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).
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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 (firstname.lastname@example.org). 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.
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 country. This 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.
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.
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.
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.
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.
Tuesday, May 31, 2016
So, What Exactly is the ABF?
Thanks to Sarah and Howard for re-inviting me to post about the American Bar Foundation (ABF). Many PrawfsBlawg readers may already know what the ABF is and what it does, but since I became the new ABF Director back in the fall, I’ve learned not to take anything about the ABF for granted. So, let me begin by describing what exactly the ABF is.
Since I’m a historian, let me start with a brief history. The ABF was founded in 1952 by the American Bar Association (ABA) to be an independent research institute for the empirical study of law. The founding fathers (and they were unsurprisingly all men) were leading ABA members, including then ABA President Robert G. Storey. They all believed the organized bar ought to have a research affiliate that studies issues relevant to understanding how the law works on the ground.
But more importantly they also believed that the American legal profession had a public duty to help improve the “machinery of justice,” as they put it. And one way to do that was to create a research center dedicated to the objective and independent study of law, legal institutions, legal processes.
Over time, the ABF has become one of the premier research institutes for the empirical and interdisciplinary study of law. Although it is often confused as being a part of the ABA, the ABF has consistently been an autonomous and impartial research institute. Since I’m also a tax law scholar, let me point out that the ABF is a 501(c)(3) non-profit; whereas the ABA is a 501(c)(6), which means it is a non-profit “commercially-oriented” organization. The ABA, as the official voice of the American legal profession, is permitted to lobby government and engage in political activity, whereas the ABF is not. Contributions to the ABF are also tax-deductible, but those to the ABA are not.
More colloquially, most people who know something about the ABF often describe it in a number of ways. For some, it’s a kind of law school without law students, or something akin to think-tank focusing on law. Think of it as a cross between the Russell Sage Foundation or the Institute for Advanced Study and the Rand Institute for Civil Justice. Given our roots in the legal profession, the ABF is not quite a pure science research institute, but neither is it purely an applied ABA “lawyer’s workshop.”
Like the other research institutions mentioned above, the ABF has a research faculty that consists of a group of full-time researchers, mainly social scientists and legal scholars, and a group of joint-appointees from Chicago-area schools. This group of research faculty conducts empirical and interdisciplinary research on law, writ large. In my next post, I’ll describe in greater detail some of the classic and recent ABF research projects.
Thursday, March 31, 2016
George Mason University School of Law Reported to be Renaming Law School
Per Nina Totenberg's twitter:
George Mason renaming its law school The Antonin Scalia School of Law. The late Justice, a genuinely beloved teacher, must be on cloud nine!— Nina Totenberg (@NinaTotenberg) March 31, 2016
More information is here at the Wall Street Journal. This comes at the same time as two gifts, an anonymous $20 million and another $10 million from Charles Koch.
Friday, March 04, 2016
Core values and trade-offs in legal education
Let me start by thanking Howard for inviting me to participate this month as a guest blogger. This spring, I talked about the challenges facing legal education as part of two campus visits as a dean candidate. For what it’s worth, I wanted to share a redacted version of my comments. They point to what I see as generic challenges to the law school business model.
Mostly I wanted to discern core values that are necessarily pitted against each other in a law school: (i) the long-run interests of students; (ii) the law school’s corporate interests; (iii) the University’s institutional interests; and (iv) the claims of external constituencies. The dean’s role is to manage these trade-offs.
My second goal was to begin responding to some of the negative claims made of late about legal education. I think that we have been too bashful in responding to criticisms.
This was my first time doing this, so I’m very interested in any thoughts you might have about any aspect of these issues, on- or off-line.
Wednesday, February 24, 2016
I, for one, welcome our new robot Law Lords.
Friends, I've been a terrible guest-blogger so far this month. My apologies. Life (and teaching... mostly teaching) intervened.
But one of the things I'm teaching is an experimental yearlong project-based seminar called the Policy Lab (link is somewhat obsolete), where students spend the first semester learning about an area of legal policy, and the second designing innovations to work on it. And for this first run-through, students have been thinking about legal technology and access to justice. They've learned about things like predictive coding, multijurisdictional tech-driven delivery of legal services, and artificial intelligence, and they've had virtual as well as physical visits from experts and people making waves in the area, including Dan Katz, Jake Heller, Stephen Poor, Tim Hwang, and Craig Cook, as well as more local folks---and now they're working on designing (though not fully implementing) technological tools to provide legal knowledge to nonprofits, as well as policy analyses of, e.g., the ethical implications of such tools. I'm really proud of them.
I'm also a confirmed parking and traffic scofflaw, who once beat a parking ticket with a procedural due process claim, and also once beat a speeding ticket by getting testimony about the laser evidence chucked on the good-old Frye standard (back in grad school, when that standard applied in California). So imagine my delight when I saw this story: "A 19-year-old made a free robot lawyer that has appealed $3 million in parking tickets". A Stanford kid, Joshua Browder, has written a webapp that (as far as I can discern without trying it out or seeing the code) quizzes people about their parking tickets (U.K. only, alas) in natural language, invokes what is sometimes called an expert system to discern a defense for them, then provides an appeal for them to file. Obviously, I have lots of questions and thoughts about this after the fold.
First, is this legal in the U.K.? How do folks feel about the unauthorized practice of law on the other side of the pond? And what about California? On some aggressive interpretations of UPL rules, we might think that the awesome kid is practicing British law in California. As this kind of service, and the services provided by companies like RocketLawyer, LegalZoom, and the like become more customized, and interact with people more like lawyers interact with clients, the UPL questions are going to get harder and harder. The natural language aspect of the parking ticket thing feels to me more like legal practice: you can easily imagine a client trusting an interactive, English-speaking app more than they might trust a more web 1.0 or 2.0 system of drop-down menus and such. Are the regulators going to quash this (especially now that he's looking to expand to New York), or are they going to get out of the way?
