Wednesday, April 16, 2014
I want my Westlaw Classic
Oh yes I do! Sure, I feel about as outdated as this commercial in saying so, but Westlaw is now telling me that Classic database is disappearing in about two months, and I'm not happy. I tried to use WestlawNext when it first came out. The "copy with citation" feature was nice for quotations, and I liked the idea of a more Google-like approach. But the search results were just bizarre to me. It was more akin to the anti-Google -- I'd type in search terms or even a case name, and I'd get everything other than the case or article I was looking for. I retreated back to Classic after just a few frustrating forays. I like Classic's pure Boolean option -- I know it'll give me a complete result. Or, when I'm looking to skim the surface of a topic, the "natural language" search has actually worked pretty well for me. I don't see any need for change, certainly not based on my early Next experience.
Now, it looks like I will have no choice. Is anyone else in the same boat as me? Can we try to save Classic? Or should I just accept reality and try to adapt to Next? Your thoughts would be much appreciated.
[I should make clear -- I'm sure I was misusing Next. But it was supposed to be easier! If you have thoughts on what I was doing wrong, I'd appreciate those, too.]
Thursday, April 03, 2014
Linguistic Versatility (or is it Hegemony?) and the Law
There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew. Would anyone reasonably object on cultural grounds or is this purely the kind of program that should be allowed to unfold so long as it otherwise maintained a strong bar passage rate?
Israel's facing interesting issues along this front. A few academic institutions are trying to offer law degree programs in English only, and are seeing opposition.
When I teach in Israel, which I do with some frequency and affection, I do so in English, as part of the increased expectation that Israeli lawyers should be fluent with English language as well as international/comparative approaches to law. Yet, I fully accept the argument made by one of the stakeholders that fluency in Hebrew is essential to representing one's clients well in Israel. I certainly think my competence with English is critical to my being a tolerably decent scholar -- in English. But if Chinese-speaking professors were in the US to teach American law in Chinese, I don't think I'd have much basis for objection. Let the market sort it out seems roughly right.
The fear about this seems that if the Israeli law schools started teaching in English, there'd be a decline in Hebrew language competence and that could affect lawyer performance for clients. I don't really see that as a threat realistically, because if you're going to practice in Israel, you'll want to speak Hebrew; what's more, if there's a bar passage requirement that occurs in Hebrew, then that would probably provide a check, along with malpractice claims.
To my mind, what I think of as the French linguistic protectionist approach seems here kind of ... pathetic. But maybe I'm missing something.
Tuesday, March 18, 2014
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Thursday, March 06, 2014
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.
Wednesday, February 26, 2014
AALS: is, not, and ought
Posts and comments about scholarship funding (and related other subjects) mention AALS from time-to-time. Perhaps it would be helpful to frame more precisely what the ass'n views as its role (speaking here just as one volunteer, not in any way for the organization):
The AALS is a voluntary association of law schools. It is not an accreditator and has nothing in the way of power over law schools or their faculties. Rather, it is an organization made up of law schools which have accepted the association's core values, abide by its membership bylaws and, for reasons best known the law schools themselves, believe that the association provides sufficient value to warrant joining. Where the on balance tradeoff augurs against continuing adherence to these core values, the institution should surrender membership, and there should be no penalty for its students, graduates, and alumni for doing so. "Is this association consistent with our institutional mission and valuable for us" should always be the question for the law school.
The AALS takes no global position on what a law school must be -- how it trains its students, how it configures its faculty, what it costs, what should the tradeoff be between teaching and scholarship, or other central issues that are driven, in the main, by the articulated mission of law school.To be sure, it takes positions on what ought to be the core values of this voluntary membership group. And it seeks to articulate and implement these values through a membership process to which schools aspiring to join and continue in good standing subscribe to.
Law schools will necessarily be in the position of making to make difficult tradeoffs and, under present circumstances especially, adjustments in their ways of doing business. Meaningful engagement with member schools obliges -- or I should say, should certainly oblige -- the AALS to be both understanding and constructive in the ways in which law schools make these hard choices.
Positioning itself as an advocate for the value of legal scholarship in the architecture of the member law school is important especially when law schools are under stress. Seeing and voicing the value to the profession and to public debates about the role, functions, and place of law in a civilized, diverse society is unequivocally a fundamental function of the association. And it ought never be bashful about such advocacy.
But whether and to what extent this is a fundamental function of the law schools themselves is ultimately a question of institutional mission. The AALS need not take any distinct position on that matter. Nor should it take distinct positions on precisely how member law schools perform these functions of supporting scholarship. Here, too, the AALS serves its member schools best when it organizes and disseminates good ideas and best practices. The difficult tradeoffs -- including the financial tradeoffs -- will necessarily be made by the schools themselves and their key stakeholders.
So what ought AALS to do in this respect? Be simultaneously an advocate for (inter alia) the important role of scholarship in the life and activities of member law schools and an advocate for diversity, imagination, and innovation in how member law schools constructively go about supporting scholarship in their institutions.
Funding legal scholarship
Present economic circumstances in law schools -- or, more to the point, economic circumstances of current and prospective law students which are shaping the predicaments of many law schools -- rightly raise the hard question of how, or even whether, most law schools should subsidize faculty scholarship. The "why" question is essential, and warrants continued attention.
For now, if I may, let me turn to the "how" question:
Matt Bodie's posts, and the many comments accompanying them, engage the question of whether internal subsidies can and ought to incentivize scholarship at the quantity and quality level that is appropriate to the mission and goals of the institution.
First, an observation about "theory," before turning to "practice": The model of law schools which aspire to be incubators of meaningful scholarship is one in which faculty compensation is tied squarely to the ability and willingness to engage in scholarship, regularly and reliably and over the course of an academic career. Deans and faculties do their job in good faith and in good conscience when they undertake to monitor equitably and comprehensively this engagement. Students' tuition supports scholarship in law schools just as it subsidizes scholarship by faculty in undergrad and other graduate settings. (This seems to go missing in the debate. Does the Columbia undegraduate truly think that their tuition is going primarily to the teaching work of their full-time, ladder rank faculty?). Accountability to students demands that the law school be responsible and relentless in ensuring that scholarship is a key part of the faculty member's work product. Different law schools will make different allocative choices to be sure; but it ultimately a gesture of defeat for any law dean to throw up her hands and say "scholarly productivity cannot be adequately measured nor adequately monitored, so I can't be bothered to do it."In practice, such oversight is uneven, to put it mildly. In this era in which tuition and debt pressures on students are enormous and must be taken seriously by all law schools, it is incumbent upon deans and faculties to tie these tuition-driven subsidies to real performance. This must happen pre and post-tenure. The AALS as a voluntary membership organization (not an accreditator) helps put some pressure on law schools to be dependable scholarly incubators, in addition to other core functions. The association can and should work with law schools and their deans and faculties to develop structures of incentives and measures of performance to assure stakeholders -- and especially the students from whom tuition is paid to support scholarly work -- that the law school expects and mandates such regular productivity from its full-time, tenure line faculty.
A fantasy world? I don't think so. And I certainly hope not. Many able deans have been focused in earnest on accountability, productivity, and transparency, that the efforts to measure faculty members' scholarly output and to expect work of high quality and quality has created environments in which faculty carry out their responsibilities diligently and with high morale. If faculty and students don't see this in their dean, then they should beat a path to his or her office to insist upon patterns of performance accountability. Students should see their tuition dollars going in part to subsidizing scholarship, not faculty lifestyles. Let me be even more explicit: Our responsible role as leaders of institutions under the stresses and strains of the modern law school economy demand greater scrutiny of faculty performance and high expectations of faculty scholarship. Otherwise, tuition subsidies of faculty scholarship are fundamentally indefensible.
Prof. Bodie's specific suggestions deserve more careful attention, and I will endeavor to do so in future posts. But this depiction of what deans can and must do is meant to get at a central point of the contemporary critique of law schools, a critique which must be taken seriously and responded to by responsible educational leaders. This point is: How can we truly defend the "why" of substantial subsidies to legal scholarship unless we are confident that the "how" is addressed, and is addressed in ways that ensure accountability, productivity, and transparency?
Tuesday, February 25, 2014
Scholarship funding: why and how
Earlier this month, Prof. Bodie helped us focus on an important set of issues regarding the structure of funding and incentives for legal scholarship. In his posts, and in the voluminous comments, he offers a number of descriptions and also prescriptions about how best to reshape the landscape within law schools.
As I enter this debate (as an experienced dean, in addition to a longtime academic), let me sharpen this discussion by revealing the three questions raised by Bodie and the commentators:
- Why should law schools be subsidizing scholarly production by their faculties?
- What is the optimal model for such subsidies, given the goals of: (1) increasing the production of scholarship within particular schools and within the academy more generally; (2) limiting the burdens on law students; and (3) administering a system in an efficient and fair way?
In short, the questions are about "why" and "how."
As to the "why," the issue continues to be chewed over in the media, the blogosphere, and occasionally in more extended articles and books (Brian Tamanaha's being perhaps the most important recent example).
My own summary of the reasons why we do it is not, to put it mildly, arrestingly novel, but merely summarizes what, to me, is the compelling cluster of reasons:
- As part of universities, we have an obligation to engage actively and purposively in the development and dissemination of knowledge -- knowledge about our profession, about the structure of institutions in which law is created and in which it performs functions of consequence in a democratic society, and about the content of legal rules, their implementation, and their desirability. No law decrees that any one law school, or any collection of law schools, need to be part of colleges or universities (and several aren't, of course). But the price you pay for being embedded in a university structure and culture is that your tenure-line faculty engage in the practice of scholarly work and production;
- Law professors have a comparative advantage in doing this scholarly work. This is true by virtue of their employment structure; it is true by virtue of their competency, as measured by colleagues who hire them, deans who evaluate and incentivize them and, to a large degree, by self-motivation and habit of mind. Full-time law professors are especially suited to engage in the work, research, and collective efforts required to do legal scholarship at a high level. This is so not because of innate qualities of brilliance or even temperament; it is so because that is what they are hired and required to do and, further, because they have the fertile environment of institutions filled with capable, ambitious colleagues and equally capable, ambitious law students;
- To be sure, at its worst, legal scholarship is banal, remote from considerations of both the bar and the academy, and is overwrought. The same can be said of bad judicial opinions, bad statutes, and bad work product in nearly every field. At its best, however, legal scholarship can and does help shape the law in constructive directions, can help shed illuminating light on difficult legal and policy puzzles, and can help advance important societal goals. Choose your favorite example. The work of environmental law scholars from the 70's and 80's helped transform modern environmental law; actual people benefited from these efforts. The work of constitutional lawyers helped propel the cause of marital equality in the past fifteen years. The work of libertarian legal scholars and political economists are helping shape the debate over eminent domain in the post-Kelo world. The list is a long one. The value of legal scholarship should be judged by its best practitioners, not its worst excesses.
So, let me just end the big picture take on the "why" question by raising, as a thought experiment, the question of what would law schools look like if you took the scholarly dimension out of this space entirely: It would be one in which both positive and normative explorations and insights would be carried out by lawyers and judges who would be doing this as essentially a hobby (or perhaps as a veiled effort to advocate vigorously on behalf of a client's interest). Scholarship of some sort would emerge, but not from the hands and brains of those who are hired, trained, and incentivized to undertake it at a high level. Further, scholarship involving law done by full-time academics would be left to those within our universities who are not in any important way teaching and training law students. Thus, the divide between the concerns of the legal profession and the preoccupations of academics would grow, not shrink. Let's be clear: Student tuition would still subsidize scholarship, but it would, instead, be principally the tuition of undergrads and grad students. Scholarship about law wouldn't go away; it would just be done by folks not law professors.
Why subsidize the production of legal scholarship? Because we believe this to be a public good (even though some of the scholarship is surely bad) and because we believe that the nexus between how we teach and train law students and how we understand, describe, and reform law should be tethered in meaningful ways to this teaching function.
Central questions remain about whether this goal should be universal, whether it is the business of outside accreditors, whether it must be modified in light of difficult employment circumstances and high student debt, and how best to fund it. But some agreement should be had, at least by the vast majority of stakeholders within and outside the legal academy, about why we ought to promote and fund scholarship in our law schools. If we can't agree on that, the rest of all this is jibber jabber.
Monday, February 24, 2014
American legal scholarship and legal education misconceived
Duke's Ralf Michaels has undertaken to celebrate Germany superiority in legal scholarship. This is a peculiar venture, one that Rob Howse has skewered elsewhere on this blog, he focusing on the comparative aspects of the project. This seems to me a good enough skewering, although I would have to leave to the experts in the comparative law & German elements to speak knowledably about Michaels' perspectives on this subject.
Let me just say a few things about the depiction of contemporary American legal scholarship.
Here, says Michaels, "faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed." ???!!! I suppose one can say that everything is embedded in the meaning of "succiently exact." Here, as elsewhere, law in action is seen as a necessary supplement to law in books. Legal doctrine doesn't enforce itself; the social elements of doctrine in, at the very least, framing fundamentally matters of implementation and administration of public policy are well understood. This is not about the "here," after all. Max Weber understood this. So did William Blackstone. So, who does Michaels imagine believes that doctrine is sufficient or is exact?The notion that American legal scholarship does not include foci in earnest on doctrine, its content and shape, is naive. The work of the American Law Institute, on whose council I am proud and privileged to serve, illustrates powerfully the enduring contributions of essentially doctrinal work. And the connection between doctrinal exegesis and analysis and social advancement has been embedded in the work of the ALI for decades. Such work thrives in American law schools as well, as does interdisciplinary work of the highest order.
