schools; and (2) the problems that exist and persist within AALS member schools.  Paul raises shrewdly just this point when he raises the question -- more of a challenge really -- of how the AALS can advocate energetically for law schools qua law schools while also advocating on behalf of legal education and the values for which our educational endeavors stand.  These two complex considerations can reveal tensions in AALS mission, and also its performance.  We would do well to unpack, and not elide, these tensions.  

Posted by Dan Rodriguez on January 17, 2017 at 07:19 PM in Life of Law Schools | Permalink | Comments (2)

Tuesday, January 10, 2017

The AALS is a Trade Association. There, I said it.

Paul Horwitz has a series of very thoughtful posts, each raising some important issues about the AALS and constructive suggestions for reforming the annual meeting.  There are some great ideas in here and as someone who has been (1) very involved in the work of the ass'n over many years, and (2) styles himself as a reformer of sorts (if only a "moderate" one), I find these criticisms and recommendations highly valuable, and some spot on.  Let's make the annual meeting great (again? once and for all?)

But let me tackle here an issue that undergirds at least a couple of these posts, as well as other AALS conversations in the past, and that is what exactly the association is.

It is an association of law schools, not an association of law professors.  Always has been.  Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS.  (No need to take my word for it; you can get the skinny from the charter up on the AALS website).  Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society.  Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat.  Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools.  To be sure, it needs to be ever careful about ensuring that it effectively represents the interests of a very diverse group and, moreover, that its governance structures and institutions provide for adequate input so as to make it more likely that this trade association is advocating for causes and issues that are in the collective interest (as democratically determined) of its member law schools.  That all said, it ought not to shy away from its fundamental mission of advancing the interests of its member law schools.  (Where, of course, there are collective interests to be advanced and where the AALS has a comparative advantage in responsibly advancing them).

While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas, and to develop mechanisms for improving the welfare of faculty members -- and in that sense Tushnet, Horwitz, et al, are quite right to push it hard to improve the meetings and meeting content -- we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.  The real question to me is how to develop a strategy so that, in its functioning on behalf of law schools, it is rigorously professional, data-driven, articulate, and not manifestly self-serving.  Therein lies the challenge; and a challenge built into the very purpose of the association.

Posted by Dan Rodriguez on January 10, 2017 at 01:02 PM in Life of Law Schools | Permalink | Comments (12)

Monday, November 07, 2016

Best writing practices

Hi all, it’s good to be back at Prawfs for another guest stint. I’ve written for this site more times than I can count, but this is my first time guesting as a Texan, having just joined the faculty of the University of Houston Law Center, where I’m also serving as research dean.

In that latter capacity, I’ve been thinking a lot about how to encourage productivity both for others and for myself, and this has led to some reflection on best practices for optimal writing. I’ve found that working on scholarship is the easiest part of the job to put off. Teaching and service typically happen on regular, no-exceptions schedules—classes and meetings require your presence and start and end at specific times—while writing can almost always be delayed until some theoretical future time of idealized productivity.

So in this initial post, I’ll share three of the leading suggestions I’ve read about how to maximize writing productivity based on my admittedly casual perusals of the surprisingly vast literature on this topic (the existence of which leads me to believe I’m not alone in often finding it challenging to stay on-task with respect to writing). The question I’m most interested in is whether these general best practices for writing translate into good practices for legal scholars, and/or whether there are other techniques folks have found helpful.

All this follows after the break.

First: write early. Whether there is an ideal time during the day to write is to some extent idiosyncratic. Charles Dickens and Ernest Hemingway were morning people who cranked out the words when they got up and finished by afternoon. Robert Frost and Hunter S. Thompson were nightowls who got their best work done later in the day. But there is some evidence that most people are best served by writing earlier on, particularly soon after waking up. For one thing, to the extent that writing requires mental focus and will power, those qualities are at their peak earlier in the day, especially the morning before other tasks and distractions have the chance to sap our energy and attention. Neuropsychologists have also found that the part of the brain associated with creative activity—the prefrontal cortex—tends to be the most active earlier in the day, so that if you’re thinking through issues or working out a particularly difficult conceptual problem, you’re more likely to succeed after your morning coffee than your evening dinner.