Second, to me, this level of legal tech innovation seems like an unmitigated good. Is there anyone scrutinizing the behavior of parking enforcement authorities right now (given that it's far too small-fry in most cases for lawyers), or is the parking ticket system in many cities nothing but taxation by another name, buttressed by the total lack of any real opportunity to challenge them? Browder might look closer to his temporary home, given that San Francisco is kind of notorious for its abusive parking tickets and they've been resisting the use of other automated systems to squeeze out a droplet of due process from the machine. As I've argued previously on this blog, nickel-and-diming people to death with penny-ante law enforcement directed at ordinary day-to-day behaviors is a threat to the kind of ideas underlying the rule of law, and maybe software can fix it where lawyers can't.
Third, to fellow prawfs: as folks like Dan Katz and Oliver Goodenough keep reminding us, this is coming to the rest of the law. Right now, the advances seem mostly to be looming over the discovery process, with stuff like predictive coding threatening to be the second level of the inexorable process of stripping the legal profession of the rents generated by document review (where outsourcing and offshoring were the first), as well as to relatively small-scale stuff like parking tickets, leases, etc. for small players. But as the technology gets more sophisticated, it has the potential to supplement or replace lawyers in more areas of law. (Right now, the most hubristic claims are being made by an early-stage startup called Ross... but what happens if those claims turn out to be even sort-of true?) What can we as law professors do about it?
One option is to get a lot better about teaching our students to be more comfortable with technology, as users as well as creators, even to the point of trying to teach them programming and machine learning. That's a strategy I'm interested in exploring further, but I also have some skepticism about it. It doesn't obviously follow from the danger of technology supplanting lawyers that the lawyers who will be best positioned to survive are those who are capable of operating in both domains. Whether that's true depends on the shape of the ultimate market: will it actually demand people with both legal skill and technological skill (perhaps to translate from one to the other), or will it favor people with pure technological skill plus a handful of really good lawyers to handle the most high-level work? My crystal ball isn't sharp enough to tell me, though I'm encouraging my students to tech up to the extent possible in order to hedge their bets. But what else can we do?
Monday, February 08, 2016
The Best Time To Submit Is Precisely 10:40 on Feb. 23
The Yale Law Journal just released some interesting statistics about the submission season for the past 3 years. Some highlights:
- In the aggregate, the heaviest week of submissions is Feb. 15-21. The second heaviest is Feb. 22-28
- The number of submissions in early- to mid-March is still significant
- A majority of offers are made in "March or later"
- Submitting too early can hurt your chances, at least if you are not giving them an exclusive window of a couple of weeks and another journal makes an offer first
So if you don't plan to submit for a few weeks, cease your angsting, at least for now. (If you really feel the need to angst, head over to the Angsting Thread About Angsting Threads).
Also relish in the fact that, with 16-20 pieces per Volume, you have about a 0.08%-0.10% chance of landing a spot! That's better than the Powerball!
And now back to writing about election law. I'll see you soon.
[Update: Precisely one minute before I submitted this post, Richard posted a much more thorough and thoughtful analysis of the Yale Law Journal's data. So go to his post if you want some real substance on these issues.]
Monday, January 11, 2016
When I was first starting out in the gig, one of my mentors gave me a piece of advice that has stuck with me. Don't write replies. Even if your paper is essentially a response to someone, don't frame it that way. Build the response into a larger claim.
But there was more to it: definitely respond. Engagement is key. The conversation is what matters. Disagree, amplify, make subtle distinctions. Just don't frame the paper around the reply.
I've followed this advice and given it myself. Yet I've never really considered. Why not reply?
My sense--and I'm fine being wrong about this--is that the advice is driven by the submission process. By pitching the paper as a response to someone, we give the appearance of a limited contribution. The law review submission process is a black box on its best days. So it makes sense for scholars, especially junior scholars in search of tenure, to avoid submission formats that won't play well with the acquisition editors. Maybe that's always good advice, whether in a law journal or peer review situation. Or maybe the "no reply" rule isn't widespread. Frankly, I don't know.
But I welcome thoughts. Please and thank you.
Thursday, January 07, 2016
Thanks to Howard and rest of the Prawfs crew for having me.
Starting this semester, I'm transitioning into a administrative position. As of this month, I hold the very sexy title "Acting Associate Dean for Faculty." Fitting for a Skakespearean trained associate dean like myself.
One of the eggs in my administrative basket is our junior faculty mentoring program. Program is a heavy word. Like a lot of schools, much of our mentoring happens on the fly. Don't get me wrong, we mentor hard; it's one of the things our faculty does best. But I'm wondering if we can improve things. When things are going well, tinker with them, right?
For me, the guiding principle of mentoring is always to remember that it's not my career. Too often mentors try to recreate themselves. Which is, of course, not surprising: if it worked for me, surely it will work for you. The problem is that being law professor is an individual sport. While there is collective wisdom to build on, ultimately we have to be ourselves in our teaching and writing. And that's often the most daunting part when you're just starting out in the gig.
But I'm eager to hear thoughts, concerns, suggestions. Please, thank you, or sorry, as the case may be.
Monday, December 21, 2015
We're Requiring Administrative Law in the First Year, We're Requiring Administrative Law in the First Year!
As you might have surmised from the title of this post, we at Boston University School of Law are, as of this year, requiring all first year students to take a course in Administrative Law. The course will be three credits (compared to the four credit courses we require in Property, Torts, etc.) and, just to reiterate, it will be called "Administrative Law." Not Legislation or Leg-Reg or Reg-Leg or Regislation or Legulation or Fundamentals of the Regulatory State or Thinking About Public Law or anything like that, but Administrative Law. Personally I'm excited to be teaching it (we teach it in the spring semester, so it starts in a few weeks) because, among other things, it signals the importance of understanding regulation and the other things that agencies do to being a practicing lawyer. I also like to imagine that we are the first school to do this (require straight-up Administrative Law in the first year, that is), because it lets me walk around with a swagger bragging about how we're the first school to require Administrative Law in the first year, but at the same time I sort of doubt it's true. But on the other hand, maybe it's true!!! Is it true? Or are there other schools out there that are doing it or have done it? And if so, how is it going/did it go?
