Thursday, May 09, 2013

Reflections on the Rhythm of Academic Life

Apologies for showing up a bit late to the Prawfs party, and many thanks to Dan for inviting me back again. Like many of you, no doubt, I am overwhelmed at the moment with grading and administrative responsibilities, so the most I can muster here today is a post about academic life. I hope to provide more substantive posts later in the month. 

I often find myself reflecting about the rhythm of academic life at this time of year, when the day-to-teach teaching routine of the regular semester seemingly grinds to a halt and my day is suddenly filled with stacks of papers and exams, along with the accompanying tedium of assessing them with a grade.

 I remember thinking long ago that an appealing part of becoming a professor would be the up-and-down rhythm of each academic year: first, the intensity of the semester with regular teaching, student and colleague interactions, meetings, and—squeezed in between those—some writing and conferences; then, the slow, lazy pace of summers, with lots of time for reading and reflection combined with intensive writing in large, uninterrupted chunks. Although the summers have not usually turned out quite as relaxed as I had imagined, and although other fields (litigation, for example), do offer a similar up-and-down rhythm, I have found that I appreciate this rhythm for more than just the intermittent respite and constant variety it provides.

I find that the (often frantically) present-focused pace of the semester, together with the mundane, if not frankly mind-numbing, task of grading exams, actually stimulates creativity and original thought. There is nothing that makes me itch to get back to writing like a stack of 80 exams, all answering the same three issue-spotter questions, to slog through while painstakingly allocating point values to each issue discussed. There’s nothing that sends my mind off on tangents like trying to force it to focus on one narrow set of doctrinal questions. (And at the same time, there is nothing that builds excitement for getting back in the classroom like a summer spent navel-gazing in the form of a lengthy law review article.) But the creative power of disciplining oneself to do non-creative work is something that I have come to value greatly, and I might even dare to say that I am in some sense more productive (though perhaps not in the pages-written-per-day sense) when I am most busy with other things. How about you?

Posted by Jessie Hill on May 9, 2013 at 09:39 AM in Life of Law Schools | Permalink | Comments (10) | TrackBack

Monday, April 22, 2013

How Many Years of Famine to Follow Seven Years of Feasting for VAPs?

I was guest-blogging at Prawfsblawg seven and a half years ago when I wrote a post about trends in law professor hiring.  As that post described it, VAPs and JD / PhDs were taking over the academy.  People with a profile like mine (JD to clerkship to big law firm / government to tenure track teaching position) were becoming rarer and rarer.  Top schools were interviewing people with fellowships or PhDs, and in many cases both fellowships and PhDs.   I talked about the benefits of this shift, and encouraged candidates interested in law teaching to think about fellowships, ending my post with the words of advice: Do as I say, not as I did.

I think it is time to update that advice.

As various posts have made clear, a number of candidates on the entry level hiring market struck out this year, and they are scrambling to land other fellowships or transition back into legal practice.  I am very cognizant of the privileged position I occupy as a faculty member at an elite school.  The Bigelow Program's track record of placement into tenure track jobs is unusually good, even compared to fellowships at other elite schools, and that has always enabled the school to cherry pick aspiring academics.  Each of the five University of Chicago fellows on the teaching market this year have accepted excellent tenure track offers or are still weighing elite school tenure track offers.  But the contracting market raised anxiety levels for many of them (and for those of us who were advising them).   

Nobody knows what law professor hiring will look like seven years from now.  We can be pretty confident that next year will be a buyer's market, though.   So candidates thinking about going on the law teaching market in the next few years need to be very selective about the sort of fellowships they are willing to take.  Taking a fellowship, even at a fancy school, is risky because the professional doors a fellowship closes may be as significant as the academic doors it opens.  In a market where permanent faculty hiring is substantially constrained, the question "can this applicant develop into someone who will be hired into a tenure-track job two years from now?" has taken on increased significance among those who decide who gets hired into the best fellowship programs.

In this sort of market, those of us who are involved in hiring fellows and VAPs ought to ask ourselves at the time of hiring whether a candidate is sufficiently promising to enable us to predict with a high degree of confidence that the candidate will be able to transition into a tenure track position at the conclusion of the fellowship.  Tenure track hiring is a grave responsibility, and fellowship hiring ought to be as well. A vote of confidence from the fellowship programs that combine high hiring standards with extensive due diligence ought to entice good candidates to take the leap from practice into a fellowship. A fellowship offer that follows little vetting or minimal outreach to existing references ought to set off alarm bells for the candidate who receives it, at least if that candidate has other options for gainful employment.

In a world where promising but risk-averse candidates might still worry about taking a fellowship, schools with the resources to hire that have shied away from hiring "straight from practice" law professors in the past might need to re-calibrate their expectations so they can identify unpolished talent.  Perhaps they might even go back to reading published student notes / comments again and taking them seriously as an indication of scholarly potential (or lack thereof).  If one result is more practice experience among newly minted assistant professors, few will bemoan the trend.

In recent years, a fellowship has become a proxy for candidate quality, but that may no longer be as true a few years from now.  By then, having a fellowship on a CV from a program that isn't quite elite might merely signal some combination of commitment to the scholarly enterprise and tolerance for risk.  Decreased interest in such programs, combined with budgetary constraints, might kill off less-established fellowships.  A process that begun this year could accelerate next year.

In the short term there will be fewer tenure track positions.  In the medium term, tenure track positions may be filled by a more balanced mix of candidates with elite fellowships and no fellowships.  And for aspiring professors currently in law school, the importance of finding the right topics to write about, finding the right mentors, and finding one's voice while still on campus may become more important than ever.


Posted by Lior Strahilevitz on April 22, 2013 at 09:31 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Teaching Law | Permalink | Comments (26) | TrackBack

Thursday, April 18, 2013

The $200 Casebook

Here.  Only $193.85 at Amazon!  Is this the new normal?  I seem to remember them going for around $150 a few years ago, and $100 in the early 2000s.

UPDATE: I didn't mean to imply that only one book and/or publisher has crossed the $200 threshold.  Here is another: same subject, different authors and publisher.

Posted by Matt Bodie on April 18, 2013 at 01:12 PM in Life of Law Schools | Permalink | Comments (26) | TrackBack

Monday, March 11, 2013

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Posted by Douglas A. Berman on March 11, 2013 at 12:23 PM in Criminal Law, Current Affairs, Judicial Process, Life of Law Schools | Permalink | Comments (4) | TrackBack

Saturday, February 23, 2013

Scholarship and Indemnity Clauses by the Law Reviews

I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:

I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses.  These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases.  The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc.  I have just finished trying to help one of my faculty members negotiate one of these releases.  We came across the following problems:

1)       While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions.  For example, the State of Ohio prohibits its institutions from indemnifying other institutions.

2)      Insurance protection does not work.  I looked at whether the faculty member could purchase insurance through AAUP.  The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.

3)      The faculty member is thus stuck.  We are placing the burden on the people least able to bear it.  From the university to the faculty member and the faculty member has no means of protecting herself.

4)      Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk? 

5)      Journals might also say:  the author has the most control to determine if they are committing a tort.  But there is no protection for frivolous suits or for suits generated for political reasons.

6)      These indemnity clauses, I am led to believe, were standard.  I did not think that was the case but I have a list of a number of top journals that had similar clauses.

7)      Finally, I was told that the AALS model agreement had an indemnity clause – and it does.  So we as an institution are contributing to this mess. 

To me, this is what institutions do.  They protect academic freedom and they should shoulder the burden of dealing with frivolous suits.  They should not then seek payment from an author.  It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me.  As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause:

The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.


Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other! 

Posted by Dan Markel on February 23, 2013 at 07:51 AM in Blogging, Law Review Review, Life of Law Schools | Permalink | Comments (12) | TrackBack

Wednesday, February 06, 2013

The Problem(s) with Accreditation

There are a lot of answers being proposed to the current law school crisis.  The problem is that there are a lot of different questions, as well.  The controversy over accreditation is one example.

Brian Tamanaha, among others, has proposed a more flexible accreditation system in which different models of legal education are allowed to work within the market.  The current ABA system, it is argued, loads up schools with expensive requirements that have led to the tuition spikes of the last decade.  A more flexible -- read, permissive -- system would allow low-cost competitors to drive prices down and even import more of a practitioner focus.

One problem with this narrative is that is has been tried, to some extent, in California. 

California allows students from non-ABA-accredited law schools to take its bar exam.  The results from the July 2012 bar:

Percentage passed of first-time takers:

  • California ABA-accredited schools:  76.9%
  • ABA-accredited schools outside of California: 63.6%
  • California accredited (non-ABA): 31%
  • California unaccredited: 22.2%

The sample size for non-ABA-accredited takers is pretty small -- only 380 students, compared with over 5,500 students from ABA schools.  But the swing is pretty dramatic.  And it seems to indicate that students emerging from non-ABA-accredited schools are not in the same position to earn entrance to the profession that ABA students are.

I think this example illustrates the complexity of dealing with the current law school crisis.  If schools cut costs and lower tuition, demand for law school should, in fact, go up, leading to more law school graduates.  Economies of scale work best if you increase production.  But most commentators seem to think that the number of law grads needs to shrink, not increase.  So to address the unemployment problem through typical market reaction, law schools should be shrinking and getting more expensive.  That would saddle the next slate of students with even more debt -- but maybe they would have better job prospects.  Similarly, the ABA has been simultaneously criticized for being far too lenient in allowing new schools to open, yet at the same time for being too strict and onerous with its accreditation requirements.  The Duncan Law School saga provides an interesting example.  There are ways to thread this needle -- you can limit the number of seats and still lower tuition -- but lowering tuition should, all things being equal, increase demand.  And making accreditation more flexible should, all things being equal, increase the number of seats.

California recently altered its own accreditation requirements to require schools to maintain at least a 40% bar passage rate over a five-year period.  That's nine percent below the 2012 first-timers average -- but the calculated rate would be cumulative.  Making accreditation requirements stricter, rather than more flexible, seems to be counter to what many reformers are proposing.  And yet outside of comments from the dean of the Southern California Institute of Law, no one seems too concerned with the change.

Posted by Matt Bodie on February 6, 2013 at 11:05 AM in Life of Law Schools | Permalink | Comments (25) | TrackBack

Wednesday, January 30, 2013

Thinking of a visit or a lateral move?

A friend at the AALS writes with the following:

Have you ever considered making a lateral move or had to advise a junior faculty member regarding how best to do so? One possibility you might consider is signing up for or advising your colleague to sign up for the AALS Visiting Faculty Register.  This register lists experienced faculty members willing to visit for a semester or a full year in the next academic year. Associate deans and hiring chairs check this resource often to fill their curricular holes, especially at this time of year. Moreover, being on this list may signal to hiring committees your willingness to relocate; however, you should be willing to consider various visiting opportunities should they become available. Notably, many schools like to hire laterals as visitors first to test compatibility. Please note that you must have at least three years of full-time law teaching to register and be a full-time faculty member at an AALS Member or Fee-paid school.

Posted by Dan Markel on January 30, 2013 at 05:31 PM in Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (2) | TrackBack

Ranking the Rankings

There are lots of law-related rankings out there. And many of them are law school-related rankings. But, with all apologies to Juvenal, quis iudices ipsos iudicabit? Why not me?

So, here’s the first-ever ranking of law school rankings. The methodology is simple: it’s wholly idiosyncratic based upon what I value, which is, of course, what I expect others to value. I can’t include all rankings, but I try to include some of the most significant ones out there.

