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.
Friday, March 06, 2015
Erwin Chemerinsky at FIU
I am delighted that Dean Erwin Chemerinsky of UC-Irvine was at FIU this week for the Second Decanal Lecture on Legal Education. After the jump is the video of his talk to the students (it begins around the 1:30 mark), titled The Future of Legal Education.
Tuesday, March 03, 2015
Financing Higher Education
Thanks to Howard and the Prawfsblawg community for hosting me this month! For some time, I have had an interest in (or possibly more accurately, an obsession with) the question of how we fund higher education--and especially the ethical dimensions of that funding issue. I hope to explore some of those questions here this month.
Obviously, funding issues are very much front-and-center in the law school world these days--but many liberal arts colleges are facing even bigger challenges. Today Sweet Briar College announced that it will be closing at the end of this academic year, though it still has an endowment of $94 million. I thought the board chair's explanation of the decision to close raised an interesting point about the priorities of a nonprofit institution:
Paul G. Rice, board chair, said in an interview that he realized some would ask, "Why don't you keep going until the lights go out?"
But he said that doing so would be wrong. "We have moral and legal obligations to our students and faculties and to our staff and to our alumnae. If you take up this decision too late, you won't be able to meet those obligations," he said. "People will carve up what's left -- it will not be orderly, nor fair."
This is a courageous stand for the chair to take; there is a temptation for self-preservation even at the expense of the larger mission of the college. But even though I think that the board made the right decision, my heart goes out to the staff and faculty who will lose their jobs.
Sunday, February 22, 2015
The 2016 U.S.News Rankings Are Still Not Out Yet--Getting Ahead on the Methodology of the Law (and Business) rankings
We are fast approaching the date that U.S. News issues it’s graduate school rankings. According to Robert Morse, chief data strategist for U.S. News & World Report, the official date is March 10th but they usually leak faster. Paul Caron at Taxprof blog is, of course, already on this and will probably be first out of the box with the analysis when the time comes, so I thought it might be helpful for those who want to prepare to interpret and explain them to read ahead on the methodology the magazine will use. (this could also be a good time to learn how to set a Google Alert or some other automatic notification method ) There have been some substantial changes in the law methodology over the past several years—so if you haven’t checked this out recently you might be surprised. I also had a look at the methodology for ranking business schools because those seem to have much greater fluctuations than law schools—and indeed found some interesting information I don't know how to evaluate. Out of the 435 programs U.S.News contacted for information, 285 responded but only “127 provided enough data needed to calculate the full-time MBA rankings.” I leave the interpretation to others, but if my math checks out, they’re only ranking about 30% of the accredited programs.
Back to the law school rankings—
There a few things of note—a change I didn’t hear much about last year is that “for the first time” the “the lawyer and judge survey” which is weighted by .15 comes from names that “were provided to U.S. News by the law schools themselves. This change resulted in a much higher lawyer and judge survey response rate than in previous years.” This should be of considerable benefit to schools whose reputations don’t extend far beyond their regions.
Another thing of note is that placement success, weighted by .20, was adapted to reflect “enhanced American Bar Association reporting rules on new J.D. graduates' jobs data” so that , “Full weight was given for graduates who had a full-time job lasting at least a year where bar passage was required or a J.D. degree was an advantage. Many experts in legal education consider these the real law jobs.”
However, “less weight went to full-time, long-term jobs that were professional or nonprofessional and did not require bar passage; to pursuit of an additional advanced degree; and to positions whose start dates were deferred. The lowest weight applied to jobs categorized as both part-time and short-term and those jobs that a law school was unable to determine length of employment or if they were full time or part time.”
It’s also interesting to hear about how the specialty rankings are put together:
I knew that the “specialty rankings are based solely on votes by legal educators, who nominated up to 15 schools in each field. Legal educators chosen were a selection of those listed in the Association of American Law Schools' Directory of Law Teachers 2010-2011 as currently teaching in that field. In the case of clinical and legal writing, the nominations were made by directors or members of the clinical and legal writing programs at each law school.”
But I didn’t know that there was a “floor” so that no school is ranked unless it receives at least 7 nominations. “Those programs that received the most top 15 nominations appear and are numerically ranked in descending order based on the number of nominations they received as long as the school/program received seven or more nominations in that specialty area. This means that schools ranked at the bottom of each law specialty ranking have received seven nominations.”