Tuesday, November 10, 2015
At the beginning of the baseball season this year the New York Mets' second baseman, Daniel Murphy, missed the first two games of the season for the birth of his son, invoking the league's "parental leave" policy. He and his wife faced some absurd criticism from closed-minded people who suggested that his wife should have had a c-section before the season began. Murphy in many ways had the last laugh, helping the Mets reach the World Series through some torrid hitting during the playoffs; as reporter Wendy Thurm tweeted during the playoffs, "Daniel Murphy proudly took paternity leave & now look how well he's performing at work."
I can't hit a baseball very far, but I, too, am taking advantage of my employer's parental leave policy. (So I'm kind of like a major league baseball player, right!? Childhood dream fulfilled!) My wife and I welcomed the birth of our son, Harrison, last April, and this semester I am not teaching any classes so that I can enjoy flexible scheduling while caring for him. I'm still required to provide "100% work" through research and service (hence my midnight post to Prawfs), but this scheduling allows for a wonderful amount of bonding and family time during these precious first few months of his life -- especially because my wife, as an elementary school teacher, had to go back to work in August. (Insert your own comment here criticizing the paltry amount of leave most women in this country receive after giving birth. It is absurd. And unlike many other people, we were fortunate in that my wife was off during the summer right after he was born.)
At first I was not sure I was even going to invoke my school's new parental leave policy. I thought, "I love being in the classroom, and plus, I had the summer to spend with him." But a wise colleague convinced me otherwise. She pointed out that, if I were at a law firm, I would have hardly any opportunity to take much leave. In some ways, the flexible scheduling of my job as a professor is a form of compensation. And I'll never have these first months back with him. Plus, it is important to set a precedent for this new policy to create a culture that accepts and understands the importance of this time and encourages others to take advantage of it.
So my son and I have had a blast spending time together. In September we caught a ballgame in Cincinnati. Most Tuesdays find us at the library for story time. We go on long walks. I've read him a good smattering of both law review articles and Go Dog Go! (For some reason law review articles seem to put him to sleep! He much prefers books written by Mo Willems, our favorite children's book author.)
What's the point of this post? To demonstrate that it is -- or at least should be -- admirable for someone like Daniel Murphy (or me!) to take parental leave. To advocate for more law schools to offer broader parental leave policies if they do not already do so. And to suggest that more professors (including fathers) should take advantage of those policies.
To be sure, I am excited to g0 back to the classroom in January, and I'm confident that my time away has made me even more refreshed to teach. These breaks help to make us better teachers and scholars -- and allow us to live a fulfilling life where family comes first. It is also important to model to our students that it is possible to have a meaningful work-life balance, and that sometimes major events -- the birth and care of a child -- take precedence over everything else.
It's been a really great experience....mostly. What's that sound? Oh, it's time to go change a diaper!
Tuesday, October 20, 2015
The Perfect Letter of Recommendation
I often find myself staying in the office late and coming in on weekends to finish writing recommendation letters for students. Writing these is often one of my favorite parts of my job, especially when I am writing for a student whom I know well and in whose future I really believe. Often, my letters will be long - 3-4 pages is normal for me - and filled with details. The more I can tell the reader about a student, the better. I try to make each recommendation into a story about a person's life, hopes, and dreams. Though we only see a snapshot of a person in a letter of recommendation, that snapshot is all about convincing the reader of a life's trajectory. I really enjoy writing such letters.
I'm less knowledgeable, however, about what the market for letters of recommendation looks like. I have no idea what kind of letters my colleagues write - how long they make them, how many details they include, how they begin, or how they end. I have no idea if they agree to write a letter for everyone who asks, or if they turn down some requests. And I have no idea if they focus only a student's performance in class, on attributes of the student about which they learn outside of class, or on a combination of both. Obviously, different norms and standards apply for different purposes. And different kinds of letters are appropriate for different students. All of that is given.
Still, what does the market for a strong letter of recommendation look like? What should the letter's length be? Should the law professor writing it include information about him- or herself too, and if so, what kind of information is most pertinent? And at what point should a letter go beyond academics to focus on the applicant's other attributes? The Internet, of course, is awash with recommendation advice. Here is some advice that I am cribbing from a website about writing the perfect letter of recommendation:
1. Explain how you know the applicant.
2. State your own qualifications. Why should the reader be interested in your recommendation?
3. List the applicant's exceptional qualities and skills.
4. Emphasize key points that you want the reader to note on the resume or application.
5. Give your value judgment of the applicant and his/her qualifications and potential.
6. Give specific examples to back up what you have said in the recommendation letter.
7. Don't be too brief. One or two short paragraphs are death. But be succinct. Make every word count.
8. Make the ending strong without overdoing it. Undue praise can be viewed as biased or insincere.
9. List your contact information if you are willing to receive follow-up correspondence.
10. Proofread! The letter of recommendation represents both you and the applicant.
Whenever I read such advice online, it seems too general to me - and much too obvious. And it doesn't provide any sort of comparative perspective. The Bok Center for Teaching and Learning at Harvard provides more specific recommendation advice here (it is geared toward TAs and fellows). The Atlantic ran a story a year or so ago about the art of writing the college recommendation letter here. Other advice abounds all over the Internet.
However, I'm curious to hear what law professors think: Is there something unique about the letters that legal scholars write? Is there something unique about letters written for those seeking legal employment (as opposed to other kinds of employment)? What is your recommendation-writing process like? And what, if you have an opinion on the matter, makes for the perfect letter of recommendation?