But here is where Michaels' essay takes a peculiar turn. Here is what he says by way of framing the current critique of American legal education:
"The consumer model of legal education requires, ultimately, that law students are taught nothing other than skills. Doctrine itself has only instrumental value for students, but importantly, “mere doctrine” has no scholarly value for academics. The consequence for scholarship may be dire: interdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded."
The dots Michaels wants to connect are these: American legal education is attacked because it is insufficiently skill-centered; law schools cannot advance skills-training under extant economic models; they have, as the only alternative, relentless interdisciplinary scholarship; attention to doctrine is impossible because it has been "descredited;" Germans have figured this out and thus the future of German law schools is comparatively rosy.
This narrative is highly problematic. Skills training is largely a product of American legal educators, especially clinicians, who have developed curricula and deployed resources to the salutary aim of improving the practical skills of (post-graduate) law students. To be sure, this development is resource intensive and is challenging in the current environment in which costs of legal education loom large. But the notion that this can be recast as a struggle between public and private modalities of financing education is seriously flawed. With the public subsidy of European law schools, where is the attention to the sort of skills training and public service initiatives within law schools that would, presumably, advance salutary public purposes?
Moreover, the notion that American law schools will move further away from "discreted" doctrine in order to maintain their death grip on interdisciplinarity as an educational luxury in trying times seems patently absurd. American law schools, highly imperfect and under serious strain, could be expected to adapt to currents of both legal pedagogy and legal scholarship, currents which see doctrine as a coherent and necessary element of advanced legal education and advancing professional competence. Interdisciplinary legal scholarship need not and will not be abandoned in this quest. Indeed, the building of bridges between law and other disciplines is a result (and not uniquely an American one) of an appreciation for the interconnectedness of academic explorations and the imperatives of solving society's central problems through combined, intersecting modalities of scholarship and knowledge. I would have thought that Ralf Michaels, surely a scholar understanding the German conributions to the origins of the modern University, would appreciate this especially.
"[T]he ABA report suggests that our culture of scholarship and education is untenable and must be, essentially, discarded. I hope they are wrong."
Two things wrong with this penultimate statement: First, the so-called "culture of scholarship and education" is here misunderstood. American law schools pursue scholarship in order to advance key purposes, including elucidating doctrine, bringing to bear insights and expertise from other disciplines in order to illuminate legal issues and ground public policy, and in order to advocate on behalf of central societal goals and initiatives. Moreover, the best evidence -- along with a century-plus worth of experience -- suggests that American legal education, for all its flaws, does an admirable job at these ambitious ends. Second, there is precious little reason to believe that Ralf Michaels "hope[s] they are wrong." His essay advocates for a contrast that does not exist and an appeal for German superiority that is misguided. Whatever the essay's merits as a depiction of contemporary German legal scholarship, is deeply flawed as it pertains to American legal scholarship and the nexus between such scholarship and trends in contemporary legal education in the U.S.
AALS should fund scholarship?
Earlier this month, Prof. Matt Bodie penned a collection of very interesting posts on legal scholarship and its funding model. I will have various things to say about his valuable, and controversial, ideas in the coming days. Let me start out by responding to a narrow point he made (mentioning me and Judy Areen by name in this post! We were blushing respectively from Chicago and Washington DC):
The AALS is funded principally by dues paid by member law schools and, secondarily, by receipts from meetings. (The meetings are, despite a chorus of complaints about high costs, essentially break-even propositions, but that is another topic for another day). The overall budget for the organization is, given the overall work, not a large one. And the financial pressures upon law schools counsel caution with respect to either changing the structure of dues or increasing dues annually. Indeed, the last three years has brought very modest increases of said dues, unlike the ABA.
Administering research grants through the AALS would, quite clearly, require a wealth transfer from law schools, many quite strapped, to the AALS. It is hard to defend such a choice under current conditions.
Moreover, it would be hard to fathom that the AALS would be a better steward of law schools' money for scholarship than the law schools themselves. The choices of how best to support and subsidize faculty's scholarly work are internal choices, driven the respective missions of the law schools. To be sure, AALS has, as one of its core values, legal scholarship. But the matter of how best to incentivize and promote such scholarship among member schools is properly a localized one.
This post, with due respect to Prof. Bodie, is an easy one, as the AALS grant idea is really a non-starter. He raises some harder and more complex issues elsewhere in the series. And I will join that debate in separate posts.
Monday, February 17, 2014
Law Schools Competing on Course Material Prices
Christine Hurt's post about the sales model of legal scholarship included a new approach for providing students with course materials:
The direct-to-student model for casebooks. I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp). So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea. For doing my job. (I know, others deviate from this model, including paying their own students back their royalties .) But why not just self-publish? I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online? All the cases are available on the internet, and so are all the statutes/Restatement sections/etc. The only thing missing is the commentary and the questions (which I usually skip). This could save students $1000/semester. I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents. It takes a lot of time, but it's not crazy. What about first-time professors? Well, I would be happy to share my materials. In fact, all the Torts professors here could combine forces. Just a thought.
I have written (here and here!) about moving to an open-source model for casebooks. But it hasn't happened yet. I think there are pretty clear reasons why: (1) casebooks provide value to professors by organizing and synthesizing complex material, and (2) professors and law schools do not have to pay the costs of those materials directly or personally.
Ian Ayers, in the op-ed cited by Christine, argued that schools should have a "textbook maintenance organization" that provides students with books as part of tuition. So I was thinking about revisiting this idea now, and adding a twist: schools could compete against each other on course material prices. Here's what one enterprising law school could do:
- Instead of having students buy their own books, have students pay the school a yearly "course materials fee," and then the school would provide them with all the books or other materials assigned for their courses.
- The school would then buy books for its students (and, in theory, negotiate a cheaper bulk rate) or pay its professors to produce their own materials for their classes.
This system would incentivize not only cheaper casebook prices, but it would also incentivize the production of course materials more specifically tailored to that set of students. So schools with a local employment base could, for example, teach the criminal law of that particular state using state-oriented materials. I think (almost) everyone wins here:
- Students would pay less overall, as the school would have an incentive to keeps its fee lower given the salience and openness of the fee. And they also might get course materials more directly targeted to their educational needs.
- Schools would get the money for course materials directly and then either pay the publishers lower prices (by negotiating) or pay their own profs to produce teaching materials.
- Profs who produce their own materials locally could get some compensation for the value they add.
- And even though it might not be "good" for them, it would incentivize casebook publishers to add more value for what they are selling, so profs continue to use them. (Ayres argues that publishers would sell more books, which is possible but seems unlikely to me.) Plus, the school would not cover supplemental materials and/or study aids, so publishers would still be able to get full value there.
Ayres argues for textbook maintenance organizations as an efficient and fair reform. But couldn't it also be grounds for competition? Schools would have to make clear that they were working hard to save their students money overall, rather than just hitting them with another fee. So one school could advertise: "Students at most schools can pay over $2000 in course materials per year. At X School of Law, we'll cover all your course materials for only $500."
The response to educational market change seems to be slow and sticky. But given the ever-increasing cost of casebooks, paired with the new incentives for schools to compete on price, some schools might find some success here if they are willing to be first-movers.
BTW: if you need more evidence about the crazy inflation of casebook prices, check out this line from Ayres's 2005 op-ed: "We're used to paying $25 for a hardcover novel, but my casebook on contracts now sells to students for $103 . . . ." The 2014 price is here.
Friday, February 14, 2014
Funding Legal Research: Suggestions for Reform
I thought I'd wrap up my series on funding legal scholarship with some suggestions for reform. As I laid out yesterday, the principle behind these reforms is that legal academia should move from school- & salary-based funding to field- and grant-based funding. I don't mean to argue that we should move entirely to a new system, even if such a dramatic change were feasible. Instead, this is a set of new approaches to align the system more appropriately:
- Do not pay profs to produce scholarship if they don't produce scholarship. There's an inherent contradiction: law profs are hired and judged on their scholarship, but post-tenure they will not get fired for failing to write. The solution, I think, is that we can't expect all professors to write post-tenure, but we shouldn't pay them for writing that they are not doing. There are a variety of ways of restructuring salaries to tie scholarship dollars to actual production, some of which I discuss below. Ideally, a school would cut back all salaries to some baseline "competent teaching & service" level, and then build up from there (each year) for superior teaching, committee work, and scholarship. But rather than maintaining the fiction that all law profs produce scholarship, we should acknowledge that not all do and alter compensation accordingly. This change would free up funds to use for some of the reforms discussed below.
- Schools should provide specific pay and/or benefits for scholarly production. Right now, most schools likely tie some portion of yearly salary increases to scholarship. Two problems: these increases are locked in over time, and the amount of merit pay avaliable is often unrelated to the quality of scholarship produced. Moving towards a grant-based system would allow schools to reward specific production, but then not lock it in. If a school is pressed for funds, it could also restructure teaching and/or service packages so that productive scholars have reduced course or service loads to "compensate" for that productivity. But the reduced loads would be year-to-year, rather than offered to all faculty or to a permanently blessed set of faculty.
- Law reviews should pay authors for their works. I've always thought that it's a nice professional touch that law review authors provide their works for free. But I think the incentives would work better throughout the system if the reviews paid at least some small amount to the authors. Under the current system, the prestige is seen as enough -- in fact, I'm sure many profs would pay money to get in certain reviews. But schools should care not only about the production of their own scholars, but also about the quality of articles published in their review. If reviews paid, that would take off some of the pressure for individual schools to pay for placements.
- AALS should create a grant fund for scholarship. Dan Rodriguez and Judith Areen, I'm talking to you! An AALS fund which provided grants to schools and scholars for legal scholarship would provide a number of tangible benefits: it would incentivize scholarship with dollars, rather than just reputation; it would provide peer review at the beginning of the process, as well as connections and publicity for new projects; it would take some of the funding pressure off of individual schools; and it would give a concrete expression to AALS's mission to encourage the production of quality research. For those of you imagining an AALS secretariat with massive power to disburse funds to various schools, I'm thinking of starting small. So maybe start with 10 grants of $20,000 apiece? The grant money would go to the schools to fund a portion the professor's salary as well as any additional research expenses. It's too much to expect that most law profs can run out and be competitive for outside grants. But AALS can encourage this culture by starting a small grant-funding arm that provides seed money, at least, for some set of scholarly projects.
- AALS should advocate for more grant funding from interdisciplinary grant-funders. Individual legal scholars have a tougher road to hoe when applying to the NSF, NIH, or NEH, since they are not part of the traditional disciplines that get funding from these places. If AALS makes grant-funding a priority, it could work to make foundations and government agencies more receptive to law school applications. AALS could also host a grant-funding resource center for law profs looking to understand and utilize grants.
- The ABA should create a grant fund or funds for scholarship. Are legal professors spending too much time on Bulgarian evidentiary questions and not enough on common-law contract quandaries? The ABA could create a funding arm to provide grants for legal scholarship that deals more closely with doctrinal issues. Or ABA sections could each create small grant-funding programs for subject-specific scholarship. This may already be happening at some small level, in the form of awards or conference funding. But grant-funding would recognize a more tangible role for the bar in encouraging the production of legal scholarship.
I know there are solid arguments against many of these proposals. There's the scale issue: these reforms could range from being so small as to be meaningless, to so large as to be frightening in their power. The bigger the funder, the more power that funder would have to play politics or press an ideological or commercial agenda. At the very least, many of these reforms would impose a layer of bureaucracy on already busy folks. Our current model is pretty independent and flexible. I'm just saying we should trade some of that independence for some outside review and accountability.
Law schools will continue to care about the scholarship that their faculty produces and will compete on scholarly reputation. But I think legal academia as a whole has to think about incentivizing scholarship as a whole. And we could all fund legal scholarship more efficiently. I'd be interested in your thoughts about these proposals.
Thursday, February 13, 2014
Funding Legal Scholarship: Moving from School & Salary Funding to Field & Grant Funding
The first post in this series on funding legal scholarship discussed the basic law school model: individual law schools fund scholarship. And to a large extent, law schools fund only their own faculty's scholarship. Yes, law schools do fund law reviews, which generally publish the work of outside scholars. But schools pay their own faculty's salaries, provide special financial incentives for research, and pay for research assistants and research travel. A professor's research is largely funded by her own institution.
A strength of this model is that it encourages schools to compete against each other based on academic reputation. Although the most prominent ranking system (USNWR) is not directly correlated with research productivity, school reputation is a strong factor, and all of the top-ranked schools enjoy strong scholarly profiles. Schools regularly compete against each other in the entry-level and lateral markets to nab the best scholars for their faculties. Critics of this system have to contend with the success of the elite schools, which place their graduates extremely well and are largely left out of the "scamlaw" discussions. In a world that rewards the school's graduates for the reputation of its faculty, it make sense for individual schools to use some portion of their funds to get the best scholars.However, the school-funded system also has significant weaknesses. Paying for scholarly productivity through salary is a messy mechanism. When profs can't get fired for a lack of scholarly productivity post-tenure, scholarship essentially becomes optional. And many (most?) schools do not have the significant disparities between faculty salaries that could tangibly reward significant distinctions in production. Moreover, if salaries cannot go down, then merit raises get locked in, and a professor is paid for past productivity long into the future.
