Thursday, September 04, 2014
Clerkship Letters of Recommendation
In the coming weeks, I look forward to discussing some of my research, which currently focuses on international investment law and other legal frameworks that govern the conduct of international business. But for my first post, I thought I'd share some thoughts on a different aspect of our job that I haven't seen much discussion of in the blogosphere: writing letters of recommendation for clerkship applicants. With the collapse of the hiring plan, students are now applying as early as their post-1L summer. I imagine many professors have already gotten requests for letters or are starting to now.
I have a relatively informed perspective on the topic because I've continued to help one of the judges I clerked for with screening applications since my clerkship ended. So at this point I have seen applications over the course of six hiring cycles and have formed some observations on what makes letters useful. But now that I'm on the other side and facing the task of writing letters myself, I'd also love to get the reactions of others to see if any of my views are idiosyncratic or if I'm missing any opportunities to increase my letters' effectiveness.
As a caveat, I should emphasize that these are my views alone and do not necessarily reflect the views of the judges for whom I clerked.
1. Anecdotes are helpful, but they are rarely a difference maker. The primary value of anecdotes is to demonstrate that the professor actually knows the applicant and can offer more than vague generalities. Many letters will recount a particularly impressive exchange the professor had with the student in class or office hours, or discuss a paper or research assignment the student wrote. Again, such details are helpful -- and perhaps even necessary -- to establish the context and basis for the professor's evaluation, but the reason they are rarely a difference maker is that most competitive applicants can find a couple of professors who will be able to speak to one or more of their shining moments in law school. For an anecdote to set an applicant apart, it has to involve something truly unusual and memorable. For example, I have seen on a couple occasions a professor say that a student's paper or in-class comment changed the way the professor taught the issue in future years, or that a research assistant's critical insights altered the direction of the professor's own article.
2. In my experience, the most useful thing a professor can do is provide some specific comparative assessment of the applicant. When a professor is willing to say that an applicant was the best student in a class, one of the top five in the professor's career, or something along those lines, then it's clear the professor is really putting his or her credibility on the line for that applicant. And that conveys more information than simply saying the applicant will make an excellent clerk, which professors might write about all or most of the people they are recommending. The fact that many professors are recommending multiple candidates probably explains why they are reluctant to make comparative assessments. Sometimes those assessments can be provided over the phone in a call to or from the judge, but since that option is not always available, professors have to consider whether they would rather add marginal value to all of their students' chances or more strongly boost the chances of one or two.
3. Since professors can't use superlatives for all their students, that leaves the question of how to approach letters for all the other applicants a professor wants to support. Here my views are more tentative, but I still think it's best to provide the most concrete, bottom-line assessment possible. For example, if the professor served as a law clerk, a statement that the applicant would have held her own among the professor's co-clerks could be valuable. Similarly, professors with substantial practice experience could compare the student favorably to junior attorneys they supervised. The reason this bottom-line assessment mattered to me is that I could tell, based on a quick skim, whether the applicant warranted a closer look. I would tend to skip over any detailed anecdotes looking for such an assessment before deciding whether to read the whole letter more carefully.
4. I should clarify that for applicants who are already in the running based on a stellar resume and transcript, I would always read their letters completely to fill out the picture. And I generally found that professors' letters served this supplementary purpose well, by speaking to an applicant's writing ability, communication skills, personal qualities, and so on. The preceding points are focused on how letters could be more effective in helping an applicant stand out because I think that's where many professors would like to do more for at least some of their students but are not certain of the best approach.
Those are the main observations that I've made as a reader of clerkship letters and that will guide my approach to writing them. But I'd love to hear about what others have found effective, either as readers on the hiring side or perhaps as recommenders who have heard from judges that a particular letter was helpful.
Monday, August 18, 2014
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
Thursday, July 03, 2014
Legal education scholarship and its coming heyday (?)
"If a were a rich man . . ." as the song goes. There ought to be financial support heading toward legal scholars, within and outside of the academy, who are doing focused analytical work on legal education. We have many bold claims and anecdotes -- I plead guilty for offering both frequently -- but there is emerging only recently a substantial body of research that investigates and interrogates claims about legal education, and in a way that can credibly be called real scholarship, and not just polemics. Some folks explore the utility of different modalities of instruction; others looks at the connection between educational inputs and outputs; and there are those whose focus is principally on the legal profession and the ways in which modern legal education does or does not serve the objectives of modern lawyers.
This is a critical area of analysis which desperately needs more light than heat. The availability of data provided through the internet (and, albeit as an unintended consequence of USNews, a plethora of marketing materials) would seem to provide a treasure trove of information about what law schools are doing. "Soak and poke" can often do the trick; and some databases are in the works, a necessary step to developing a richer body of empirical work in this area. And periodic meetings of constituency groups -- thinking here, especially, of the remarkably vast annual AALS clinicians conference -- provides venues for the dissemination of serious scholarship on legal education.
But we ought not be too Panglossian about these developments. The incentive structure of law schools makes it hard, or at least tricky, for young scholars to map out a research portfolio in the legal education space and be properly rewarded for the effort. Indeed, for those who work seriously in this area, it is (perhaps with a few exceptions) more or less a hobby -- that is, it is what active scholars do in addition to work in their substantive fields. We should ask, self-critically, is there not room in the cathedral for scholars whose central objectives is to devote their principal scholarly attention to questions about legal education? Can promotion and other accoutrements of the academy take seriously law profs who do their primary work on these key questions?
And there is the matter of money. Major scholarly contributions to the understanding of legal education are likely to involve serious empirical work. Organizations such as the American Bar Foundation have been diligent about supporting scholarship on legal education. Elizabeth Mertz's superb work on the language of law is just one of many examples of the fruits of this support. The ABA and AALS have been less actively invested in this area and, consistent with resources constraints, ought to have more skin in the game. But, in the end, it falls to the law schools themselves to think about creative ways of incentivizing law professors, neophytes and experiences folks alike, to invest energy in some of the big and not-so-big questions involving legal education.
As with any scholarly area, we should be cautious about our priors and follow where the analysis and data leads us. Fact is that we (present company certainly included) believe we know an enormous amount about legal education, its component parts, its efficacy, and its deficits. But that we don't know what we don't know is an unmistakable message that more research -- and more support for this research -- is needed.
On a positive note, the growing scholarship on legal education emerging from creative, diligent folks who are committed to the project (I will here take the prerogative to give a shout-out to Mike Madison, whose imaginative posts on legal education are unfailingly thought provoking, and also to Robin West, whose new book on "Teaching Law" I recommend) gives me every confidence that scholarship on and about legal education may be coming into its golden age. And, given our predicaments, there has never been a better time!
Wednesday, July 02, 2014
Legal automation and law curriculum
Frank Pasquale has provided an extraordinarily thoughtful, informed perspective on the "machine v. lawyers" debate, a topic my Northwestern colleague, John McGinnis, has discussed at length. And, as well, it is a topic of growing interest to folks looking at the future of the legal profession and of dynamic change therein.
As an interested, but much less informed observer, Frank's caution about the "we are all going to be replaced by robots" narrative seems quite right to me. A "more nuanced" perspective, as he aptly puts it, sees the contributions of automated legal services as more limited; and, likewise, sees the comparative and competitive advantage of real lawyers as not supplantable. Good news for lawyers; and, more importantly, sensible news in light of the evidence.
That all said, even the more nuanced view he describes does point to the key role of legal curricula and law teaching to help our law students understand where automation can intersect with human activity -- that is where the calculus is "machine + lawyers" rather than "machines v. lawyers." And, indeed, the courses Frank and a small cadre of other expert lawyers teach at their respective law schools respond to this need well.
My only small contribution here is this: Law schools would do well to formulate curriculur strategies that explore in this "more nuanced" way the dynamics and dimensions of automation and its impact on legal services. The objective is not to convince our students that the sky is falling. Rather, the objective is to help them understand how best to use the products and processes developed through automation and (especially) the contributions of big data in order to prosper as lawyers and to assist clients.