Sunday, September 27, 2015
Teaching Like It's 1801
Let's think about law school teaching. Start by watching this video, A Vision of Students Today. (Please bear with me and suspend your objections that it's not specifically about law school). It was created by Kansas State Professor Michael Wesch (Cultural Anthropology) and his 200 students. And it's a pretty powerful indictment of education structured in a way that students are passive receivers of information. I realize (hope) that these students' experience is not a perfect fit for law school (they are undergraduates, and their average class size is 115), but I still think this has some lessons for us as law teachers. (For more from Professor Wesch, you can watch his TED Talk about moving students from "knowledgeable" to "knowledge-able" and the ability of students to create and share knowledge here.)
Our goal is to instill knowledge, skills, and values in our students in a way that encourages them to continue to learn on their own and that enables them to transfer what they learn to new settings (i.e. later classes and their professional careers). Educational theorists are very clear that active rather than passive teaching environments are best able to accomplish that goal, and that students who understand the relevance of what they are learning are more likely to retain it. Technology can be a tool in accomplishing that goal (the first chalkboard is attributed to a Scottish headmaster in 1801), but what's most important is what happens in the classroom -- interaction, discussion, reflection, engagement. Do our law classrooms look much different from the Harvard of Christopher Columbus Langdell, or the Kansas State classroom in the video?
The Socratic Method, at its best, involves active student engagement. But how often does it degenerate into a lecture punctuated by occasional questions? And even when excellently deployed, in a large classroom it is only an active experience for the students being called on -- we rely on the rest of the class to participate vicariously by imagining how they would be answering the questions. I'm not arguing that we should ditch it -- but do think we need a large dose of alternative teaching methods.
Consider the critique offered by the video:
- in large law school classes, do we know our students' names? (tips to help are here)
- do our students do the assigned readings from their multi-hundred dollar casebooks?
- do we make it clear how what we teach is relevant to their future lives and careers?
Consider, too, the results of the students' self-survey (and this video was made in 2007 -- it can only have gotten worse since then):
- they read far more on web pages and Facebook than in books
- they write far more for emails (and text messages) than for classes
- they deal with multiple competing time demands and believe they need to multi-task
- they worry about the impact of their student loan debt
If our law school walls could talk, what would they say? The good news: there are a number of teaching options that get us beyond nineteenth century methods. My next blog entry will provide some ideas and resources that I hope will be helpful.
Thursday, August 27, 2015
Get "PRACTICE READY." Get set. Go!
The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship). This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.” The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.”
Creating experiential learning opportunities for students is a great idea. But mandates that law schools produce “practice ready” graduates seem incompletely thought out. Fundamental questions about “practice ready” graduates remain and will continue to plague the system:
- What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?
- What sorts of skills, efforts, and methods are required to make a law student “practice ready”? Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
- Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
- Epistemically, how can you judge anyone’s “practice readiness” to begin with?
- Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training! For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
- Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
- And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness?
Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.
These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”.
First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.
Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified. Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills.
Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop. Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually). Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have. Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.
Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job. The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed. Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt. Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus. Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.” He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.
Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”
Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have. I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools. Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.” Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).
For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner. It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way. Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads). Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.
I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools. But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice. I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!).
Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice. But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.
It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice.
Monday, August 17, 2015
Baby Mama Esq.
By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children.
Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm). One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.
Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.
The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge. And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too. They need to be aware, however, that reality in firms doesn't always match optics. I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)
The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave. When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.
Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?
Approximately 50% of law school graduates today are female. It is likely that a large number of these will at some point in their career have one or more children. I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:
(a) dropping out of practice,
(b) going into a mommy track limbo, or
(c) sacrificing an unreasonable amount of time with their newborn.
Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.
Call for Papers: CSLSA Annual Conference Oct 9 & 10
Tuesday, August 11, 2015
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
- Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise). Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24. And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate. (Discuss.)
With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.
RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media. She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”).
- Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
- Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
- Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
- Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
- International Law? In RLS’s experience and memory:
- Prisoners have always been housed at Guantanamo Bay.
- There has never been Apartheid in South Africa.
- The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
- Hong Kong has always been part of China.
- It was Pres. George W. Bush (not his father) who sent troops to Iraq.
- The currency in Europe has always been the euro.
- Health Law? Cloning has always been a scientific reality. AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least). Adults have been debating the role that the government should have in providing public health insurance since her birth.
- Pop Culture Context: For RLS,
- It has never been a big deal to see women kissing women and men kissing men on television.
- The term “wardrobe malfunction” has been widely understood since RLS was 10.
- Ellen and Oprah have always been first-name-only TV talk show hosts.
- Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
- The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18).
RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!). RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.
As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV. If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school!
Do you feel old yet?
Or are you “Feeling 22” too?
Wednesday, July 29, 2015
The Virtues and Vices of Casebook Supplements
My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.
As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.
I. The Virtues of Casebook Supplements
- Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve.
- Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
- Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
- Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.
II. The Vices of Casebook Supplements
- Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
- Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
- Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment.
III. Closing Reflections
I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...
Saturday, July 04, 2015
Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"
Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.
So that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data. What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.
I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)
The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors. I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing. Recent results? Body of work? Bad losses? Good wins?
In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.
I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.
If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively. (See above left and right.)
What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.
Thursday, July 02, 2015
Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results
I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.
Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations. He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review. That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.
Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank"). His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR. I was interested in "law review lift" versus "law review drag." So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.
After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag). I'll leave it to you to theorize about meaning, if any.Law review stats enhance student stats ten spots or more
Friday, May 01, 2015
Questioning the Law School Debt Narrative
Given the strong feelings that discussions about the value of legal education triggers, I have been reluctant to blog about the so-called law school scam. But a story about a recent law school grad and his debt that is making rounds in the national media has me truly puzzled. This story, which has been picked up by the New York Times, among others, reports about a 2010 graduate from Ohio State’s law school who graduated with $328,000 in student debt. As someone who financed her own education through a combination of student loans, work study, and other financial aid, I am puzzled how this individual accumulated so much debt.