Thursday, February 12, 2015
LSAC Report on Best Practices
A report recommending to LSAC best practices on accommodating LSAT test-takers with disabilities has issued from a panel convened pursuant to a consent decree between LSAC and DOJ. Here are the Executive Summary and the full report. (H/T: Ruth Colker (Ohio State), the sole lawyer on the panel).
Wednesday, February 04, 2015
Fewer law schools or fewer students per school?
As legal education shrinks, should we have fewer law schools or fewer students per school? Right now, I think the policies in place favor fewer students per law school: the ABA is a pretty weak filter, both for new schools and existing schools; U.S. News rankings favor smaller class sizes and better scores; and there's no real market for firm control and consolidation, as Stephen Bainbridge discussed. But there are exceptions -- the incentives to pull in transfer students, for example, favor the "fewer schools" approach, as does the growing trend toward a standard, national bar exam. I haven't seen much policy debate specifically on this question, but it comes up all over the place as we're dealing with the downsizing.
Saturday, January 31, 2015
How to Find and Build a Scholarly Community
So imagine this: You are new to the legal academy, and you are trying to find a scholarly community. Or perhaps you are already part of one but want to make it stronger. Where do you begin? What steps do you take? This past week I spoke to a few of you who are experts in buildings scholarly communities. And I would like to share some of your ideas and advice with our readers here.
Scholarly communities are different from many of the communities that exist in the world. When we think of the word “community,” we often think of something local. A policeman patrols a local community. He knows other policemen in his city, but a policeman who lives in Boston will not necessarily consider a different policeman who works the streets of Seattle to be his colleague. Lawyers tend to be part of local communities too. A few work for large firms with multiples offices and are staffed on deals with colleagues from other offices, but this is an exception, not the norm. More often, legal practice is a local affair, with courts following local rules, firms servicing local clients, and bar associations networking with local lawyers.
But the legal academy is different. The whole point of the enterprise is to seek out companionship and camaraderie beyond the walls of your institution, the confines of your city and state, and the borders of your country. The whole point is for a scholar who might live in Boston to interact and collaborate with other scholars who happen to be working on the same topic, regardless of whether they live in Seattle, in San Francisco, or in Sao Paulo. Still, how should you go about finding these like-minded individuals who may share your same interests but live in far-flung places? And once you find them, how do you become a part of their community or bring them into yours?
If you are new to the legal academy, or aspire to enter it, or have been in it for a long time but simply want to expand your network, here is a short how-to guide for finding and building a genuine scholarly community. This guide is not exhaustive, and additions to it are welcome. Here it goes.
(1) Decide What You Are Interested In: People often claim not to know what they are interested in (or not to know what to do with their lives, which is a version of the same thing). In fact, we all know what our interests are, but sometimes we have a hard time articulating them. A person’s interests come from his or her personal experiences. And since all of us have experienced different things, we all have different interests. It is fine to have multiple interests, but the best advice is to pick one, or two, or three. Then stick with them, develop and refine them, and try to figure out how to explain them to others in a thoughtful elevator pitch.
(2) Publish on Your Areas of Interest: Read what other scholars have written about your areas of interest. You might agree with some of the literature, but hopefully you will disagree with a lot of it too. Here is the key: always read with a critical eye, and be certain to disagree on matters of principle with someone who does not share your views. Next, write up your disagreements in a way that explains why your take is better than the analysis that came before it.
(3) Go to Conferences and Meet People: There is a lot of ranting on the internet knocking down academic conferences. (I really shouldn't even link to it.) I tend to ignore it because I personally love attending these things. Conferences come in all shapes and sizes, from big tent gatherings to small subject-specific workshops. Every time I go, no matter the type, I come away feeling inspired and renewed. Going to conferences should give you the feeling that you are part of a profession and part of a larger community. Conferences should provide you with new ideas about scholarship and teaching. Conferences also provide an opportunity to meet people. Some of these people will eventually become a part of your community.
(4) Run for Leadership Positions in Scholarly Associations. Here the trick is often simply to show up and raise your hand. I’m serious. This year at AALS, I showed up and raised my hand at three different section meetings. And there I was, placed on some committee for three different scholarly sections. Most people in the legal academy will meet you and say, “Welcome!” People love new faces, new ideas, and new scholars who are willing to make genuine contributions to communities that already exist. Think of a contribution you can make and speak up for your ideas. This is why you joined this profession in the first place.