Interestingly, the impact of such processes are likely to be felt at two ends of the spectrum -- wealthy clients and "bet the company" litigation where sophisticated use of automation assists the disaggregation of legal services in order to provide maximum service and, on the other end, service to middle and low-income clients where machine-assisted work can help these clients more efficiently. If this is right, then law profs -- and perhaps especially clinicians -- can structure courses and simulations to assist law students in understanding these techniques and their utility.
Thursday, June 26, 2014
Is there such a thing as "experiential" scholarship? I asked this question to some of my colleagues during a recent lunch. I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like. I was curious if others thought there was any correlation.
After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends." The discussion boiled down to three observations:1. The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students"). The target audience could be practitioners, judges, policymakers, and/or academics. If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.
2. The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so. If my target audience extends beyond academics, a lot of issues arise. What platform do I use to reach them? For example, if I want my scholarship to be read by practitioners, where do I publish? The ABA sections all have different periodicals that are published throughout the year. But what about the other audiences - what platform does one use to reach judges? And, of course, articles for non-law reviews would be much shorter than traditional articles. Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)? I don't think so. Instead, that question leads to the third observation.
3. Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought. Such in-depth work is reflected in traditional law review articles. Once a legal scholar becomes an expert, then the key is to market it to the target audience. Write a law review article with the target audience in mind. Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired. Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well. Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship. Should it? And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?
Saturday, June 21, 2014
Accusations of law prof self-delusion and mendacity; predictable cheering from the bleachers; and a basic point remains missing
Prof. Burk wades cleverly into the debate about JD advantage and law school worth with an angry post about post-law school employment and an analogy to the MLA's case for PhD humanities work.
One argument in the post is unassailably right and important to make: Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs. Of course. Point well taken.
But what remains missing is a careful engagement with the point made by many, including me, that there are positions which ought to count, for those who purport to do the counting (ATL is one; LST is another), although a credential as a lawyer is not formally required. Insofar as law schools can and will describe these positions and, further, explain why substantial legal training, leading to a JD, provides special skills for these positions, then current and prospective students should evaluate whether the benefits of three years of legal education justify the costs.
Apparently Prof. Burk, channelling the irritated folks who pepper this post with "stick it to the man" comments in a redundant and wholly predictable way, simply declares that law profs and administrators who counsel students to pursue non-traditional jobs -- in a world, I hasten to add, in which the traditional silos between "practicing law" and deploying legal skills in a business setting are weakening -- and who report, happily, when their graduates in fact secure these jobs, are engaging in subterfuge and worse.
Let's talk candidly about the reconfiguration of legal practice, the growing interface among law-business-technology, and the efforts underway to shape business environments to engage law graduates in the performance of management strategy, human resources, regulatory compliance, entrepreneurship -- in short, in spaces where law and legal skills are prudent, and perhaps essential. And, further to the critical point, let's insist that law schools be candid and transparent about exactly which jobs their students land after graduation. Then the marketplace will be in a better position to evaluate the important claim about whether and to what extent X or Y or Z law school is worth it.
Thursday, June 19, 2014
Changing Law Professor: Job Security and Governance
Following up on a recent post on the "changing law professor," let me comment on what the phenomenon of what might be called the separating of the law professioriate, as law schools look to experienced lawyers to teach and work full-time in the experiential (clinical and more) space and increasingly-credentialed academics to do more interdisciplinary teaching and writing. As a couple commenters noted, this is not a brand new phenomenon; nor is it absent elsewhere in the academy. But my claim is that the pressures on law schools to carry out two fundamentally different objectives simultaneously -- to be traditionally and successfully "academic" and to be increasingly practical -- points toward a model of a twin full-time faculty, with law teachers following more or less the principle of comparative advantage.
What implications does such a model, well underway at a number of American law schools, for important matters of security and governance? The "job security" issue has gone through accreditation twists and turns for a number of years. The ABA walked right up to the precipice just this past year of removing what is essentially a tenure requirement for full-time faculty members, deciding at the last moment to maintain existing accreditation standards in this area. Yet, the requirement of tenure for full-time ladder rank faculty has not swept in the large numbers of full-time faculty whose work is principally teaching and who, usually although not always, are teaching practical, skills-training courses. It has to a substantial degree done so with respect to full-time clinicians. But not all faculty members who are carrying out the experiential and practical-skills parts of the academic program are rightly labeled clinical faculty. So, the maintaining of the current structure of ABA standards does not settle the matter. Far from it.
In any case, the crucial matter here is not whether tenure exists and persists as a requirement for "non-traditional" full-time faculty. We could and should debate this issue, and this debate is highly to continue as the ABA (and perhaps the AALS) revisit their standards in the current environment of law school instabilities. Rather, the internal institutional question is how best to construct a regime of job security for faculty members who continue to be deeply invested in the law school and, moreover, are carrying out major parts of the focused, innovative skills training which both the profession and academy views as essential to law schools' contemporary missions? Let me put the point more sharply: It makes little sense to see one big hunk of what I have called the two faculties represented by the "changing law professor" as not having the job security befitting this role and earned by the impactful work they do in the institution. The traditional case for weak job security was flexibility in hiring, in promotion, and in administrative and financial structure. While such flexibilities are (here putting my dean hat on) very appealing indeed, such flexibiity is at odds with a faculty configured to do both high-level research and publication and to implement a curriculum which trains skillful lawyers for the new legal economy.
And, as to governance, here the direction is toward expanding the tent to ensure that all those who are invested in the well-being of the institution -- its mission, its students, and its culture -- have a say in the key decisions that matter. These decisions include the scope and contours of the curriculum, the shape of its programs and, consistent with university rules and practices, input into the selection of its leaders. Governance is a tricky issue, not only because changing the rules can unsettle existing expectations of some faculty members who think of themselves (or, past tense, thought of themselves) as being the ones central to enterprise decision-making, but also because it must be exercised responsibly. The paradox here is that, with some sharper distinctions between the role, functions, and expertise of two faculty cohorts, it is harder to find the kind of common ground on essential expectations that makes responsible governance possible. "What do experienced lawyers know about empirical research in law and social sciences?" "What do JD-PhDs with minimal practice experience know about how to best try a civil case?" These are difficult, important questions and ones that can drive a wedge between the ideals of collective governance and community-building. But it is important to the well-being of law schools that these conflicts be effectively managed. And, lastly, it is important that governance regimes be in the service ultimately of building a community of faculty who are committed in their work, their research, and even their affect, to improving legal education at their respective law schools.
Monday, June 16, 2014
Changing law professor? Changing law schools?
Interesting article in The Harvard Crimson two weeks ago notes what we have long known already: Expectations of hiring faculty have grown, especially with regard to more published writing. In turn, law schools are demanding more advanced academic training -- what Harvard's James Greiner says is "essentially requiring them to do a Ph.D."
Looking principally at the positive, rather than normative, side of this issue, is it likely that these priorities will withstand turbulence in the current law school environment? Is such a focus on ever-accumulating academic credentials a luxury in these present circumstances? A difficult question, without an obvious answer.
The push toward experiential learning may result in law schools looking at more legal experience, perhaps to go along with the advanced academic training. After all, it is not uncommon to find joint degree holders with clerkships and at least a couple years of big firm or governmental lawyering experience under their belt. At the same time, law schools are understandably skeptical of the great added value of such highly-credentialed folks in providing sophisticated experiential skills to a demanding audience. Surely some idea of comparative advantage would see law faculty who have substantial (5+?) years of increasingly impressive legal experience as more suited to these practice-oriented educational initiatives. Moreover, a PhD holding academic is going to see these many years of highy academic training as better amoritized through serious scholarly production, rather than designing and implementing complex experiential courses and simulations and in engaging her students principally on the terrain of practical lawyering.