A quick search of Ohio State’s webpage tells me that an out-of-state student should expect tuition and other expenses to total just under $65K a year, and so three years of law school education and other expenses should result in approximately $195,000 in debt. Yet media outlets are repeating this $328,000 number without questioning why a student would incurred an amount of educational debt that is so much higher than the cost of attending law school for three years. The New York Times, for example, reports that this particular law school graduate’s $328,000 debt “includes some undergraduate loans,” yet the story is clearly focused on the high cost of legal education. But, in light of the information that is readily available from Ohio State, one presumes that this student’s debt from law school should make up no more than 60% of this overall educational debt.
Don’t get me wrong, legal education is expensive. At many schools it is probably more expensive than it needs to be. And I can’t imagine how devastating it must be to incur significant debt to obtain a law degree, and then find yourself unable to obtain employment as a lawyer. But I really wish that the media’s reporting on this issue were more nuanced. Many reporters seem so devoted to the narrative that legal education is not worth the sticker price, that their reporting on this issue no longer seems objective.
Thursday, April 23, 2015
Law School Sustainability 2015
In late 2012, I put up a post entitled "Law School Sustainability." I argued that law schools had to think seriously about making legal education sustainable by making it a worthwhile endeavor for graduates. Two and a half years later, sustainability has become even more of an imperative than a choice. It is not an exaggeration to say that some schools are struggling to stay in existence, and that most schools have had serious challenges to their operations. This December 2014 NYT article provided not only an overview of this situation -- it also provided a source for law school deans in convincing university administrations (or, for stand-alones, their boards) that the problems at their particular law school were not unique. "See? Even Northwestern is having these issues!"
There are two blunt forces that are channeling the deluge of changes on law schools today: money and the U.S. News rankings. Money is pretty straightforward: a school needs enough students to pay enough in tuition to cover the costs of operating the school. Schools will have various abilities to cover shortfalls. But a school at least needs to pay for itself to be sustainable. So money is pushing schools to take more students at higher tuition rates -- or, to cut costs to make up the shortfall. U.S. News, however, pushes in almost the opposite direction. It puts pressure on schools to take fewer students, to pay more money per student in educational expenses, and to cut tuition to get better credentialed students. (Ted Seto made this point yesterday, in discussing tuition sustainability.) So schools have played the game of ping-ponging back and forth between these two forces, depending on their finances.Many schools have gotten to the point where the U.S. News goals has become a luxury they cannot afford. But as much as we want to disparage the crude and whimsical nature of the rankings, they do include measurements of important information: incoming credentials, bar passage rates, and employment statistics. Schools that allow these benchmarks to degrade are hurting themselves in the long run. Just as with finances, schools will have differing abilities to suffer through worse LSAT scores or lower bar passage rates in the short term. However, a school whose graduates cannot pass the bar in significant percentages and do not find jobs that can cover their loans is not a sustainable endeavor.
So this is a small cheer for U.S. News, in that it provides an additional incentive for schools to keep up their incoming credentials, get their students to pass the bar, and then find them employment. Word would get out eventually about schools that fail to mind these things. But U.S. News gets the info out nationally, more quickly, and more systematically (if more crudely, and in ways more open to gaming).
One more quick point, to echo what Ted Seto said: U.S. News may incentivize lower costs, but it does so only for higher-credentialed incoming students. Changes to the federal loan program may soon provide very strong incentives to keep tuition lower for everyone. If that happens, then the ping-pong game will turn into this, and the sustainability window for law schools will get significantly narrower.
Thursday, April 16, 2015
Measuring the Impact of Faculty Scholarship
Given the intensity of the reactions folks had about how to measure productivity, I’ve been a little hesitant to post my thoughts on impact.
So, in addition to the qualifications I previously mentioned, let me add that I think it may be impossible to quantify the impact of legal scholarship. Indeed, I am uncertain how one goes about quantifying the impact of most things. We could, for example, obviously state that the Mona Lisa has exerted a greater influence on art than the shabby art projects that I completed and my mother hung on our refrigerator. But can we assess the impact of the Mona Lisa as compared to the ceiling of the Sistine Chapel?
To put this in terms of legal scholarship, I can confidently say that Holmes’ The Path of the Law has exerted a greater impact than any article that I have ever published (or will ever publish). But how can we compare The Path of the Law to, for example, Warren & Brandeis’ The Right to Privacy? We can count how many citations each article receives in Westlaw’s JLR database, we could count the court citations each has received, and we could even ask a bunch of respected law professors to vote which article they believe had a greater impact. But the fact that Holmes’ article has 3,322 cites in JLR, while Warren and Brandeis have only 2,451 doesn’t seem to settle the question---or at least it doesn’t settle the question for me.
In any event, assuming that we have to come up with some way to measure impact---and that is a major premise of academic analytics---I suggest that we quantify the following for each faculty member:
- Citations in JLR
- Citations in ALLCASES
- Number of downloads from various electronic repositories (such as SSRN)
(You’ll have to forgive me for using Westlaw databases---I wanted to make sure that we are all working with the same universe of documents.)
I toyed with a few other categories, such as citations in case briefs. But I don’t think that we have access to an electronic resource that gives us complete coverage of briefs. Is that correct?
Anyway, rather than attempting to justify these categories, I’d be interested to hear what others have to say. I’ll either jump in the comments thread or write a follow up post.
Wednesday, April 15, 2015
The Yale School of Law and Super-Parenting
In case you were feeling accomplished for having gotten the kids to school on time this morning, Heather Gerken has written nine YA vampire novels for her tween daughter. Gerken reports that her daughter "was never impressed that I was working full time, part of a two-career household and still outpacing J.K. Rowling by a considerable margin." My favorite line of the article: "The women [in the book] are ambitious and career-oriented, and some have the emotional I.Q. of a tree frog."
Gerken joins fellow Yalies Ian Ayres and Amy Chua in showing us the ways to channel our inner achievers into the more mundane joys of parenting. Ayres promised his children a puppy if they wrote and published an article in an academic peer-reviewed journal. Lo and behold, they did. And now they have Cheby, named for the mathematician that discovered Chebychev‘s inequality. In January we got an update from the Tiger Mother herself as her teenage daughters sleep past noon. I appreciate the introspection in constructing a pretty incisive self-parody, but since her shtick is how extreme she's willing to be, self-parody and honest reportage are a little difficult to differentiate.