Perhaps more problematically, school funding encourages an insularity to legal scholarship. The professor need really only please the dean in order to get the salary and other research funding that the school makes available. Even assuming that the dean looks to outside markers such as placements and citation counts, a professor need not engage with her colleagues at the beginning of a project. The stereotypical law scholar sits amid books and Westlaw, working in solitary seclusion on a piece. Workshops, the star footnote, SSRN, and even blogs all encourage a scholarly conversation. But collaboration or peer input is not built as concretely into the beginning part of the process as it is in other disciplines.
Morever, the inward focus can make professors look selfish when they are working or getting paid for scholarship. Since individual law profs control much of their own scholarly agenda, scholarship takes on an individualistic quality. Add in the fact that some kinds of scholarship (under the sales model) provide payments directly to the professor, and you can get the notion that a law school is just a bunch of independent contractors working under one roof. The professoriate has insulated itself -- perhaps to better protect against outside influences, but at a significant cost. That may be part of the reason why you get articles like this and Chief Justice comments like that.
Just to be clear, I am not talking here about making legal scholarship more relevant to the bar. I am talking about making law professors more accountable for writing good scholarship by changing the funding mechanisms for producing such scholarship. Right now, we often simply give profs money and hope they produce something. But if we changed our models, we might get better scholarship (using whatever metric you like) for less money.
My overall suggestion is to shift away from an individual-school, salary-based funding model to a field- and grant-funding model. The grant-funding model uses third parties (of some kind) to judge the value of a particular project, and these parties then offer funding for that project on an incremental basis. Such a system has the following advantages over the school-funded, salary-based system:
- It takes at least some of the funding responsibility off of individual schools, thereby making that school's students shoulder less of the expense.
- It provides for more accountability for scholarly output over time.
- It provides some form of peer review and peer connection for projects at the beginning stages, rather than simply at the end.
- It can be structured to encourage collaboration and interdisciplinarity.
The identity of these third-party funders is critical. I'm not talking primarily about NSF or NIH -- although increasing those grants would be helpful. I'm primarily talking about the field of law -- law schools, AALS, the ABA, and other institutional players -- creating mechanisms that specifically fund legal scholsrship. If the field believes that legal scholarship is important, than the field should create mechanisms for funding legal scholarship beyond the individual school model.
Tomorrow I'll address particular ideas for funding reforms. In the meantime, I'd be interested in your thoughts on the overall approach.
Wednesday, February 12, 2014
Funding Legal Scholarship: The Sales Model
Under the traditional law school model, the individual schools fund legal research; under the grant-funding model, third-party non-profits and government agencies supply a big chunk of the resources. There's a third model that exists in law schools today, and that is the sales model. Under this model, scholars act as individual entrepreneurs selling their research to publishers for personal payment. Much of the action between profs and publishers is in teaching materials, which I do not count under the research rubric. However, I do count academic books and doctrinal treatises as research, and professors sell their IP interests in these works to publishers in exchange for advances and/or royalties.
These contracts are generally private, and I'd love to hear any additional information on this, but my understanding is that purely academic books do not offer much remuneration. In fact, the business model for academic presses has suffered a series of blows over the last twenty years. As a recent AAUP report states:
[T]he simple product-sales models of the twentieth century, devised when information was scarce and expensive, are clearly inappropriate for the twenty-first-century scholarly ecosystem. As the report details, new forms of openness, fees, subscriptions, products, and services are being combined to try to build sustainable business models to fund innovative digital scholarly publishing in diverse arenas.
So even though a law professor might "sell" her book to an academic press, the relatively low return to the prof means that that book has been funded, in large part, by the professor and/or the law school itself. However, treatises offer more remuneration, at least as a general matter. One advantage of doctrinal publications is the broader audience, which includes not only libraries and fellow academics, but also students and practitioners. Some treatises, like Bob Clark's Corporate Law, are notable for their longevity; other treatises prosper because of their breadth and their continual updates which keep the readers current. I know of no treatise-writer who does not have a regular "gig" as professor or practitioner, but the money incentivizing the production of treatises is more substantial. And it flows directly to the author, rather than the author's institution like a grant. The author may also build on the expertise signified by the treatise to land paid consulting opportunities or "of counsel" status at a law firm.
A big benefit of the sales model, like the grant-funding model, is that third parties provide funding and support for the research. But the sales model is more business-oriented; rather than spending their funds for the public good, publishers buy materials that (they believe) will make the most money. And professors get the money directly, rather than funnelled through their home institution. To that extent, it is more responsive to demand in a traditional capitilistic way, which may be good or bad depending on your outlook. The sales model of research is likely limited by the limited market for doctrinal, generalized legal research itself. But at least some percentage of the research going on out there will find funding from publishers who are willing to bet on a market for the material.
One question I have for our readers: why don't law schools use the "work-for-hire" doctrine on these publications? Not enough money at stake? Or do faculty contracts explicitly reserve copyright to faculty? If so, why do schools give this up?
Tuesday, February 11, 2014
Funding Legal Scholarship: The Grant-Funding Model
Under the traditional law school model, scholarship is an expense that the school shoulders as part of its mission. In many academic disciplines, however, research is a revenue generator. The primary way in which schools generate income from their research is through grant funding: a third party will agree to pay the school a certain amount of money in exchange for the production of a specified research project or agenda. So instead of the school paying for the research, the grant-funder pays the school to pay the professor for the research.
In those disciplines where grant-funding is substantial, it is common to refer to the school's or division's research portfolio by a dollar amount, signifying the amount of grant-funding in play at any given time. And no wonder -- the funding can be quite substantial. For example, this 2011 report on UT-Austin found that the faculty generated $161 million in tuition revenue and $397 million in external research funding. The report came in response to an earlier effort to quantify UT faculty productivity based primarily on two metrics: number of student hours taught and amount of grant funding brought in. As one might imagine, law faculty who taught small courses and were traditional yet productive legal scholars did particularly poorly on these metrics.The grant-funding model differs from the traditional legal scholarship model in several key respects. First, and most obviously, grant-funding is usually supplied by a non-profit or governmental agency that operates outside of the school. The NIH provides over $30 billion annually in medical research funding to over 300,000 researchers at more than 2,500 research institutions. (These numbers alone make one realize how relatively small the whole law school universe is.) A myriad of other grant funders exist, reaching out to a variety of different disciplines. But I think it's fair to say that there is no non-profit or governmental grant-funder that focuses primarily on legal research.
Grant-funding is not just different in terms of who provides the money; it's also different in how the money is provided. Here are a few of the salient differences between grant-funding and the traditional law school model:
- Grant funders provide money not as salary to a particular person, but as an allocation for a particular project. Of course, part of any grant includes salary or salary reimbursement, but the grant is directed toward a project, not a person.
- Grants are generally awarded through a peer-review process, in which the researchers and the project are scrutinized to determine if the research is deserving of the award.
- Grants are limited in time, and may or may not offer an opportunity to renew.
- Universities generally take a big chunk of the grant as overhead, and may or may not have restrictions on how this overhead is allocated.
- Although grants do not generally have financial penalities for failure to produce the research, they may be structured to require deliverables. Some funders use contracts or "cooperative research agreements" to maintain even more control over the research and the disbursement of funds.
How does grant-funding affect the salaries of researchers? It's hard to say as a general matter, but in those fields with significant grant-funding, researchers are expected to get grant funding. Faculty may even be expected to get almost their entire salary covered through grants. Tenure generally protects tenured researchers from being terminated for failing to obtain grants. However, grant success is a factor for tenure in many fields, and failure to get grants post-tenure may have a significant impact on salary. Grant-funding may also affect how much money a particular school is allocated from the university.
If legal education went to a grant-funding research model, faculty would be expected to look outside the school to find funding for their research. Funding would be based on projects, rather than people (at least nominally), and would pay for the professor's time spent on the scholarship as well as associated expenses. Funds would likely be disbursed based on a peer-review system, combined with whatever policy angle or political interest the funder brought to the project. However, even in the absence of third-party grant-funders, a school could also adopt a grant-funding model to deploy its own research funds. In fact, some schools use such a model for funding such as summer research grants.
My assumption is that grant-funding in legal academia is is relatively small but growing. As the academy becomes more interdisciplinary, it will be easier for professors to hop onto projects with other researchers in grant-funding fields. It may also be the case that foundations and government agencies are looking for more legally-related projects to fund. However, federal government funding is definitely getting squeezed, making overall grant-funding dollars scarcer. So it seems unlikley that significant grant-funding sources for legal research will soon spring up on their own.
I think legal education could use aspects of the grant-funding system to provide more incentives and support for legal research. These reforms will be discussed more on Thursday and Friday. In the meantime, I'd be interested in hearing if I've characterized the grant-funding system properly, and if I've missed any of the basic policy effects of that system.
Should Law Schools Fire Professors Who Do Not Write Post-Tenure?
My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship. And that this is true from the schools with the highest scholarly reputations on down. But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:
Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.
Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.
To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.
Just to be clear (and not go through the entire thread) -- I actually agree with Brian that law profs have an obligation to produce scholarship. But is that obligation legally enforceable? Has any prof been fired for failing to write post-tenure? Or has any professor been pushed out the door *solely* for failing to write post-tenure? So -- good teacher, good institutional citizen, no scholarship, and threatened with termination? My sense is that this just doesn't happen. Am I wrong about this? And if not, why do we not see more of the enforcement that Brian suggests?
Monday, February 10, 2014
Funding Legal Scholarship: The Traditional Law School Model
This is first in a series of posts about how we fund the production of legal scholarship. To begin, a definitional move is in order: what exactly is legal scholarship? For purposes of this series, I want to be broad. I'll include any published research on the theory, doctrine, or practice of law, whether it be an academic book, a hornbook, a law review article, or an interdisciplinary or other-disciplinary piece that focuses on law in some respect. Legal scholarship is original research that attempts to contribute to our understandings of legal doctrine, human behavior in the context of law, or other aspects of our legal system. I'd draw a line between the research itself and the promotion of the research, so lengthy docrinal bar journal articles can be scholarship, but op-eds and blog posts are not. I don't think amicus briefs are, either, although I suppose a "Brandeis brief" could be. Happy to discuss this definition in the comments. In addition, I should note that I am leaving out legal scholarship that is produced by students as well as practitioners, at least for today.
So how is legal scholarship funded? I think we can separate the creation of that scholarship -- the research and writing -- from the publication of it. To take publication first, law schools pay a fair amount of the publication costs of legal scholarship, since they fund law reviews. Law reviews do receive revenues from subscribers (generally other law schools) and from Westlaw, LexisNexis, and Hein Online for electronic rights. But my assumption is that most law reviews are not self-sustaining. Reviews also usually have some level of school-provided support staff, and publishers are paid by the review/school as well. However, law reviews do receive a lot of "free" labor. Students are generally not paid to either produce or publish legal scholarship, although many students receive school credit (which they pay for) and some receive bagels.
Outside of law reviews, legal scholarship is published in bar journals, which are funded by the affiliated bar, or by academic presses, which are likely closer to self-sustaining but also may receive university support. (Here's a recent AAUP report on the finances of academic presses.) The current X factor is whether "publishing" through SSRN and/or Bepress will ever become independently acceptable. As of now, these databases are repositories for papers that generally hope to be published, are in the process of being published, or are already published elsewhere. SSRN and Bepress are both private companies.
On the creation side, law schools pay their own professors to write scholarship. But this deserves a lengthier breakdown. Salary hinges on a professor fulfilling her job requirements, and those requirements are generally described as scholarship, teaching, and service. Most schools require a professor to write three or more articles to obtain tenure. However, after that, the scholarship "requirement" is enforced much more spottily. Some schools may attribute the bulk of any merit-based salary increases to scholarly production. However, my guess is that there is a wide range, both between the amount of merit raises awarded from year to year, and the percentage of those awards that are based solely on scholarship. At most schools (if not all?), professors cannot be fired post-tenure for failing to produce any scholarship. And given the salience of teaching and service, I would imagine that a very small percentage of post-tenure salary rides solely on the professor's production of scholarship.
Many schools also have direct grants for scholarship. For example, summer research grants, which pay professors between $5,000 and $20,000 to produce an article over the summer, are an apparently direct payment for scholarship. A couple of provisos, however: (1) some schools have only lax enforcement mechanisms to ensure that an article was actually produced and published; and (2) the grant is limited to one piece, so any article after the first does not receive specific funding. In addition to summer research stipends, some schools provide bonuses for high-ranking journal placements, but these are generally less than four figures.
Larry Cunningham has opined that a highly-placed law review article can be worth $100,000, as has Richard Neumann. But I have problems with their math. Cunningham argues that the award is not only worth the $12,500-$20,000 summer grant, but also the 1-3% raise that the professor receives for having written the article, which is then made a part of base pay for the rest of the person's career. Cunningham's math, however, not only assumes a relatively high summer grant, but also a high salary: $200,000 for a mid-career scholar, or $250,000 for a senior scholar. Maybe I am naive or in the dark, but those salaries seem pretty high for most law schools. Cunningham admits that a junior scholar getting $100,000 and a 2% raise would only get about $35,000 from salary increases over a lifetime. And Cunningham also has to assume: (1) there are no salary freezes in effect the year of publication, and (2) the 2% raise is solely attributable to that one article.