So, another way to see the evolution of law faculty hiring is in the intentional development of two faculties: Those made up of law teachers who principally write, and whose teaching is doctrinal and theoretical (understanding that these are two very different modalities), and those who are doing much more practice-focused, experiential work. Even Harvard, the main subject of the Crimson article, builds out its experiential and clinical curriculum principally through the use of lecturer-rank, adjunct, and clinical faculty. This is not only not a criticism, it may well be the wave of the present, and also the future.
More tricky is whether less-well-resourced law schools can make a similar investment in what are essentially two faculty cohorts. In other parts of the university, some of this predicament is handled through truly part-time teachers; indeed, in other professional school settings, there has long been a deliberate divide between those are contributing significantly to the scholary objectives of the institution and those who are drawing upon a wealth of experience to build skills and provide practice-oriented instruction.
Yet, the interesting part of this story is, to me, not so much the dichotomy between full and part-time faculty (although this is of increasing controversy in the higher educ world in any event), but that between a full-time faculty who are brought aboard largely on the basis of scholarly acumen -- and, to put a finer point on it, interdisciplinary chops -- and those who are brought on full-time (albeit not necessarily with tenure) in order to configure an experiential program.
Such moves, well underway at various law schools, including mine, raise myriad issues. One is job security; another is governance. In future posts, I will offer some thoughts about these issues separately.
Monday, June 09, 2014
Anxiety and Ambition in the Trenches
A benefit of my temporary role as AALS president is the opportunity to meet with faculty and administrators at their law schools, mainly in order to listen to their concerns and advice and hopefully draw upon this wisdom to improve the service of the organization in this time of disruptive change.
The atmosphere of these visits reveals a high level of concern (of course) with the impact of the changing admissions structure and what it portends for law school benefits generally and faculty well-being particularly. Yet, what is remarkably encouraging, when taking these high-anxiety conversations as a whole, is this:
First, faculty members truly get that the core dilemma is how best to provide a high-quality education to the group of students, even as they come in often at smaller numbers, and, moreover, how to inculcate in them the value of a manifestly comprehensive, creative set of skills -- theoretical and experiential -- in a fluid marketplace, the future contours of which none of us can predict exactly. That the infrastructure of student learning is at the heart of what we do as faculty members comes up in these discussions reliably and eloquently. And, further, that the key threat from the war on law schools is that directed at the students who are investing, and the young alumni who have invested, in legal education is very much on the minds of our member school faculties.
Second, there is a deep confidence, some might call it hubris, that the doing and disseminating of legal scholarship will continue largely unabated. This is not to minimize the impact of challenged budgets on how law profs do their work. However, no one I have visited with on behalf of AALS regards the scholarly enterprise as a luxury or an imposition and no one sees the current pressures as a beginning of a crowding out of scholarly discourse and creative engagement with ideas and efforts at tackling urgent matters of legal reform. The self-selection that draws significant numbers of talented lawyers to the legal academy will preserve, so long as law schools survive in the basic form that they exist presently, the good, ambitious work that our faculties pursue in their research, writing, and speaking.
Third, and on a less optimistic note, the decline in law faculty hiring can be expected to hinder law schools' goals in concrete ways. To be clear, I seldom hear expressions of anxiety that this or that school's "ranking" is in jeopardy or that the overall reputation of the law school is in peril because further hiring is postponed, perhaps for a long while. (No doubt these fears exist, but they are not, to me, central on the minds of the faculty with which I have visited). Rather, halting faculty hiring can sap from the general environment of the school the creative energy that comes from new ideas and perspectives; it can also limit the bandwith with which a law school can implement innovative, modern programs designed to respond to the rapidly changing dimensions of legal practice and the profession. Reliance on different kinds of faculty -- lecturers, adjuncts, visitors -- can ameliorate these difficulties. But a full-time faculty invested in the governance and the long-term well-being of the law school is not easily substituable -- at least not from the perspective of the many law schools with which I have visited.
So, in the trenches are clear-eyed, smart, serious teacher-scholars, passionate about what they do, concerned about the challenges facing their law schools, and committed to substantial change, while also invested in preserving what is successful and constructive about the modern structure of legal education in the U.S. In all, an encouraging picture, even if relentlessly under threat by those who reach a contrary conclusion (on much thinner evidence).
Decline of Lawyers? Law schools quo vadis?
My Northwestern colleague, John McGinnis, has written a fascinating essay in City Journal on "Machines v. Lawyers." An essential claim in the article is that the decline of traditional lawyers will impact the business model of law schools -- and, indeed, will put largely out of business those schools who aspire to become junior-varsity Yales, that is, who don't prepare their students for a marketplace in which machine learning and big data pushes traditional legal services to the curb and, with it, thousands of newly-minted lawyers.
Bracketing the enormously complex predictions about the restructuring of the legal market in the shadow of Moore's Law and the rise of computational power, let's focus on the connection between these developments and the modern law school.
The matter of what law schools will do raises equally complex -- and intriguing -- questions. Here is just one: What sorts of students will attracted to these new and improved law schools? Under John's description of our techno-centered future, the answer is this: students who possess an eager appreciation for the prevalence and impact of technology and big data on modern legal practice. This was presumably include, but not be limited to, students whose pre-law experience gives them solid grounding in quantitative skills. In addition, these students will have an entrepreneurial cast of mind and, with it, some real-world experience -- ideally, experience in sectors of the economy which are already being impacted by this computational revolution. Finally, these will be students who have the capacity and resolve to use their legal curriculum (whether in two or three years, depending upon what the future brings) to define the right questions, to make an informed assessment of risk and reward in a world of complex regulatory and structural systems, and, in short, to add value to folks who are looking principally at the business or engineering components of the problem.
Law remains ubiquitous even in a world in which traditional lawyering may be on the wane. That is, to me, the central paradox of the "machines v. lawyers" dichotomy that John draws. He makes an interesting, subtle point that one consequence of the impact of machine learning may be a downward pressure on the overall scope of the legal system and a greater commitment to limited government. However, the relentless movement by entrepreneurs and inventors that has ushered in this brave new big data world has taken place with and in the shadow of government regulation and wide, deep clusters of law. The patent system is just one example; the limited liability corporation is a second; non-compete clauses in Silicon Valley employment contracts is a third. And, more broadly, the architecture of state and local government and the ways in which it has incentivized local cohorts to develop fruitful networks of innovation, as the literature on agglomeration economics (see, e.g., Edward Glaeser and David Schleicher for terrific analyses of this phenomenon). This is not a paean to big govenment, to be sure. It is just to note that the decline of (traditional) lawyers need not bring with it the decline of law which, ceteris paribus, makes the need for careful training of new lawyers an essential project.
And this brings me to a small point in John's essay, but one that ought not escape our attention. He notes the possibilities that may emerge from the shift in focus from training lawyers to training non-layers (especially scientists and engineers) in law. I agree completely and take judicial notice of the developments in American law schools, including my own, to focus on modalities of such training. John says, almost as an aside, that business schools may prove more adept at such training, given their traditional emphasis on quantitative skills. I believe that this is overstated both as to business schools (whose curriculum has not, in any profound way, concentrated on computational impacts on the new legal economy) and as to law schools. Law schools, when rightly configured, will have a comparative advantage at educating students in substantive and procedural law on the one hand and the deployment of legal skills and legal reasoning to identify and solve problems. So long as law and legal structures remain ubiquitous and complex, law schools will have an edge in this regard.
Friday, May 23, 2014
Report from ALI Annual Meeting--and What Justice Ginsberg is Reading
I’m just back from the 91st annual meeting of the American Law Institute in Washington, DC. So much happened in a three day period that it’s hard to do justice—I know that many others have blogged and tweeted. In keeping with the theme of what I’ve been blogging about, higher education, I will report that the current state of legal education was a palpable presence and a frequent topic of conversation. Whether it was ALI President Roberta Cooper Ramointroducing Associate Academic Dean Ellen Clayton of my neighbor institution, the University of North Texas, UNT Dallas College of Law, as someone doing a remarkable thing to open a new law school to Justice Breyer's charming refusal to be drawn into either a criticism of legal education or a comment on the current complaints being made against it.