(5) Make an Effort to Identify Mentors: This advice is often easier said than done. And it applies to all work settings, not just to the legal academy. But where the academy is unique is that it allows you to have mentors both within and outside your building. You can have them at other schools, as well as in other fields. However, it can take work to find real mentors. In fact, as you read my post here, stop for a second and take a deep breath. Now take out a piece of paper and write down the names of three scholars who are your mentors. If you can list three, great. Send each an email right now, just to check in. If you cannot list three such people, do not fret. Instead, write down the names of three people whom you would like to have as your mentors. Now send each of these individuals an email. Send each person on your list your latest article or work-in-progress, or whatever half-baked idea you may have had today. Ask each for one piece of advice. Or ask each out to coffee. Do it before you get to the end of my post. If they happen to be at different institutions, call them up. Just do it. People often tell me that they don't know how to find a mentor. If you’re an extrovert, it's as easy as saying to someone senior in your field, “I am looking for a mentor. Would you be that person for me?” I promise that no one will ever turn you down. And if you’re an introvert, here's my advice: Find the person you want to have as your mentor and say, “I read this blog post about how to find and build a scholarly community. I'm not sure where to find a mentor. Can you give me some advice?’ I promise you will have a new mentor before you know it.
(6) Ask For Help When You Need It: I admittedly find this piece of advice the most difficult to follow myself. It's also probably the most important. Community building is a community effort. No one can be a community of one. Asking someone for help is the same thing as asking to join that person's community, and offering help to others is equivalent to inviting them into your own.
(7) Be Generous With Your Time: Collegiality can be very time-consuming, but it is also immensely rewarding. And those who are generous with their time ultimately reap large rewards. Ask people to join your community. Take the time to recommend other communities when you know of one that a colleague may enjoy. And always, always be generous to those who are coming up the ranks. At Danny's memorial service at SEALS, I'll never forget the stories that so many of you told about how Danny always brought new people into his community. You don't have to be well-known to be part of a scholarly community. You just have to have a few new ideas and to show some enthusiasm.
That’s at least how you find a scholarly community. But then how do you maintain it? Here, the key is to have with a vision, to create a structure to support that vision, and to pour substance into that structure. Your structure should be an institution. It could be any institution, such as your law school or a scholarly association in your area of expertise. It can even be an online institution, such as a blog. There is a school of thought in the social sciences called new institutionalism. Its adherents believe that social and political outcomes result from the institutional settings in which they take place. In other words, if you build a structure and invite people to join it, you will be pleasantly surprised by the community that results.
Those of you who are reading this post probably know that you are part of the Prawfsblawg community. While it is an online community, it is also very real. Some of you are active members of this community: you faithfully read this blog and post in the comments. Some of you are passive members: you lurk here, though you don't say much. There is no denying that this is a community for which Danny had a vision, for which he created a structure, and into which he ably poured so much substance. On this occasion, here's what I'm going to ask the members of this community to do: please make yourselves known. Say hello. "Welcome!" Go into the comments and announce that you are a member of this community. And if you have some thoughts about how scholarly communities should be built and nurtured, let us know what they are.
Friday, January 30, 2015
In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error
This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.
Jon Hanson, my beloved former torts professor at HLS, has this big project that he calls “situationism,” which is essentially about highlighting the ways that people’s behavior is less caused by their individual dispositions and more about the circumstances they find themselves in. Many psychologists call the opposite tendency the “fundamental attribution error"---the tendency to make, essentially, self-serving attributions of agency. (My successes are all about how awesome I am and how hard I work, and my failures are all about the environment! Your successes are all about the environment, and your failures are about your personal deficiencies!)
Last month, there was a long discussion on this blog about the way in which students allegedly have “become worse” since the economic collapse, essentially because so few jobs = so few people wanting to go to law school = lowered admissions standards across the board = prawfessors at every level observing dumber or lazier or less well-prepared (the most charitable claim in that thread!) students. I confess, that post and the comment thread that followed really cheeved me off. Even though many of us are skeptical of the worth of standardized testing, can highlight all kinds of biases in things like the LSAT, we still seem to think that lowered LSAT scores equals a meaningful drop in competence, and that we can observe this with classroom results.
I, as you might imagine, am highly skeptical about that that hypothesis. Can we be Hansonian situationists about it? Suppose we look for an alternative hypothesis to explain observed declines in classroom results (both exam performance and in-class discussion) as attributable less to personal qualities of the students and more to the situation our students find themselves in. Well, here’s one idea. Students are less engaged/it takes more work on our part to interest them in our courses, because they see them as less meaningful to their long-term well-being. And they see them as less meaningful to their long-term well-being because the job market has been terrible, and so they have lowered expectations for a fulfilling and successful career in which they are to use the knowledge we provide to them. Moreover, because it’s so much harder for them to get a job than it used to be, they prefer receiving information that is directly relevant to getting jobs (“what’s the rule! how do I get a good grade and pass the bar exam!”), and disprefer having their and effort time taken up by information that is less relevant (“what are the policy considerations here! what’s the deep jurisprudential theory in play!”).