Second: write regularly. Whether you get your best work done in the dark of the earliest morning or of deepest midnight, one universal nearly all productive writers agree on is: find a pattern you like and stick to it. Part of this is about efficiency. Making writing a regular part of your life makes it increasingly likely that you’ll actually write, turning it into an expected and standard part of your day rather than something you have to spend time and effort making time for. But there’s also the related point that writing regularly makes what can be a challenging task easier. Haruki Marukami unsurprisingly put this much more eloquently than I could in describing his own routine: “The repetition itself becomes the important thing; it’s an act of mesmerism. I mesmerize myself to reach a deeper state of mind.”

Third: write often. One of my favorite quotes about writing comes from the late, great Roger Ebert, who said something along the lines of “I’ve developed a reputation as the fastest writer in town. But I’m don’t write faster than others. I just spend less time not writing.” This is certainly closely related to having a regular schedule (if you commit to writing every day, you’ll likely be writing more often just by virtue of committing to doing so on a daily basis). And this one rings true to me for intuitive reasons. The analogy seems that writing is like a muscle. Exercise it frequently and it gets stronger. Fail to do so and it atrophies.

The question for this audience is: Do these notions, most of which come from looking at novelists or essayists, hold true for legal and/or academic writers as well (I’m not sure that Marukami’s self-mesmerism is something that would be helpful in writing scholarship)? There are a number of potential distinctions: scholarship requires research and entails a different sort of creativity (persuasive argument as opposed to something more akin to pure creativity). And since writing is only part of the professor’s job, is it reasonable to expect to have a regular writing schedule given the need to prioritize students and the competing demands of service? Or does that mean that picking and insisting on a schedule is all the more important?

Finally, consider one alternative approach I’ve observed in some colleagues, which I’ll call the binge-writing model. The notion here is that given the inherent disorder of the academic schedule, it’s not really possible to write regularly, and perhaps not even that effective. I have colleagues who sincerely believe that writing is best in concentrated marathon chunks when blocks of time open up (or if they don’t, in a mad series of sleepless nights). The idea, I suppose, is that this kind of fugue-based approach produces more interesting and coherent work than plodding along gradually, adding a bit at a time.

Again, it’s good to be back and Prawfs and I look forward to thoughts on these or any other best writing practices.

DF

Posted by Dave_Fagundes on November 7, 2016 at 11:29 AM in Life of Law Schools, Science, Teaching Law | Permalink | Comments (7)

Tuesday, September 27, 2016

Letters of recommendation

I come from a family that overwhelmingly worked in blue-collar jobs. Growing up, my father was a stagehand and my mother was a homemaker. In addition, very few members of my (large) extended family went to college. Having grown up without a lot of professional mentors myself, I've since worked to seek them out. Now that I'm a law professor, one of my favorite aspects of the job is the opportunity to mentor students. Maybe that's why I consider helping students find jobs to be part of my own job description.

One of my colleagues recently asked me if I would write a letter of recommendation for a student that did above average in two of my classes (i.e. A-, B+) but was in the bottom third of the graduating class. He seemed surprised when I responded that I am willing to write a letter of recommendation for any student. I'm curious to know if I am the outlier. Would you write a letter for the student so-described? Some further thoughts on my own approach after the break.

When a student asks me for a letter of recommendation, I invite them to meet with me to discuss their career goals. I find that these meetings help me get to know the student a bit better and often provides useful color for my letters. It also affords me the opportunity to ask students to name three qualities about themselves that they would like me to comment and to discuss the possible basis for these comments. For example, if they'd like me to comment on how bright they are, perhaps they'll note that they received a very high grade in my course. Or if they want me to comment on their public speaking, they'll remind me that they served as a group spokesperson during some of our in-class exercises. To my mind, this discussion serves multiple purposes. Particularly for my 1Ls, it is a continuation of our work in class, where I constantly seek to teach them to connect facts to law to reach legal conclusions. It also helps me flesh out the substance of my letter. Finally, it helps to set expectations about what I can and cannot say. I do make clear to students that they should consider whether I'm the best person to write a letter for them based on our prior interactions, their performance in my class, and the their other alternatives. But if I'm the best they've got, I work to write them the best letter I feel comfortable with.