Friday, April 10, 2015
Texas A&M School of Law hires nine new faculty members
The announcement is here. It looks like an exciting lineup. The four additions in intellectual property--Irene Calboli, Glynn Lunney, Saurabh Vishnubhakat, and Peter Yu--are all strong in the field. Cheers!! (or should I say something more Texan?) Anyway, congratulations!
Wednesday, April 08, 2015
Productivity Metrics for Legal Scholarship
As I wrote last week, some universities are using Academic Analytics to assess the academic productivity and excellence of their various departments. As promised, this post will offer a few metrics that are more effective than the metrics currently used for other disciplines.
Before I set out those metrics, I want to offer a few qualifications. First, Academic Analytics claims only to quantify faculty scholarship. Law faculty are usually assessed based not only on their scholarship, but also on their teaching and service. So while this post will focus only on metrics for assessing legal scholarship, we should also think about how to quantify faculty’s teaching and service contributions.
Second, it is worth asking what these metrics are supposed to capture. Put differently, why are university administrators seeking this data? I don’t know the answer to this question. I suspect, however, that they are, at a minimum, looking to do the following: (a) ensure that the faculty in all of their departments are meeting a minimum level of productivity; (b) determine which of their departments are performing well as compared to other departments across the country; (c) determine which departments are underperforming; (d) make marketing, funding, and organizational decisions that reward departments in category b and reform (or perhaps punish) departments in category c.
Third, while university administrators may choose to use this data to assess their departments, law school administrators may wish to use this data to assess their individual faculty members. While the university compares its department to departments at other universities, law schools could use the data to compare faculty members either to other faculty at the same school or to faculty at peer institutions.
Finally, I am personally ambivalent about quantitative assessments of faculty. Quantitative assessments give us some concrete way to measure scholarship, but I don’t think that these quantitative metrics can serve as a substitute for a qualitative assessment.
Now some proposed metrics.
In my mind, a quantitative assessment should seek to measure both productivity and impact. This post will focus on productivity, and my next post will address impact.
Productivity seems as though it should be straightforward. After all, determining how much a faculty member publishes should be a simple matter of counting. But what are we counting? If we look only at the number of publications that a faculty member publishes in a year, then we would not distinguish between one faculty member who publishes a three page commentary in a local bar journal and another who publishes a monograph with a prestigious university press. But even if we agree that the monograph represents more productivity than the 3 page commentary, that does not tell us how to compare one to the other.
We can avoid some of these questions by counting different types of publications independently rather than trying to determine how one type of publication might compare to another. So, for example, rather than deciding whether a monograph is “worth” the same as a law review article, I would simply have separate counts for monographs and law review articles. Off the top of my head, I would include the following categories:
- Law review articles, essays, and book chapters (at least 25 pages in length)
- Shorter publications (between 5 and 25 pages)
- Book reviews
- Edited volumes
- Textbooks and treatises (perhaps separating out new editions?)
There are, of course, other types of publications – such as editorials and white papers – but those strike me as outside the core of what is generally considered legal scholarship. Are there other categories that I am missing?
The second major challenge for measuring productivity is deciding whether to include only those publications that meet some minimum threshold for quality. So, for example, in other disciplines only peer reviewed publications count towards productivity. Similarly, other disciplines sort journals into different categories --- those categories are well known and well defined. These qualitative limitations and distinctions could be imported into law. For example, only publications in top 50 journals could count towards productivity. Alternatively, a placement in a top 10 journal could “count” for more than other publications.
I’d be interested to hear what others think about qualitative limitations and distinctions. My instinct is to exclude them. For one thing, deciding which journals qualify as top 50 or top 10 would engender its own controversy. For another, limitations and distinctions would muddy the water, as they are not measures of productivity.
More to come . . .
Ten Years After: How Blogging Has Changed
For an indication of how blogging has changed in the last ten years, I wanted to highlight two posts. The first one is from Dan Solove, entitled "Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?" It garnered 8 trackbacks(!) and 98 comments from mostly law professors who mostly used their real names in a heated and respectful debate on the issue. It was a real moment of connection for me, as an issue that I had talked about with folks individually was now the subject of real debate between many contributors who had strong opinions. It demonstrated that blogs could offer opportunities to engage and connect on a level that hadn't really happened before -- not with so many people, on such a particular issue, in real time.
Sadly, I think that model has not carried forward. There are perhaps a variety of reasons, but Kate Litvak provides a convincing set of explanations in her 2006 piece, "Blog as Bugged Water Cooler." The forum is too public for sensitive, controversial information, and anonymous exchanges don't have the same meaning. I also note Dan's comment to the Ph.D post: "this site won't be host to swipes at scholars and/or their work in the comments and without serious arguments attached." I appreciated Dan's zealous protection against negativity, particularly anonymous, unsupported negativity. But it did mean that perhaps folks were less likely to divulge critical information when it was critical of someone.
The other post is "Submission Angsting: Spring 2015." There are (at this moment) 1,447 comments on the post. The posts are mostly anonymous, but they share a real community of participants who are going through a stressful process and are sharing useful, finely-grained information. The topic is uber-particular and not very interesting to the average law student or even law profs who have not submitted anything this cycle. But journal editors and prospective journal authors can use the info to muddle their way through a somewhat dysfunctional process.
I think these two posts reflect a lot about what has changed in the last ten years of law prof blogging. But I don't really know what it says about the future.