It’s about situational incentives. When you have to hustle your butt off to get a decent job, you don’t have the luxury of thinking about “making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways.” Unfortunately, that’s what we law professors tend to care about most, and what we (rightly) tend to associate with the kind of skill development that will serve lawyers well throughout their whole careers. But in a terrible job market, our students have good, rational, reason to care less about their whole careers and more about getting that first job and paying off the student loans. Not because they’re dumber, lazier, or less well prepared (and even if I'm wrong, shouldn't we pretend that I'm right, because aren't our students more likely to respond well if we have high expectations for them and respect their ability and motivations?). Because the economic environment they find themselves in gives them reason to discount their career futures, and reason to invest more in short-term needs. (This leads to an empirical hypothesis. Schools with better job placement rates should have better scores on the Law School Survey of Student Engagement, after controlling for LSAT and UGPA. Memo to Indiana folks: run this regression! Or give me the data, and I'll run it!)
So our job is to find a way to make it rational for them to be willing to invest in the “deeper-level thinking” that they will need to learn in the long term, in a way that will also benefit them for the short term job market. Such a strategy has the potential to improve student engagement, and, thereby, student performance, and thereby, make their lives as well as ours better.
Concrete plans? I don’t have many yet, but it seems to me that we need to at least entertain the idea that we have to do better on the job front to do better on the classroom front; that “deeper-level thinking” cannot be carried out when you’re worried about where the rent money will come from a couple years down the line; and that we have to sell “deeper-level thinking” not just to students but also to the people who employ them.
Saturday, January 24, 2015
Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown
I teach at a law school that does not have any centers. When I arrived, I noticed this and tried to change it. There is currently a large sign on my door that says “Future Home of the Wake Forest Constitutional Law Center.” Last spring, while I was out of the office one day, someone took a piece of paper, wrote the letters “U” and “N” on it in large type, and taped it in front of the word “Constitutional” on my sign. To be clear, I am not the director of any center. But someone out there thinks that the Wake Forest Unconstitutional Law Center exists, or at least thinks that it exists in my office.
Whenever I have visitors, they see my sign and invariably ask me about this non-existent entity. For example, last spring our dean’s office sent a prospective student to speak with me. The student told me that she was interested in election law and that she wanted to attend our law school to work with the Constitutional Law Center. I explained that this “center” was nothing more than a sign on my door. However, my honesty did not do much to sway the young woman, who later sent a thank-you letter to the dean, copying me, in which she explained how much she was looking forward to the opportunity of "participating in the life of the new Constitutional Law Center.”
That’s the power of ideas for you—or, at least, of signs.
So why do law school centers exist? Should law schools continue to have them? Do centers matter for purposes of ranking and perception? How are these centers run? Do the directors of the centers receive a reprieve from teaching? What is the budget of the typical center? And what do centers do for law schools that law schools cannot do all by themselves?Here are at least some theories as to why law school centers exist:
(1) To Signal a Specialty: A center can create the perception that a school has a niche in some area in which multiple faculty members specialize.
(2) To Promote the School’s Name in Another Form: Through its research and publications, a center independently promotes the name of the law school to which it is attached.
(3) To Help Recruit Faculty: A good way to hire laterally is to offer a potential recruit the directorship of a center, in addition to whatever else is on the table.
(4) To Help Recruit Students: Like the student who came to visit my office, above.
(5) Because Other Schools Have Centers: It's the same reason that countries have flags and national anthems and that the states have state birds and state mottos.
(6) To Help Create and Advance Specialized Knowledge: This one may seem obvious.
In a small survey of law school centers I did when I proposed the not-yet-existent Wake Forest (Un?) Constitutional Law Center, I found that centers were fairly ubiquitous across legal academia. Most schools had at least one, and many had many. Though they differ in focus, structure, and programming, I also found that most law school centers share some common characteristics. Most were headed by a Faculty Director, who was often supported by an Advisory Board, other Faculty, and Fellows. Most law schools centers perform three functions. They 1) sponsor faculty and student research; 2) bring legal scholars, practitioners, and jurists to campus; and 3) engage in a specialized local or national policy debate.