Richard Neumann's calculations seem even more problematic. He assumes a professor at a high-ranking school who spends 30-50% of her time producing one article per year. Thus, in his view, 30-50% of the person's salary and benefits go to that article. So if the prof produces three articles a year, they cost $33,333 apiece, and if she writes one article in five years, it's worth $500,000? You can see the difficulty. Since professors must teach and must perform committee assignments, but generally need not produce any scholarship post-tenure, their salary cannot be attributed to scholarship unless it is directly tied to such scholarship. I have a similar problem with Brian Tamanaha's claim that the reduction in teaching loads is an allocation of funds towards scholarship. That may be the intent, but if the school does not require faculty to write more, it's just an allocation of funds to freeing up faculty time.
The real X factor here is the lateral market. A productive professor can either secure a higher-paying salary from another school, or may be able to use a higher-paying offer to get a substantial raise at her current school. Again, internal school policies are so varied (even within the school!) that it's hard to know how much to attribute to scholarship. However, it is generally true that professors at higher-ranking schools are paid better, teach less, and produce more scholarship. Thus, higher-ranking schools attribute more of their salary to scholarship (past, present, and/or future).
Beyond paying professors to produce legal scholarship, schools also fund resources for the production of the scholarship. So schools pay their own students to act as research assistants, they pay for staff to facilitate professors' work (which includes scholarship), and they pay for libraries and data sets that are necessary to the research. Libraries also serve students and the public, but at least a substantial portion of their expenses are designed to facilitate research.
This overview of funding on the creation side is not complete. It leaves out (a) grant-funding for certain legal research projects and (b) royalities for academic books, hornbooks, and other compensated publication opportunities. These two models (grants and sales) will be discussed on Tuesday and Wednesday. But (a) is still relatively unusual in the legal academy, and even book-publishing professors do not receive a significant amount from (b), as non-teaching academic titles do not usually offer substantial royalties.
So how are we funding legal scholarship? As a general matter, schools are paying their own professors to research and write legal scholarship, they manage their own students in editing it, and they pay a publisher to publish it. Most law schools are funded primarily by student tuition, although state funds and alumni giving supplement to varying degrees. So students are funding at least a big chunk of legal scholarship. To the extent the federal government is funding legal education through IBR, it too is also a source of funding for scholarship.
Most of this overview will be familiar to the seasoned readers of PrawfsBlawg. And most will be familiar with the weaknesses of this model, particularly in a time of law school belt-tightening. From a management perspective, schools want to provide the best (or most market-desirable) education possible for the lowest cost. Many schools may look upon scholarship as a "luxury good" that the school can no longer afford, especially when compared with teaching and service. There are, though, two mitigating factors against this trend: (1) Prestige is still important (or perhaps more important) to the market desirability of the education being provided, and the higher-ranked schools have stronger scholarly reputations, almost uniformly. So a school that cuts its commitment to scholarship could see its reputation fall, which could decrease the desirability of its educational services. (2) Many schools use law reviews are important components of their education and curriculum, and cutting them would require replacing them with course offerings that may be just as or more expensive.
Despite these mitigating factors, however, there are a strong set of forces pushing schools to decrease their funding for their faculty's scholarly production:
- A smaller applicant pool, resulting in smaller class sizes;
- A need to offer scholarships to maintain a strong student body as to LSAT scores and GPAs;
- An increasing emphasis on course offerings emphasizing practice-readiness and skills training, often offered by non-research faculty; and
- A skepticism from members of the bench, bar, and academy about the value of legal scholarship.
So it seems like a good time to think about other options, other systems for scholarship funding. We'll turn to grant-funding tomorrow.
Friday, February 07, 2014
A Series on Funding Legal Scholarship
Next week I'll be running a series on funding legal scholarship. The series stems from my experience as associate dean for research a few years back, along with several trends that are converging to put pressure on the traditional methods of supporting legal scholarship. These trends include: (1) strong incentives to cut the costs of legal education, both from drops in student bodies and cuts in tuition (sticker and post-merit-scholarships), (2) an increasing emphasis on practice-readiness and skills training, (3) a huge drop in entry-level tenure-track hiring, and (4) concerns about the value of legal scholarship to the schools, the profession, and the society as a whole.
These posts will not be about the value of legal scholarship -- at least not directly. Instead, they will focus on the ways in which we fund the production of legal scholarship. This moment of great market flux provides an opportunity to reassess where we are and think about how things will be changing and how they could be changing.
The series will address the following topics:
- Monday: The Traditional Law School Model
- Tuesday: The Grant-Funding Model
- Wednesday: The Sales Model
- Thursday: The School- and Field-Supported Models
- Friday: The Future of Funding Legal Scholarship
I hope you will join us for the series.
Wednesday, February 05, 2014
The 5th Annual CrimProf Conference--Call for Papers
Here's the text of an email that the incomparable Professor Carissa Hessick and I sent out earlier today to the CrimProf list-serv. Not everyone who is interested in this conference subscribes, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.
Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP.
Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10. Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu
To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:
(a) The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;
(b) Whether you are willing to serve as chair or discussant for another panel; and
(c) Any date restrictions you have. We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)
We hope that many and more of you will be able to join us. And we hope that this conference will be the herald of many more summer crim gatherings in the future.
Carissa & Danny
Discounted Hotel Information:
Hilton Hotel = $149 per night
Contact person for the Hilton is Lucile Cox, her direct number is 973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Robert Treat Best Western = $99 per night
Contact person for the Robert Treat, Mercedes, she can be reached at 973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Guests should refer to Group#5529 when they reserve the room.
Tuesday, February 04, 2014
Rethinking Faculty Compensation
I wanted to bounce off a Faculty Lounge post by my colleague Jeff Redding, and particularly a comment to the post by recent guest prawf Nancy Leong. Jeff had posted about buy-outs, and Nancy "raise[d] the larger question of what faculty compensation should look like more generally." Nancy suggested:
For example, we might imagine an alternative compensation model in which faculty base salaries were much lower and less differentiated by seniority, and a larger percentage of compensation came in the form of merit pay determined by teaching effectiveness, scholarly productivity, and service to the institution. The buy-out incentives would be quite different in that model.
Nancy's idea raises a host of interesting issues -- I've broken out a few of them below.
- Tenure Contracts and Reductions in Pay: What if a dean told the faculty: "All faculty base salaries for next year will be 60% of their current levels. We are also cutting 10% off the current pool. The remaining 30% will be distributed according to merit, with three merit pools for scholarship, teaching, and service." My sense is that a lot of people believe this would violate tenure contracts. But I'm not sure why. I suppose that a significant enough cut would constitute a constructive discharge. But I've seen some people say that a 0.000001% cut would violate tenure contracts. That seems baffling to me, but maybe I haven't read the contracts closely enough! I'd appreciate thoughts from folks who might know better.
- The Pros and Cons of Merit Pay: My example above not only imagined a cut in overall pay; it also imagined what could be a significant redistribution of faculty compensation. It would depend on how aggressive the dean is -- things could look pretty much the same, or the dean could give huge bonuses based on scholarship, teaching, and/or service. Even more aggressively, a dean could say: "All tenure faculty will get a base pay of $50,000, with merit pay to be recalculated annually." That would eliminate the effects of seniority and past performance from the system. The immediately obvious critique is: "Wow! That's a lot of power to give to the dean!" And as a labor law guy, I chafe at giving management that much discretion. On the other hand, it would be much more of a "pay for performance" system. And perhaps an innovative group of faculty could follow the Munger, Tolles lead and have all faculty vote on each other's salaries. That would eliminate the dean problem, but it would add to the problem discussed next.
- The Politicization of Pay. The reason most schools will stick with the status quo is that it's a lot easier than having to decide from scratch. The time spent debating a new system, as well as the emotional costs of getting up in the face of your colleagues about what they take home each month, may overrun any benefits from a new compensation scheme. And that's assuming there's reform! It is perhaps more likely that any reform efforts would end in failure, with the reformers weakened and unlikely to easily jump to another school. However, as any good crit would tell you, the status quo is not "neutral." It is political as well. Fencing off faculty compensation from discussion, because it's "vulgar" or too personal, is a political move designed to protect those who benefit from the status quo. And as the outside forces of change grow stronger, those boundaries around the status quo are more likely to break down.
- The Politics of Faculty Hiring and Firing. Based on data about the entry-level job market, many (most?) schools are "cutting" faculty costs by not hiring. With class sizes largely going down, it makes sense to shrink faculties. But how faculties are shrunk is also a political issue. The path of least resistance is to not hire, rather than fire. But that means that a huge swath of people who would normally be entering the academy are not. Tenure and other job protections help senior workers but can harm junior workers -- just look at the American auto industry. In my view, tenure itself is a politically-fraught aspect of the law school universe, even for law profs themselves.
Saturday, February 01, 2014
Redyip's return: Angsting Thread Spring 2014 edition
So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.
If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.
Update: link to final page of comments here.
Saturday, December 28, 2013
Concluding on a high note: student papers highlight diversity of important marijuana law and policy topics
I was eager and excited to teach a law school seminar this past term focused on marijuana law, policy and reform in part because I have come to see how many diverse and dynamic legal and policy issues are raised and impacted by states legalizing medical and recreational marijuana use. Last week, my students providing a fitting final demonstration of this reality when they turned in their final papers. Below I provide the titles of the seminar papers submitted for this course:
You’re Fired…Maybe: How the Legalization of Recreational Marijuana Will Affect Employee and Employer Relations
The Anonymous Online Black Market
The Pliant Majority: Cognizing the Attitudinal Shift Toward Marijuana Legalization in America
The War on Federalism: Battleground Medical Marijuana
Federal Sentencing in Marijuana Offenses: How Should Federal Judges Reflect the National Changes in Policy When Sentencing Marijuana Offenders?
Marijuana or Xanax: the Lesser of Two Evils
Marijuana Policy and Immigration Law: Policing Borders, Blurring Lines, and Reforming Policies
Privacy Concerns Within the Ever-growing Marijuana Industry
Responsible Smoking – A Guide to Police Powers in a Recreational-Use State
Nuestra Voz Entre La Hierba: the Latino Vote and Marijuana Reform
“Weed Here, Get Your Weed Here!”:The First Amendment and Advertising Legalized Marijuana
Keeping the Flashing Lights On: Using Civil Forfeiture to Fund Law Enforcement by [Not] Punishing Drug Offenders
Additional Revenues for the City of Detroit and State of Michigan: An Initiative for Legalized Marijuana within the City of Detroit
Legalize and Tax Marijuana: The Path to a Better Fiscal Future for Ohio
A Guide to Marijuana Reform in the Buckeye State: How and Why Ohio Should Lead America’s March Towards Marijuana Legalization
Starting a Retail Marijuana Business: Colorado or Washington?
As these paper titles highlight, students used their final papers as an opportunity to explore employment law, cyber-law and markets, public opinion trends and minority voting patterns, privacy law, federalism, the First Amendment, federal sentencing and civil forfeitures, immigration law, and health law as well as the array of tax and business issues that surround marijuana reform policies and practices. (Once I finish grading all the papers, I am planning to post some or all of them in this space if I surmise there is reader interest.)
In some future "wrap-up" posts, I hope to discuss more broadly what I thought worked best (and did not work so well) in my development of this seminar. I also want to discuss a bit why I think I should probably wait until late 2015 or early 2016 to teach a course like this again.
Cross-posted at Marijuana Law, Policy & Reform
Monday, December 09, 2013
Prawfsfest! XI is about to start. Big thanks to Pepperdine and Michael Helfand
I'm so excited to announce that Prawfsfest! XI is about to start this morning. We used to run two of these a year, and then took a hiatus, but thanks to the efforts of Michael Helfand, we are reviving it and I'm delighted to publicly trumpet and thank our wonderful hosts in Malibu. We've been hearing lots of apologies by people about the weather, which is unseasonably cold, but unless these apologies are statements of regretful agency as opposed to "I'm sorry you're suffering" then I'm pretty sure I don't want to hear them anymore:-)
In any event, here's the schedule for today and tomorrow's program.
Prawfsfest XI | December 8th – 10th, 2013
24255 Pacific Coast Highway, Malibu, CA 90263
Monday, December 9
8:30 AM Gather in Villa Graziadio Executive Center lobby to drive to Law School
8:40 AM Breakfast at Law School | Seminar Room 1
9:00 AM Jack Chin (UC Davis): “Unconstitutional, But Reasonable? Race, Reasonableness, and Considering Whren’s Dicta”
10:00 AM Garrick Pursley (Florida State): “The Thin Constitutional Structure”
11:00 AM Break & Refreshments
11:15 AM Victoria Schwartz (Pepperdine): “Analogizing Privacy?”