  1. Intentionally left blank. That’s right. The top slot goes to no ranking. Because I don’t think any of them deserve the top slot. Edgy.
  2. Sisk-Leiter Scholarly Impact Study: Formally Sisk et al. at the University of St. Thomas, but operating under the Leiter methodology, the study tidily measures scholarly impact of tenured faculty in the last five years. As peer assessment is one of the most significant categories in the U.S. News & World Report rankings, it objectively quantifies much of the academy’s impressions. And absent Green Bag’s promised Deadwood Report, it’s the next best thing. As they say, “Do your job or get fired.” Drawbacks: narrow focus; rewards “old” scholarship that gets a number of recent hits; limited utility for prospective students (except that it provides a good indicator of the strength of the institution).
  3. NLJ 250 Go-To Law Schools: It’s about as specific and clean a ranking as you can obtain: the percentage of graduates of each school who landed position at a NLJ 250 firm last year. It also finds alumni promoted to partner. Drawbacks: biglaw-centric; a single associate placement can significant change the percentages and ranking; does not include judicial clerkships, which can skew placement.
  4. Princeton Review Rankings: The strongest trait of PR is perhaps counterintuitive: it refuses to create a comprehensive ranking, and instead provides 11 ranking lists. As overall quality is a difficult task, I, for one, admire the concession. Additionally, it provides student feedback from the relatively near past, a more immediate evaluation of the institution. Maybe you think it’s too quirky. I guess I like the fact that it’s trying to do something different than the field. Drawbacks: black box methodology that refuses to disclose response rates; some less-relevant categories; fairly subjective student surveys.
  5. SSRN Top 350 U.S. Law Schools: One of the better ways to sort this data, I think, is by “total new downloads” in the last 12 months. That gives a sense for freshness, recency, and output. Drawbacks: narrow focus; driven heavily by a few heavy hitters.
  6. The Black Student’s Guide to Law Schools: While this survey may not get very much attention, and is admittedly narrow in focus, I appreciate a serious reflection on aspects of legal education that are of real concern to law students. Cost and cost of living are important. One additional thoughtful factor: “Distinguished Black Alumni,” a category that helps identify the long-standing institutional quality in a unique way. Drawbacks: “local legal job access” factor (perhaps unjustifiably) punishes schools in more rural communities; narrow audience.
  7. Rogers Williams Publication Study: With a more inclusive selection of journals [UPDATE: study of schools; a friend corrected that it only includes the top 50 journals, while Sisk-Leiter includes all journals] than the Sisk-Leiter studies, the study highlights some of the publications at “non-elite” law schools. For those who want to see school rankings all the way down, this fills a gap left by Sisk-Leiter. Drawbacks: narrow focus; relies on Washington & Lee Law Journal Combined Rankings scores from 2007, without updates; band-only rankings below top-40; nearly 20-year publication period may not detect more recent movement.
  8. Law School Transparency Score Reports: It’s not a formal ranking, but there are a number of categories where one can rank schools from top-to-bottom. It nicely aggregates some of the data otherwise found in disparate places. For instance, here I sorted by the percentage of graduates in federal clerkships. You can poke around for admissions data, costs, or employment outcomes. The real problem is less the format; it’s the data itself. And this isn’t LST’s fault. It’s just that the schools have not been inclined to provide more detailed data. That leaves LST a nice place for sorting single characteristics of self-reported data, but not much else.
  9. Wall Street Journal Law Blog’s Best Big Law Feeder Schools: The good folks at the WSJ took the ABA figures of those who landed full-time, long-term jobs at firms with more than 250 attorneys and made a chart. It is what it is: a much narrower, less useful version of the NLJ 250 list.
  10. U.S. News & World Report: I don’t need to write anything about this, right? It’s far and away the most important to most prospective law students. But, in case you haven’t heard, there are flaws with it. And I’ll just say one thing about the methodology: 9.75% of the ranking is based on how expensive you are and how much money you spend on things like electricity, plumbing, and chalkboards. Really. The more expensive you are, the better your ranking. If you’re a prospective law student, re-read that bold sentence a few times. Think it over. Read about it. And ask Robert Morse why that’s still in there. As schools are looking for ways to cut costs, and as other rankings value low-cost options, USNWR still rewards high costs and high spending
  11. Business Insider 50 Best Law Schools in America: It’s driven entirely by a survey of 650 readers, and only 60% have JDs. The curve is harsh: most schools score under a 3 on a scale of 1 to 5. Not a terribly scientific survey, but at least it measures perceptions and aggregates those perceptions into a score.
  12. QS World Law School Rankings: I don’t know. Comparing Yale to Melbourne to Singapore to Monash to McGill is a little too broad a series of rankings to have much value. Unless, I suppose, you care passionately that your decision to attend Victoria University of Willington over Cornell was a wise investment.
  13. Seto Rankings: Professor Theodore P. Seto’s rankings have been thoroughly debunked by my colleague Rob Anderson over at WITNESSETH. I certainly can’t top his perspective (DeLorean metaphors and all).
  14. National Jurist Best Value Law School Rankings: An ostensibly noble project that tries to merge affordability, employment, and bar passage into a ranking. Unfortunately, it’s basically just a list of flagship state schools, and one with a number of flawed metrics because of data reporting.
  15. Top Law Schools Rankings: What a hot mess. It includes the Gourman Report, which hasn’t been updated since 1997. Then, it lists Professor Brian Leiter’s “recently updated law school rankings,” which it doesn’t link. The first clue it’s out of date is the identification of Leiter as “a professor at the University of Texas law school.” And it turns out “recent” means 2002. Otherwise, it just lists the last four years’ worth of USNWR rankings. For a rankings list that concludes, “Put time and thought in to what is one of the most important decisions of your life,” one would expect some thought put into the rankings. But, if you’re interested in rankings possibly relevant to viewers of Seinfeld, Friends, and X-Files, go for it.
  16. Cooley Rankings: Res ipsa. And who can resist repeating this justification for “Library Seating Capacity” as a factor: “To study, a student needs a place to sit.” But, at least the school stopped publishing its self-promotional rankings in 2010.

So, how would you rank the rankings? (And, by the way, if anyone in the future wants to rank the rankings rankings, let it be known that I was a first mover in this space.)

Posted by Derek Muller on January 30, 2013 at 09:12 AM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Wednesday, January 16, 2013

Do We Grade Typing Speed?

Grading exams is the hardest part of being a law professor. Evaluating essay exams with any precision is a challenge. And I frequently revisit what I’ve done to ensure that I’m grading in the most accurate way.

Exams are often scored as a series of points. The more a student says about the essay prompt, the more points a student earns. The more points a student earns, the higher grade she earns.

Well, that’s not quite it. The first stage, “The more a student says about the essay prompt,” comes with a caveat: the student must say something relevant, something in response to the call of the question. But that’s hasn’t stopped law students from passing along the tale that one of the most important things to law school success is typing as many words as possible.

It’s hard to read the advice given to law students, usually from one another, discussing exam-taking techniques to this effect. One is the “attack outline,” a pre-written series of answers (mostly black-letter law) that the student can vomit upon the screen when there’s any essay prompt in the general vicinity of said pre-written answer for an open-book exam. For instance, if the question is one about, say, “personal jurisdiction,” a four-paragraph regurgitation of everything about personal jurisdiction, relevant or not, will appear on the page.

So, is there any truth to word counts as a proxy for better grades? Mostly no, in my experience.

Yes, of course, the student who types more usually has more to say because she usually “gets” more. She usually spots more issues, she usually grasps nuances, she usually has a superior analysis. So, more words would mean a higher score.

But, that’s not always the case. Longer answers invite discussion of irrelevant material. Well-crafted outlines threatened to go unused if none of the essays ask about certain topics, and students find an outlet for discussion of them.  Students find themselves addressing tangential material as a prophylactic measure.

I look at my answers each year to see if I can find a trend. These are essay answers from a first-year course, the X-axis point values, the Y-axis word count. (Also, I’m deeply grateful to my colleagues Rob Anderson, who blogs at WITNESSETH, and Babette Boliek for their data-driven support.)


The answer lengths ranged from around 1200 to 3100, with a median of 2311. Scores ranged from the high 30s to over 140, with a median of 87. The red dot in the center represents both medians. (Points were later added to other graded components and converted to a grading scale.)

I ran a regression analysis, and, as you can see, the R² is only 0.31, which is fairly low, but not insignificant.

But let me slice the data one more way. The relationship is largely driven by outliers on the negative side. If I take out the five lowest scores (it’s unlikely those students performed poorly because of typing; it’s probably that they simply didn’t have as much analysis), there’s not much of a relationship at all, as the R² drops to 0.14. (For those not statistically inclined, that's pretty low.)


I note a few items. First, it was almost impossible to exceed the median score using fewer than 2000 words. That suggests some minimum threshold of analysis necessary.

Second, high scores didn’t necessarily come with wordier answers. There were answers in the range of 3000 words below the median, and answers in the range of 2200 words among the very highest scores in the class.

Third, it doesn’t necessarily mean typing speed (as opposed to word count) is unimportant. Fast typists may well type the same number of words as their peers, but have more time to think and analyze.

This, I think, is pretty consistent with the “mostly no.” Longer answers tended to have better analysis; but, it isn’t highly correlated with higher scores.

So, how about your experience?

Posted by Derek Muller on January 16, 2013 at 09:11 AM in Life of Law Schools, Teaching Law | Permalink | Comments (14) | TrackBack

Sunday, December 30, 2012


Prof. Bainbridge takes up the cause of faculty in his own way by a post with the ill-conceived title "Dean Dan Rodriguez Thinks Making the Faculty Work Harder is the Solution."  Uh, no, not exactly.  But I'll leave y'all to decide whether my various posts suggesting ways of getting a handle on the too-high costs of legal education can be read as such.

But Steve nonetheless raises a serious point, a point made frequently elsewhere, and one which deserves serious scrutiny.  What are we going to do about high administrative costs and the impact on law school budgets and, thus, student well-being?

First, some essential points of agreement: 

One, in this new environment, law schools must be prepared to justify thoroughly and concretely existing administrative costs -- and, indeed, we should do so with a dose of skepticism about whether the current configuration of administration can be sustained in a period in which students are suffering and in which our basic economic model (albeit at some places more than others) is in jeopardy.  Two, any augmentation to administration must be justified in clear terms and with compelling evidence that such initiatives are directly tied to student well-being, both with respect to the learning environment and with respect to expanding professional opportunities after graduation.  And, third, tuition revenues should be a last resort for these (if any) augmentations.  As we ask, and even press, our alumni for financial support of our respective law schools, we should be looking to them to support infrastructure where we can explain and justify it as contributing directly to the law school's ability to (a) improve student learning; (2) enhance professional opportunities; and (3) ultimately reduce student debt.

Now, to those insistent that administrators are the main (sole?) problem here.  The claim that law schools are filled with "administrator bloat" is not an argument, it is a slogan.  Responsible analysis of our current situation requires information and perspective.  Faculty members have long looked around their law school and wonder what all these "administrators" are doing.  "I remember the good old days when the dean ran the law school with the help of  his cheerful secretary, Mrs. Jones, a librarian, a couple admission folks, and a guy who made sure the podium and chalk was set up in the classroom.  Ah, those were the days . . . "  Yadda, yadda.  Not only were the good old days not unequivocally good, but let us take a step back and look at what the increase in law school administration over, say, the past quarter century has brought us:

(1) Student services.  The expansion in academic support as law schools looked to broaden their scope to historically disadvantaged students and, unlike the days in which they simply flunked out under performers, actually committed to the success of these students.  Counseling services and more sophisticated exam administration (that the guy moonlighting from Star Market who has hired to proctor several exams when I was in law school) is one example.  Specialized student support for foreign students is another.  Administrator bloat here?  Perhaps so.  But the expansion of student services and recognition that this is a career path and not simply something to be outsourced to overworked legal writing instructors has been a cost driver;

(2) Techology.  The need for specialized expertise in and with regard to technology has pushed law schools to make investments.  Most law schools have separate IT departments; and, to a greater or lesser degree, these investments have enhanced students and faculty work.  Current law students don't remember and can't easily fathom when technology support was the part-time person in the library or, even worse, was someone on central campus who might return your phone call and get to your law school problem as she went down her list;

(3) Career services.  Can anyone doubt that law schools ought to invest significantly in job placement and advising services for their students, especially now?  To be sure, law schools often do this inefficiently and haphazardly.  But the single biggest complaint from involving administration is that there isn't enough effort and energy (all requiring resources) mobilized in the service of expanding professional opportunities for students.  At Northwestern, for example, we have created an office of external partnerships, designed to increase opportunities -- that is, paid jobs -- for our law students by tactical and targeted networking.  Career services in the new normal is not just advising; it is outreach and it is placement-centered.  Lumping such efforts into the bromide "administrator bloat" doesn't capture it.

(4) Alumni relations & development.  One commenter noted that NYU has 32 individuals devoted to ARD.  I don't know whether that number is correct, but I do know that they were able to increase their endowment by over one half a billion dollars in the past few years.  Increases in endowments decrease student tuition pressure; it's that simple.  So, the significant augmentation in ARD within law schools have enabled law schools to continue to support their alumni communities, to enhance the reputation of the law school by strategic communication and marketing, and to raise money.