Among constitutional law centers, I found that several focused their work on a particular aspect of the field. For example, the Center for Constitutional Transitions at NYU works primarily with emerging democracies and assists in the drafting of constitutions. The Center for the Study of Constitutional Originalism at San Diego focuses on, well, originalist thought. However, most centers take a broader approach. They hold conferences on a wide variety of topics, engage in diverse scholarly research endeavors, and seek to invite guest lecturers in different areas of expertise to campus. The varying structures of these centers likely provide unique opportunities to their respective law schools. For example, the impressive Clough Center for the Study of Constitutional Democracy at Boston College serves as a kind of public intellectual's forum for that campus.
Really, centers are a terrific idea. Most centers cost little to run, and they attract widespread student and alumni interest. They can also help in fundraising, for example by providing a vehicle for naming rights. And they have the ability to place a law school on equal footing with its peers. But before I conclude that there is no reason not to open a center, it would be helpful to hear other views. Should we let a thousand centers bloom in the legal academy or not?
Thursday, January 15, 2015
Fair Grading in a World of Curves? Concepts and an Algorithm...
Thursday, January 01, 2015
AALS and Other Acronyms
Greetings everyone! It’s a pleasure to be here. I’ll be heading to AALS later this week, where I hope to see many of you. Washington, D.C., has always been a city of acronyms for me. Acronyms have an insider/outsider quality to them. If you understand the acronym, you’re in the know. If you do not, you’re not. When I meet with friends in town who happen to work for the government, they talk in acronyms to me. There’s the NSC, the NSA, the SFRC, and DOD. There’s OMB, the FCC, and OSTP. Even some of the city’s law schools, like the GULC and GWU, are known by acronyms. And let’s not forget POTUS and SCOTUS.
On my way to AALS, itself an acronym, it occurred to me how few acronyms exist in the legal academy by comparison. For those who are newbies, there is the VAP. For those teaching property, we have the RAP. And our public interest students sometimes get LRAP. But if I begin using APOL, POL, and ADFAA (for Professor of Law, Assistant Professor of Law, and Associate Dean for Academic Affairs), you would surely frown and cease reading my posts.
What other acronyms in the legal academy can you think of? What others should there be for terms that law professors commonly use? I’m curious. I’ll be blogging this month about the quirks of the legal academy. Let’s start with its acronyms. The comments are open.
Tuesday, December 30, 2014
With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law. There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate. There are a few articles here and there with advice for those who may wish to opt out, but not many. Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice. This figure includes many, if not most, law professors. Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?
Monday, December 29, 2014
Going to the Dogs
It seems that things have become so stressful for some law students that therapy dogs are in order. Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief? Does “dog rental” go too far?
Tuesday, December 23, 2014
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Tuesday, December 09, 2014
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
Faculty Teaching Loads
This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads. Specifically, we are looking at whether there is a disparity in how much each of us teach.
To that end, it would be helpful to hear what other schools do to allocate teaching resource. In the comments, would you be kind enough to share whether your teaching loads are based on:
-Credit hours taught
-Student contact hours (credit hours times number of students)
I'll start: at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.
Monday, December 08, 2014
Tattoo . . . You?
I was reading an interesting article about lawyers and tattoos, which led me to question the practice among law faculty. Although dress codes have certainly become more relaxed since the days of wingtips and shoulder pads, some of the old taboos remain. Are tattoos one of them? After all, I cannot recall ever seeing a lawyer or a professor with a tattoo. Have you? Perhaps more importantly, should it matter?
Friday, December 05, 2014
LSAC numbers, law school closings, and macabre wagers
Al Brophy reports that law school applications are down almost 10 percent from last year's numbers, bringing the anticipated number of applicants to under 50,000 for the year. That would be about 5,000 fewer than last year. Over at Slate's Moneybox, Jordan Weissman has announced a bet with Berkeley's Steven Davidoff Solomon that at least one ABA-accredited law school will close in the next four years. He's encouraging side wagers. (I used the word "macabre" in the title because the bet involves the "death" of a law school.)
So I'm wondering, to the extent that folks are willing to talk about it, what the buzz is on law school closings around the country. If you work at or attend a law school, are there any rumors of closure? Is it a faint rumor, discussed obliquely, or are there actual conversations about staving it off? Who is bringing it up -- other faculty, deans, the university or board? If you are an entry level candidate, is it something you are considering in your search? Please -- no mention of a specific school unless you are willing to put your name down.