*NOTE: Participants can choose one of the two options below for the lunch break:
12:15 PM Lunch on-site | Dean’s Conference Room or
12:30 PM Faculty Workshop Presentation by Dan Markel | Seminar Room 4
2:00 PM Eric Miller (Loyola LA): “Permissions and Discretions”
3:00 PM Break & Refreshments
3:15 PM Robin Effron (Brooklyn): “Ex-Ante Discovery”
4:15 PM Return to Villa Graziadio Executive Center for spare time
7:00 PM Gather in Villa Graziadio Executive Center lobby to drive to dinner
7:30 PM Drive to Dinner at Duke’s Malibu | 21150 Pacific Coast Highway, Malibu | 310.317.0777
Tuesday, December 10
8:45 AM Gather in Grazadio Executive Center lobby to drive to Law School
9:00 AM Breakfast at Law School | Seminar Room 1
9:15 AM David Han (Pepperdine): “Flexible Remedies in Speech-Tort Jurisprudence”
10:15 AM Margaret Ryznar (Indiana): “Child Support Obligations of High-Income Parents”
11:15 AM Break & Refreshments
11:30 AM Dan Markel (Florida State): “Luck or Law: The Constitutional Remedy for the Right Against Indeterminate Sentencing”
12:30 PM Lunch on-site | Dean’s Conference Room
2:00 PM Michael Helfand (Pepperdine): “Enforcing Co-Religionist Commerce”
3:00 PM Refreshments and Conclusion
Thursday, December 05, 2013
Interested in Developing As a Legal Scholar? (A note from Prof Chris Lund)
At the January 2014 AALS meeting in New York, the Section on New Law Professors is set to host a panel entitled, “Developing as a Legal Scholar: Thoughts for New Law Professors.” We’ve put together an impressive group of scholars—Jennifer Arlen (NYU), Sarah Cleveland (Columbia), Doug Laycock (Virginia), and Angela Onwuachi-Willig(Iowa)—who will join together for a roundtable discussion of how they became so awesome. They will focus on matters of vital importance to our membership (i.e., new law professors). Topics will include how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on which scholarly projects to pursue.
If you’re interested—and why wouldn’t you be interested?—please come. The panel is Saturday, January 4th, 2014, running from 4:00 PM to 5:45 PM. Put it on your calendar.
But here’s something else. The Section wants input from Prawfsblawg readers! You all probably have questions about growing as a legal scholar that you’d like the panelists to answer. Put them in the comments section to this post. During the discussion and during the Q&A, I’ll find ways of slipping in your questions (only the good ones, of course, but I have a broad notion of “good”).
(Chair, Section on New Law Professors)
Here, btw, is the full panel description:
Saturday, January 4th, 2014
4:00 - 5:45 PM
 AALS SECTION ON NEW LAW PROFESSORS
Developing as a Legal Scholar: Thoughts for New Law Professors
Moderator: Christopher C. Lund, Wayne State University Law School
Speakers: Jennifer H. Arlen, New York University School of Law
Sarah H. Cleveland, Columbia University School of Law
Douglas Laycock, University of Virginia School of Law
Angela Onwuachi-Willig, University of Iowa Law School
This panel brings together a number of prominent academics for a roundtable discussion of how they developed into legal scholars. With an eye toward aiding law professors new to the academy, the panelists will discuss things like how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on scholarly projects to pursue.
Saturday, November 16, 2013
Cutting the Sticker Price
Following up (indirectly) on Matt's post yesterday about the future of law schools, it's worth noting the news (via Brian Leiter's blog) of a big tuition reduction at Ohio Northern. Of course, many -- probably most -- schools substantially discount tuition for many of their students via merit scholarships, so a lot of students already are paying less than the full sticker price. That's not to say across-the-board tuition reductions are meaningless. Indeed, to the extent those scholarships are largely funded (as most law school expenses are) by tuition, the current structure amounts to some students subsidizing the legal education of their classmates. Some might find that troubling, others might not (at least if there's transaparency about the amount of scholarship money that's being doled out, how it's being distributed, and where those funds are coming from). It will be interesting to see if ONU's move gets matched, by whom, and what those schools end up doing with regard to scholarships.
Friday, November 15, 2013
Paul Campos and the Future of Law Schools
Paul Campos comes to the conclusion that even though 80-85 percent of law schools (in his rough estimation) are losing money, very few will close because there is plenty of room for cutting expenses. Based on my own sense of things, I think he's right. But I don't agree with his assessment that the rise in law school expenses has been "a spectacularly successful exercise in rent-seeking." His initial example for this rent-seeking is the drop in student-to-teacher ratio over the last 33 years. But is this drop really a bad thing? Isn't it better to have smaller classes? When you are looking for schools for your kids, do you say: this elementary school has *huge* classes -- terrific!
Not to rehash these issues for the ump-teenth time, but I wish reformers like Campos would at least acknowledge some of the benefits of the current (but likely passing) model for legal education, such as smaller classes, more clinical opportunities, and more extra-educational services. Sure, that's expensive, but is trying to provide a better product rent-seeking? Not to say that there aren't examples of rent-seeking, such as higher salaries and cushy benefits. But smaller student-teacher ratios mean you are hiring more teachers, not more expensive ones, and tenure existed in the 1980s, too.
Campos doesn't come out and say this, but apparently he wants to return to the days when law schools had largely big-lecture Socratic classes, a couple of clinics, and students teaching legal research and writing. If so, I wish he'd say it. I think there's a good argument for the old method: a "VW Bug" version of legal education may make more sense for more people than a Cadillac one. (The nice cars do have Corinthian leather!) But once he came out with something concrete, people would have grounds for criticizing his approach.
As a famous Vulcan once said, "As a matter of cosmic history, it has always been easier to destroy than to create." I wish Paul Campos would help us start rebuilding.
Friday, November 08, 2013
Great jobs for green lawyers in the new green ganja legal world(?)
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Cross-posted at Marijuana Law, Policy and Reform
Monday, October 21, 2013
Et Tu, Adam? The Lazy Critiques of Law Reviews Continue
When it comes to media stories on legal education, bashing on law reviews is evergreen content. Why, it was just two years ago that David Segal was offering his own attack on legal scholarship, referring to law review articles as "headscratchers" and quoting Chief Justice Roberts on Kant & Bulgaria. (And this was my response then, in case you missed it!) So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before. I find these critiques to be based on a blend of ignorance, arrogance, and incoherence. Ignorance because they don't really seem to know what's going on in actual law reviews. The CJ's quote is a good example -- it's a caricature of a cliche about law reviews, rather than an actual observation about them. Arrogance because there is always outrage about these "amateurs" and "incompetents" getting to touch the golden prose of scholars. Sure, some journals and some editors are worse than others, but on the whole students know the Bluebook and are respectful yet challenging of authors. I have gotten terrific editing from law reviews, including a set of edits at a specialty journal that I just turned around this past month. Would some peer review be nice? Sure, but (1) there are peer review journals and (2) meaningful peer review comes in the literature to follow. When a huge number of professors do their research on SSRN, which offers no review of any kind (other than download counts), the need for peer review to separate wheat from chaff is overblown. Finally, incoherence -- because the critiques don't fit together. Law review articles are incredibly esoteric and out of touch? Then why are they being chosen by editors who almost all go on to be lawyers themselves? Law blogs are better than law reviews? I don't know where to begin with that one. There are a lot of different tropes and agendas meandering around in these critiques, and they just don't hang together. The critique of internally-placed articles based on Albert Yoon's research does raise real concerns. But this is a much more subtle point than the rest of Liptak's post.
I have a lot more to say about this, some of which I said in "Law Students and Legal Scholarship" over at the Journal of Law. But law reviews are a resource for which law professors should be grateful. I hope more law profs come out of the woodwork to defend these institutions of research and learning, or they just might begin to disappear.
Thursday, October 10, 2013
Rankings versus Market Share
Brian Leiter has shared the news that U.S. News law rankings will to continue to collect information on school expenditures. That, combined with the student-teacher ratio, means that U.S. News will continue to push schools smaller to improve their rankings. When you factor in that reducing class size also improves LSAT scores and GPAs, likely improves bar passage rates, and makes it easier to place a higher percentage of grads in jobs, it's really a no-brainer that schools will want to keep getting smaller if they want to improve their ranking.
Of course, going smaller also means lost tuition. So if LSAT takers continue to go down (hypothetically?), there will be different strategies at different schools -- some going smaller (if they can afford it) to maintain traditional entry requirements, and some going bigger or maintaining size to keep tuition dollars stable. Two recent articles -- one on D.C. and one on New York -- provided in-depth data about how schools are managing their enrollments based on these competing forces.
I wanted to throw out one additional factor -- market share. Here's the theory: let's say you are a higher-ranked school in a market with a number of lower-ranked competitors. You can go smaller and keep your numbers up, or you can go big and take a ratings hit. However, when you go bigger, that means there are fewer students for your competitors -- and they are already scrambling for students. So their rankings will suffer too. You may go down 5 or 10 slots, but they will go down 20 or 30 slots. And if the schools on down the chain respond in kind, maybe one of them might even go out of business. As a colleague, you may feel bad about that, but as a competitor, it makes your life easier. You can grab a bigger and/or better share of the students in your market and worry less about competition.
I think the incentives for staying small and keeping a good student body will keep most schools from pursuing this strategy. But in regions where the competition is fierce, I can see a school at least taking this into consideration. Is this a plausible market strategy? Or should law schools not be thinking about market strategies, particularly if they involve shuttering a competitor?
Monday, October 07, 2013
Law and Society 2014 CrimProf Announcement
For the last five years or so, I've been involved with planning a "shadow" crimprof gathering at the annual Law and Society conference. Carissa Hessick (Utah) has been my partner in crime the last couple years, and the endeavor has gone very well, with this last year's event including over fifteen panels and something like seventy participants or so.
Sadly, Carissa and I are deciding to not play much of an organizer's role this year for the upcoming gathering in Minneapolis. There are a few considerations at play. We've always chafed under the somewhat peculiar participation rules that limited our sense of what number of panelists made optimal sense. But aside from that, we now have to deal with the unwillingness/inability of LSA to coordinate more than four panels for us or for any other group that would like to ensure that we could attend each other's panels without conflict in time and place. We might reconsider in future years, but for now, we figured that we'd let crimprof type people who want to go to LSA in Minneapolis this spring use the comments to this thread as a vehicle for putting together panels.
I should add: while we may return to LSA in the future, we are also considering just having a stand-alone crimprof conference at a law school, probably in May or June also, so that early drafts can be shared and repaired over the summer. (In my own head, it would like something like the ImmProf biennial gathering about which you can read here.) If your law school is interested in hosting this, either this year or in future years, let Carissa and me know. We anticipate that we would keep costs down by requiring participants to pay their hotel, perhaps most meals, and airfare.
In any event, if you're a crimprof and want to go to LSA, please feel free to include an expression of interest and abstract that you'd like to present. Remember that panels need to be packaged within the next week or so (october 15 is this year's early deadline).
HLR has more women. Discuss.
The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).
Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?
Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.
Thursday, October 03, 2013
2013 Faculty Hiring: Will Schools Be Looking for More This Year?
In making new faculty hires, law schools have traditionally focused scholarship and teaching, often looking specifically at a candidate's research agenda and teaching package. Most of the questions asked at those 25-minute interviews revolve around these topics. But I'm wondering if this year will be different. My hypothesis is that some schools will go beyond the traditional research-and-teaching-package questions to see what else a candidate might provide to the school. And my guess is that these questions will focus on how the candidate could help with employment outcomes and new pedadgogical directions.
These are not traditional topics for questions, and schools with higher employment and salary numbers will be likely focus on the candidate's scholarship. But at schools where students are struggling harder to find jobs, and where graduates may be looking for more practice-readiness, schools may be thinking more broadly about what a candidate can bring to the table. So -- does a candidate have a connection to the market(s) where the school's graduates are looking to work? Would she/he be able to facilitate connections between students and a new set of potential employers? Does he/she have subject-matter expertise that would lend itself to a center, not just for academic reasons but also because it would help students find jobs in the area? And some schools might be looking for profs who can teach not only the traditional doctrinal subjects but also more innovative or practice-oriented offerings. So -- would a business law prof be interested in working with an entrepreneurship clinic, lab, or externship program? Would a civ pro candidate want to work with appellate moot court teams, or help to set up a state supreme court clinic? Would the candidate consider working on a capstone course, like a ten-credit practicum, that the school is considering adopting?
There's a traditional dialogue in the hiring process, captured nicely by Christine Hurt's animated short. But I'm wondering if this year might be a little different. Hiring committees and candidates, feel free to weigh in. Will schools be looking for something different? Should they?
Friday, September 20, 2013
Notice to all law faculty: Read this Report
According to the ABA Task Force Report released today, you prawfs out there need to "Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School." So get to it! (However, in a separate statement, Task Force member and former OSU Law Dean Nancy Hardin Rogers "see[s] no need" for such a command.)