It is also my honor to pass on that Justice Ruth Bader Ginsberg reported that she was reading Wings of Freedom: Addressing Challenges to the University while giving its author, former president of Stanford University Professor Gerhard Casper, the ALI’s Distinguished Service Medal. I have ordered but not yet received the book, so here is the blurb:
“From affirmative action and multiculturalism to free speech, politics, public service, and government regulation, Casper addresses the controversial issues currently debated on college campuses and in our highest courts. With insight and candor, each chapter explores the context of these challenges to higher education and provides Casper’s stirring orations delivered in response. In addressing these vital concerns, Casper outlines the freedoms that a university must encourage and defend in the ongoing pursuit of knowledge.”
ALI is always inspiring--like everyone I had no idea as a law student that the Restatements were actually the product of so much collective and collaborative work. It is also a "how to" of running an event at which every attendee is used to being in charge either as a Judge, a Professor, a General Counsel or a Partner.
Thursday, May 22, 2014
Teaching vs. Scholarship vs. Influence
A lot of discussion has been had about spending time on scholarship vs. teaching. Scholarship is, of course, the activity that makes our Deans and peers happy and drives our promotion and tenure packet; teaching (and teaching well) requires a lot of time, but is something that some (but not all) of us enjoy. One main issue is that too many new faculty spend too much time on teaching prep and not enough of their scholarship, leading to major stress as their promotion deadlines appear.
Now that I've had tenure a few years, I'm looking again at how and where I spend my time. I love to teach -- it's invigorating and I truly enjoy working with students. I love to write (except when I'm in that "pit of despair" stage of writing that happens all too frequently). But lately I've had a few opportunities to work in what I'll call "influence." I was asked to come give a briefing at the Senate building on patent troll legislation -- currently dead or dying, by the way! (N.B. I have no delusion that I am the cause of the bill's demise...) I've written some op eds on a few pending Supreme Court cases. I've been interviewed by reporters on current issues, such as language being used in the net neutrality debates.
Given that there are only so many hours in the day, I need to make choices about where to spend my time. (And I apologize if this is a path that has been well worn - the opportunities to engage in the world outside of teaching and scholarship is relatively new to me.) Many of these influence opportunities arise based on my scholarship, but to participate in these influence activities means that I may write a little slower (or, heaven forbid, spend less time prepping for a class session).
Certainly there is value that can come from all three of these activities, but I get the feeling that influence activities, while exciting and important to me, may not be viewed as important by others, such as students or peers or maybe even the people who adjust my salary every year. It's a lot harder to qualitatively judge the influence activities -- right? My students regularly provide a rating that, in theory, indicates the value and quality of my teaching. My articles are placed in journals that can be rated on any number of ranking metrics. But how can you evaluate how well I influenced? Is this why it may be viewed as less important than the other two?
It's nice to think that something I'm doing may have some influence on the outside world -- and maybe some folks' mainstream scholarship does that...but is the cost of engaging in other influence activities worth the potential costs to teaching and scholarship?
Thursday, May 15, 2014
Is Yours One of the 45 Law Schools to Which it is Worth Going: A Look at the Broken Market for Legal Education
As those of you who have read my earlier posts (and I hope you have) know everything I’m writing on legal education takes as a premise that the entire system of financing higher education is broken and that we, as a society, are borrowing against our future by making college, let alone graduate and professional schools, financially prohibitive to those who otherwise have the interest and ability to pursue it. But as bad as the debt to employment ratio is for many law students right now it is made worse by a misperception of a uniform level of financial stress, a uniform kind of desirable job, and a uniform market for legal services. These misperceptions are making the market for legal education inefficient yet this inefficiency is supported by a social norm that higher must be better (yes, Wikipedia--Prof. Ellickson don't rescind my property grade)--and as a result causing hardship for prospective law students and law schools alike.
On Monday, fearless leader of the Law Professor blogs network, Professor Paul Caron, in our flagship, Taxprof Blog highlighted this working paper by Kelsey Webber who “does the math” and concludes that there are only 45 law schools worth attending at sticker price. That may sound better than the critics who conclude that there are no law schools work attending, but it is based on the same flawed assumptions.
Like all “works in progress” there’s lot to pick at—starting with the premise that any law student anywhere is paying “sticker price,” but over the next five days, or so, I’m not going to pick at the paper but rather am going to challenge the generalizations it reflects. I’m going to focus on law’s status as a highly regionalized profession and on the differences that have always existed between schools that historically sent a big chunk of their students to large firms and schools that never did.
And I’m going to address a lurking elephant in the living room that is contributing to the misery—students pursuing legal educations often do so not out of a sense of vocation but rather as a hazy path to a good income. Nothing wrong with that—but it interferes with an efficient, market in which law students would flock to regions not suffering from economic downturn and to law schools offering attractive combinations of low tuition/strong financial aid.
I’m not here to blame students for decisions they make at age 20 with limited available information. I’m just pointing out that this idea of a universal hierarchy of law schools perpetuated by US News rankings has fueled the suffering and distress in the regions where there is little hope of getting a job that would make law school a sound investment. I'm not blaming the messenger, I'm suggesting that they don't work in law the way they work for Clinical Psychology Programs, Engineering Schools or even Medical Schools where higher ranked programs (regardless of location) are closely linked to better job prospects.
I’m also going to address some measurement issues that assume a “big law” view of the world. So, for example, while lack of a big law job 9 months out of law schools is catastrophic because traditionally those were sewn up by the end of the second year summer or certainly by graduation, it means far less outside big law where students are seldom even considered until they have passed the bar-something that won’t happen until five or six months after graduation. And in general, what it means in relation to whether law school was “worth it” depends entirely on the size and shape of the financial hole law school creates. And that varies a lot.
At the other end, I’m going to dispute how safe a bet these 45 schools actually are for every student interested in becoming a lawyer. These are all great schools. The students attending them worked hard to get there, and have every right to enjoy the status they confer, but, again, law is highly regionalized and I plan to vigorously dispute the pernicious paradigm that all higher ranked law schools are better for all law students than all lower ranked law schools.
To be continued.
Monday, May 12, 2014
Law Profs' Role in Bar Passage--and Bar Reform
ABA Standard 301 commands that “A law school shall maintain rigorous educational program that prepares its students for (1) admission to the bar and (2) effective, ethical and responsible participation in the legal profession.” Yet we in legal education have an odd relationship with the bar exam.
We know, of course, that it is the hurdle almost all of our students will have to clear before they are eligible to practice law. Most of us have passed it ourselves. We also know that bar passage has become a highly publicized metric of success. But for reasons that I have never fully understood, law schools have turned their back on the exam by leaving “bar review” to commercial companies. And by doing so have allowed the exam to become a test of cramming, not learning. Here are some ideas about how to better prepare our students not just for one “make or break” exam but also for the many years of law practice ahead of them.
- Lets get over the idea that it’s inappropriate for law schools to help students prepare for the bar exam. We all need to make ourselves aware of what areas of our subjects the students will be tested on.
- Support a movement to divide the bar exam into sections (or steps as in medical school) given over the course of law school, not all at once. This is not the same as taking the bar exam early. It is an organized system of objective exams that cover the first year topics the first year and then move on to more complex, scenario based questions that ask the students to actually use the information they have learned.
The written state essay exams are mostly very consumer oriented—they look at legal problems potential clients might bring to a new lawyer. Wills, divorce, arrest, property division, partnership, consumer fraud. But there is tremendous variety with each state being able to make its own decision. This may change if more states adopt the multistate essay exam.
The MBE, on the other hand, is a complex game of “gotcha.” (go look at some problems) And it may well have gotten that way because the bar review process supports it. Everyone’s research (public and private) finds that the most reliable indicia of bar failure is poor performance in law school. Professor Robert Anderson has put out comes at the same idea, how good are you taking tests, using LSAT scores as a factor. But it’s not clear to me if we understand what that really means. Could it be that students who perform poorly in law school perform poorly in bar review?