Tuesday, December 02, 2014
The People’s Law School (Revisited)
Back in 2012, I posed a question about what a law school for “the people” would look like, and I specifically asked how it might compare to schools already in existence. This question produced a fruitful discussion. Since then, there have been many discussions throughout the legal academy about the need for law schools to produce “practice-ready lawyers,” with many recommendations for improvement that focus on nut-and-bolts skills training (as opposed to doctrinal topics). My question today is, how far have we come since 2012, and what will it take to reach the goal of either creating law schools for the people or practice-ready lawyers, or both?
Thursday, November 20, 2014
My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.
Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.
Monday, November 10, 2014
Washington & Lee Law Review: Exclusive Submissions
The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST. The Law Review will extend offers for publication by December 8, 2014. All authors who submit articles to this program agree to accept a publication offer, should one be extended. For more information and submission instructions, visit this description.
Sunday, November 09, 2014
A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.
So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.
Friday, October 31, 2014
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
Thursday, October 30, 2014
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
On Being Sued, 3
In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.
So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it.
One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.
Scholarship is a cooperative effort. Carissa's comments may have led me down defamation alley, but she was right about the paper, and the paper was better for the change. The funny thing is that I never really stopped thinking about the real case as a hypothetical. Yes, I used the litigants' real names, but in my mind the case was always just an entry point into a larger discussion about the limits of antidiscrimination law. It's easy to forget that the cases we write about and teach involve real people--real people with families and feelings and grievances.
I get this now in a very practical way. A colleague of mine taught Catalenllo v. Kramer in her advanced torts class, and I sat in for the discussion. The students were studying defamation at the time, and they were deep in it. During my case, I had to learn defamation law on the fly (I didn't study it much in law school), so my understanding of it, not surprsingly, was clouded by my feelings about my situation. But the students were incredible--engaged, supportive, deeply interested in my team's theory of the case.
For me, the experience was odd. The teacher in me was pleased, as the students dug deep into the material. The defendant in me wanted to hear them say that I was right, that I didn't do anything wrong. And the scholar in me wanted to stand up on the table--Oh captain, my capatain--and scream about the virtue of academic freedom.
The last thing I'll say is that I am grateful for the support. So many students, friends, and colleagues--some I had never met before--reached out during the case to say kind things. The best thing about being a law professor is the opportunity to engage with smart, curious, committed people. It's a wonderful way to spend your days. Thanks, everyone.
Wednesday, October 29, 2014
The "New Normal" and Generational Change
Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time. In the last generation or two, expectations have changed considerably. Here are some broad-brush thoughts on that shift.
My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this. First, getting an entry-level teaching job didn't require any scholarship. Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two. The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:
Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.
Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different. By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years. A typical professor up for tenure might have the following post-J.D. writing on her resume:
1. The pre-VAP article(s). This article (or articles) was written and placed to build credentials to get a VAP position.
2. The VAP article(s). This article (or articles) was written and placed during the VAP window in order to build credentials for the tenure-track market.
3. The tenure-track articles. These articles were written during the tenure-track in order to prepare for the tenure decision.
One consequence of the new patterns is suggested by Howard's post: For many junior professors, the stated tenure standards at their law schools seem low. If you wrote two or three articles just to get a tenure-track job, the requirement that you write two or three more over five or six years to get tenure has a certain Dr. Evil quality to it. It's not surprising that many tenure-track professors are doing more.
The contrast between the scholarly expectations of today's junior professors and today's senior professors when they were juior is particularly dramatic in the current hiring environment. With many schools struggling, and lawprof vacancies few, there are many candidates on the market who can't get a job but who have more scholarship than already-tenured professors at the schools where they are unsuccessfully interviewing.
Quantity doesn't mean quality, of course. Some might say that today's junior professors write a lot, but not well. But I think the relevant standard is a relative one. Let's accept Sturgeon's Law that 90% of everything is crap. Is the quality of today's tenure-track scholarship better or worse than that of tenure-track scholars in generations past? I'm skeptical that the quality of such scholarship has gone down, and I think there are good reasons to think it has gone up.
In any event, whether these developments are good or bad is a big question that is beyond this post. My point is really just that the dynamic Howard points to in terms of tenure standards is just a symptom of a broader shift over time.
(Update: I fiddled with this post a bit immediately after posting it.)
Tuesday, October 28, 2014
What can you tell about a law school by its building?
I did think about suggesting a list of the "Least Impressive Law School Buildings in the World" but I've never actually been in one outside of the USA so I'm perhaps unqualified. And there's always a danger when working in a 41-year-old state-constructed Law Center that your own abode could show up on such a list, sending the College's Architecture Committee into a tailspin. It may be that one in fact comes to work in a piece of "visual indigestion" (see below), but no one likes to admit that.