Having endeavored to follow the Task Force's directive, I was somewhat surprised with the lack of data in the Report combined with its willingness to make sweeping empirical observations and reforms. I saw no specifics in the report about attorney employment rates, law student debt levels, or law school tuition rates, or any analysis about how these might have changed over time. There is no data about faculty salaries, faculty workloads, or faculty scholarly productivity. There is no real discussion about what kind of education might be needed to be a 21st-Century attorney, and how this might differ from the education currently being provided. Instead, there are pronouncements such as these:
- "Prevailing law faculty culture, and the prevailing faculty structure in a law school, reflect the model of a law school as primarily an academic enterprise, delivering a public good. This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship." (p. 26)
- "Rankings of law schools strongly influence the behavior of applicants, law schools, and employers. Some ranking systems (in particular U.S. News) purport to supply objective consumer information. However, little of the information used in ranking formulas relates to educational outcomes or conventional measures of programmatic quality or value." (p. 9)
- "Law schools price a J.D. education by reference to their cost of delivering it, less revenue from other sources (such as endowment income or state subsidies). In general, law schools do not take market price as given and seek to manage costs on the basis of that market price." (p. 10)
- "What is not reasonably disputable, however, is that the [ABA] Standards do not encourage innovation, experimentation, and cost reduction on the part of law schools." (p. 11)
- "The current market forces now require more drastic changes for law schools than they have faced in the memories of current law faculties or administrators. Universities are requiring law schools to become financially self-sustaining, and competition for students and tuition revenue has come to resemble competition in the non-education economy. Many, if not most, law schools lack the expertise or the organizational structure to deal with these new conditions; some constituencies in law schools resist dealing with them; and in some cases universities are unwilling or unable to support law schools as they attempt to make a transition to a new market-oriented way of conducting their affairs." (p. 13-14)
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
- "There continues, and will continue, to be a need for professional generalists. However, there is today, and there will increasingly be in the future, a need for: (a) persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services." (p. 23)
I think all those involved in legal education can roughly agree on two things: (a) over the last five years, the available legal positions have fallen significantly lower than the number of new graduates; and (b) over the last decade, law school tuitions have increased to levels that create unsustainable debt for new graduates. Although these points are contestable, I think one would find large consensus about them as well as data to support them. However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up.
As anyone who has written a term paper or law review article knows, the policy recommendations are always the "fun" part. But the work is largely in establishing the facts and principles that make those policy recommendations compelling. The Task Force Report is an almost entirely normative document, proceeding from certain descriptive assumptions and value choices. I wish it had spent more time establishing the factual assumptions and value choices before moving into its rather specific and contestable recommendations.
Thursday, August 29, 2013
When former students return as hiring-committee members
Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students. I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing. Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving! If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).
Saturday, August 24, 2013
The Problems with the President's Two-Year Plan
At a town hall event in Binghamton, N.Y. earlier today, President Obama was asked the following question:
I'm a faculty member of the computer science department. I'm very excited and encouraged by your plan on the affordability reform. My question is related about the quality of future higher education. As you know, many universities are trying their best to provide the best value by doing better with less. But the challenges are real, and they're getting tougher and tougher as the budget cuts are getting tougher and tougher. So my question is what your administration will do to ensure the best American universities remain to be the best in the world in the 21st century?
After acknowledging that state educational funding had dropped off significantly (". . . what you've seen is a drop from about 46 percent of the revenues of a public college coming from states down to about 25 percent"), the President then turned to ways in which universities could also cut costs:
So states have to do their jobs. But what is true also, though, is that universities and faculty need to come up with ways to also cut costs while maintaining quality -- because that’s what we’re having to do throughout our economy. And sometimes when I talk to college professors -- and, keep in mind, I taught in a law school for 10 years, so I’m very sympathetic to the spirit of inquiry and the importance of not just looking at X’s and O’s and numbers when it comes to measuring colleges. But what I also know is, is that there are ways we can save money that would not diminish quality.
This is probably controversial to say, but what the heck, I’m in my second term so I can say it. (Laughter.) I believe, for example, that law schools would probably be wise to think about being two years instead of three years -- because by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.
Now, the question is can law schools maintain quality and keep good professors and sustain themselves without that third year. My suspicion is, is that if they thought creatively about it, they probably could. Now, if that’s true at a graduate level, there are probably some things that we could do at the undergraduate level as well.
The full transcript is here.
I'm sure a lot will be said about this in the upcoming days, but since it's a Friday night in August, I thought I'd weigh in with a few initial thoughts. So here they are:
(1) The President's proposal does not lower tuition. It may seem obdurate to suggest that lopping off a third of the legal education provided to students would not reduce the tuition they pay. But it won't -- at least, not on its own. Yes, it will cut the costs of providing that education, at least in theory. But it won't lower tuition.
Frankly, I'm somewhat baffled that proponents of the two-year plan -- and, in fact any proposal to cut the costs of providing legal education -- fail to grasp this point. We just went through a period where a lot of law schools raised their baseline tuition at rates significantly higher than inflation despite the fact that the J.D. remained the same number of credits. In other words, over the last decade law schools charged significantly more per credit hour. What's to prevent them from doing this in the future?
But, how, you may ask, could law schools really charge the same price for 1/3 less education? Well, play it out. Let's suppose some states allow students to sit for the bar after two years, rather than three. Some schools would change their J.D. programs to two years, but many would not. In fact, it's more likely that the higher-ranked schools would keep their programs as is. But putting that variable to the side -- yes, there would be competition at lower-ranked schools, and many would create two-year programs. But they would charge what the market could bear. And up until very recently, that market could bear about $100,000 to $150,000 for a J.D. with many students lining up for it. Why wouldn't that market dynamic remain the same?
If you need further proof, just look at Matt Leichter's school-by-school analysis. As he said, "law schools do not care about controlling their costs and will shift them onto students who don’t realize that their predecessors had a significantly better deal than they did." Since I'm a law professor, I would frame this differently (schools will keep spending to improve the education they provide and their reputation), but the point is the same: law school tuition is not constrained by credit hours.
If someone magically changed the J.D. program at my law school to two years, I wouldn't shrug my shoulders and go, "Oh well -- guess we're only two years now!" I would work with my colleagues to figure out how we could make those two years meet the needs of our students -- and pack as much in as possible. If the same U.S. News rankings remained in place, don't you think schools would continue to compete on class size, expenses per student, and educational reputation? And wouldn't that drive up costs? What if, in the new two-year law school, we added a clinical component, an externship component, and a ten-person small section component to the basic Contracts class, and then assigned it to a doctrinal professor, two clinical professors, and four adjuncts? That would be a better class, no? But it'd also be a lot more expensive. A school could easily justify spending $60,000 or more a year per student -- again, if the market rewarded schools for offering such classes. (As an aside: is it better to have two years of intensive classes or three years of broader offerings? That's an interesting pedagogical question -- but it's a pedagogical, not a financial, one.)
So I do think, initially, a two-year program would lead to reduced tuition. But would it hold that way? I don't think so. The pressures towards education excellence would increase costs to meet whatever students and their lenders were willing to pay. That's not necessarily a bad thing, if consumers have the proper price sensitivity. But if you want tuition to go down, work on that. Otherwise, the assumption that law school tuition will go down if costs go down is like the argument that 11 is louder. It assumes that law schools just can't make 10 louder themselves.
(2) The President's plan would worsen the jobs aspect of the current crisis. No one doubts that a significant part of the current crisis is based on the drop in employment opportunities for law school graduates. If we change the requirements so that lawyers from here on out would only need two years of school, there would be more of them, and they would come to the market more quickly. And that would be a bad thing for those lawyers who are currently in the market.
Again, this seems to be a point that many reformers are either missing or are conveniently ducking. If you think there are too many law grads chasing too few jobs, then you really want fewer law grads. And if you are making legal education cheaper to provide, either by lopping off a third of the education required, or getting rid of tenure, or loosening other accreditation requirements, then you are putting down incentives for *more* law grads to be out there. And here's the Scylla-and-Charibdis: either tuition will not go down, and law schools will just make more money off their students as their costs drop, or tuition will go down, and more students will have the economic incentives and ability to go to law school. Pick your poison.
(3) Choices about the required program of legal education should be based on pedagogy. The President proposed lopping a third off of legal education because "by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much." That's not much of a pedagogical theory -- I guess he doesn't like clinics -- but then again, there's not much pedagogy to a lot of these theories. I believe that with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared. Of course, it is always the job of law schools to provide the necessary education at a sustainable price. But schools can provide a three-year legal education at a sustainable price. In fact, we've done it in the past.
If we find that a two-year J.D. provides an adequate education, then we should adopt it. But if we reduce the quality of our legal education -- and reduce it in ways that leave lawyers less able to handle their vocations -- simply because we can find no other way to reduce the price, then shame on us.
Tuesday, August 06, 2013
The Angsting Thread (Fall 2013 Submission Cycle Edition)
Friends, I have it on good authority that Redyip is not yet visible but he is making preparations for his journey this autumn. You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.Oh, one last thing: if you're bored while waiting for him to fly, Redyip whispered to me that y'all should feel free to read and send comments on this little paper.
Friday, July 19, 2013
Anxiety on the Tenure Track: What YOU Can Do
Drexel Law Professor Lisa McElroy has an important piece on Slate.com (here) dealing with her struggles with anxiety while on the tenure track. Anxiety while untenured is common, indeed almost unavoidable, but Lisa's essay is about the hidden toll her severe anxiety disorder imposed on her during the already stressful tenure process. She tells her story to help others in her situation have the courage to get the help they need and to start the process of breaking down the stigma attached to mental illness. Another benefit, she notes, is allowing herself to finally be known by those around her, to be who she truly is. Her essay reminds us all that our friends and acquaintances and, yes, colleagues--even those who are tremendously accomplished by all objective measures--are often carrying heavy burdens that we know nothing about. We should do what we can to alleviate their suffering and not let fear prevent us from getting help to alleviate our own.
Thursday, July 11, 2013
Clinical Legal Education and the Future of the Academy
I may be naive, but it's mystifying to me that there's still serious debate over the value and import of clinical legal education. I admit that I'm not an objective observer -- participating in a clinic as a law student was the most valuable thing I did during those three years, and I've spent the past decade happily teaching in a clinical setting. Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I'm surprised that more law school deans aren't promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.
Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it's those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead. In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape. In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the "gold standard" and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses. The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.
Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training. The State Bar's Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court. Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others.
Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete. At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week "theory to practice" residency that is "designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs."
Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years "to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses." The report also called for the full inclusion of clinical and legal writing faculty in law school governance.
On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.
Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum. I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school. Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of "transition to practice" type courses, externships as well as clinical course offerings. They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves -- something that the down economy can no longer subsidize. In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.
Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted "the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum." More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client's legal problem. In contrast, other professions -- including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy -- require at least one quarter, and up to more than one half, of a student's pre-licencing education be fulfilled by in-role supervised professional practice.
So, why the academy's reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum -- and that faculty who teach in these areas receive comparable pay and voting rights? As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools -- both public and private, rural and urban -- have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., "Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum," 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)). As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.
Your thoughts? Please share in the comments.
Tuesday, July 09, 2013
Expenditures, Tuition, and U.S. News
Back in November I argued that reformers should be working to get one of the big drivers of tuition increases -- the U.S. News rankings -- to include tuition as a factor. If folks want tuition to go down, it helps if there's a reputational incentive, and right now the U.S. News rankings incentivize higher and higher tuition rates. Now comes word from Brian Leiter that the ABA will no longer ask schools (on an annual basis) for information about their expenditures per student. I agree with Paul Caron that this is a very big deal. But it may not have any real effect if U.S. News does not take the cue and stop using expenditures as a factor.
And I think there are good reasons for Robert Morse to pause and consider a moment before eliminating expenditures from the formula. Expeditures per student reflect the amount of money that the institution is actually spending towards the education it provides. Yes, it provides a perverse incentive to spend, spend, spend. But on some level, as a consumer I want a law school to spend its money on my education. The expenditures-per-student factor is a type of consumer protection mechanism -- it makes sure that law schools use the monies they take in on legal education, rather than diverting them to other uses. In non-profit schools, that money could be diverted to other schools or programs; in for-profit schools, it could go back to the shareholders.
So if U.S. News simply eliminated expenditures as a factor, that would only mean that schools would no longer be incentivized to spend money on students. Would tuition automatically go down?Not necessarily -- it depends on the price sensitivity of the consumers. It could, in fact, lead to a worse result for students -- tuition levels remain steady, but spending on students goes down. A worse education at the same price!
[As a sidenote, I have the same response to those who think a two-year J.D. would be a great way to help students. Law school tuition has climbed rapidly over the last decade without any real changes in legal education. This is based in part on historically weak price discrimination by students. Why would law schools charge less for two years than for three, if they could charge the same rate? Sure, tuition might drop initially, but over time it could and likely would rise to the same level as it was before. That's a great deal for students -- a third less education at the same price!]
If U.S. News follows the ABA's lead and takes out expenditures, it needs to add in a factor for tuition. It could choose either list price or "real" tuition (as discounted by scholarships); both have their pros and cons. But adding in tuition is necessary to keep the rankings's consumer-protection focus. If U.S. News wants to encourage schools to trim back or even eviscerate their educational spending, then eliminating expenditures would be sufficient. But I don't see how that alone would help students.
Monday, June 24, 2013
So Where WAS Fisher Anyway?
Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case. Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.
1: I suggested a "very long" majority and a "very long" lead dissent. Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4. So much for that theory.
2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it." But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]
3: I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent. But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.
4: Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment.
This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail. There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors. (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)
So what did happen? Obviously my own reliability at guessing is subject to serious question. But my new guess is that there was a long struggle to get five Justices to join a single opinion. From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter. At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter.
Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case. So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion). There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages. But obviously you shouldn't take my word for it!