My colleague worried that he would debase the value of his other recommendations by writing a letter for any student that asks. As a result, he said that he refuses to write anything other than letter of unqualified praise. By contrast, I think that there are always positive attributes that I can comment on and I believe that even our weakest students deserve my help to get a job. Apparently, I'm more willing to write a broader range of recommendation letters from those providing "the strongest possible recommendation" all the way to encouraging the employer to "consider" the applicant.

What do you think? Am I failing to adequately safeguard my reputation?

 

Posted by Matthew Bruckner on September 27, 2016 at 02:10 PM in Life of Law Schools, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (7)

Monday, September 26, 2016

What’s Happened With Academic Job Market Vitas?

            What is up with the CVs that academic job market candidates are circulating this year?  Something seems seriously off the rails, and I hope folks will take note and consider fixing it for the future.

            This year’s job market CVs are a weird mash-up in which job market candidates are shoving to the front anything that seems to them relevant to an academic job, and then pushing down below a variety of other information including most of a person’s professional career.  Work experience, publications, presentations, all are broken into strange, small, and often unfathomable categories.

            Although the intention seems to be to put one’s qualifications for an academic job up top, the real effect is to make it extremely difficult (and in some cases impossible) to piece together the candidate’s professional career.

            Take note:  I’m not the only person thinking this is bizarre.  Our entire hiring committee is scratching its head, and I’ve yet to talk with any hiring committee member who believes it makes any sense.  (I’m confident a contrarian will surface here in the comments, blogging being what it is, but still, market candidates, take note.)

            I’m not sure who started this trend, or who is promoting it as the right thing to do.  But here’s a pro tip:  it is not helping you, and folks should stop it.  Indeed, my free legal advice is to think about getting to schools that are seeing you an old-fashioned vita, the kind that actually tells people how your career has proceeded.

            That’s what a CV is.  A summary of your professional life.  It’s designed to let readers know what you have done. It is fine to rework the CV to emphasize aspects of your career that favor the particular job for which you are applying.  But it is quite another thing to design it in a way that hides essential information.

            Schools want to know what you have done professionally.  They want to be able to make logical sense of your career and education to date.  They very much want to know if you have professional experience, including practicing law.  Indeed, I do not know one school where having actually worked in some practice setting is a negative.  It is almost always a positive.  It is true that we are hiring PhDs without this experience.  (And we are even hiring non-PhDs without this experience, though I for one am dubious of candidates who neither have PhDs nor some serious practice experience, even if only for a couple of years.)

            When I look at a CV I want to know about someone’s education, about their professional positions, and about their publications.  Divided into those three categories and those three alone, not subdivided into tiny pieces, so that I can make sense of it.  I don’t want clerkhips in one place, practice in another, and random teaching gigs yet somewhere else.  I want publications to all fall in one place on the CV.   And sure, I’m happy to learn about presentations – though I don’t care that much – or about other things that may be worthy of mention.  But if I can’t get the basics, I’m frustrated and not likely to be impressed.

            And, again, I don’t think I’m alone in this.

            So I’d suggest we let go of the latest trend, and go back to the old-fashioned way with CVs.  I’m all for innovation, but not when it is a step backward.

Posted by Barry Friedman on September 26, 2016 at 07:14 AM in Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (25)

Thursday, September 22, 2016

Learning Outcomes as the New Strategic Planning

As any law school seeking to comply with the standards of the American Bar Association's Council on Legal Education knows Standards 30, 302, 314, and 315 have been revised to require law schools to adopt learning outcomes and then to evaluate their curriculum for compliance.  Whether or not this process will actually improve legal education is not a topic on today's table.  But it is a process with a vocabulary and best practices and an increasingly number of law school specific sources of information.    By now, most people know about a still exceptionally helpful book, Student Learning Outcomes and Law School Assessment by Professors Lori E. Shaw and Victoria L. VanZandt.  The purpose of this post is to suggest that regular Google searches are likely to turn up more  law school specific sources of information.