This all said, there is no doubt that there are serious inefficiencies in how law schools configure their administrative efforts.  (Some of the administrator expansion has accompanied regulatory pressures, but that is a subject for another day).  That there are such inefficiencies and that it is incumbent upon law schools to continue to look for ways of doing more with less and, to Steve's valuable point, to make sure that administrative enhancements are not coming at the expense of actual education.  Moreover, none of the above -- let me say this in bold font, none of the above -- is intended to justify by its own terms the present (unsustainably high) level of law school tuition. 

But the notion that any serious law school leader would suggest that budgets should be balanced and even reduced on the back of faculty members while administrators run riot is a foolish one.  That is not my point.  There are myriad places to look for meaningful changes to the economic model which is causing significant challenges to our students.  The modern law school is made up of many "houses."  We should be looking at getting all of them in order, no?

Posted by Dan Rodriguez on December 30, 2012 at 01:02 PM in Life of Law Schools | Permalink | Comments (43) | TrackBack

Saturday, December 29, 2012

law & technology: stepping up our game

Good post from Bill Henderson on how we learn or don't learn about law & technology.  Definitely gets my attention, as it should other deans & profs.

Three (at least) dimensions of the matter:

How should we best use technology in educational instruction?

How can technology be mobilized in the service of faculty research and its external impact?

How should we educate our law students about new modalities of technology and technological innovation in the new world of legal practice?

Tall order indeed!  I confess to great uncertainty, from a dean's perspective, about whether these complex matters are best left to a chief technology officer, perhaps combined with the law library's functioning, or should be more widely distributed within faculty and administration.  Happy to be educated on this subject.

Posted by Dan Rodriguez on December 29, 2012 at 01:35 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Wednesday, December 26, 2012


As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution pedal.  Market pressures make the exhortation "pay the bastards less" ring rather hollow -- and all the shouting and screeching from the disgruntled won't make it otherwise.  Salaries for incumbents will remain more or less where they are (albeit with rarer raises).  Faculty hiring is what will take the hit.  In this environment, law schools will be asked to do more with less.

So how ought we to think about these great(er) expectations?

(1) Teaching regularly and well and with sufficient accomodation to institutional needs, as these needs evolve in this new and difficult era.  Deans, including this one, will be reticent to enter into permanent teaching reduction agreements.  Scheduling will need to follow the imperative of student learning and sensible organizational management, not principally the convenience of full-time faculty members.  Faculty leaves, whatever the reason and whatever past practice, should be discretionary and timed around the needs of the school and its learning environment.  And teaching must be excellent -- sophisticated in content, coherent in expression, up-to-date, and connected increasingly to the essential project of making our students into first-rate young lawyers;

(2) All hands on deck.  Faculty members are the professional portals to the students' legal careers.  The work of training rests in their hands.  But, to an increasing extent now, so, too, does counseling and placement.  Developing opportunities for students to pursue remunerative, valuable careers should be part of the work of a faculty member.  This will range from active career counseling, writing effective recommendations for clerkships and, where appropriate, law firm employment, and helping students with their employment search in imaginative, tangible, and reliable ways.  This work is too important to leave solely to overworked career service offices and deans;

(3) Insofar as scholarship forms an important part of the modern faculty portfolio, expectations of excellent, impactful scholarship should be high -- indeed, in this difficult environment, especially high.  Law profs have an exceptionally enviable gig.  Let's just suppose that faculty members need to demonstrate their suitability for this gig on an annual basis, and with unimpeachable evidence that they are doing their scholarly work at a level that befits this great job.

In short, faculty workloads will grow.  They ought to grow.  The central question, to me, is how they ought to grow in a way that serves the professional objectives of our students, while also preserving what is tremendously valuable in the contributions of the law professiorate in the contemporary legal academy.



Posted by Dan Rodriguez on December 26, 2012 at 08:17 PM in Life of Law Schools | Permalink | Comments (26) | TrackBack

Monday, December 24, 2012

cost v. curricular innovation: that infernal dilemma

So the blogo-mediasphere is rightly concerned with legal education's too-high costs.  For some radicals (here used in a neutral sense), that is the signal issue around which all other considerations orbit.  Other voices decry traditionalism in law school curricula, celebrating innovations, preaching the wisdom of experential learning, and urging major changes.

And herein lies the vexing dilemma:  Adapting to the new normal requires major curricular innovation; innovation costs money; the current economic model relies on unsustainable tuition increases and (arguably) budgets.  How ought we to think about the tradeoffs?

Some general thoughts:

(1) Innovations should be evaluated on both pedagogical and economic dimensions.  Experential learning is, indeed, an expensive proposition, but the challenge for clinicians and others invested in such worthy projects is to think about how to manage budgets in order to economize on particular parts of the clinical experience.  To be more concrete, some admixture of public subsidy, Biglaw firm subvention, cy pres fees and other sources of court-generated funding, will help shift some expenses from recycled tuition;

(2) Legal writing should be heavily subsidized by firms.  Innovations in legal writing (advocacy + transactional) are high priorities -- as Casey Stengel says, "you can just look it up."  Firms such be urged by deans & other fundraisers to support generously, and ideally with endowments, creative legal writing endeavors.  We should pursue tangible partnerships with firms who can afford this investment (here not being wholly naive about the economic challenges facing firms), making the case for new modalities of legal writing and the ways in which these programs will affect positively firms' bottom line;

(3) Fee-generating clinical initiatives.  There are emerging initiatives to form what are essentially in-house law firms within law schools.  Such programs, perhaps focusing more on transactional than litigation work, would look simultaneously to give students direct practical experience, including managerial/organizational skill-building while also generating at least a modicum of fees to offset clinical costs.  Negotiating the politics of law school v. law firm competition is tricky.  But  this will, I believe, emerge as a novel strategy to realize both economic and pedagogical aims;

(4) Tuition breaks for externing students.  I want to be careful with this suggestion for obvious reasons, but perhaps law schools, particularly the relatively well-resourced ones, should look at some tuition arrangements (reductions or one-time grants) for students who are spending a semester's worth of time externing.  The traditional model of "a credit is a credit is a credit" may need to be adjusted; to the extent that students whose principal locus of activity is temporarily elsewhere impose somewhat fewer direct financial burdens on the school, schools should think about tuition adjustments;

(5) Fight the power.  That is to say, push hard against regulatory costs of key groups including state bars, ABA, AALS, etc., so as to enable curricular experimentation without extraordinary external costs.  Better yet, work with the central university and with external grant-funding organizations to subsidize experimental-experiental initiatives.

Here's a thought on this last issue:  LSAC is sitting on a pile of money and would seem to be well positioned to subsidize law school curricular projects, particularly for those law schools least able to support them on their own.  How about a major grant initiative directed toward these aims?

Posted by Dan Rodriguez on December 24, 2012 at 01:42 PM in Life of Law Schools | Permalink | Comments (41) | TrackBack

Tuesday, December 18, 2012

An interview with Patrick Griffin, author of "The Catcher in the Drain"

Last Friday I linked to a 1992 article in the Chicago Reader, a free weekly alternative paper.  The article, called "The Catcher in the Drain," made the case why a big chunk of students were making a mistake by going to law school.  He methodically went through the reasons for getting a J.D. -- higher pay, more prestige, degree flexibility -- and explained the problems with each.  At the end, he compared himself to Holden Caufield, who dreamed off trying to stop others from jumping off the cliff.

The author of the article is Patrick Griffin.  He is now at the MacArthur Foundation, serving as Program Officer for Juvenile Justice in U.S. Programs. Before joining the Foundation, he was a writer, researcher, legal analyst, and director of projects for the National Center for Juvenile Justice (NCJJ), where he became a national authority on comparative legal analysis of state transfer and blended sentencing laws. Griffin began his career as an attorney, and before joining NCJJ had practical experience as an editor of business-oriented legal publications and as a freelance journalist whose essays, profiles, and general-interest reporting appeared in magazines and newspapers nationwide.  He  graduated magna cum laude from the University of Michigan and received his law degree from Harvard Law School.

I wanted to check in with Griffin 20 years later and see what he thought of his article now, and on the state of legal education.  He was kind enough to answer my questions below.

 It's been twenty years since you wrote "The Catcher in the Drain."  What do you think of that article now?

I had always thought it was a good piece and been proud of it.  But re-reading it now, I’m less sure.  I was writing for attention, obviously.  I wish I could go back in time and tone it down, sober it up.  But some of the ideas were worth raising, and people certainly responded to it—it was reprinted in a bunch of places.  I got letters.  It wasn’t like people needed to be told that there were “too many lawyers” in some sense.  But the process that produced the too-many-lawyers condition had not been explored that much, I think.

Have you followed any of the recent press with regards to law schools?  What do you think?

I sympathize with the law school grads who are suing their schools because they feel they’ve been misled.  I don’t know what to say about it as a basis for litigation, but they’re probably performing a public service by calling attention to one aspect of the problem.  My piece, somewhere near the end, actually proposed something like a “money-back guarantee” requirement for law degrees—and suggested that it might make law schools more cautious about scooping in wanderers like my young self.  But of course I was focusing on career satisfaction and career fit issues, not on the more basic problem of lawyer unemployment.

Some folks would look at your article and say it was prescient.  Others would say it's proof that this is all cyclical, and law schools will be back in full swing soon.  What is your perspective?

I wasn’t predicting anything, but the phenomenon I was writing about—people going to law school for reasons that made no sense, from their own or society’s point of view—was certainly about to become more widespread.

Has anything changed in the practice of law over the last twenty years that would change your article, if it were written today?

If anything has I wouldn’t know.  But I’ve changed.  I continue to think that law was a mistake for me, but now I suspect that if I hadn’t made that mistake, I’d have made some other one.  I think people like me are destined to screw up in their twenties.  And then figure everything out, absolutely everything, in their thirties.

Would you tell a prospective law student today the same thing you would have told them twenty years ago?

A lot of it is still true!  I probably wouldn’t argue as strenuously as I did then, though.

There has been a lot of criticism of lower-ranked schools for selling false hopes, but top-tier schools like Harvard are still generally assumed to generate value for their graduates.  But you criticized law school from the perspective of an elite law alum.  What would you say to someone planning to go to your alma mater?

Most of the things I said about law and its dissatisfactions were as true for Harvard grads as for anyone else.  If law is a mistake for you, then Harvard Law is a mistake too.  But I realize now that I failed to think very much about the elite/non-elite distinction at the time, just because I didn’t have a lot of experience.  Or rather I only had my own, which is what I wrote about.  In hindsight, having had a bunch of jobs and something resembling a career, it’s easier for me to see that brands like Harvard are worth something in the marketplace.  It’s a little flag that signifies something vaguely positive, and I’m sure it has benefited me at times.  It’s certainly not a reason to go to law school, but if you’re going anyway…

Did you ever hear from anyone at Harvard about the article?

I never heard anything from anyone at Harvard directly, but the article was cited a few years later by a Harvard professor—Mary Ann Glendon—in a really good book (I think it was A Nation Under Lawyers, which was much better and more serious than its title).  She used me as an example of the kind of person who really doesn’t belong in the profession.

How has going to law school shaped your subsequent career?

At the time I wrote I was working for a legal publisher, but not long after the article came out I started writing freelance and watching the kids.  Eventually I took a job in a delinquency research office—as a writer, really, not as a lawyer, though some of what I did had to do with law—and that led to my current job with a foundation.  So…?  I have no doubt that law school profoundly shaped my subsequent career, but I have a little trouble sorting out how.  It opened doors and closed doors.

It looks like going to law school has perhaps played more of a role in your career than the typical non-lawyer: you've done a great deal of work on juvenile justice systems, including being director of projects for the National Center for Juvenile Justice (NCJJ). Are you giving short shrift to the benefit of going to law school, even though you are not a practicing attorney?

It was three years with a lot of smart people, so there were intellectual benefits.  And it’s a credential, which is a form of currency—in my case, pretty devalued, but not completely, not like Confederate money.  I see the value now, in the experience as well as the credential, better than I did when I was younger.  But the same would probably be true of any comparable experience, in retrospect.  Three years in prison might have been valuable too.  

What happened, eventually, was that I found jobs that were congenial to me, jobs I felt I could be good at, and then shaped them so that I could make use of as much of my experience as I could.

Do you think some of the "scam" blogs have taken on the role of your "antilaw counselors," to some extent? Should there be a more formal devil's advocate in the law application process?