Friday, June 14, 2013
Signing Off, Thanks, and Call for Applications for Petrie-Flom Fellowship
Thanks to the Prawfs' gang for letting me blog this past month. Thanks also to the commentators for their insights. There was a nice symmetry in that I started this stint with the oral argument discussion of my brief for Eric Lander in the Myriad gene patent case, and the decision came yesterday along the lines we urged the court to follow. I will sign off by mentioning that my Center at Harvard, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, has just opened our call for academic fellows for the 2014-2015 year. Here is the call:
PURPOSE: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics is an interdisciplinary research program at Harvard Law School dedicated to scholarly research at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research and innovation, and bioethics. The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. Our prior fellows have found employment as law professors at institutions such as Harvard, UC Berkeley, BU, UCLA, Cornell, the University of Illinois, and the University of Arizona. More information on the Center can be found at: http://www.law.harvard.edu/programs/petrie-flom/.
PROGRAM: Petrie-Flom Academic Fellowships are full-time, two-year residential appointments starting in the summer of 2014. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Center does not impose teaching obligations on fellows, although fellows have often taught a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on health law, bioethics, and biotechnology, and other events designated by the Center. Fellows are also expected to help plan and execute a small number of events in their field of expertise during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Center also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor our Student Fellows. Finally, fellows are expected to blog periodically (about twice per month) on our collaborative blog, Bill of Health: http://blogs.law.harvard.edu/billofhealth/
STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with a private office, a research budget, options for health insurance, and a stipend of $5,000 per month.ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship.
Wednesday, June 05, 2013
More on MOOCs
Glenn Cohen beat me to the punch in blogging about MOOCs, but I thought I might build on what he's written by giving a different perspective: describing my own (admittedly limited) on-the-ground experience with MOOCs.
Taking a MOOC, or at least signing up for one, is extraordinarily easy and painless . A MOOC--Massive Open Online Course--is a course that is open to anyone and everyone and requires no tuition or fee, but also carries no actual academic credit. There are at least three major providers of MOOCs--Coursera, Udacity, and EdX--and signing up is as easy as entering your name and email address.
For the sheer fun of it, I suppose, I signed up for a literature course through Coursera and a statistics course through Udacity. I am just starting both. Some very brief and mostly practical observations, aimed primarily at those of us who may be doing some online teaching in the future:
1. Udacity and Coursera have radically different styles, or at least the courses I'm taking do. The Coursera course, offered through Brown, is rather sparse and staid and feels more like a traditional lecture. The Udacity course, offered through San Jose state, is flashy and interactive and self-consciously entertaining. The Udacity lecture segments are short, and they are spoken not by the professors themselves but rather by someone who appears to have been hired by Udacity for the purpose of presenting the material in an appealing way (read: an attractive young woman with a pleasant voice). Moreover, Udacity seems to be totally asynchronous, whereas Coursera requires you to follow an overall week-by-week schedule. In other words, there are a lot of choices that can be made about presentation style in the online format, and the above are just a few examples.
2. It is exceedingly hard to pay close attention to a lecture on a video, even an engaging one, even for the brief 10-minute segments that Coursera offers. In real life, I have found that I can have difficulty focusing on live lectures for more than about 20 minutes or so too, unless the speaker is unusually entertaining. But with the computer format, it is even harder, because you are at an additional remove from the speaker, and because it is just too easy to start surfing the web, checking email, checking your bank account, etc. while still convincing yourself you are "listening" to the lecture in the background.
3. Because thousands of people can (and do) take these MOOCs, the discussion threads are extremely lengthy. Though I suppose they are meant to give the student of feeling of interactivity, I find them rather overwhelming and not worth the time -- especially since many of the comments are relatively devoid of useful content.
4. It is really fun, but weirdly intimidating, to be a student again.
Tuesday, June 04, 2013
Higher Education From Scratch
Hello Prawfs readers: it's nice to reemerge from the comments again for the first time in a few years. But my first post here will be in the nature of a comment, or at least a thought inspired by Glenn's post below on MOOCs. I'm sympathetic to a lot of what Glenn writes, especially the skepticism of those whose arguments (albeit understandably) seem to be focused more on short-term distribution effects rather than long-term gains for society.
But I'm much more skeptical of a refrain that Glenn employs a couple of times in his post-- the idea that it's helpful for us to imagine that we were "creating the first universities for our day and age," and use those imagined ideal first universities to evaluate whether and how our actual universities ought to change. Maybe it's my inner Hayek, but I'm not sure how good our imaginations really are, and I'm not sure how relevant the product of those imaginations ought to be.
I mean, for starters, once we are in the imagining business, why universities?If we were creating the first system of higher education for our day and age, is there any reason to believe we would do it via university, rather than some much more unbundled combination of written and oral materials? Would we have general rather than specialized certifications? And if we did decide to invent universities, what ought they be like? Despite having thought about this for a while, I honestly have no idea, and I'm skeptical of most of those who do have a confident idea.
I come at this problem quite differently. One of the defining characteristics of American universities is the way that they've become embedded in our society over time, and the set of social norms in and around them. You don't have to be Tyler Cowen to think that two of the main reasons people learn things by going to universities are the effects of socialization and the higher social status obtained by going. We can tell stories about the superiority of interactive class discussion over the internet and the library, but surely those embedded social effects are a huge part of any such superiority. And many of those social norms are bottom-up, not top-down. Imagining new from-scratch universities pushes us to dissociate the university from some of its most important virtues.
So I'd evaluate the role of MOOCs and online education by asking: To what extent can we introduce the advantages without dramatically changing the social norms on which the univeristy system depends? (And, if the social norms will change dramatically, will it be worth it?)
As for lectures, it may well be that students pay a lot more attention when there is a real human being at the front of the class. Similarly, it may be that the success of classes relies in part on the desire of many students to "impress" the professor because he is a high-status person, and that repeatedly seeing the professor in the flesh is important to inspiring that desire.
As for cross-subsidization, again I'd ask whether unbundling research and teaching is consistent with the current status games on which universities depend. I'm not sure about the answers, but I propose that these are the more relevant speculations than the question of how we'd design universities if we were doing it from scratch.
Monday, June 03, 2013
Three Reflections on the MOOC Debate
Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:
(1) A failure to disentangle distributive impact from merit of MOOCs:
Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.
One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.
(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.
The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.
The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.
(3) What is so great about the traditional live lecture?
I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?
Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.
If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.
* * *
None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.
I am sure many will disagree and look forward to hearing your thoughts.
- I. Glenn Cohen
Friday, May 31, 2013
Starting a summer series on the upper-level law school canon and my marijuana seminar
As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.
As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and at my home blog Sentencing Law and Policy) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.
Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series here at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both here and at SL&P in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."
Speaking of substance, I will conclude first this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. I believe there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into the modern marijuana law and policy; my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.
But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.
Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.
Cross-posted at Sentencing Law and Policy.
Thursday, May 30, 2013
Grant Funding and Buying Out Your Time: Request for Information
In part because my work lies at the intersection of law and medicine, I have been able to participate in some wonderful grant-funded projects. So few of my non-clinical colleagues do grant-funded work, that Harvard has faced a series of interesting and new-ish questions about how to manage my time in relation to these grants. For those who are unfamiliar with "soft money" environments, many of my colleagues at our medical and public health schools, in particular, are "soft money" funded. Essentially this means they are expected to raise much of their salaries through grants, and end up teaching more or making less if they do not reach their goal in grant funding.
The law school environment is quite different, of course. I love teaching and would like to think I add some value to the teaching program there. At the same time, grant-funded work can be a really nice way to influence policy and contribute to solving tangible problems and working with stakeholders I would never encounter writing more theoretical or doctrinal scholarship. For example I am extremely excited that myself and my center at the law school will be working with our medical school, other parts of the university, and the National Football League Players' Association, on a 10-year 100 million dollar Harvard Integrated Program to Protect and Improve the Health of NFLPA Members funded by the players through the association. This is the kind of work I could never do except in the grant-funded milieu and I am also excited to involve our students in this kind of work.
As law school resources become more scarce I think many schools will be thinking more about whether there are grants that their non-clinical faculty could and should pursue. For thos schools that have encountered these situations before, though, I am very curious to learn if there are policies in place regulating non-clinical law faculty and their time in these regards? For example, does your school have a limit as to how much time you can buy out? Should it (my own prior is yes, but I have not deeply thought about it yet). To the extent your school has limits on the amount of "outside activities" such as consulting you can do (we have such limits at Harvard), is grant funded work counted as such? Should it be? In medical and public health schools the ability to get grant funded work is a major component of promotion and tenure decisions. I am also curious whether law schools have considered this in lateral or promotion cases?
- I. Glenn Cohen
Wednesday, May 29, 2013
Bill Henderson Is Burning Through His Reputational Capital
As the person who brought the bimodal salary distribution to the legal masses, Bill Henderson has earned a substantial amount of respect from academics, practicing attorneys, and law students. His early warnings about the dire job market and its effect on law schools, students, and recent alums have proven correct. His academic research on the future of law firms, the plight of junior associates, and the use of LSATs scores has moved the ball forward in these areas and has often challenged the conventional wisdom. Henderson is not afraid of being a prophet, even when the people reject the prophecy.
This year, however, Henderson's tone has begun to change. It started in January, with news of the unprecedented drop in law school applications. In a New York Times article about the drop, Henderson and others reflected on its causes: a poor job market, big jumps in tuition, perhaps even pedagogical failures. At the end of the article, however, came this fairly specific prediction from Henderson: "There are going to be massive layoffs in law schools this fall. We won’t have the bodies we need to meet the payroll.” That line became the takeway message for the ABA Bar Journal and other blogs.
I want to leave to the side -- way to the side -- the normative question of whether law schools should be undergoing massive layoffs. Henderson's was not a normative point -- it was a descriptive one. For someone who made his bones as an empiricist, Henderson's claim seemed to come out of left field. Yes, law school applications were down to historically low levels, and schools were (and still are) offering substantial tuition discounts in order to maintain an incoming class with the right qualifications. But I have not seen anything about massive layoffs, other than the Vermont Law School story that was itself cited in the NYT article. Hastings cut a significant number of staff positions, but that was spring 2012. And yes, there is still plenty of time for Henderson's prediction to come true. But one would have expected that, given that the writing is on the wall this point, some layoffs would have already started, if there were massive ones to come. Professiorial hiring is certainly down significantly, but it is not non-existent. As my own institution has experienced, good folks are still getting lateral offers.
Now it seems that Henderson has taken a "double-down" strategy to his predictions of institutional collapse. In an op-ed published by the National Law Journal, he argues that massive layoffs would not be nearly enough -- instead, schools need to close. Framing his piece as a "letter" to a hypothetical university president, Henderson essentially argues that law schools have two choices: close or adopt a radical new pedagogical agenda. Here he is at length:
In summary, there is significant excess capacity in the legal education system. So the dilemma facing a large proportion of university presidents, such as yourself, is the need to choose one of two difficult paths. You can either tackle head-on the difficult restructuring issues facing your law school, or alternatively you can cut your losses today and close the law school rather than risk another devastating shortfall as your school edges toward open enrollment and disastrous future problems with bar passage.
One key factor to consider is the employment prospects of your current students. Since the American Bar Association began tracking more granular information, we learned that some regional law schools — such as Alabama, Kentucky, West Virginia and Louisiana State — enjoy relatively strong placement records (greater than 80 percent in full-time, long-term jobs that utilize the law degree) that are on par with the national law schools, albeit these legal jobs tend to be in Alabama, Kentucky, West Virginia and Louisiana, and few jobs pay six-figure salaries. In contrast, many law schools are feeding highly saturated regional markets. For example, for law schools located in California, the average rate of bar passage-required employment is 48.9 percent, with several schools below 30 percent. Law schools located in Michigan are in worse shape, placing only 42.3 percent of their graduates in bar passage-required jobs.
Because you are in one of several jurisdictions with [employment] numbers similar to California and Michigan, closure may be the best long-term course for the university. One step short of closure may be rolling the law school into the College of Arts and Sciences under a newly created law department that can service the undergraduate population. Faculty teaching loads and salaries can be rationalized accordingly. This would permit a dramatically pared down J.D. program that could one day be rehabilitated.
The one militating factor is your faculty's willingness to restructure its curriculum and mindset. . . . The first hurdle in restructuring is the faculty itself embracing the need for change. The second hurdle is your own willingness to expand the scope of academic productivity. The most successful law schools in the future will be closely engaged with employers seeking to adapt to a rapidly changing industry. These same schools will also need to effectively collaborate with professionals from other disciplines, including systems engineering, information technology, finance, marketing and project management. Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands. As the university president, you need to provide the law faculty with the latitude to adapt.
Frankly, saving your law school is going to require courage and leadership. Brace yourself for vilification. Even if you are successful, your efforts and intentions will not be appreciated for years to come. I do not envy your choices. I certainly wish you the best of luck — you will need it.
These recommendations come at the end of Henderson's case that law schools are in really bad shape. He frames his argument using emotional terms -- "brutal facts," tradeoffs that are "extraordinarily difficult and painful," and "million-dollar shortfalls" with "no end in sight." In some respects, Henderson actually understates his case: he focuses only on declining enrollments and does not discuss the need to bring down tuition as well. There are undoubtedly huge changes in applicant pools -- many would call them corrections -- and law schools and universities have to deal with these changes. But why closure?
Henderson's analysis offers strikingly little insight into the actual market structure of law schools and universities. The decision to close should not be based simply on whether one is in Alabama or California. Law schools have far-ranging differences on a variety of axes: employment outcomes, tuition, applications, margin provided to university, fixed costs, marginal costs, endowments, etc. To say that a law school should close because it is in California, Michigan, or a jurisdiction with "similar numbers" is frankly ridiculous.