As Jane Yankowitz points out, we know very little about what happens to the students who fail. If what the bar exam is really testing is the ability to learn a lot of things very quickly (and that’s important for a lawyer) then aside for the hazing aspect of bar study what is it really adding to the cause of protecting clients?
So what to do?
First, we could help the students more with the existing bar exam by being more aware of what is going to be tested and how. The MBE is quite clear about the scope of what they test. Professor Steve Friedland has put out a book, One Hundred Rules You Need to Know to Pass the Bar Exam. I’m using it to audit my Torts Syllabus. Here’s a website with a lot of information about bar passage.
Second, we could get more involved in developing a series of standardized exams given throughout law school. The timing and content of the bar exam are strange. Neuroscience/Common Sense 101 tells us that everyone remembers best what they learned most recently. Yet the multistate bar exam tests, in enormous detail, many first year topics
I’ve written before that medical education struggles with many of the same problems we do, and is by no means satisfied with their testing system. But have a look at how they structure standardized testing. Step 1 comes at the end of the first two “classroom” years, step 2 after two more years of closely supervised clinical training and step 3 after residency. (Yes, they too have "commercial review courses" but medical students still do much of this exam prep themselves with practice question books and actual review--here and here) Note that step 2 also has a skills component including, among other things, observing a student interview and counsel a patient (who has been trained to present the symptoms of a specific disease).
Sure, you’ve heard criticisms of the bar before. And a common response is to shrug, say it’s not perfect but it’s the best we have given limited ability to actually watch students practice law. But I think we can give a better test that would hold students to a standard higher than cramming ability.
My goal in this blog post is not to convince or debate, but rather to start a conversation about imaging law school without commercial bar "review."
Thursday, May 08, 2014
Bee by Bee: Facing the Multitude of Legal Educations’ Problems Beyond Cost-1) Making Students Not Just Practice Ready but Work Ready
In an earlier post I analogized the problems facing legal education to being attacked by a swarm of bees coming from a broken hive. The broken hive is the broken higher education financing system--and fixing that is a necessary first step to making the long overdue changes to how legal education in structured and delivered. But that doesn't mean we have to stand by in the meantime and ignore the individual bees.
One of the angriest bees we're facing right now is preparing our students for employment in the face of the disappearance of high paying big law firm jobs that allowed students to repay the large amounts of money they had borrowed to attend law school. (And this isn't just about debtors-every one of our students has given up three years when they could have been advancing in another field or pursuing other graduate training).
But the reality we face is, as Moody warns, that the legal services model has changed forever. And curriculum and teaching methods have to change too. It's not possible anymore to separate legal education from the market for lawyers, but teaching the skills they might need to succeed in a traditional law practice doesn't seem to be moving the dial much.
A trend I see with my health law students is greater opportunities to work on compliance issues at hospitals, companies and even government agencies that in the past did not hire lawyers for these jobs. Regulation, especially in healthcare, has become so complex that it just doesn't make sense to try and train non-lawyers to keep up. If you don't know what Red Flag Rules are--and how extensively they are affecting just about every business that takes in money, follow this link.
Legal education's critics and accreditors are deeply suspicious if not scornful of any but a job requiring bar passage—under the theory that only these jobs fulfil the promise made to prospective students that they will be qualified for employment as lawyers. Well, snark if you will, what it means to be employed as a lawyer is changing.
If an employer’s preference is to hire a licensed attorney (or will pay a licensed attorney more than someone without that credential) then that's not the equivalent of a job at Starbucks or even one that involves going to Starbucks and bringing back coffee for other people. It's an example of how integrated legal issues have become in regulated industries like health care, banking, oil & gas, and (thank you Elizabeth Warren) consumer products.
So maybe we need to look at practice ready skills more broadly to include not just traditional advocacy or corporate drafting tasks but rather a broader set of general work skills. For example, here is a great article by Professor Susan Wawrose at the University of Dayton based on her extensive interviews with legal employers about what they want to see in the law students they hire. Yet many of the issues the employers raise are not about the ability to get a document into evidence or draft a non-disclosure agreement, they are about the kind of job skills (like eagerness to do the work assigned) that any employer would want.
We sometimes forget that even though the ratio is shifting, probably at least half of our students have gone straight through school without ever having a full-time office based job. From what I've seen, law students are at a disadvantage in a business setting because they often don't have the work experience of the other employees at their level. A law firm is (or was--that's changing too) a very protected environment where lawyers don't have to worry about "business stuff." In a more general setting, individual managers will have to do things like make budgets, manage people, and read financial statements.
There is a lot we could do--short of a dual degree MBA-to bring our students the kind of financial, communication, management and negotiating skills they need to quickly join the flat teams of today's workplace (as opposed to being at the bottom of the hierarchy of a large law firm). Many law schools have aleady jumped into this with leadership institutes, communications courses, even coding courses. .
Many of us have business schools associated with our institutions who might want to share their expertise with our students--and have us share our expertise with their students. This list is a good example of business skills that are quite different from the advocacy type skills that might first come to mind in training a law student. Here's an interesting list of quant skills that a first year MBA student--and its likely that quite a few of the executives a young lawyer would be dealing with have MBAs or a business major--would be expected to have-do our graduating students even know what these things are, let alone how to do them?
We can't stay still as the world of work changes. Please feel free to share in the comments section any work your law school is doing in this area.
Tuesday, May 06, 2014
Outcomes Based Assessment is Coming
Thanks for all the comments about evaluation of faculty teaching—and thank you to Professor Bainbridge for the transition to the next topic—Outcomes Assessment. The days when we in legal education could say that the bar exam did outcomes assessment for us are rapidly coming to an end. Outcomes assessment (or “output assessment as it is sometimes known) is something we in legal academe will soon likely be required to do in every class, for every student. Why? Because our regional accrediting agencies already demand it and the ABA has already put forward for comments changes to Section 301 here reflecting this report by a 2008 subcommittee.
If I’ve lost anyone here about regional accrediting agencies, now is a good time to lift the veil. So long as we depend on our students using federal student loan programs to pay their tuition, we must meet the Department of Education’s standard that we provide a “quality” education. And while the DOE does not tell us, or anyone else, what “quality” is, it can require that we submit ourselves to an entity it recognizes as being qualified to do so. We all know that the ABA sets standards of quality for legal education, but unless you have a role in developing new programs, you may not be aware of your regional accreditor, but rest assured your Dean and Provost think about them all the time. For example, Texas A & M University would not have been able to acquire Texas Wesleyan Law School without the approval of the Southern Association of Schools ad Colleges. Here’s the TAMU Press Release and here’s the actual SACSCOC announcement.
So back to Outcomes Assessment— it makes sense to evaluate law schools and faculties on their results rather than their efforts (we don’t raise the grades of students because they “tried hard”) but like all assessment it can’t happen without first identifying what outcomes to measure and how to do it. Is it mastery of material in individual courses? Bar Passage? Employment in a J.D. required job? Competency in practice? Client satisfaction? Personal satisfaction? All of these are desirable outcomes for our law students, but the question legal education shares now with all higher education is which of them can be directly linked to what happens in law schools.
Luckily for us as we make the transition to outcomes assessment, there is a wealth of reference material. This piece from Prof. Gregory Munro reviews the topic of outcomes assessment at the level of the individual law school class. Since we are relatively late to the outcomes assessment party there are a lot of models out there. Here is a very interesting article by Profs. Deborah Maranville, Kate O’Neill, and Carolyn Plumb drawing lessons for legal education from Engineering’s experiences in assessing not just content outcomes but also ethical ones. Here is an article by Carolyn Grose about her experiences integrating outcome measures into her Trusts and Estate class.