These days, with law applications down, most college kids don't have to leave their dorm rooms to get in-person visits from multiple law school deans looking to find them the perfect forward-leaning experiential student-centered program. Or you can take an on-line building tour on some schools' web sites.
But some will still trek out for a campus visit. For what should they be looking?
1. Can you find the faculty offices? At some law schools, faculty offices are located down some corridor that only a member of the MIT Spelunkers' Club could navigate. If you can't find faculty offices, there is a good chance you won't be able to find the faculty when you have questions on your paper or in preparation for an exam. Their offices are hidden for a reason -- they are hiding from you.
2. Where is the parking lot? Many law students will be going from dorm or dorm-like neighborhoods to living off campus for the first time in years. As I learned the hard way in law school, mountain bikes don't work in the snow. Or on California freeways. So other than those lucky Michigan quaddites (?), law students are commuters. That means they need parking. Is there a parking lot? Where is it? Is it shared with the music department? Particularly as students spend more of their time out in the real world in clinics and externships, but still have to make it back in time for twice-weekly Commercial Paper lectures, parking matters.
3. Which are nicer, faculty offices or classrooms? You can tell something about the values of a school and its leadership, at least for an older and "updated" law building, from what they spend limited remodeling funds fixing first. If the faculty office suites are nicer than the classrooms, that might tell you something.
4. Are there names everywhere and does the law school look like they bought it at Ikea? If every classroom, conference room, washroom and water fountain is named the "A.C. Slater Memorial _____", that means the law school has alums who both (a) have money and (b) give money to the law school. Same for the law schools with slick new buildings with clean lines and rational HVAC systems that look like something you could buy at a Scandanavian import store. Knowing that alums of the school you are considering make money can tell you something about your job prospects (though the school's "employment outcomes" data is probably more reliable). That the alums give money back to the school tells you something about how they felt about their experience. Of course, if the school has a brand new building but no names appear anywhere, that might be a sign it borrowed more than it should have.
5. Could you fall in love in this library? We all know the great love story of our time, Bill and Hillary, and how they met in the law library at Yale. You may show up to law school single but leave not just with piles of student loan debt but also a spouse or a partner. At your wedding, when you recall meeting that special someone in the law library, will the memory be of vaulted ceilings or will it be of mold?
Friday, October 24, 2014
The push for quantity
Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).
1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.
2. Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.
3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.
4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.
5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.
6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.
Working all together, these create a lot of pressure to publish early and a lot.
Writing, Fast and Slow
Zachary Kramer's thoughtful post, "The Slow Writing Movement," brings up a broader choice between two approaches to producing legal scholarship. Fast versus slow. Or what I think of as the Chicago style versus the Harvard style.
The Chicago style is to pump out a bunch of articles every year. When you get an idea for an article, whether big or small, you write it up. The idea is to produce a steady stream of scholarship. Not every article will be a home run. But among your articles enough will be a hit that you'll produce a major body of influential work. I call this the Chicago style because it is most closely associated with the traditional faculty culture at the University of Chicago Law School.
On the other hand, the Harvard style is to write less but bigger. You focus on quality instead of quantity, not sending out an article unless and until you think it is the definitive statement about that area of law. You won't win any productivity awards. But what you send out should be a signficant statement -- if not a home run, at least a double or triple. And by focusing your efforts on really big ideas, the thinking runs, you'll produce a major body of influential work. I call this the Harvard style because I have heard it associated with the traditional faculty culture at Harvard Law School.
These diferences partly reflect different assumptions about what advances knowledge. The Chicago approach makes sense if you think authors are poor at predicting what ideas will take off. Better to write up everything and let the audience of readers decide. There's a risk that any one article may be a dud. But then you miss all the shots you don't take. By putting lots of ideas out there, the thinking runs, you're making the maximum contribution to the world of ideas.
In contrast, the Harvard approach makes sense if you think that really big articles are the ones that change the terms of the debate. A single profound work will change how people think more than a dozen less-developed pieces. As a result, taking your time with one big piece is better than wasting your time on lots of smaller ideas. By giving each article a long and sustained focus, the thinking runs, you're making the maximum contribution to the world of ideas.
My own sense is that neither approach is necessarily better. It depends on the person. Some professors hit on ideas relatively fully formed. For them, sitting on an article over time would just be lazy. Other professors work best by mulling over ideas over time. For them, putting out lots of articles quickly would mean sending out articles half-baked. And a lot of us are a mix of the two. Some articles come out quickly Chicago-style while others come out slowly Harvard-style. (With that said, going back to my earlier post, my recommendation for first-year professors is the same: Even if you see yourself as a Harvard-style writer over the long run, there are good reasons to start out Chicago-style.)