I didn’t really know these existed!  I’m pretty out of it.  But it sounds like they might be useful.  So might a devil’s advocate—but the problem there is that clever young people are always going to figure out how to say the right words.  I’d have figured it out.

What advice would you have for law schools themselves?

I doubt they would take my advice.  But I guess I would ask them to give thought to whether there’s any truth in the notion that there are too many lawyers in an objective sense as well as too many lawyers who would be happier doing something else.  And if there is, what responsibility do they bear, and what should they do about it, singly or collectively?  It’s easy to say that everybody should be free to make their own mistakes, but if you’re the one benefiting from those mistakes, year in and year out, doesn’t it create some obligation to do something at some point?

Posted by Matt Bodie on December 18, 2012 at 09:08 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Friday, December 14, 2012

Decentering centers (more on law school sustainability and costs savings)

Law schools resist collaboration and efficiencies in scale economies where centers, institutes, and programes are concerned.  This resistance may be unwarranted in many circumstances.

The incentives to proliferate academic research centers are understandable, yet fundamentally self-serving.  A center on, say, health policy aims toward developing, nurturing, and disseminating theoretical and (especially) applied research to advantage knowledge and improve public policy.  It may help, say, Stanford, Chicago, or Northwestern, to have it located only at their law school.  But wouldn't the larger cause be better served by serious, sustained collaboration across institutions?  Even the most ambitious and resourced law schools will have a small fraction of, say, intellectual property or environmental law/policy experts.  But five law schools working together will have many more.  The advantages of sustained collaboration among well-configured institutions seem rather apparent.  And there seem to be rather palpable efficiencies -- and, critically, lower intra-institutional costs -- generated by such tactical collaboration.

Alas, centers, institutes, and programs are frequently (nearly always?) treated as local sinecures.  Faculty recruitment and retention drive many design and implementation choices.  And deans exhort their donors to, as Brian Wilson proclaims, be true to your school.

Where cost savings are a growing imperative, why not think imaginatively about cross-institutional synergies and cooperative endeavors?  Some of these enterprises may involve similarly ambitious schools; others may trade on the advantages of local knowledge and structure -- so, a consortium of, say, Chicago area or SF bay area schools working cooperatively on programs with tangible benefit to the area. 

Students, faculty, and the community benefit greatly from the work growing out of excellent research centers.  But how much of this benefit requires all the effort, energy, and money deployed within one law school's four walls?

(Cross-institutional curricula raises similar issues and is a variation on this theme, albeit a variation that deserves separate discussion).

Posted by Dan Rodriguez on December 14, 2012 at 11:44 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack

Two Past Perspectives on Legal Education

For a December Friday I thought I'd link to two older pieces on legal education that you may not have seen:

Posted by Matt Bodie on December 14, 2012 at 09:21 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Wednesday, December 12, 2012

Sustainability and the future: Managing teaching resources

I echo Matt Bodie's call for candid scrutiny of our educational strategies.  As a dean, I think daily about building a better product.  Most of our dean colleagues do likewise.  We know the objectives -- maintaining top-quality legal education (which, not incidentally, still remains the envy of the world -- this despite frequent calls for replacing our model with the European alternative) and reducing costs.

So leave the hyperbole to others.  Let us the rest of us get to work on constructive solutions.

Here's a big cost driver, perhaps the biggest:  resources for full-time, tenure-line faculty.  Much of this is about building respective armies of able scholars.  The incentives, internal and external, for most law schools, especially those high up the food chain or aspiring to move up, have been noted frequently.  But a central question looms, that is, how best to deploy teaching resources to staff an electic, modern curriculum?  This question becomes ever more pertinent as the demands of the marketplace drive law schools to more imaginative and, yes, more practical strategies for preparation.

Law schools have long looked to adjuncts and the occasional recurring lecturer for teaching.  Yet, the wheelhouse for such teaching has more often been clinics and skills-training.  Good sense here; after all, experienced lawyers are wisely deployed to train would-be lawyers and the beat goes on.  However, non-tenure line faculty -- more specifically, lecturers/senior lecturers on long-term contracts with compensation and resources befitting the commitment to regular teaching and a durable investment in student well-being -- is an efficient way to strengthen teaching at law schools which cherish deep connections to practice and, as well, to save costs.

Let me focus on the latter:  Even the well-remunerated residential faculty member requires less direct financial investment than a research faculty member.  Leave aside the matter of base salary.  Law school support for research endeavors of faculty requires serious money, both to provide an adequate base for the research cohort and to deal with the imperative of recruitment and retention.

None of this is strikingly novel, of course.  Northwestern and many other law schools have been relying for the past several years on large numbers of residential faculty members.  We are very proud of our lecturers and senior lecturers and, indeed, have just added another step in this latter -- the Professor of Practice -- to acknowledge the special role these distinguished lawyer-teachers make to the curriculum and programming of the law school.  We aspire to treat these members of the community well, with respect to pay, job security, and governance.  Anything less defeats, frankly, the purpose of creating a separate faculty track in a comprehensive teaching community.

In addition to the merits of this device, trust me when I say that the cost savings are considerable.  As we think about maintaining high-performing faculties, we need to think creatively about managing the general teaching budget.  The days of supersize tenure line faculties may be waning, to be replaced with leaner research cohorts alongside an efficient number of valuable, less expensive residential faculty. 

Posted by Dan Rodriguez on December 12, 2012 at 11:33 AM in Life of Law Schools | Permalink | Comments (19) | TrackBack

Tuesday, December 11, 2012

Law School Sustainability

Law school applicants and LSAT takers are both down by double-digit percentages this fall.  Law students are taking on higher and higher levels of debt and are met with a job market that is the worst in decades.  Commentators at Above the Law, Inside the Law School Scam, and the New York Times lay out the numbers and ask why anyone would ever attend law school, unless they're essentially going for free.

Law schools and the law professors who help govern them need to confront these issues.  However, in conversations with colleagues at other schools, I've heard about the difficulty in bringing up these concerns with fellow faculty members.  In the face of the sometimes vituperative attacks on legal education, many professors have closed ranks, and a prof who brings up these issues may seem to be casting her lot with the critics.  On the other hand, speaking up in defense of legal education draws cries that one is a Pollyanna or a con artist.  As a law professor, I believe that there is a lot of good in legal education, but it's tough to say that to someone who is 26, unemployed, and carrying $120,000 in debt.

Law profs need to talk about these issues in an honest but productive way.  Those of us who work in the field do not have the luxury of waiting to see what others do; we are responsible for change.  And many changes will likely be unpleasant ones.  But at the same time, there is a real opportunity here to reform an industry that has remained largely static for over 100 years.  Taking the bull by the horns will give us a better chance to not get trampled.

So instead of continuing to debate whether law schools are failing, we need to recognize the problems and deal with them constructively.  It's time to focus on the future.  And if we want law schools to continue to be vibrant players in higher education, the legal profession, and society, we need to focus on sustainability.

"Sustainability" is generally used in the environmental context to indicate the ongoing health of a particular practice or system.  But it can also refer more generally to the continued existence and flourishing of industries, firms, and institutions.  Law schools have to focus on sustainability.  That means asking what schools need to do now to ensure their long-term health and prosperity.  Below I sketch out a few thoughts about law school sustainability:

Make law school more affordable.  As discussed a few weeks ago, the short-term incentives for all law schools point in the direction of shrinking class sizes.  But tuition and debt levels remain a long-term problem.  To make law schools sustainable over time, we need to focus on making the opportunity to get a legal education something that doesn't saddle the student with overwhelming debt.  This is not a problem that will be solved overnight.  But it needs to be addressed, both now and continuing into the future.

Cut costs.  If classes shrink and tuition drops, by necessity school budgets will shrink.  But how they shrink is another matter.  Those who govern schools need to think hard about the ways in which the budget will be cut.  And if these conversations are focused on making the school more sustainable over time, professors will be more invested in the process, even if they personally feel the brunt.  A salary cut is a postive step for the health of the organization if it is explicitly tied to a tuition cut.  If the money saved just goes into a general university fund, profs may feel that their personal sacrifice has not contributed to a more sustainable institution.

Protect core values.  There are a lot of different ways to reform legal education.  Some of those can come from the inside, such as revised curricula, more experiential learning, and smaller class sizes.  But some reforms would be imposed from the outside: revised ABA or state requirements, changes to federal loan programs, and huge market shifts in demand.  Law schools need to think hard about what their core values are, and make sure to protect those core values.  Along with providing excellent education and preparing our students for success on the job market, I think legal scholarship must also remain a core value to be protected.  Now, there are lots of ways to do this; protecting legal scholarship does not mean continuing with the status quo.  But I do think that a focus on sustainability includes a focus on keeping legal scholarship alive and well even when legal education is going through dramatic change.

I welcome your thoughts, particularly those of junior or prospective law profs.  What should we be focusing on when we think about the long-term future of law schools?

Posted by Matt Bodie on December 11, 2012 at 03:43 PM in Life of Law Schools | Permalink | Comments (64) | TrackBack

Monday, December 10, 2012

Balancing scholarship and new course preps

Thanks to Dan for inviting me to blog on Prawfs, I am a long-time reader and I am excited to blog here in December. I plan to blog about a number of things, but with the semester just concluding right now I find myself thinking about how I could have managed my workload better this past semester. This Fall semester I undertook a new course prep: Torts. This was a big new prep for me, and I spent far more time than I had planned preparing for each class. Combined with serving on my faculty’s recruitment committee, this didn’t leave much, if any, time for scholarly endeavors.

My question for the Prawfs community is, then, how do you balance a new course prep and your scholarship? Do you negotiate less committee responsibilities in semesters when you have a new prep? Do you find that you get quicker as you undertake yet another new prep? Is this something that gets easier with seniority? I hope to get some advice I can utilize next time I undertake a new course prep!

Posted by Zoe Robinson on December 10, 2012 at 08:02 PM in Life of Law Schools, Teaching Law | Permalink | Comments (1) | TrackBack

Good idea: Two-year option for bar certification

Declaration against interest from an institutional standpoint as dean, but I am strongy drawn to Sam Estreicher's "back to the future" suggestion of an option for students sitting for the bar after two years.  Such a system, if adopted, would respond in some meaningful way to student debt issues, allowing the financially burdened student to postpone -- or, in some instances, avoid entirely -- the third year and the corresponding tuition costs.

My suspicion is that most legal employers, and certainly the leading law firms, would continue to expect a law degree as a condition for employment.  (Whether this would be accomplished in two or three years remains an open question.  My law school, Northwestern, is currently the only top law school with a 2-year JD option).  Indeed, they would depend upon the educational training that law students would get from the additional 25-30 credits and would insist on that despite the student's bar passage.  That said, the ability of a student to move directly into practice, particularly in areas which would meet the woefully under-met demand by lower and middle class individuals for legal service, would create more opportunity.

Moreover, this scheme would put more good pressure on law schools to justify the work of the third year.  Estreicher is convinced that this third year would be used principally for practical skills training and would move law schools away from academic intentions.  I am not so convinced.  Yes, some schools would run their entire third year as a clinic.  Others would outsource the third year for supervised externships.  However, some schools would continue to promote more academically-oriented programming, perhaps emphasizing specialities and the kind of cumulative learning that would facilitate students' career objectives.  A small number of schools would provide opportunities, such as joint degrees and such, for students who aim toward academic careers.  In short, we would see salutary diversity among schools -- and, to the point of the proposal, more accommodation to students' financial needs and dilemmas.  Law students would vote with their wallets.  And law schools would respond to market demand.  This is all to the good.

Posted by Dan Rodriguez on December 10, 2012 at 03:00 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Saturday, December 08, 2012

The Present and Future of AALS?

While I suppose this question is the rough equivalent of putting a "kick me" sign on my shirt, let me press ahead nonetheless and ask this:

What are your good ideas for the AALS as an organization going forward, especially in these remarkably difficult times for legal education?  I have the opportunity to play a leadership role in the association for the next little while (being nominated as president-elect at the upcoming annual meeting).  My sense is that we can do much better as a group in furthering the myraid objectives of the law professoriate.  Moreover, I would like to use my (small) bully pulpit to advance objectives that are critical to our collective future.

I have various thoughts to be sure.  What are yours?