At a practical level, our friends at UCHastings have put together a very helpful compilation of resources, including sample syllabi, for law professors who want to create and then assess learning objectives in their classes. The Institute for Law Teaching and Learning is a rich and frequently updated source of helpful material on all aspects of law teaching, very much including issues of outcomes assessment.
This will be a big change for us both on the level of setting individual output/outcome goals for each of our classes and then on a larger scale for our schools as a whole. But it’s a change that’s coming and for which we need to prepare ourselves. I know that these links only scratch the surface of the work being done within legal academe to address the need for outcomes measures and I invite everyone to include material they either created or know about that will be helpful to the community at large.
Another Canadian usurps power, fame and riches
My dear friend and fellow Canadian passport holder Sujit Choudhry was named dean of Berkeley Law earlier today (well, yesterday technically). That's the latest in musical chairs among Suj, who moves from NYU to Berkeley, Gillian Lester (another Canadian) who will move from Berkley to helm Columbia Law, and Trevor Morrison (yet another Canadian and former Prawfs contributor), who began this wild rumpus, when he moved downtown from CLS to NYU. These three deans hailing from Canada join others with some Great Northern lineage: Austen Parrish is now at Indiana Maurer, Doug Sylvester is at ASU (though I think he's really a Yank who merely studied in Canada), and Camille Nelson (Suffolk)--Austen tells me she was Jamaican born but grown up in Toront0. As I understand it, no school has as yet endured a coup by Paul Horwitz, Rob Howse, or myself (or Kevin Davis or Katrina Wyman ). But in Paul's case, it's merely a matter of seconds, surely. And the broader point holds: the conspiracy's insidious tentacles are far-reaching and getting stronger, and just when you least expect it, you might end up working for a Canadian, even though s/he will surely insist you're merely working with him or her.
P.S. Thanks to Steve Lubet at Northwestern (a fellow Canadian), I came across this video of how Canada sucks the life-force from the unsuspecting, rendering them giddy and unfailingly polite.
Monday, May 05, 2014
Opening Up the Discussion on Student Evaluation of Teaching
Yesterday I gave you links to sources pointing out some reasons why teaching evaluations--as currently done at many schools--do not always provide accurate or useful data. Thanks for the comments!
Today, I'd like to open a problem solving conversation by relating some information I picked up on my way to getting a Ph.D. in higher education: A) Measurement (assessment) is far harder than it looks; B) It's impossible to measure something unless you first identify what it is and C) There's no point measuring something without an understanding of why you want the information.
There is a vast literature available with ideas about evaluating faculty. Have a look here, here and at these thoughts from AAUP. Our problems in legal academe with misusing student evaluations is that we aren't necessarily asking the right questions of the right people in the right way. Evaluating curriculum is very different from evaluating teaching. I think it's more than reasonable, it's important to involve all stakeholders (students, faculty, administrators, alumni, and the general population of future clients) in decisions about what to teach and how to teach it. I will be writing more later about how medical schools have been doing this over the past 30 years. But its not fair (or even helpful) to confuse assessing how well an individual professor is doing her job with what that job should be.
I think it would be very helpful if every school considered its own individual goals and objectives for classroom instruction. And I'm going to put forward some suggestions below about how that might happen.
But first, in the words of noted legal practice guru Prof. Laurie Zimet of Hastings, lets all remember "we aren't going to solve this problem today."
So what does it mean to decide first what we should be measuring?
Well, lets say a faculty decides that every class teaching a subject on the bar exam be organized according to how it will be tested. In Torts, that would mean a professor who spent more time on intentional torts than negligence wouldn't meet this standard. How could that be measured? What about syllabus review?
Or, maybe a faculty decides that each of our students deserves to have their outside of class questions answered within two business days. Of course we ask the students themselves--but why just by anonymous survey? What about interviewing a small group of students and ask them for examples of times they've asked for help and how the professor responded.
I'm not recommending punitive inspections. What about having a peer visit the class a few times during a semester and then immediately meeting with the professor to discuss what they saw? Maybe not for every class, but what about first year professors, professors up for promotion, or where there has been a problem reported?
Is all of this more work than glancing at a scantron sheet--yes. But deciding what needs to be going on in our classrooms and then finding out if that's happening is very important.
Finally--how we evaluate professors is a key component in what kind of teaching we get back (same is true with students). In other words, we are likely to get back what we measure.
So what do you think? What should we be doing in the classroom--and who should be evaluating it? How can we separate evaluation of teaching with evaluation of curriculum? And where in your institution can you find the resources to review how well what you're measuring reflects what you really want to know?
Student Teaching Evaluations
As classes wrap up, many of us are wondering how our teaching evaluations came out. How did we do? Not only are these evaluations deeply personal commentary on us as teachers, they can be important for promotion and tenure. And I’m here to suggest, along with many others including William Arthur Wines and Terence J. Lau, Observations on the Folly of Using Student Evaluations of College Teaching for Faculty Evaluation, Pay, and Retention Decisions and Its Implications for Academic Freedom, that in most colleges, universities, and law schools—they shouldn’t be. Or at least not until we know a lot more about what we want to measure, how to ask the right questions to do that, and how to understand the information we get back.
I think getting information from our students about their experiences in the classroom is important, but at the risk of spoiling what will be a series of posts on this topic, I suggest that few of us as law professors can do this well without considerable assistance from people who do educational assessment for a living.
Here are a few things to get on the table.
First, there is a substantial literature on teaching evaluations. Thanks to Professor Deborah J. Merritt who published a terrific article summarizing the data, we all should be aware that evaluations done based on 30 seconds of teaching the first day of class have been found to correlate closely to evaluations made after an entire semester. In other words, students make up their minds very quickly.
Second, (and thanks to Prof. Merritt for this too—I assume everyone is reading her blog on law school reform, the law school café) women, women of color and men of color, respectively, get lower teaching evaluations than white men. Across the board. In every subject.
Third, teaching evaluations are a classic example of the dangers of not understanding some basics about statistics. I suggest reading this three part blog post by Professor Philip Stark at Berkley “Do teaching evaluations measure teaching effectiveness”—but here are some of my favorite distortions:
1—We use averages—that means adding up all the scores and dividing them by the number of students responding—when we should be using medians (numbers reflecting the middle of the scores) or modes—(the most common score). Lets say on a scale of 1-7, two teachers both come in at a 5. But one gets all 5s and the other a wide range of scores that contained both 1s and 7s. Are these the same?
Also, by not looking at all the scores, we can miss important themes—like consistently low scores for availability or respect for students.
2. We think we know how to compare one faculty member’s scores with another’s—but we really don’t.
That’s because the scores are presented as numbers, but they’re really categories. Unlike a thermometer or a ruler where we know that the numbers all have an equal amount of “space” between them, the teaching scores are an “ordinal categorical” variable. As Prof. Stark explains, “We could replace the numbers with descriptive words and no information would be lost: The ratings might as well be “not at all effective”, “slightly effective,” “somewhat effective,” “moderately effective,” “rather effective,” “very effective,” and “extremely effective.”
As he asks, “does it make sense to take the average of “slightly effective” and “very effective” ratings given by two students?”
Also, without any information about the scores of the faculty as a whole, we can’t assign relative meaning to these numbers. So, if every faculty member teaching first year courses has a score of 4.5 or above, then someone with a 4 is outside of the mainstream. On the other hand, if the numbers cluster very tightly between 3.9 and 4.2—with 4 being the most common score—than it would be fair to say that someone getting a 4 is succeeding about as well as everyone else—in terms of achieving scores.
This problem (not knowing the scores of other faculty members in similar courses) becomes even worse when looking at the teaching evaluations of a faculty member at another institution.
There is a lot of information out there on how we can set goals for ourselves as communities of law teachers and how we can measure the results of those goals. And more on that tomorrow.
Saturday, May 03, 2014
Sen Elizabeth Warren's New Memoir of Special Interest to Law Profs
There are a lot of reasons why law professors should read Senator Elizabeth Warren’s recently published memoir--“A Fighting Chance." The top two are that it's well-written and frequently very funny. (for full effect--I suggest the audio version that the Senator narrates herself).