Likely to be a "go to" for many schools is the new Law School Assessment Blog  by Vice Dean Larry Cunningham at St. Johns University School of Law.   Not only does the blog contain information to translate what can sometimes be impenetrable educational jargon into plain English, it also provides some very easy to adapt models for evaluating a curriculum in terms of it's compliance with the learning outcomes a law school has set for itself.

The next phase of this process will be to develop strategic plans based on these assessments.    As this article by Hanover consulting explains, the  process is somewhat different than traditional law school strategic plans that consistent of aspirational statements across the spectrum of law school activities with very little specific focus on outcomes assessment in the curriculum.  These plans are still relevant and important, but they are not what's needed to comply with the new ABA standards.

 The current project is to develop plans more narrowly focused on curriculum and the results of the assessments that each individual law school are now conducting.    Time will tell the extent to which either learning outcomes or these plans will improve the  the law school experience for students, but regardless of outcome, we will all be creating these plans and it is certainly helpful to have emerging sources of information.

 

 

 

 

Posted by Jennifer Bard on September 22, 2016 at 02:53 PM in Life of Law Schools | Permalink

Wednesday, September 21, 2016

Election Day and law schools

The following comes from Beau Tremitiere, a 3L at Northwestern-Pritzker School of Law, the EIC of the Law Review, and the organizer of the Election RAVE Campaign. Administrators, faculty, and/or students interested in finding out more can contact Beau at ([email protected]). Thanks to Friend-of-Prawfs Jim Pfander for passing this along.

Law faculty may want to know about a burgeoning nonpartisan national movement, the Election RAVE Campaign, which encourages law students to participate on election day in the 2016 Presidential Election. Northwestern Law has cancelled all classes for this purpose, and at least five other law schools have taken the day off. Many others are encouraging professors to reschedule election-day classes individually. By encouraging students to spend the day volunteering at the polls, law faculty can provide an enriching learning experience, reaffirm our profession’s commitment to public service, and significantly reduce the risk that voter suppression, intimidation, tampering, and honest mistakes will disenfranchise large swaths of voters.

 

We believe active participation in our elections should be part of American legal education, offering experiential learning to enrich the classroom discourse and contextualize abstract concepts. Moreover, active engagement may enable law schools to satisfy their institutional commitment to public service. By dispatching volunteers into our local communities to assist elderly, ESL, and otherwise at-risk voters, we can improve our schools’ standing within a sometimes skeptical public. Finally, your students could be the difference between a free, fair, and peaceful election and one that further entrenches distrust and conflict. Law students offer problem-solving skills and familiarity with technology that can shorten wait times and prevent honest administrative errors; in many instances, their mere presence can deter would-be troublemakers.

 

We recognize that rescheduling class is an inconvenience, but among your students are future professors, deans, judges, legislators, and governors. By rescheduling one day of class and encouraging your students to be active civic agents, you can empower, inform, and inspire this next generation of legal, intellectual, and political leaders.

 

Posted by Howard Wasserman on September 21, 2016 at 06:22 PM in Law and Politics, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Tuesday, September 13, 2016

Learning from Some Great Educators--President Freeman Hraboski

One of the things I learned on the way to getting a Ph.D. in higher education is that very little research on how college and graduate students learn ever makes its way into law schools. And almost no one does large scale, generalizable research on law school learning—probably because there isn’t any money to fund it. In law, at best, we now have schools studying their own students retrospectively to identify factors that might correlate with bar success or high grades--but these studies tell us nothing about what we could be doing differently or better in the classroom.  And yet law schools are changing how we teach.  

My neighbor up the road, Prof. Deborah Merritt  of the Ohio State University Moritz College of Law, recently proposed some explanations for the slight rise in MBE scores after a period of steady decline, one of which was "improved preparation." And by that she didn't just mean direct bar preparation but changes in teaching methods that involved more feed-back and more frequent assessment.  This change  is an example of using research on effective learning done in other areas of higher education and applying it to law. 