Posted by Dan Rodriguez on December 8, 2012 at 11:41 AM in Life of Law Schools | Permalink | Comments (28) | TrackBack

Friday, December 07, 2012

New York as National Law School Regulator: The Two-Year Proposal

Earlier this week Dan Filler described how New York imposes more onerous requirements on law schools than do the national ABA standards.  However, a proposal is on the table that would significantly reduce New York's requirements for sitting for the bar.  The proposal, by NYU law professor Sam Estreicher, provides that:

the New York Court of Appeals amend Rule 520.3 of its Rules for Admission of Attorneys and Counselors at Law to allow a student to sit for the bar examination after successful completion of 60 credit hours at an accredited law school. As the proposal currently stands, no apprenticeship would be required. It is contemplated, however, that a student wishing to pursue this two-year option would be required to take a prescribed set of courses and could receive some form of certificate of completion. Law schools would be free to insist on a three-year curriculum before awarding their degrees.

Estreicher has a paper in support of his proposal here.  A public meeting about the two-year option will be hosted by NYU's Institute for Judicial Administration on January 18, 2013, from 9:30 a.m. to 12:00 p.m.  Chief Judge Jonathan Lippman and Associate Judge Victoria A. Graffeo of the New York Court of Appeals, as well as one or more representatives of the New York State Board of Law Examiners, are expected to attend the meeting.  To RSVP or request further information, you can contact

Posted by Matt Bodie on December 7, 2012 at 11:55 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Friday, November 30, 2012

Tuition, Debt, and U.S. News

In the midst of the "Law School Finances" series of posts, I received an email from a "highly-placed source" in legal academia.  This person was concerned that law schools weren't doing enough about our students' levels of debt:

I’m struck by how dismissive folks are of the notion that tuition is too high.  The continued belief in a pool of “tuition-insensitive” applicants is striking.  We’re not talking about tuition insensitivity as a function of financial ability to pay the sticker price, as only a few of the top schools make meaningful efforts at need-based discounting, in my understanding.  99% of the discounting going on has nothing to do with financial need.  By “tuition-insensitive,” we’re talking about applicants who fail to appreciate the long-term ramifications of agreeing to pay sticker price.  Shrinking class size may help on USNWR factors (a lot) and grads’ employment prospects (a bit), but it doesn’t do anything – and likely exacerbates – the financial struggles of those students who are asked to pay sticker.  The fewer students available to shoulder the burden, the larger the burden grows.  Shrinking the class size, which virtually everyone is doing by necessity, does next to nothing to alleviate the long-term problem of student debt.  The current approach is simply not sustainable in the long term, but everyone is afraid to make a move given the potential USNWR implications.

These sentiments have been echoed by Brian Tamanaha, among others, who just posted yesterday about how the changes to IBR provide even greater disincentives for law schools to reduce tuition.

I think there's a fairly straightforward way to get schools looking at their tuition: make it part of the U.S. News calculus.  Right now, the U.S. News rankings provide a strong incentive for schools to maintain or raise tuition.  About nine percent of a law school's score is based solely on the amount of money spent per student -- a direct incentive to spend more.  Significant weight is placed on entering student g.p.a. and LSAT scores, which a school can improve by offering merit scholarships.  So if a school is going to cut tuition, it makes much more U.S. News sense to "cut" by boosting merit scholarships, rather than cutting the sticker.  (See more here.)  Similarly, it makes more sense to cut the number of students than it does to cut tuition, for a host of U.S. News reasons.  And improving a school's U.S. News ranking is not simply a vanity contest; it improves the applicant pool, makes it easier for current students and alums to find jobs (particularly outside of the school's reputational heartland), and provides tangible evidence of achievement in a world that often lacks such markers.

Schools could decide just to bail out of U.S. News en masse, but it would be extremely difficult to be the first school to do this, and U.S. News could still rank even if schools did not cooperate.  An easier and better solution would be for U.S. News to take cost of attendance into account.  Malcolm Gladwell made this point in his 2011 New Yorker article on college rankings:

There’s something missing from that list of variables, of course: it doesn’t include price. That is one of the most distinctive features of the U.S. News methodology. Both its college rankings and its law-school rankings reward schools for devoting lots of financial resources to educating their students, but not for being affordable. Why? Morse admitted that there was no formal reason for that position. It was just a feeling. “We’re not saying that we’re measuring educational outcomes,” he explained. “We’re not saying we’re social scientists, or we’re subjecting our rankings to some peer-review process. We’re just saying we’ve made this judgment. We’re saying we’ve interviewed a lot of experts, we’ve developed these academic indicators, and we think these measures measure quality schools.”

As answers go, that’s up there with the parental “Because I said so.” But Morse is simply being honest. If we don’t understand what the right proxies for college quality are, let alone how to represent those proxies in a comprehensive, heterogeneous grading system, then our rankings are inherently arbitrary. All Morse was saying was that, on the question of price, he comes down on the Car and Driver side of things, not on the Consumer Reports side. U.S. News thinks that schools that spend a lot of money on their students are nicer than those that don’t, and that this niceness ought to be factored into the equation of desirability.

Given the real concerns on rising tuition in higher education, I would not be surprised if U.S. News started taking costs of attendance into account.  But I haven't heard any buzz about this possibility.  I'm surprised that reformers have not focused more on this potential change as a tool for encouraging tuition reform.

Posted by Matt Bodie on November 30, 2012 at 09:59 AM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Friday, November 16, 2012

Reforming Legal Education's Finances: How to Decide

The last question for our series on reforming legal education's finances is: should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?  This question assumes that some cost-cutting needs to happen, and that may not be obvious.  Many believe that law schools should have slowed the growth of tuition rates even when the applicant pool was significantly larger.  So who should be making decisions about tuition, class size, and salaries?  Should it be the faculty, the law school administration, the university, or some combination of these institutional players?

I don't think there's an obvious answer.  Faculty may rely on the law school administration to oversee budgets, enrollment figures, and salaries while profs attend to teaching, research, and service.  But part of service is faculty governance, and there is a tradition and norm of robust faculty governance at most institutions.  Thus, faculty may feel it is their preogative and responsibility to set overall financial and pedagogical goals for the school.  The nuts and bolts may be delegated to faculty-staff committees, such as admissions and budget committees.  Assuming such committees exist, how much oversight for their work should the faculty as a whole provide?  And what authority should a budget committee have?  Can it look at salaries?  Can it set tuition?  Tuition and enrollment may be dictated by the university, either formally or informally.  If the university sets the ultimate numbers and provides the law school's budget, how much should faculty and deans push for reforms that the university hasn't asked for?

I make the proviso here that schools have a variety of different governance structures.  But with this caveat noted, I'd ask for your thoughts on the ways in which schools should address these issues.  Should faculty take a proactive role in shaping tuition, enrollment, and budget issues?  Or are these tough decisions best left to law school and/or university leaders?

Posted by Matt Bodie on November 16, 2012 at 09:50 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Thursday, November 15, 2012

2013 CrimProf Shadow Conference at LSA in Boston

This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.


Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here:

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects.  Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.

We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area. 

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels.  So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston:

By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.”  That email should include:

(a) an expression of interest

(b) an indication of whether you would like to participate in a book or paper panel

(c) a description of your topic (an abstract would be preferable)

(d) whether you are also available to serve as a moderator or discussant

(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel

(f) if necessary, a heads up if you are contemplating participation on another LSA panel

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference.  (The LSA folks get kind of annoyed with us if our participants drop out.  And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv. 

Thank you, and we look forward to seeing many of you in Boston.

Carissa (& Danny)

Posted by Dan Markel on November 15, 2012 at 09:59 PM in Article Spotlight, Criminal Law, Life of Law Schools | Permalink | Comments (0) | TrackBack

Reforming Legal Education's Finances: How to Cut Salaries

Yesterday our series focused on different ways of cutting labor costs.  Today, I wanted to focus on cutting salaries. Of course, as Orin commented yesterday, not all schools will need to consider such measures.   But if a school has decided that it needs to reduce salaries for existing faculty, what are the pros and cons of various methods? 

One way would be an across-the-board percentage cut.  A wage freeze is one version of this.  The advantages of an across-the-board cut is that is is fairly straightforward to understand and implement, and it seems fair in that it takes the same proportion of everyone's earnings.  However, some may advocate for a larger chunk to be taken from those earning the most, on the same theory of diminishing marginal utility that justifies different income tax brackets.  Others may argue for a merit-based set of reductions, based on performance.  And different types of performance could be rewarded: a school could reward scholarship, teaching, service to the school and community, or some combination of these.  Finally, one could combine a merit and market approach and base the reductions on the person's overall marketability.  Staff or faculty members that are likely to get offers from other schools would take less of a cut than others less likely to leave.

One particular method of carrying out a cut is to "furlough" professors and staff for a certain period of time; it's a de facto across-the-board reduction in salary.  The furlough may seem more palatable to university administrations, since it gives the employee the day "off."  Since faculty are generally not allowed to cancel a class, however, in choosing a furlough date, they would not experience the furlough as a day off and would likely be angry that their reduction in pay is not acknowledged explictly as such.

One question that seems murky to me: to what extent can a tenured faculty member's salary be reduced?  I have heard that even a 1% reduction could trigger a grievance.  If a school has promised a certain salary for a certain period of time, it would have to abide by that promise.  But it's unclear to what extent a prospective salary reduction would be infringe on tenure protections.  Here's an Inside Higher Ed article about a plan at UMaryland that would have allowed pay cuts after three poor reviews.  It was voted down by the faculty in part because it was seen as an infringement on tenure.

As an example of a moderate method of reducing salary costs over time, here's an excerpt from Brian Tamanaha's "Dean's Vision" speech where he lays out his approach:

During my full first term as your dean, I will not award a raise to any faculty member who currently earns in excess of $180,000. Faculty members who earn between $160,000 and $180,000 may receive merit based raises in flat amounts (not percentages), not exceeding $2000 annually. Those who earn between $140,000 and $160,000 will be eligible for merit-based raises of up to $3,000. To supplement these restricted raises, each year I will award several $1,000-$3,000 bonuses to faculty members who have made outstanding contributions to the school. Faculty who earn below $140,000 will be eligible for more generous raises.

So what do you think?  What are the costs and benefits of different approaches to cutting salaries?

UPDATE: TooCloseToHome points out that I neglected to discuss pay and benefits other than salary, particularly summer research stipends.  A big omission on my part.  A school could cut pay by cutting or eliminating summer research grants or other benefits such as pension contributions, forgiveable loans, and housing assistance.  Not all schools provide these benefits.  But for those that do, these benefits might seem like an attractive target, especially if they are not provided to other professors at the university.

I've spoken before (in a comment) about summer research grants.  I said: " eliminating summer stipends would be a regressive move. It would hurt those who are publishing more than those who are not, and it represents a much larger percentage of salary for junior folks than for upper-level senior folks. So if you think faculty salaries should be cut, that's fine, but simply eliminating research stipends is -- in my view -- a pretty poor way of doing it."  Eliminating other benefits might have less of a connection to merit and also less of a regressive effect, depending on how the benefits were given out.

And just to respond to James Maxeiner's point -- I agree that this set of discussions has a detached, remote quality.  We are not talking about specific problems faced by specific institutions.  I was hoping to move the ball just a little bit forward by starting to talk about potential financial decisions in a more concrete way.  But the discussions at individual schools will vary greatly depending on applicant pools, available cash, staffing levels, relationship with a university, etc.  I do think James is right -- Brian's solution is geared toward more elite institutions.  Profs at many schools would be in line for significant raises under Brian's plan.

Posted by Matt Bodie on November 15, 2012 at 10:14 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Wednesday, November 14, 2012

Reforming Legal Education's Finances: Cutting Labor Costs

After two days of discussions on the revenue side of the ledger, we now turn to costs.  A law school looking to cut costs must make a series of decisions.  This post focuses on one set of those decisions.  If a law school is looking to cut labor costs (particularly with respect to faculty), what are the pros and cons of various ways of doing this?

The easiest way to cut costs would be to not fill empty faculty or staff lines.  Based on the AALS entry-level data, it looks like a fair number of schools have taken this approach.  I say this is "easiest" because no one has to be fired or take a pay cut.  But there are real costs as well.  It unbalances a school's faculty by cutting off the influx of new talent. Moreover, if pursued by a large number of schools, it makes things particularly difficult for a set of young scholars who will find that their opportunities are much more limited than their predecessors'.  One year of reduced hiring may be ameliorated over time.  But if schools continue to cut costs, the decision to freeze hiring for two, three, or more years will have a significant impact on schools as well as a generation of aspiring professors.