Beyond that, not only is it a lucid explanation of the banking industry’s efforts to limit the ability of creditors to make a fresh start through declaring bankruptcy, it is an account of her extraordinary academic career--one that she achieved without any of the traditional criteria such as academic pedigree, powerful mentors, family connections, prestigious fellowships or judicial clerkships. For those unfamiliar with her as Bankruptcy Professor-here are some posts she has made on the Credit Slips blog.
She also closely documents her struggles to balance family, both her children and elderly parents (and pets). There is a lot for law professors to unpack here--including how her interest in the people behind the laws has shaped her career.
But more generally, I look forward to discussing how critical it is for the future of legal education that Senator Warren succeed in convincing her colleagues of the need to reform the way higher education is financed. Whether she herself has the best plan for fixing student loans—well different people have different views-including just eliminating them. But unless we can stop the ever increasing cycle of debt that is making our students’ lives so difficult, any of the important changes that need to be made in legal education risk being about as effective as bailing out a sinking boat with a bucket that itself has a hole in it.
As I will elaborate later, I’m very optimistic that we can all create a program about which students can say 5, 10, 15 years later that they are better off for having gone to our law school. But we’re probably not there now. Rather, we are in a situation similar to being attacked by a hive of bees. Every individual bee, lack of job opportunities, bimodal salary distributions, drop in state support for public institutions, lack of transparency about student outcomes, out dated curriculums, disconnect between the classroom and the practice of law, imposition of a value system that drives law students into disproportionate levels of depression that may well follow them throughout their careers, is capable of inflicting painful or even lethal stings. But the breach in the hive comes from a level of student loan debt that cannot be supported by any reasonably obtainable career path. It’s not a perfect metaphor—student loan reform is necessary but not sufficient to developing a legal education that better prepares our students for the important role they will play in society.
Thursday, May 01, 2014
The Canadian ALPS
O Canada. O wordplay. For the title of this post refers not to the glorious snow-capped Canadian rockies (which are sometimes, though apparently not terribly often, referred to as the "Canadian Alps"), but rather the soon forthcoming Annual Meeting of the Association for Law, Property, and Society (hence, ALPS, get it?), which will be held this Friday and Saturday, May 2-3, at the University of British Columbia in Vancouver.
ALPS had its origins as a small property scholarship workshop that I was fortunate to be invited to when it was first held down at Chapman Law School in early 2008. Since then, different iterations of the conference have been held more or less yearly and the event has ballooned into this year's major event, which will feature a couple hundred attendees, with around 150 presentations over the course of two action-packed (or at least property-scholarship-packed days). Keynotes to be given by Joe Singer and Andre van der Walt. Property-related field trips. Mixers. Canada. You get the picture.
Two points, one small and one more general, about ALPS.
First, for those who can't attend, I'll be live-tweeting the event here. I can't promise any Tushnet-level detailed play by play of the proceedings, but I'll assay to comment on the proceedings when and where relevant.
Second, I have a particular interest in this edition of ALPS because I was part of the program committee. Along with Shelley Saxer of Pepperdine and Sally Richardson of LSU, we sorted the submissions, organized them substantively, and put them into an order that had to balance thematic coherence with everyone's scheduling preferences.
This was a lot of work (especially because the conference was big this year--easily the most attendees ALPS has ever had), but it was interesting and fun too, and I'm glad I was part of the team effort. I hadn't served on a program committee before, and it turned out to be a great way to get a sense of what people in the field from all over the world are working on, and to get a satellite-level notion of the lines along which contemporary property scholarship breaks down.
Junior scholars in particular could benefit from serving on the program committee of a major conference in their field. I wish I'd had the chance to do this in the first couple of years I was teaching. Not only is it a good way to get an instant crash-course in what kind of scholarship is happening in your area, but it's also an ideal means for meeting and making connections with people with similar or related scholarly interests (not to mention being the kind of service to the academy that looks good on a tenure application).
Off to Vancouver! I may see some of you property profs there. Otherwise, I'll blog at you all when I get back, unless I get eaten by a polar bear or decide to join a hockey team or some other Canadian cliche.
Hello—and thank you to Dan and PrawfsBlawg for inviting me to guest this month!
My name is Jennifer Bard and I am a Professor at Texas Tech University School of Law where, among other things, I direct our Health Law Program. I’ve been blogging in the “Profs” family at HealthLawProfs and more recently also at the Harvard Bill of Health. My research interests include legal & ethical issues in conducting research, the effect of increasing knowledge about the brain on the legal response to criminal conduct, and the intersection between Constitutional Law and the regulation of health care delivery and finance. Here’s where you can find some things I’ve published.
Over the next month, I look forward to blogging about issues I’ve been thinking about a lot including the future of legal education—both in terms of curricular reform and addressing the substantial challenges facing us about the cost of law school and the rapidly changing job market, current issues in higher education, and of course on-going developments in health law.
My thinking has been shaped a lot by two degrees I got after law school. The first was a master’s of public health which gave me the “prevention” model of solving. The big idea in public health is that it’s always easier to prevent a problem than to solve one—but first you need to understand its causes. The second is a Ph.D. in Higher Education that introduced me to the much larger theoretical and regulatory context in which legal education occurs.
This is a time of significant change in higher education as it faces close scrutiny from consumers and the state and federal governments representing them. For example, on Monday President Obama issued a report calling for substantial changes to the way universities both prevent and respond to sexual harassment and sexual assault. Here is the first PSA to come from the White House on this topic. Although law schools often see themselves as autonomous islands within the larger university, we are all going to see the effects of this and other related campaigns.
UF Law's (and My) New MOOC: The Global Student's Introduction to US Law
I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law.
The course description is as follows:
In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system. Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.
My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums.
Wednesday, April 16, 2014
I want my Westlaw Classic
Oh yes I do! Sure, I feel about as outdated as this commercial in saying so, but Westlaw is now telling me that Classic database is disappearing in about two months, and I'm not happy. I tried to use WestlawNext when it first came out. The "copy with citation" feature was nice for quotations, and I liked the idea of a more Google-like approach. But the search results were just bizarre to me. It was more akin to the anti-Google -- I'd type in search terms or even a case name, and I'd get everything other than the case or article I was looking for. I retreated back to Classic after just a few frustrating forays. I like Classic's pure Boolean option -- I know it'll give me a complete result. Or, when I'm looking to skim the surface of a topic, the "natural language" search has actually worked pretty well for me. I don't see any need for change, certainly not based on my early Next experience.
Now, it looks like I will have no choice. Is anyone else in the same boat as me? Can we try to save Classic? Or should I just accept reality and try to adapt to Next? Your thoughts would be much appreciated.
[I should make clear -- I'm sure I was misusing Next. But it was supposed to be easier! If you have thoughts on what I was doing wrong, I'd appreciate those, too.]
Thursday, April 03, 2014
Linguistic Versatility (or is it Hegemony?) and the Law
There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew. Would anyone reasonably object on cultural grounds or is this purely the kind of program that should be allowed to unfold so long as it otherwise maintained a strong bar passage rate?
Israel's facing interesting issues along this front. A few academic institutions are trying to offer law degree programs in English only, and are seeing opposition.
When I teach in Israel, which I do with some frequency and affection, I do so in English, as part of the increased expectation that Israeli lawyers should be fluent with English language as well as international/comparative approaches to law. Yet, I fully accept the argument made by one of the stakeholders that fluency in Hebrew is essential to representing one's clients well in Israel. I certainly think my competence with English is critical to my being a tolerably decent scholar -- in English. But if Chinese-speaking professors were in the US to teach American law in Chinese, I don't think I'd have much basis for objection. Let the market sort it out seems roughly right.