To start the discussion, I'd like to share the work of a visionary educator, Dr. Freeman Hraboski, President of University of Maryland, Baltimore County whose institution sends more African American men to medical school than any other college in the countryThis TED talk reflects how he is using the research generated by one of the most generously funded topics in education today, increasing the number of students who succeed in STEM fields.  See here, here, and more accessibly, here.  This is antithetical to many STEM fields which pride themselves in weeding out, not encouraging, students.  There may well be some things for us to learn as well.

 

 

 

 

 

 

Posted by Jennifer Bard on September 13, 2016 at 06:22 PM in Life of Law Schools, Teaching Law | Permalink

Sunday, September 04, 2016

Disentangling Correlation from Causation in Addressing the Contemporary Challenges of the Law School Curriculum

The disconnect between the actual curriculum of law schools in the United States meeting the ABA Standards for Accredidation and the multiple calls to reform that curriculum in order to create “practice ready” lawyers and increase bar passage is national in its scope and has led to considerable tension both in and out of the academy.   I wrote this piece , Not Your Parents' Law School, last February to put the balance of classroom and experiential learning in context, but the on-going calls to increase bar passage, lower costs, cut a year out of the curriculum, and increase hands-0n skills instruction continue to create a climate of considerable dissonence.   If that wasn't hard enough, we are trying to address these issues in an environment where everyone involved has not just their own opinion, but their own facts.  Baskin Robbins wouldn't launch a new flavor based on  evidence equal to the paucity of reproducible research that supports either the claims about the scope of legal academe's problems or the proposals for solving them.  

Over the next weeks I will highlight the facts in dispute and address this disconnection and dissonance in a way that questions correlative explanations of low bar passage and decreases in employment opportunities.   By the end of the month, I hope some readers will feel comfortable wondering whether we are putting too much emphasis on simple correlation and will be asking questions about what legal academe, and any other interested party, can do to first accurately describe the problem, then identify causative factors, and finally develop evidence based (and assessable) strategies to mitigate it. (Spoilers, it’s going to involve the help of experts who do math).

Equally, I look forward to sharing sources that can shed light on the question of why the increase in skills instruction hasn’t resulted in an increase in employer satisfaction. Spoilers, the last point will involve reading an excellent piece by Dean Wendy Collins Purdue of the University of Richmond School of Law that discusses this employer dissatisfaction as global.

And I'm still going to write about Zika. 

Posted by Jennifer Bard on September 4, 2016 at 04:56 PM in International Law, Life of Law Schools | Permalink

Wednesday, August 31, 2016

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink

Tuesday, June 07, 2016

Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession

In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.

Criminal Justice

Since its founding in the 1950s, the ABF has had a strong research focus on criminal justice. One of the ABF’s first projects, funded in large part by the Ford Foundation, explored the processing of offenders from arrest to prison. Led by Frank J. Remington, this study culminated in a scholarly edited volume (Discretion in Criminal Justice), as well as a larger publication (A Plane for a Survey) that highlighted the many areas of discretionary decision-making in the criminal justice system (thanks to former ABF doctoral fellow Meredith Roundtree for pointing me to this storied history).

More recently, ABF scholars have been continuing the tradition of analyzing criminal justice issues. Several are conducting research on the social and political implications of mass incarceration. ABF Research Professor and Northwestern Sociologist John Hagan and his co-author Holly Foster (Texas A&M) have been documenting how parental incarceration of non-violent offenders has had tremendous deleterious effects on children. With support from the National Science Foundation, the ABF held a White House Conference on this important topic. Similarly, Traci Burch (ABF/Northwestern Political Science) in her recent award-winning book (Trading Democracy for Justice) has shown the pervasive political and social consequences of mass incarceration, and how the criminal justice system has helped reproduce massive inequality.