So how about the other options?  Tenured faculty presumably cannot be fired.  A school that overtly denigrates its tenure commitments is likely to face a severe reputational hit.  Schools may try to get around tenure protections more quietly by beefing up post-tenure review and then making life more difficult for tenured professors who are deemed to be falling short.  Such policies will anger and alienate the targeted faculty, may demoralize the entire faculty, and may also lead to litigation.  But they might (in some individual cases) improve performance or lead to exit.

The other option is to cut salaries.  We'll talk tomorrow about ways in which salaries could be cut.  Without getting into specifics, the advantage of cutting salaries is that you can maintain a larger faculty with smaller costs.  But wages are sticky.  It's true generally, and it has been true in law firms as well.  The demoralization that comes from a wage cut is frequently seen by employers as not worth the cost-savings.  A wage freeze may be more palatable, but given low inflation, it takes longer to have a substantial impact.

So what do you think?  What are the costs and benefits of cutting positions versus cutting salaries?

Posted by Matt Bodie on November 14, 2012 at 10:13 AM in Life of Law Schools | Permalink | Comments (7) | TrackBack

Tuesday, November 13, 2012

Reforming Legal Education's Finances: How to Cut Tuition?

Yesterday I posted about the choice between cutting tuition and cutting class size.  My conclusion was that whatever money schools had to "spend" on reductions in revenue, rational schools would always choose to reduce class size over cutting tuition.  This is an oversimplification -- cuts in tuition can also attract better students, and therefore lead to better incoming credentials and higher bar passage rates.  And in fact many schools have been cutting tuition (in various ways) this year. So what are the pros and cons of the different methods?

There are three basic paths to cutting the costs for students: cut the "sticker" price, offer merit scholarships, and offer a loan repayment assistance program (LRAP).  Cutting the sticker price sends a market signal to all potential applicants and reduces costs for all students.  Since it applies across the board, it may seem (or be) more equitable.  However, merit scholarships allow the law school to apply the advantages of price discrimination; the school can pick and choose the price for each applicant based on the desirability of that applicant.  Merit scholarships thus allow the school to improve its incoming class credentials more directly, which in turn helps the US News ranking.

Students may also be attracted to a school based on a generous loan repayment assistance program.  In addition, an LRAP pays the money out on the back end, as opposed to the upfront losses that price cuts and merit scholarships entail.  But because many applicants will be less certain about how the program will benefit them, the tangible effects on applicants will be diminished.  In addition, there is more uncertainty for the school, as the number of alums who would be eligible for assistance cannot be clearly staked out ahead of time, unless the school limits the program in some way.  Costs are thus more uncertain.   Merit scholarships are also uncertain, however -- at least if the school offers more in scholarship money than it actually has to spend. And LRAPs do have the advantage of targeting those students who more clearly need the money, whereas merit scholarships often reduce costs for those who have the best chances of securing higher-income employment.

So what do you think?  How schould schools cut tuition, and are the various incentives correctly aligned?

Posted by Matt Bodie on November 13, 2012 at 11:25 AM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Monday, November 12, 2012

Reforming Legal Education's Finances: Cut Tuition or Class Size?

The first question for our financial reform forum is whether it is better for schools to cut tuition or cut class size.  The rapid rise of law school tuition has been well-documented. Tuition for private law schools has risen roughly 250% since 1988, while tuition for public schools has risen almost 600%.  This rise, in turn, has led to a significantly higher debt burden for students across the board.  The drastic crash in legal employment has made these debts even harder to handle.

However, there are strong incentives for law schools to cut class size.  The applicant pool has shrunk each of the last two years, making it harder to find students of the same credentials.  Law schools that can afford to cut class size can improve their relative US News rankings in a variety of ways: better incoming credentials, higher average resources per student, higher bar passage rates, and better chances of finding employment nine months after graduation.  Moreover, past alums of the school would want a cut in class size, especially recent grads who are still looking for entry-level positions.  Cuts in tuition could increase competition for jobs; cuts in class size could improve US News rankings, which may help recent grads on the job market. 

So as to the question--cut tuition or class-size--it appears that many schools have opted to cut class size.  In fact, the incentives are so strong for schools to cut class size that I think it'd be difficult for a school to cut tuition.  If you have $X to spend on either option, it seems to me that the incentives all push for cutting class size--no matter how many dollars you have.

So what do you think?  Is it better to cut tuition or class size?  And if you think we need to cut tuition, how and when is it going to happen?

Posted by Matt Bodie on November 12, 2012 at 11:50 AM in Life of Law Schools | Permalink | Comments (13) | TrackBack

Reforming Legal Education's Finances: Questions for the Week

This week PrawfsBlawg will be hosting an open forum on legal education's finances.  Each day we'll have a fresh set of alternatives to debate as we consider ways to reform law school spending.  As I posted last week, the intent of these questions is to pose these issues not in the abstract, but in contrast with other possibilities.  The hope is to get people talking about the costs and benefits of different avenues for actual change as schools face hard choices.

Here's our schedule for the week:

  • MONDAY: Is it better to cut tuition or class size?
  • TUESDAY: If tuition is to be cut, is it better to cut the sticker price or increase aid to students?  And if increasing aid to students, should it be through merit scholarships or loan repayment assistance?
  • WEDNESDAY: If a school is cutting costs, is it better to cut positions or cut salaries?
  • THURSDAY: If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
  • FRIDAY: Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?

 Thanks for your suggestions thus far, and I look forward to hearing your constructive comments.

Posted by Matt Bodie on November 12, 2012 at 11:16 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Thursday, November 08, 2012

Reforming Legal Education's Finances: Let's Debate Specifics

This fall a lot of law schools are talking about finances.  While the blawgosphere and even the national press have addressed the basic market changes driving these discussions, I have not seen a lot of specifics about the difficult financial choices at stake.  Next week, I'll be posting a series of questions comparing different strategies for dealing with the new market realities.  The intent of these questions is to get folks talking about the costs and benefits of different approaches, so we may have a better handle of how to address them at our own institutions.

Here are the questions I was thinking of posing:

  • Is it better to cut tuition or class size?
  • If tuition is to be cut, is it better to cut the sticker price or increase the scholarship pool?
  • If a school is cutting costs, is it better to cut positions or cut salaries?
  • If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
  • Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?

Obviously, these questions are not exclusive -- one can cut tuition and class size, for example, or cut salaries both across the board and based on certain principles (teaching load, etc.).  But the purpose of these dyads is to pit them against one another and talk about their specific strengths and weaknesses.  If a school has $X in potential savings, would that savings be better spent on reductions in tuition or class size?  The questions are intended to get readers and commenters to debate the relative merits in specific terms.

If you have an idea for a dyadic question like the ones framed above, please feel free to leave it in the comments.  I'll start up with the questions on Monday.

Posted by Matt Bodie on November 8, 2012 at 11:34 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Wednesday, October 31, 2012

How to Scare a Law Professor

In honor of Halloween--and as my farewell guest blog--I want to add a little scare (and levity) to your day.  If you are faint of heart, you may want to skip to the next post.  But if you are of a heartier constitution, read on.  Today I propose the scariest of activities . . . reread your . . . Teacher Evaluations and (as if that's not sufficiently terrifying) . . . share them with me!  Muahaha!!

Now if you are pre-tenured, the terror elicited by teacher evaluations is self-explanatory (a little thing called self-preservation) but, I submit that dark monsters lurk in those pages for tenured professors as well.   Such as: irrefutable evidence that your brilliant teaching of [place issue of choice here] for two days left no impression; the fact that few students seem to realize that "ru" is not actually a word; and, the realization that no matter how important the subject/issue/process you taught and how creatively/well/in-depth you taught it, students base their evaluation of your teaching skills on complete non sequiturs. 

Therefore, for a little terrifying fun, I invite you to share your most choice teacher evaluations here.  It would not be right if I didn't offer myself as the first public sacrifice.  Here are a couple of jems . . .

             Please let students use computers in class.  Also, professor has great taste in shoes.
             Great shoes. ;-)

Oh yeah, those comments will get me tenure. 

Looking forward to hearing from you!  To those on the East Coast (including my own family in New Jersey, Delaware and Maryland), know our thoughts and prayers are with you--we all hope you are well, keep safe and please call when you can.  A big thank you to PrawfsBlawg for the guest spot and, to all, Happy Halloween!

Posted by Babette Boliek on October 31, 2012 at 09:25 AM in Life of Law Schools, Teaching Law | Permalink | Comments (6) | TrackBack

Wednesday, August 29, 2012

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.


Posted by Lyrissa Lidsky on August 29, 2012 at 02:17 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Getting a Job on the Law Teaching Market, Life of Law Schools, Lyrissa Lidsky, Web/Tech | Permalink | Comments (10) | TrackBack

Wednesday, August 15, 2012

YLS Admissions Blog: Unapologetically Elitist

My friend Lisa McElroy is a Legal Research and Writing Professor at Drexel.  She alerted me to this blog missive from Yale Associate Dean of Admissions Asha Rangappa, providing advice to potential transfer students: 

“The other part of your application that is going to carry a significant amount of weight is your law school recommendations (we require two).  We use these references to place your grades in context and also to determine what kind of student you are.  A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well.  There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine).  Letters from professors who went to YLS -- who as you probably know are ubiquitous in the legal academy -- are often especially helpful, since they usually discuss why the applicant would fit into the academic and cultural experience here.  But don't go stalking a Yale alum just for this purpose -- just pick professors from classes in which you have performed very well and you'll be on the right track.”

As Lisa writes (I'm closely paraphrasing her post on the LRW listserve) , the subtext of the advice is basically as follows:  (1) LRW is not a "core subject area;" (2) LRW profs don't really teach "subject material," or at least none that is hard to keep up with; (3) LRW profs don't lead class discussions, or none that require student contributions; (4) LRW profs don't teach difficult concepts, or ask students to think them through; (5) LRW profs are "instructors," and, as such, could not have attended YLS.  [Lisa went to Harvard Law, btw & fwiw!!]

Please also note that those of us who didn't go to YLS couldn't possibly understand the rigors of legal education there, and thus our letters are discounted.

[Addendum: It has been brought to my attention since I originally posted that it is unfair to single out Dean Rangappa as being "gratuitously insulting" simply for being bracingly honest about the elitism in legal academia, and I thought the point a fair one. Dean Rangappa's letter, in fact, is a way of levelling the playing field somewhat for students from non-privileged backgrounds seeking to transfer to YLS; it gives them access to valuable information about how the process really works.  The reason her letter has resonated among LRW profs and others is the fact that many, if not most, law schools treat their LRW profs as second-class citizens and LRW as an unimportant subject that can be picked up by osmosis.]


Posted by Lyrissa Lidsky on August 15, 2012 at 10:34 AM in Blogging, Life of Law Schools, Lyrissa Lidsky, Teaching Law, Weblogs | Permalink | Comments (41) | TrackBack

Friday, August 10, 2012

The Angsting Thread (Law Review Edition, Autumn 2012)

Friends, the time has come when Redyip is visible.  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.

Update: Here is a link to the last page of comments.


Posted by Dan Markel on August 10, 2012 at 04:08 PM in Blogging, Law Review Review, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (877) | TrackBack

Thursday, August 09, 2012

(Quasi-)Achievements by Declination or Proximity...

It's roughly FAR time now, and I'm up in beloved cottage country in Canada, stealing a few moments while the boys are napping and the wife's away. So, a quick question for prawfs that was raised by some folks as they head out on to the rookie and lateral market: which, if any, *declined* honors or awards or invitations or opportunities do you think one should list on the academic cv? Relatedly, what do you think about near-misses?

I had a recollection, which I recently confirmed, that the cv belonging to one of our connoisseurs of prestige, separately twice listed honors that were declined by him. I've also seen numerous other people list "near-misses" such as Rhodes Scholar finalist. I am curious to hear to what extent those on hiring/tenure committees would welcome such information. (I am also interested to learn what the views of others are too, including those deliberating whether to include such information). 

My own sense is that since the CV is used by committees to do a lot of screening, some information about this stuff would be helpful. For example, if a person was a single mom/dad but had twenty faculty workshop invitations that s/he declined because of caregiving responsibilities, I suspect that would be useful information to know--at least insofar as such workshop invitations are a signal (perhaps a noisy one) of prominence in the field. As for those who are aspiring prawfs, they typically have slim academic cv's and it might be useful to know about the verifiable close-calls or opportunities they have had to turn down in the past as they try to get to where they are.