Looking at Henderson's hypothetical only adds to the confusion. He does not limit the fictional "President Smith" to whom his letter is addressed to any particular type of university. The only specification is that enrollment declined by 15% producing a $1.5 million shortfall. Henderson doesn't explain those numbers, but let's assume that the school dropped about 40 students from a prior enrollment of 270 at a tuition just less than $40,000. Why the drop in enrollment? Is it because the school wants to preserve its incoming qualifications at traditionally strong levels, or because the school accepted 100% of its applicants and could take no more? What is the margin that the law school has previously provided to the university? What is the endowment, for both the law school and the university? Is tuition too high? And that's before considering the variety of cost cutting measures that could be implemented, including the aforementioned massive layoffs. Henderson ignores all of those issues. No, it's simply enough that the school cut 15% of its incoming class and is located in California, Michigan, or similar jurisdiction. Illinois has a tough legal market -- goodbye, Northwestern Law?
Am I saying that law schools don't have to cut costs? No! In fact, back in the fall I wrote a whole series about how law schools could think about cutting costs (here, here, here, here, and here). My point there, as here, is that these issues may be caused by national trends, but the local impacts and school responses are very context dependent. Sure, it may in fact be a good idea for some schools to close, but I'm in no position to judge that. And I think the number is smaller than Henderson seems to imply, because he says (in effect) that at least half the schools should close.
Henderson doesn't seem to be interested in other solutions. He instead is generating an idea--a meme--that the "rational" university response is to shut down law schools. He doesn't discuss the underlying economics -- he's engendering panic. Chaos is key to Henderson's ultimate goal, which is reshaping the pedagogy of legal education. He talks about his proposal here -- it's an interesting one, and it has intuitive as well as empirical support. But it is one model among many. Henderson's problem is that in order for his reform to work, he needs massive buy-in from faculties who would be willing to convert to a new approach. (Part of that buy-in, it should be noted, is throwing scholarship out the window: or, in his words: "Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands.") Given the difficulty of that task, Henderson is essentially pulling an end-run around faculties to other decison-makers. In his "letter," Henderson appeals to those dismayed university presidents who are facing sharp declines in law school revenue. According to Henderson, these presidents should give law faculties an ultimatum: adopt Bill's new approach or we'll shut you down.
This would be troubling enough if Henderson simply burned with the zeal of the converted. But his interest in dramatic reform to legal education may not simply be academic. Henderson is a principal and founder of the legal consulting firm Lawyer Metrics. The firm specifically offers its services to law schools:
In a legal marketplace increasingly focused on results and value, the best law schools will be those that understand — and help solve — the challenges facing legal employers.
Lawyer Metrics offers a powerful tool to connect with legal employers, gather data, enhance curricula and measure outcomes. By tapping into the expertise of faculty, prominent alumni and recent law school graduates, we build a competency model that strengthens relationships and gains the buy-in of all stakeholders.
Is Lawyer Metrics looking to work with law schools on Henderson's pedagogical reforms, such as "closely engag[ing] with employers seeking to adapt to a rapidly changing industry"? I don't know. But it seems like Lawyer Metrics would be a natural place to start for university presidents seeking to reform their law schools in the ways that Henderson recommends.
Henderson, like other reformers ("rebels"), has a strong perspective not only on the problems faced by legal education but also on the proper solutions. His solution to the law school crisis -- one that involves a substantial and largely unexplored change to legal pedagogy -- may be the answer to the field's longer-term problems. But I fear that instead of reporting on the crisis, Henderson is now using it to try to leverage a few shocked university presidents into adopting his methods. In the process of drumming up panic with wild-eyed claims and the specter of closures, Henderson risks squandering a pile of reputational capital that only a few legal academics have managed to achieve in the first place.
Friday, May 24, 2013
Trouble with the Curve
Though I was taken by surprise by the extent to which my last post touching on the topic of grading provoked rather strong responses, I am now presenting a proposition that I very much hope and assume will provoke controversy. Here it is: There is no (as in, none whatsoever) pedagogical justification for the traditional law school curve, and it should be abolished.
Here are my problems with the curve -- by which I mean a strict curve requiring x% As, x% A-, etc. all the way down to the lowest grades, and not something like a "target mean grade." First, it corresponds to nothing at all. I'm no statistics expert, but even if there is reason to think that students somehow naturally fall out on such a bell curve if you take a large enough sample, I'm pretty sure there's no way any first-year section is actually large enough or diverse enough in its talents to ensure that the curve will be accurate in every case or even most cases.
Second, the curve hides and fails to discourage poor teaching. We should be trying to bring every student in our class up to a fairly high level (although that is not going to happen, of course, with every student). But whether or not most or all students reach whatever we perceive to be the basic level of competence we are shooting for (call that level of competence a "B"), we have to assign a certain percentage of students grades below that level. And in fact, it's better -- or certainly no worse -- if a certain number of students don't reach that level of competence, because then we can justifiably assign them grades below that level. And when students come to see us wanting some justification of their grades, we really don't need to (and in some cases can't) give them any explanation other than, "you got that grade, not necessarily because you deserved it, but because other people did better than you." It doesn't require us to think about what a "B" really signifies, or whether there is any consistency across courses or years in terms of the grades we give.
Now let me outline what I think might be some traditional justifications: First, curves protect against grade inflation. This is undoubtedly true, but it can be accomplished with the far less arbitrary system, such as a target or maximum mean grade for a course.
Second, I suppose one could argue that grades are inherently arbitrary and correspond to nothing in reality anyway. In other words, the only thing a grade ever meaningfully represents (or perhaps more modestly, is ever meant to represent in the law school context) is one's performance relative to others who happen to be in that same class. But this strikes me as somewhat cynical. I doubt many of us fully accept this view. Maybe employers see it that way to some degree. But if employers' expectations are driving the curve, I would first point out that this is still not a pedagogical justification. What's more, even if this is a reasonable defense of having a curve, it has to be weighed against the unfairness of using an arbitrary curve in the first place--one which does not necessarily correspond even to the differing levels of relative ability among students (i.e., even if you can come up with a relative ranking of exam scores that accurately reflects relative strength, which is what employers most likely really care about, you are still required to draw an arbitrary line between a B+ and a B exam, for example, which doesn't necessarily correspond to a meaningful drop-off in quality).
Finally, the other justifications are .... well, I have no idea. I'm out of them. I'm stumped. Can anyone defend the curve?
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
Thursday, May 09, 2013
Interview with Brian Dalton about Above the Law’s New Rankings
You’ve no doubt heard about the new Above the Law Top 50 Law School Rankings. But have we really had the chance to scrutinize them to death? ATL itself has done the job for us, to some extent, with self-criticism here and here. But perhaps you still have questions? We here at Prawfs did, and ATL’s rankings guru Brian Dalton was kind enough to answer them. Brian is a graduate of Middlebury College and Fordham Law. He joined ATL’s parent organization Breaking Media in October 2011 after spending seven years at Vault.com, most recently as Director of Research and Consulting. Before that, he was, among other things, an associate at a Manhattan law firm, a French teacher in Brooklyn, a Peace Corps volunteer in Mali, and a security guard at a waterslide park in Albuquerque, NM. Here is our discussion.
Why did you use only SCOTUS and federal court clerkships? Is there data out there on state court clerkships?
For the federal clerkships, solid data was available and we thought it made sense to use it to augment the "quality jobs" metric. The SCOTUS clerkship stat really serves to differentiate among the very top schools -- it's not much of a factor outside the top 10-15. State court clerkships are accounted for in the overall employment scores.
It looks like you double-count federal clerkships -- both as an individual factor and in quality jobs as well. Why?
We didn't-- federal clerkships are a component of the "quality jobs" score and federal judgeships is a standalone metric.
My apologies -- I read the "federal judgeships" category as a "federal clerkships" category. Is there data on state judgeships or state supreme court clerkships? If so, did you consider using that data?
We did consider state court clerkships, but the data sources all lumped "state and local" clerkships together, so we stuck with federal. We did not consider state judgeships, but that doesn't rule out our looking into using them as a factor in the future. We feel we've created a useful ranking but we know of course it can be improved and we are benefiting from all the feedback we've received so far.
How and when did you conduct the ATL alumni survey? What was your overall response rate? What was the average number of responses per school? Do you have max and min numbers (school with the highest number of responses & school with the lowest number of responses)?
We've been conducting the survey since March of last year, we typically promote it through research-based posts on the main ATL page. We set minimum thresholds based on the size of the school and all 50 ranked schools exceeded the minimum. We've received about 11,000 responses to date. The lowest threshold is about 40 responses, though many schools have hundreds. [Ed. – If you want to take the survey, you can go here.]
In the factor on education price, did you just use the sticker price for tuition, or did you take the scholarship discounts into account? Did you also include living expenses? Where did you get this data?
No scholarships or aid were taken into account. COL was accounted for only in the case of schools where the majority of employment placement was in the local market. COL data came from 2012 Q3 Cost of Living Index Council for Community and Economic Research (Published October 2012)
I'm a little confused about how you used the COL information. Did you use it to modify the cost of tuition, or did you incorporate a set of expenses meant to cover living expenses (as a lot of folks do in coming up with approximate debt levels)?
The "Cost" metric in our rankings is not equivalent to "tuition," it's the non-discounted, projected cost for the span of a student's debt-financed legal education. It includes indirect costs (room/board/books) as well. We used COL data to modify this projected cost for schools where most grads work in the local market.
Dan Rodriguez of Northwestern has already questioned your exclusion of "JD Advantage" jobs. What do you think about his criticisms?
Dan Rodriguez makes many fair points and we will always be looking to refine our approach, but I have to assume parsing out the "good" non-legal jobs from the rest would require a level of engagement from the schools that I can't imagine is forthcoming. Over the past year, we've spoken to many deans of law schools about how to make that distinction and we heard many interesting ideas, but I have doubts about whether anyone will share data with us, but we will ask next time around.
Can you take us through the individual factor scores for one of the schools and show us how you came up with the overall numerical score?
The perfect overall "ATL score" is 100. Each school is awarded a maximum number of points based on the weight of each metric (a maximum of 30 points for highest Employment Score, 15 points for lowest cost etc.) The points are awarded on a sliding scale from highest to lowest. Those points add up to the total ATL score seen on the rankings table.
Did you feel the need to jigger with your factors in order to get the traditional top schools (Yale, Harvard, Stanford) on top? A cynic might say the SCOTUS and federal clerk scores were ways of getting the traditionally high-ranked schools up there. I mean -- there's no way that Lat is allowing out a ranking that doesn't have Yale on top, right?
A cynic might say that. But we didn't game the various weights in order to achieve a specific result. I would suggest that the traditional top schools really are the top schools and any sound rankings approach will confirm that.
How many schools did you look at in making your rankings? Why did you decide to cut it off at 50? Do you have rankings for beyond 50?
We have rankings for over 100 schools. We looked at about 150 schools. We made an editorial judgement call to cut it off at 50 -- we felt that there are only so many "national" schools for which meaningful comparisons can or should be made.
Did you use the USNWR rankings to come up with the 150 or so that you ranked, or did you use another metric?
No. Since last summer, we've had our own directory of schools in our Career Center with about 150 schools profiled, so that was the starting point.
One somewhat vague set of nuts-and-bolts questions -- how exactly did you transform the data into numerical scores? So, for example, the federal judgeships score: How does a school get a score of 7.5 -- by having the highest score? What if I came in second? What if I came in last?
If you came in first place you would get the maximum number of points awarded in that metric (so, for federal judges you would get 7.5 points). If you had no federal judges, you would get zero points for that category. Anyone in between is awarded points between zero and 7.5 in accord with their rank.
So just to pose a hypothetical, let's say you had ten schools with the following number of federal judgeships:
- A: 30
- B: 27
- C: 20
- D: 18
- E: 15
- F: 10
- G: 6
- H: 5
- I: 0
- J: 0
How would you score those?
Let's assume the numbers you provided above were being used for one of our metrics for federal judges or SCOTUS clerks (weighted 7.5%). The points awarded would look like this:
This is not an entirely accurate picture because we work in percentages rather than raw numbers (i.e. % of all federal judges are from school X), but this gives you an idea of how the scoring system works. The amount of variance between the scores directly relates to how "far apart" the raw numbers are.
Is there any data you would really like to get for next year's rankings?
We would really like to know the default rates for federally backed student loans for individual schools. Yet now the default data is segmented only by something called an “Office of Postsecondary Education Identification Number” and nothing else, so the stats for individual graduate schools within a university system do not exist, at least as far as the DOE is concerned. In other words, for the purposes of tracking the default rates at, for example, Harvard, the DOE lumps all the alumni of the business, medical, law, divinity, and all the other grad schools into the same hopper, with no way to untangle the data.
Elie Mystal said that "Next year will be even better!" Anything you've already decided to do differently for next year's rankings?
No decisions have been made, we are still sorting through all of the feedback.
Spousal Hiring, Ethics, and the Theory of the Family
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.
For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.
1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.
2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.
3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.
4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.
5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector in its law school clinic.
So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5. 3 and 4 at least are what average people would call family relationships, so this is interesting.
By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.
One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?
What do people thing about these cases?