Another area of ABF research related to criminal justice is Jim Heckman’s work on early childhood interventions. Jim, who is a U. of Chicago Nobel laureate economist and an ABF Research Professor, has been investigating how investments in early education and healthcare for disadvantaged children from birth to age 5 can have significant long-term effects on boosting graduation rates, improving health outcomes, and reducing violent crime. In a sense, Jim is studying ways to break down the school-to-prison pipeline that has been preoccupying many criminologists and lawmakers.

Legal Education & the Profession

In a previous post, I mentioned the ABF’s signature “After the JD” project, which continues the Foundation’s hallmark work on the legal profession. Directly connected to this line of research is more recent work on legal education. Beth Mertz (ABF/Wisconsin Law) has long been studying the relationship between language and the law. In recent years, she has been examining how law schools operate as a site for the training of lawyers in the language of law. Her award-winning book, The Language of Law Schools, draws on deep ethnographies to explain the important role of language in the socialization of law students.   Beth is following up that earlier project with new research on the post-tenure experience of U.S. law professors.

In a similar vein, ABF Research Professor Steve Daniels has been conducting research on many aspects of the legal profession and legal education. Following up on his recent book (co-authored with Joanne Martin) about the Texas plaintiff’s bar, Steve is currently working on changing patterns within legal education. With support from the Access Group, Steve will be building on his experience as a consultant for the ABA’s Task Force on the Financing of Legal Education to explore how law schools have been responding to the current challenges facing legal education.

Criminal Justice and Legal Education & the Profession are just two historically prominent areas of ABF research. In my next post, I’ll describe other more recent areas of research.

Posted by Ajay K. Mehrotra on June 7, 2016 at 07:47 PM in Books, Criminal Law, Culture, Life of Law Schools | Permalink | Comments (0)

Friday, June 03, 2016

ABF Research on Display at LSA

In my previous post, I provided a broad overview of what the ABF is, namely, a research institute dedicated to the empirical and interdisciplinary study of law, legal institutions, and legal processes. In this post, I was planning to describe some of the ABF’s hallmark research and current projects. But, for those who are attending the Law & Society Association’s annual conference in NOLA, an even better way to learn about ABF research is to attend one of the many panels and events that include ABF scholars. Let me mention a few.

Since its founding in 1952, ABF scholars have been studying nearly all aspects of the legal profession. Among the most well-known early studies, the work on Chicago lawyers led by Jack Heniz has become a canonical part of the socio-legal literature on the legal profession. The ABF dedicated an issue of our 2012 newsletter “Researching Law” to Jack’s scholarship.

In recent years, we’ve followed this research tradition with one of our best known projects: “After the JD” (AJD). This bold and ambitious project has been following the career trajectories of a cohort of roughly 5,000 lawyers from the class of 2000. This longitudinal study has gathered a tremendous amount of quantitative and qualitative data on legal careers, with some fascinating findings about career satisfaction and the stubborn persistence of inequalities within the profession. For those who are attending the LSA conference, you can learn more about the AJD study at a panel on Sat. morning (8:15 in Marriot Salon H-G, 3rd Floor) on “Longitudinal Studies of Lawyers’ Careers.”

Throughout its existence the ABF has had strong ties to the LSA and the broader socio-legal community. That connection is also on display at this year’s conference, as we celebrate the 50th anniversary of the LSA’s flagship journal, Law & Society Review. There are two panels on the journal, one with past editors which includes Shari Diamond (Northwestern Law/ABF) held on Friday afternoon (2:45 in Marriott 41st Floor, St. Charles Room), and a second panel immediately afterwards on the shifting field that the journal represents with ABF Research Professor Terry Halliday, and ABF Faculty Fellow Sida Liu.

Last but not least, the Life of the Law podcast will be hosting what is sure to be an entertaining and riveting session on “LIVE LAW New Orleans - Living My Scholarship” (ticketed event on Friday night) that is chocked full of speakers with ABF connections.

Next week, I’ll circle back to other ABF research that isn’t on in display at LSA but that should be of great interest to PrawfsBlawg readers.

Posted by Ajay K. Mehrotra on June 3, 2016 at 12:20 PM in Life of Law Schools, Peer-Reviewed Journals, Research Canons | Permalink | Comments (0)