I reckon lots of people will disagree and view this as largely further evidence of the decline of manners in our ceaselessly debased civilization. [Others clearly believe that including near-misses or opportunities declined dilutes the brand of the achievements that are on there already.] Not sure if this would mollify both sides, but perhaps there should be an appendix/codicil to CV's where one agglomerates these unaccepted honors and invitations or near-misses, and then those who care about them can pay them heed and those who don't care about them just disregard them, with some sympathy to their inclusion based on the always available (though perhaps untrue) reason that his/her mentor (or Dean) must have suggested that's a good idea! Poor thing.



Posted by Dan Markel on August 9, 2012 at 04:20 PM in Blogging, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (20) | TrackBack

Wednesday, August 01, 2012


The first of August!  My 2L classmates and I are wrapping up our summer jobs, beginning warily to eye our fall course / externship / clinic schedules, and -- in my case, anyway -- helping to get chlorine out of three daughters' hair and tuck them in.

And, mirabile dictu! The first of August:  Law professors all over the country are beginning to e-mail me in increasing numbers.  They want my attention.  They deserve more of it than they will, on average, get.  -- But my crackerjack colleagues and I are going to do our best.

I am the Submissions Editor of the Cleveland State Law Review (among other things).  I hope this month to offer some perspective as a student and student-editor, with occasional reference to the professional worlds I have known and more than half an eye on the profession I am seeking to join.  In addition I have a number of thoughts about proceduralism, institutional identities, and the historic legal event of the summer, the power of which we are only beginning to appreciate.  I thank Dan for inviting me to the special occasion that is every day on PrawfsBlawg.

This is the proper place for me to say that the job of Submissions Editor fills me with humility.  But in fact, for all of us, receiving cover letters and c.v.'s from highly accomplished people seeking our approval has a sadly predictable opposite effect.  We read critically, especially at first:  noting to each other before anything else sections that can be profitably cut, and particular footnotes that seem just a tad scanty.  -- But with your help, we do become readers; and with your help, perhaps more than anyone else in the profession, we learn from your work.

I am not sure how much it occurs to you that we editors (we callow self-credentializers who, through various wretched historical accidents in the development of legal academia, are perennially granted inordinate power over your career opportunities) -- we editors, I say, even as we seem to hold your work hostage, are a captive audience.  We read what you write.  And we are grateful for it.

So let me start on that note -- gratitude for the intellectual generosity manifested in the manuscripts we are receiving by the half-dozen.  

And let me begin with the first thing I've noticed:  cover letters are a tremendous, and often squandered, opportunity to win us over.  Much as we care about thorough scholarship, lucid explanation, and practical significance, we are also, like everyone else, apt to slip into motivated reasoning.  And decisions get made subconsciously perhaps before they are made consciously.  So first impressions matter a lot.

I suggest that you relax us with your cover letters.  Write cover letters for the human reader.  That first sentence should showcase a little personality, and tell us about the article in casual terms.  For example (and I'll use my student Note as an example all month):

"The attached article makes an implicit prediction:  In the near future, the Supreme Court will issue an opinion that says to lower courts, in effect --  'Iqbal, Iqbal, Iqbal.  Give it a rest already, now and then, would you?' "

The following sentences then would need to make crystal-clear why such a prediction is, unflippantly, justified (spoiler:  it's all about jurisdictionality).

No student will be troubled by the casual nature of that sentence, as long as the heft is elsewhere in the submission to back it up.

There is, in a word, no reason that the staid, methodical writing voice that gives your article scholarly credibility should also constitute your self-introduction.  In the cover letter you are speaking to students, not the judge who might eventually be persuaded by your doctrinal advocacy once the article propagates through Westlaw.  We students want to like and trust you before and as we learn from you.  (And I suspect the judge does too, although she is trained not to need that factor.  Even so, it matters, for everyone:  surely his style is a big part of the reason everyone defers to Judge Posner so much.)

Allow me to add, before signing off for day one, that this advice is not meant to be easy to follow.  There is nothing harder to achieve than effectively casual writing.  I believe, in fact, that I spent longer just now on that sample cover-letter sentence than on any single sentence in the main body of my student Note.  And yet I am not sure that it works.  I should probably sleep on it, and before sending in such a cover letter I would probably scrap and rewrite such a sentence several times.

But this is a blog, and as such ephemera.  A blog post is fleeting (isn't it, Dan? I have professional constituencies to be aware of).   It's all right if it's disorganized, and essayistically repeats itself...

To recap:  The cover letter seeks a certain emotional, not cognitive, effect.  Cover letters do not embody the article, but they create the context in which it is read.   

I suggest that formal epistolary disquisitions, like painstaking persuasive briefs, have their place; but the cover letter is much more like voir dire.  If the jury doesn't like you, personally, after voir dire, you've wasted a golden opportunity, and no amount of motion practice can make up for it.

Please take this item as an invitation to post the best introductory sentences with which you, or someone you know, has introduced a piece of scholarly writing from the outside.  The poets call such a text an envoi:  an accompanying ambassador, not the monarch herself.  It is personable, not stately; it does no work of its own; yet it makes possible the encounters of state.  

Examples please!


Update:  Having slept on it, I now think a better first opening for my Note cover letter would be

"However imperfectly we understand the case, law students and attorneys generally agree that Iqbal now sets the standard for a motion to dismiss a federal lawsuit.  In one important respect, this consensus is wrong."

Posted by Jim von der Heydt on August 1, 2012 at 11:15 PM in Law Review Review, Life of Law Schools | Permalink | Comments (1) | TrackBack

Monday, July 30, 2012

Scholarship for the Courts: A Different Kind of Cert Pool

Via Dave Hoffman's post having to do with the questionable utility of non-elite journal experience for law students, I came across our own Matt Bodie's spirited defense of student participation in the legal scholarship world. And by looking up Matt's article I stumbled upon Ross Davie's new piece for the Journal of Law, entitled "In Search of Helpful Legal Scholarship, Part I."  It is written with Ross' characteristically light and perceptive touch and the gist of his "opening remarks" is that there should be some vehicle by which the courts (particularly the SCT) are made aware of the relevant scholarship on an issue, e.g.,  when the Court grants cert on a particular case. Here's a taste:

Professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know 
scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. 
(Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure 
that frees them to speak truth not only to power, but also to each other. But rather than 
giving the Justices stacks of  memos evaluating every single law review article (as the clerks in the cert pool 
do with petitions in every single case), the professors should take a different kind of case-by-case approach.
Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices 
a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the 
Justices or their minions can read the helpful scholarship themselves. Each  list should be in the form of 
(and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief.”

I like this suggestion a lot. Ross suggests that the AALS or JOTWELL could do something like this in terms of organizing a cert pool of scholars. What do y'all think? I would guess that the list would be of interest not only to the courts/justices but also the litigants to some extent, especially when the litigants are not as savvy as the usual elite sct bar practitioners.

Btw, if you've not been keeping up with Green Bag or the Journal of Law,  some links for the latest issue of Green Bag are after the jump.

Green Bag

Volume 15, Number 3 (Spring 2012)


Mistakes • Bobble Berring


James J. Duane • George A. Heitczman • George W. Liebmann


Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz

Pierre N. Leval, Remarks on Henry Friendly on the Award of the Henry Friendly Medal to Justice Sandra Day O’Connor

James Oldham, Only Eleven Shillings: Abusing Public Justice in England in the Late Eighteenth Century (Part 2 of 2)

David Roe, Little Labs Lost: An Invisible Success Story

Laurence H. Silberman, The Development of “Final Offer Selection”


Ross E. Davies, The Pastiche Prosecutor: A Speculative Introduction to Mr. District Attorney

Unknown, Smashing the Taxicab Racket


Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness


John L. Kane, Jr., The Inmate

Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night



Posted by Dan Markel on July 30, 2012 at 10:50 PM in Article Spotlight, Blogging, Law Review Review, Life of Law Schools | Permalink | Comments (0) | TrackBack

Wednesday, July 18, 2012

Legal Education in the Digital Age

Legal Education in the Digital Age

With the latest news of U-Va. joining a consortium of schools  promoting online education, it seems only a matter of time before law schools will have to confront the possibility of much larger chunks of the educational experience moving into the virtual world.  Along with Law 2.0 by David I.C. Thomson, there is now Legal Education in the Digital Age, edited by Ed Rubin at Vanderbilt.  The book is primarily about the development of digital course materials for law school classes, with chapters by Ed Rubin, John Palfrey, Peggy Cooper Davis, and Larry Cunningham, among others.  The book comes out of a conference hosted by Ron Collins and David Skover at Seattle U.  My contribution follows up on my thoughts about the open source production of course materials, which I have previously written about here and here.  You can get the book from Cambridge UP here, or at Amazon in hardcover or on Kindle.

One question from the conference was: innovation is coming, but where will it come from?  Some possibilities:

  • Law professors
  • Law schools and universities
  • Legal publishers
  • Outside publishers
  • Tech companies such as Amazon or Apple
  • SSRN and BePress
  • Some combination(s) of these

I think we all agree that significant change is coming down the pike.  But what it ultimately will look like is still very much up in the air.  What role will law professors play?

Posted by Matt Bodie on July 18, 2012 at 05:24 PM in Books, Information and Technology, Life of Law Schools, Web/Tech | Permalink | Comments (8) | TrackBack

Tuesday, July 17, 2012

The Sisk Study is Up -- and a call for inclusion

Over at Brian's blog, you can see some observations on the nature and genesis of the new Sisk et al Study on per capita scholarly impact, which I've appended here for your viewing pleasure. Feel free to go to SSRN and throw them a bone for their hard work.  Brian has no discussion board to chat about the Sisk study, so I thought we could have a fruitful discussion here. As with most rankings, I think they need to be kept in context and not overweighted but also not underweighted simply because they don't measure what you most think is important. Sisk et al are right to emphasize how reputation studies for USNews tend to be a bit of an echo chamber and that studies like this one, which, you know, actually measure something, are a useful supplement to folks interested in trying to figure out the quality and impact a faculty is making in terms of scholarship. Again, it's not everything one should look at, but it's something.

My biggest gripe: while I understand the desire (particularly for Sisk and his institution) to limit the study to the top 70 or so, it seems a shame that there aren't resources available to get the info from and vet *all* the law schools. I have the same frustration with that other wonderful (but admittedly limited) study, the Yelnosky productivity one. For reasons that are either self-serving or that escape me, the Yelnosky study excludes the top 50 schools from study, except for those that happen to be in the New England area. Hmm.  I don't like to be snarky about this, but let's face it, inasmuch as the rankings are useful, they are sort of like a public good that is under-produced. (Yes, I'm getting ready for econ camp next week!) St. Thomas and Roger Williams are only investing in the creation of the rankings to the point they find useful (the private good), even though more information about more schools would benefit a larger group of schools or individuals (whether faculty or students. I suppose -- given that St Thomas did so well (coming at #30) -- we should be grateful that they didn't limit the number of schools to the top 40, but in fact studied almost 100 schools. Good on them.

Anyway, share your thoughts or data in the comments.  From what I can tell, the data and the methodology is transparent, so if there are associate deans or other interested faculty and law librarians out there reading this blog, feel free to do your self-study and share the info in the comments to this thread. Perhaps in future years, we can persuade St. Thomas and Roger Williams to expand the number of schools under consideration.




Posted by Dan Markel on July 17, 2012 at 04:19 PM in Blogging, Dan Markel, Life of Law Schools | Permalink | Comments (4) | TrackBack

Friday, July 06, 2012

Is the (Printed) Law Review a Flower that Should Bloom?

Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.

Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be.  I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.

And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___,  etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of  writing for law reviews more than writing for popular press.  Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.

In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.


Posted by Dan Markel on July 6, 2012 at 11:10 AM in Article Spotlight, Blogging, Culture, Law Review Review, Life of Law Schools | Permalink | Comments (2) | TrackBack

Tuesday, July 03, 2012

Signing Off and Remembering Andy

GriffithMultitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

Posted by Kelly Anders on July 3, 2012 at 04:19 PM in Culture, Current Affairs, Film, Life of Law Schools, Teaching Law, Television | Permalink | Comments (2) | TrackBack

Monday, July 02, 2012

The Experiential Sabbatical?