Friday, April 03, 2015
Contemplating Academic Analytics for Law Schools
There is a recent trend in higher education to standardize assessment of faculty’s academic achievement across disciplines. For example, a company called Academic Analytics markets itself as providing university administrators “with objective data that administrators can use . . . as a method for benchmarking in comparison to other institutions.” As its website explains, it measures productivity and excellence by quantifying:
- the publication of scholarly work as books and journal articles
- citations to published journal articles
- research funding by federal agencies
- honorific awards bestowed upon faculty members
Because it is seeking to assess academics generally, the metrics that Academic Analytics uses are not necessarily well suited to assessing law faculty. For example, the number of faculty members with a grant and grant dollars per faculty member (two data points that the company uses to quantify research funding) are not particularly good measures for law faculty because many law schools do not encourage their faculty to obtain grants. Similarly, the number of faculty members who have published a book may not be as good of a metric for law faculties as in other disciplines.
Looking at the academic analytic metrics, I’m contemplating how it is that one might attempt to construct an instrument that would assess law faculty productivity and excellence.
Brian Leiter’s study of citations (which some faculty at St. Thomas have reproduced in recent years) is one possible example. That study gives some sense of the impact of a law school faculty’s scholarship by counting the number of citations each faculty member receives in other legal scholarship.
As Leiter himself notes, this study has real limitations. And I imagine that there will be serious limitations on any attempt to quantify academic achievement. That said, if university administrators are seeking to engage in these sorts of analyses, it strikes me that law schools ought to give serious consideration to developing better metrics at assessing their productivity and excellence.
I’ll share some preliminary thoughts about what those metrics might look like in a future post.
Final Thoughts on Fiduciary Duty in Higher Education
As my month of guest blogging comes to an end (how did it get to be April already?), I wanted to close with a final thought about fiduciary duty in higher education. Financial pressures bring these issues to the fore. At Appalachian School of Law, we see board members accused of having “breached the fiduciary duty to the law school, to the students and to the public” by refusing to consider a merger or move out of Grundy. At Sweet Briar, a county attorney in Virginia has filed suit to stop closure of the school, alleging that the board should have considered other options including “a new fund-raising campaign, admitting more international students, stepped-up recruiting at private girls' schools with equine programs (a strength of the college), restructuring the curriculum, or stepped-up recruiting of wealthy students.”
Changes in the educational marketplace mean that universities will continue to come under tremendous financial pressure. Cost increases and changes in the way that universities are paid for similarly mean than students are asked to bear an ever-growing share of the educational costs. In some cases, the cost of debt-financing an education may well come close to—or even exceed—the financial premium gained from degree attainment.
In this environment, I think it is important that institutions—including board members, administrators, and faculty members—begin talking early and often about what obligations they have to serve current students, future students, and the public more broadly. Waiting until an institution is in danger of closing is really too late to decide what the institution’s goals, mission, and obligations are. By starting discussions much earlier, schools will be much more likely to be able to acclimate to a rapidly changing landscape.
Sunday, March 29, 2015
Why isn't PRSM more popular?
Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles. Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?
Friday, March 27, 2015
Breaching a Law Review Contract?
I'm one of Temple Law Review's advisors. Given my views on student-run journals, this is a bit ironic. But the experience so far has taught me how much student editors care about getting it right, and how invested they can be in their journal's success. Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students.
The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement. Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak. Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful. If they did , this is the clearest case of efficient breach possible.
But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle. Temple just had someone back out. Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details. I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether publication decommitments are more widespread than I'd thought, and whether journals could (or should) do anything to stop them.
Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?
Wednesday, March 25, 2015
The Sweet Briar Legal Challenge
The alumnae group Saving Sweet Briar has hired the law firm of Troutman Sanders LLP to represent the group in its attempt to oust the current board and prevent the school's closure. The law firm sent a letter to the board's counsel outlining its legal position. Its first argument makes a breach-of-fiduciary-duty claim, asserting that "[a]s directors of a non-stock corporation, your clients [that is, the board members] are required to promote the College’s best interests, and your clients have good faith duties of care, loyalty, and obedience toward the College."
As I said before, however, I don't know that the Board's fiduciary duty in fact runs to the institution--I think the duty runs more broadly to the institution's mission. In good times, those duties would be congruent; in less good times, however, the two may conflict. What if, as some have posited, Sweet Briar could be saved by going co-ed? Or by lowering academic credentials? I'm not sure how well the school's mission is defined; it was explicitly founded to educate women, and perhaps less explicitly, founded to educate women from a relatively elite social class. (Perhaps not so much less explicitly--social class seems to come up often in discussions of the college's past and present, and a recent New York Times article points out that "both Mr. Jones [the interim president] and Paul Rice, the board chairman, said Sweet Briar’s rich-girl days were long gone").
Changing that mission might be a good idea, but the challenge raised by the letter isn't a question of what policy would be best--it was explicitly stated as a legal question, and I think it is an interesting one. Brad, a commenter to my prior post, pointed out that the March of Dimes changed its mission from polio eradication to the prevention of birth defects once polio was eradicated. From a legal perspective, I think that such mission changes probably fit within a reasonable cy pres distribution of charitable assets. The Sweet Briar board, like the March of Dimes, would likely have been on strong legal footing if it had modified its mission to become sustainable. But, as Brad points out, the harder question is does it have to?
It appears to me that Saving Sweet Briar is arguing that the board in fact had a duty to sustain the organization--even if doing so meant modifying the school's mission. To be fair, this is not stated explicitly in the letter, and the letter also raises other issues of financial secrecy and lack of decision-making transparency. But some of the language, I think, hints that the group thinks the Board should have considered mission-changing options like going co-ed; it mentions a failure to "consider other methods of meeting the College’s needs" and a "failure to explore all possible options." The group's FAQ page is explicit that its focus is keeping the college open: (Q: "What are your plans to turn the college around?" A: "At this time, we are focused on halting the school’s closure and keeping the college open.").
I'm interested to see how these arguments develop. I do fear, though, that the cost of litigating those arguments might very well consume so much of the remaining resources that there is not enough money left either to soften the transition of closure or to restore the school to sustainability.
Wednesday, March 18, 2015
Sweet Briar a Victim of Predatory Lending?