Finally, I should clarify that the labels "Chicago style" and "Harvard style" more accurately reflect the faculty cultures at those two schools ten or twenty years ago than today. Lateral moves and entry-level hiring have blended the categories over time. In particular, Harvard crossed the streams when it hired away several Chicago style professors from Chicago. An obvious example is Cass Sunstein, perhaps the epitome of the Chicago style, who probably wrote a new article during the time you read this blog post.
(Title with apologies to Daniel Kahneman.)
Thursday, October 23, 2014
The Slow Writing Movement
Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.
In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.
I tend to think that, as a general matter, we write too much, too quickly. Sure, there are execeptions, freaky people who pound out amazing stuff at an intimidating pace. But I've always admired the folks who take their time a little, who publish more like every other year. These folks tend to workshop the junk out of their stuff. They road test, reflect, restructure, rewrite.
One impact of VAPs on entry-level hiring is that new professors come to schools with writing habits/tendencies already built in. I have always felt that I am more a scholarly creature of my VAP than my home institution. My mentors during my VAP years pushed quality over quantity. Quality and quantity aren't mutually exclusive. But there's something to be said for beating the crap out of a paper before publishing it.
There are other factors at work here, to be sure. Sometimes tenure policies specify a certain amount of output. Other times there are social norms that dictate a specific level of productivity. Tenure matters, and you have to do what it takes to get tenure. But if there is wiggle room, slow down.
Rather than cranking to submit in your first year, another option is to write and reach out. Orin is correct that faculties value productivity. But only when it's good. Rather than impress your colleagues with your speed, make your paper the absolute best it can be. Engage your colleagues, ask for advice, get their feedback on what you've done.
For the slow writing movement to take hold, however, faculties have to be on board. If newly-hired faculty members don't submit a paper in their first year, rather than whisper behind their backs about productivity, take them to lunch. Engagement is a two-way street.
On Being Sued, 2
Man kills puppies, allegedly.
In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.
Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.
At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.
The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.
Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.
I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.
While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.
More to come.
Tuesday, October 21, 2014
Tips for First-Year Law Professors
I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching. Everyone has a different perspective, of course, and if I go astray, I hope others will respond in the comment thread. But if this is your first year of tenure-track law teaching, here are some tips you might consider:
1. Send out an article in the spring submission window of your first year. When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar. Now they're watching you to see if their bet was correct. Prove them right by sending out an article in the spring of your first year. You'll benefit in lots of ways. First, your colleagues will be very pleased to see you off to a good start. Second, tenure will look (and be) so much easier with a new article already under your belt. And third, it will get you into the habit of sending out an article in the spring submission window. My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.
2. Invite your senior colleagues out to lunch. Your senior colleagues can be a tremendously useful source of wisdom and insight for you. They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined. Plus, some of them are even really nice people. (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops. Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're particularly prominent scholars -- and invite them each to lunch. Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can.
3. Don't assign too much reading. It's common for new law professors to assign a lot of reading for class. In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way. And in many cases, more reading means more students unprepared for class. I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark. If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester. Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.
4. Lay low in faculty meetings, with one possible exception. New profs usually don't know of any long-running tensions on the faculty. If you're lucky, the tensions will be very minor. Still, it's best to stay away from fault lines if you can, especially before your tenure vote. Given that, you should plan to stay out of any particularly contentious faculty debates that might come up your first year. Go to faculty meetings and pay close attention, but mostly stay out of controversies for now. A possible exception is entry-level appointments. Having just been through the appointments process yourself, you're particularly well-suited to weigh in on entry-level hires. You may know the candidates personally, and as a peer you'll be familiar with their accomplishments in a way that more senior faculty won't be. So consider weighing in on entry-level appointments as your one area of participation.
5. Consider guest-blogging, at least at some point. This advice is probably more for second-year or third-year professors than first-year professors. But relatively early in your academic career, consider guest-blogging for a month at a general-law-blog site like Prawfs. Ideally, write a handful of posts connecting your scholarly work and scholarly interests to some news story or issue of interest to the broader readership. This is a great way for your work to come to the attention of other law professors. Sites like Prawfs are widely read by legal academics, especially among more junior scholars. A few blog posts introducing your work is an effective and relatively easy way to promote your work within the academy.