First, thanks to Dan Markel for this opportunity to guest blog.  (I am embarrassingly late to blogging world, but figured I’d better get on the technological bandwagon before I end up like my dad, wondering what those “new CD machines” are.)

I have read numerous posts on this site about sabbaticals, but I come at the issue from a (hopefully) novel angle.  Here’s the set-up:  I teach criminal law.  I write about criminal law.  I direct my school’s institute of trial and appellate practice.  And yet, although I have a fair amount of civil litigation and trial experience, I have never handled a criminal case.

This fall, I will apply for my first sabbatical, and I plan to use the time off to work as and hopefully try a case as a prosecutor.

  (Local city prosecutors’ offices already have regular rotations of unpaid interns, who often end up conducting one or more trials; and I might even be able to reach a similar short-term arrangement with a district attorney’s office.)  Not the most relaxing way to spend a leave, I know, but it could greatly enhance both my teaching and scholarship.  Indeed, since I am interested in “experiential learning” (define that overly-used and abused phrase as you will), I could envision writing an article about how my practical experience changed or informed my approach to teaching. 

Moreover, I am sensitive to the “homogenization” problem identified in the recent ABA Journal article, as just commented on by Paul Horwitz.   I went straight from an elite law school to an elite law firm to teaching at a lower-ranked school where many of the graduates work as prosecutors or criminal defense lawyers, not associates in white-shoe firms.  If I had experience doing the type of work that my students are likely to do, it could help me better integrate into the classroom the skills or knowledge they would need to succeed in that environment, or at least give me a more informed basis to advocate for other appropriate changes within the institution.

When I attended the Workshop on the Future of the Legal Profession and Legal Education at the AALS Annual Meeting in January, one of the speakers asked the audience if their schools would approve a sabbatical for the purpose of engaging in some sort of practical work.  Roughly a quarter of the room indicated their schools would approve such a sabbatical, well over half indicated they weren’t sure, and only five percent or so indicated they were confident their schools would not.  An encouraging sign.

Here’s the catch.  Several months later, during a faculty discussion about revising my school’s tenure policy, I mentioned my intention to apply for a sabbatical to do prosecutorial work.  To my surprise, a number of faculty members were dismissive, indicating such an application clearly would not be approved.  Others came up to me afterwards and tried to reassure me that if I “sold” it the right way—i.e., that I would be doing legal work for the purpose of generating scholarship, not work for its own sake—my application would easily be approved.

So I am curious:  Have others engaged in “experiential” sabbaticals?  Does your institution support them, and under what circumstances?  Any other insights on the pros or cons, or how better to navigate these relatively untested waters, would be greatly appreciated.

Posted by Martin Pritikin on July 2, 2012 at 01:31 PM in Life of Law Schools | Permalink | Comments (24) | TrackBack

Friday, June 22, 2012

The People's Law School

Original_Volkswagen_Beetle_AdToday in 1934, the Reich Association of the German Automobile Industry commissioned Ferdinand Porsche to design a "people's car" that would be marketed to the masses, and that would serve as a competitive alternative to models that were only accessible to a fortunate few. Porsche's design later became the Volkswagen Beetle. If you had to design a model for a "people's law school," what would it contain, and how would it compare to schools that already exist?

Posted by Kelly Anders on June 22, 2012 at 12:16 PM in Culture, Current Affairs, Life of Law Schools | Permalink | Comments (8) | TrackBack

Wednesday, June 06, 2012

Keeping Tact ... Intact

TactI’m delighted to return to PrawfsBlawg. During this month’s visit, I plan to focus on topics that are included in my second book, Advocacy to Zealousness: Learning Lawyering Skills from Classic Films (Carolina Academic Press, 2012). I thought I’d start with something about the skill of tact, and how its presence or absence impacts the teaching, study, and practice of law. In the not-too-distant past, when communication methods were limited to in-person meetings, telephone calls, and written correspondence, there were still myriad minefields to maneuver around to avoid the commission of communication faux pas. Rude or terse statements (made intentionally or unintentionally) could lead to hurt feelings or heated arguments, but, absent national print or television coverage, the unfortunate words and misunderstandings were limited to condensed areas, and relationships could be mended much quicker. Today, words can spread around the world in a split second, and private resolutions are harder to come by. What we say, and how we say it, has permanence, presence, and persistence. And, sadly, the least tactful statements tend to last the longest. It’s this new sense of permanence of words and statements that makes it crucial to learn to exercise great care in their use and delivery. Law professors are charged with preparing students for the practice of law, and tact is an essential skill for any lawyer. However, times have changed, and people are generally less tactful, which can pose challenges in guiding students in this delicate area. How do you address tact in the classroom and among colleagues? How do we keep tact … intact?

Posted by Kelly Anders on June 6, 2012 at 03:51 PM in Books, Life of Law Schools, Teaching Law | Permalink | Comments (1) | TrackBack

Friday, June 01, 2012

Exams and the Omniscient Narrator

I've written before (here and here) about the creative writing that goes into exam essay questions. I feel it is an unrecognized medium of short-fiction expression. This job of the exam writer is to create a scenario that is clear and understandable while also being nuanced enough to resemble real life. In my view, the best essay questions create real people with real problems.

One issue I think I haven't adequately addressed in my exams, however, is the role of the narrator. In my essays, the test taker is always given a role: a solo practitioner, an associate at a big firm, a clerk for a judge. With the exception of the clerk, the roles usually require the student to represent a particular client, usually prior to any litigation, and to give the client an honest and thoughtful evaluation of the legal ramifications for her/his/its situation. And it's usually implied that the information about the scenario comes from the client.

On one of my essay questions this year, I included information that the client would probably not have known about. I slipped into the "omniscent narrator" mode to provide a conversation between two of the officers at a company; the client was an employee who had no means of knowing about that conversation. I needed this conversation to raise a particular issue, or at least to make it clearly an issue. However, it was a departure from my past practice. I usually try to go with a limited narrator--one who only has access to information to which the client would have access. And in fact, a couple students raised the issue that the conversation would be great evidence, if in fact the client had some way of knowing about it and could present it in court.

So I'm wondering whether most law profs go with an omniscient narrator, to make the facts clear, or with a limited narrator, to more closely resemble the attorney's access to information? And has anyone ever gone with an unreliable narrator? They certainly exist in real life, but I think that'd be too confusing on a traditional doctrinal exam. But then again, if it were completely clear that the narrator was not to be trusted . . . .

Posted by Matt Bodie on June 1, 2012 at 10:49 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Wednesday, May 23, 2012

More Mundane Matters: What Currency Do You Pay Your RA's in?

Question for you folks teaching at law schools:

Does your law school give credit to research assistants in lieu of pecuniary compensation?

Do they give an option or only one or the other? If they do pay, what do they pay (roughly)?

As far as you know, have there been any problems in administering the "credit" option, perhaps as a matter of quality control? Is the credit given as a grade or a SAT/UNSAT?

Thanks. (FWIW, at FSU, my understanding is that we only pay RA's and I think they get 11 or 12 bucks an hour.)

Posted by Dan Markel on May 23, 2012 at 12:51 PM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Thursday, May 10, 2012

Productivity: A Mother's Day Blog Post

In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.

My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home."  His words weren't angry nor were they an attempt to be consoling.  He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.

As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis.  I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life.  That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life.  I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time."  I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.

As I write this, it sounds pretty misguided.  The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting.  On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.

Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well.  It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.

My hope for Mother's Day is that I can recalibrate.


Posted by Lyrissa Lidsky on May 10, 2012 at 01:44 PM in Gender, Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (7) | TrackBack

Should Faculty Decisions Include Mandatory Cooling Off Periods?

The other day I heard about a very interesting practice. A faculty will have a discussion about a candidate for a job, and then not open voting up on that candidate until two weeks have passed. The same thing goes for promotion and tenure decisions. 

The benefits: concerns raised at the meeting about scholarship can then be checked out by people who want to follow up. It also makes sure people don't vote in a hot emotive state, which sometimes occurs in controversial cases.

The cons: marginally slows down a school's ability to make offers, or waves of offers, and creates more opportunities for back-room lobbying or coalition-building, although it's not obvious why that's a bad thing. In the context of the p/t decisions, it might also create 2 weeks of total awkwardness for some people too. 

What do y'all think? Better suggestions to facilitate deliberation or other goals re: hiring and p/t?

Posted by Dan Markel on May 10, 2012 at 10:24 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Thursday, May 03, 2012

Waiting out the Professor and Clerkship Markets

Prawfsblawg's entry-level hiring report is about to shut down, so my last post as a guest blogger seems like a good time to discuss a strategy that I suspect is underemployed by both faculties hiring assistant professors and judges hiring law clerks.  The strategy is waiting for the market to "clear" and then hiring the most talented people who have fallen through the cracks.  I want to posit here that the strategy is underutilized in both the law professor and clerkship hiring markets.

Chicago is the relatively rare elite law school that does a lot of entry-level hiring.   In a typical year we will interview 20-25 candidates and read work by perhaps 80 more candidates. As a result, we vet almost all of the very strongest candidates on the market each year.  Sometimes, our own assessments of someone's work or our tastes will differ sharply from those of a peer school.  Sometimes, a school will hire someone who isn't officially on the market.  But even accounting for those cases we will usually vet most of the entry-level candidates who are getting hired at the "top" schools (however defined).  Every year we will also interview talented candidates who aren't offered tenure track positions at any law school.  And those folks are the ones I want to focus on.

To the best of my knowledge, there are very few non-elite schools that try to wait out the market, figure out who is unjustifiably "dropping on draft boards," and snap that person up.   Instead, a number of non-elite schools shy away from candidates who look high-end at the outset.  Other schools set up interviews with bullet-proof candidates very early in the process and then suffer cancellations when the candidates get too many great AALS interview requests.

I recognize that a lot of schools are slot / subject matter constrained, and with narrow and technical subjects there may not be enough plausible candidates in the pool to justify a waiting strategy.  But when a school that has trouble getting its first choices is looking for best athletes or hiring in an area where there are a few dozen candidates in the FAR registry with the right set of interests, I suspect there is a lot to be gained by waiting, and reaching out to candidates a month or so after AALS.  

A related fascinating aspect of the entry level hiring market is the structural hole that exists in the social network of appointments committee chairs.  Peer schools talk to each other and share information about who each school is seeing and how particular candidates did in interviews.  But appointments committee chairs are evidently much less likely to speak with counterparts at schools whose rankings differ sharply.  That is a missed opportunity for the less elite schools.  Within a week or so of the AALS, an appointments committee chair from an elite school is likely to have a good sense of which "Rashard Lewis" candidates have a lot to offer but are nevertheless likely to drop on draft boards for whatever reason.  Yet these conversations, as best I can tell, rarely occur.   

The same thing happens with federal clerkship hiring.  Every year each law school that produces a lot of clerks can probably identify a couple of really outstanding students who had  interviews with great judges but wound up with no clerkship when the music stopped.   I am sure that on September 14 of this year, there will be terrific clerkship candidates at every top law school who were not offered a clerkship.  Some will have subpar interviewing skills, but most will be victims of bad luck.  Federal judges who wish to remain "on plan" but hate the madness that is September 13 would do really well to call up law schools on September 14 or 15 and say, "Who is your best person who got shut out on the 13th?"  I for one would be be delighted to field such calls and help judges find the right match.

There is a potentially important distinction between the two markets.  Clerkships are a one- (or sometimes two-) year gig.  A clerk who is dejected after striking out on September 13 is going to be extremely loyal to a late-mover judge and will be motivated to do wonderful work.  With professors, there is some danger that the candidate who dropped will not want to stick around at the school that hired him or her for that long.  Having said that, I suspect that a law school is much more likely to engender loyalty in a rising star by waiting out the market and coming to the rescue than by making an exploding offer that a candidate feels forced to accept.  So I do think that for a school that wants to hire ambitious but loyal professors, trying to wait out the market is a smart approach.

Like many strategies, waiting out the market won't work well if most schools try it.  But right now, my impression is that almost no law faculties and few judges are pursuing the strategy.  It's a market failure that smart "Moneyball" employers would do well to explot.    

That'll be my sign-off.  Thanks to Dan and the gang for inviting me to return to Prawfsblawg.  And thanks for reading.

Posted by Lior Strahilevitz on May 3, 2012 at 11:00 AM in Entry Level Hiring Report, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (4) | TrackBack