As the Sweet Briar situation continues to unfold, a policy analyst from the Roosevelt Institute digs deeper into the school's financial statements, and discovers troubling information:
"[P]redatory banking practices and bad financial deals played an important and nearly invisible role in precipitating the school’s budget crisis. . . . A single swap on a bond issued in June 2008 cost Sweet Briar more then a million dollars in payments to Wachovia before the school exited the swap in September 2011. While it is unclear exactly why they chose 2011 to pay off the remainder of the bond early, they paid a $730,119 termination fee. . . .
Just how big a deal are these numbers? The school has a relatively small endowment even among small liberal arts colleges: currently valued at about $88 million, with less then a quarter of that total completely unrestricted and free to spend. But in 2014, the financial year that appears to have been the final straw for Sweet Briar, total operating revenues were $34.8 million and total operating expenditures were $35.4 million, which means that the deficit the school is running is actually smaller than the cost of any of the bad deals it’s gotten itself into with banks."
Unlike most victims of predatory lending, however, Sweet Briar would have had access to high-level legal and financial advisors. If the financial deals were as bad as the report suggests, something went very wrong in the college's decision-making process.
Tuesday, March 17, 2015
Fiduciary Duty, Higher Education, and the Zone of Insolvency
Questions continue to emerge about the situation at Sweet Briar and the decision-making process that led to its closure, and the situation seems destined for litigation. One of the issues that seems to run through the discourse, though, is one I’ve been thinking about for a few years: to whom do the college decision-makers owe a fiduciary duty?
A letter from Virginia State Senator J. Chapman "Chap" Petersen to Attorney General Mark Herring raises the question explicitly. The letter questions the legality of the announced closure, asks for an opinion on the legal status of restricted donations, and asks “Does the Board have a fiduciary duty to protect the interests of donors and students, as well as the mission of the College?”
The issue of fiduciary duty presents an interesting question, and I would add a follow-up: does that fiduciary duty change (or should it) when a nonprofit institution is operating in the so-called “zone of insolvency”?In recent decades, colleges and universities have attempted to act more like businesses (the so-called “corporatization” of higher education) and, in doing so, may have acted in ways that are inconsistent with nonprofit principles. In particular, I suspect that the increasing spiral of rising tuition and concomitant discounts is one of the leading causes of financial distress in higher education—and it may well be that prior Board decisions underlie Sweet Briar's current financial crisis.
But regardless of how Sweet Briar got to this point, whose interests should now be paramount? I think there is no doubt that the Board owes a duty to the “mission of the College.” But how is that best served? The stated mission of the College is to educate women—but there are far more options for women’s education now than there were at the college’s founding, making it appear less important that that mission be served by Sweet Briar College. I also think there is a strong argument that colleges and universities have a fiduciary duty to act in the best interest of their students. I suspect that there is a contractual duty (though I am doubtful there is a fiduciary one) to donors; restricted funds probably should and will go back to donors or be distributed under cy pres principles.
There may be some conflict between the interests of educational goals, students, and donors. Nonetheless, I think that the main source of tension and potential conflict arises from an idea not actually stated in Senator Peterson’s letter—the idea that the Board could also have a duty to the institution itself. When a nonprofit institution is financially solvent, it may be reasonable to think in terms of a trustee’s duty to protect the institution and its future; ideally, the interests of the institution would be aligned with the interests of the institution's mission. When the institution is not financially solvent, however—and when strategies to gain solvency would seem to conflict with the institution’s mission—then there is a significant potential for a conflict of interest. The restriction of nonprofit status (exchanged for some nice tax breaks) suggest that the interests of the institution (and its management, including faculty) have to take a back seat in the face of such a conflict. I don't know if the Sweet Briar board made the right call, and I am troubled by a reported lack of transparency in its decision-making. For Sweet Briar, questions of power, duty, and potential conflicts will likely get hashed out in court.
Thursday, March 12, 2015
Bankruptcy and Higher Education
Futurist Clayton Christensen predicted that half the nation's colleges will be in bankruptcy within fifteen years. I have doubts about both his predicted number and his predicted timeline, but there is no doubt that many colleges and universities are struggling, and that current financial models in higher education--especially the high-tuition, high-discount model--may well be unsustainable.
The more immediate question, for some of those institutions, is whether bankruptcy is even a viable option. Most people know that student loans are largely nondischargeable in bankruptcy. What is less well known is that universities face their own bankruptcy restrictions that make them unable to benefit from Chapter 11 restructuring opportunities. When a college or university files for bankruptcy, it immediately loses eligibility to participate in the federal government's Title IV aid program (which includes Pell grants, Stafford loans, and Plus loans), so its students cannot get federal loans or grants. Because the vast majority of students rely on federal aid to pay for school, it is effectively impossible for an institution to maintain enrollment while restructuring its finances.
Lon Morris College, the oldest junior college in Texas (in existence since 1854) ran into this problem in 2012. It originally filed a Chapter 11, seeking to restructure. Once the bankruptcy judge ruled that it was ineligible to participate in Title IV, the college had to quickly liquidate and ended up selling much of its property to the local school district. Like many other struggling schools, Lon Morris had trouble navigating its pricing structure: "College officials blamed the school’s financial hardship on their overambitious goal to grow student enrollment during the economic recession by offering discounts on its $22,190-a-year tuition," which was steep for a two-year college. The school had an $11 million restricted endowment, which became the subject of litigation over whether it could be used to pay for the costs of bankruptcy lawyers. By early 2015, there was a little over a million dollars left; it went to Texas Wesleyan to pay for scholarships.
A recent Hill editorial called for amendments to the Higher Education Act that would allow universities to restructure without losing eligibility for federal aid. Without such amendments, the author argues that "schools must either declare bankruptcy and implode (like the non-profit Lon Morris College in 2013 or the for-profit Anthem College in 2014) or, in many cases, go through a protracted consensual foreclosure process to accomplish, in essence, a debt-for-equity swap (as was done with the for-profit ATI Enterprises in 2013)." Neither option is good for students, and he may be right that an amendment is called for. In the long run, though, breaking away from the high tuition/high discount model may do more for financial sustainability.