The fear about this seems that if the Israeli law schools started teaching in English, there'd be a decline in Hebrew language competence and that could affect lawyer performance for clients. I don't really see that as a threat realistically, because if you're going to practice in Israel, you'll want to speak Hebrew; what's more, if there's a bar passage requirement that occurs in Hebrew, then that would probably provide a check, along with malpractice claims.
To my mind, what I think of as the French linguistic protectionist approach seems here kind of ... pathetic. But maybe I'm missing something.
Tuesday, March 18, 2014
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Thursday, March 06, 2014
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.
Wednesday, February 26, 2014
AALS: is, not, and ought
Posts and comments about scholarship funding (and related other subjects) mention AALS from time-to-time. Perhaps it would be helpful to frame more precisely what the ass'n views as its role (speaking here just as one volunteer, not in any way for the organization):
The AALS is a voluntary association of law schools. It is not an accreditator and has nothing in the way of power over law schools or their faculties. Rather, it is an organization made up of law schools which have accepted the association's core values, abide by its membership bylaws and, for reasons best known the law schools themselves, believe that the association provides sufficient value to warrant joining. Where the on balance tradeoff augurs against continuing adherence to these core values, the institution should surrender membership, and there should be no penalty for its students, graduates, and alumni for doing so. "Is this association consistent with our institutional mission and valuable for us" should always be the question for the law school.
The AALS takes no global position on what a law school must be -- how it trains its students, how it configures its faculty, what it costs, what should the tradeoff be between teaching and scholarship, or other central issues that are driven, in the main, by the articulated mission of law school.To be sure, it takes positions on what ought to be the core values of this voluntary membership group. And it seeks to articulate and implement these values through a membership process to which schools aspiring to join and continue in good standing subscribe to.
Law schools will necessarily be in the position of making to make difficult tradeoffs and, under present circumstances especially, adjustments in their ways of doing business. Meaningful engagement with member schools obliges -- or I should say, should certainly oblige -- the AALS to be both understanding and constructive in the ways in which law schools make these hard choices.
Positioning itself as an advocate for the value of legal scholarship in the architecture of the member law school is important especially when law schools are under stress. Seeing and voicing the value to the profession and to public debates about the role, functions, and place of law in a civilized, diverse society is unequivocally a fundamental function of the association. And it ought never be bashful about such advocacy.
But whether and to what extent this is a fundamental function of the law schools themselves is ultimately a question of institutional mission. The AALS need not take any distinct position on that matter. Nor should it take distinct positions on precisely how member law schools perform these functions of supporting scholarship. Here, too, the AALS serves its member schools best when it organizes and disseminates good ideas and best practices. The difficult tradeoffs -- including the financial tradeoffs -- will necessarily be made by the schools themselves and their key stakeholders.
So what ought AALS to do in this respect? Be simultaneously an advocate for (inter alia) the important role of scholarship in the life and activities of member law schools and an advocate for diversity, imagination, and innovation in how member law schools constructively go about supporting scholarship in their institutions.
Funding legal scholarship
Present economic circumstances in law schools -- or, more to the point, economic circumstances of current and prospective law students which are shaping the predicaments of many law schools -- rightly raise the hard question of how, or even whether, most law schools should subsidize faculty scholarship. The "why" question is essential, and warrants continued attention.
For now, if I may, let me turn to the "how" question:
Matt Bodie's posts, and the many comments accompanying them, engage the question of whether internal subsidies can and ought to incentivize scholarship at the quantity and quality level that is appropriate to the mission and goals of the institution.
First, an observation about "theory," before turning to "practice": The model of law schools which aspire to be incubators of meaningful scholarship is one in which faculty compensation is tied squarely to the ability and willingness to engage in scholarship, regularly and reliably and over the course of an academic career. Deans and faculties do their job in good faith and in good conscience when they undertake to monitor equitably and comprehensively this engagement. Students' tuition supports scholarship in law schools just as it subsidizes scholarship by faculty in undergrad and other graduate settings. (This seems to go missing in the debate. Does the Columbia undegraduate truly think that their tuition is going primarily to the teaching work of their full-time, ladder rank faculty?). Accountability to students demands that the law school be responsible and relentless in ensuring that scholarship is a key part of the faculty member's work product. Different law schools will make different allocative choices to be sure; but it ultimately a gesture of defeat for any law dean to throw up her hands and say "scholarly productivity cannot be adequately measured nor adequately monitored, so I can't be bothered to do it."In practice, such oversight is uneven, to put it mildly. In this era in which tuition and debt pressures on students are enormous and must be taken seriously by all law schools, it is incumbent upon deans and faculties to tie these tuition-driven subsidies to real performance. This must happen pre and post-tenure. The AALS as a voluntary membership organization (not an accreditator) helps put some pressure on law schools to be dependable scholarly incubators, in addition to other core functions. The association can and should work with law schools and their deans and faculties to develop structures of incentives and measures of performance to assure stakeholders -- and especially the students from whom tuition is paid to support scholarly work -- that the law school expects and mandates such regular productivity from its full-time, tenure line faculty.
A fantasy world? I don't think so. And I certainly hope not. Many able deans have been focused in earnest on accountability, productivity, and transparency, that the efforts to measure faculty members' scholarly output and to expect work of high quality and quality has created environments in which faculty carry out their responsibilities diligently and with high morale. If faculty and students don't see this in their dean, then they should beat a path to his or her office to insist upon patterns of performance accountability. Students should see their tuition dollars going in part to subsidizing scholarship, not faculty lifestyles. Let me be even more explicit: Our responsible role as leaders of institutions under the stresses and strains of the modern law school economy demand greater scrutiny of faculty performance and high expectations of faculty scholarship. Otherwise, tuition subsidies of faculty scholarship are fundamentally indefensible.
Prof. Bodie's specific suggestions deserve more careful attention, and I will endeavor to do so in future posts. But this depiction of what deans can and must do is meant to get at a central point of the contemporary critique of law schools, a critique which must be taken seriously and responded to by responsible educational leaders. This point is: How can we truly defend the "why" of substantial subsidies to legal scholarship unless we are confident that the "how" is addressed, and is addressed in ways that ensure accountability, productivity, and transparency?
Tuesday, February 25, 2014
Scholarship funding: why and how
Earlier this month, Prof. Bodie helped us focus on an important set of issues regarding the structure of funding and incentives for legal scholarship. In his posts, and in the voluminous comments, he offers a number of descriptions and also prescriptions about how best to reshape the landscape within law schools.
As I enter this debate (as an experienced dean, in addition to a longtime academic), let me sharpen this discussion by revealing the three questions raised by Bodie and the commentators:
- Why should law schools be subsidizing scholarly production by their faculties?
- What is the optimal model for such subsidies, given the goals of: (1) increasing the production of scholarship within particular schools and within the academy more generally; (2) limiting the burdens on law students; and (3) administering a system in an efficient and fair way?
In short, the questions are about "why" and "how."
As to the "why," the issue continues to be chewed over in the media, the blogosphere, and occasionally in more extended articles and books (Brian Tamanaha's being perhaps the most important recent example).
My own summary of the reasons why we do it is not, to put it mildly, arrestingly novel, but merely summarizes what, to me, is the compelling cluster of reasons:
- As part of universities, we have an obligation to engage actively and purposively in the development and dissemination of knowledge -- knowledge about our profession, about the structure of institutions in which law is created and in which it performs functions of consequence in a democratic society, and about the content of legal rules, their implementation, and their desirability. No law decrees that any one law school, or any collection of law schools, need to be part of colleges or universities (and several aren't, of course). But the price you pay for being embedded in a university structure and culture is that your tenure-line faculty engage in the practice of scholarly work and production;
- Law professors have a comparative advantage in doing this scholarly work. This is true by virtue of their employment structure; it is true by virtue of their competency, as measured by colleagues who hire them, deans who evaluate and incentivize them and, to a large degree, by self-motivation and habit of mind. Full-time law professors are especially suited to engage in the work, research, and collective efforts required to do legal scholarship at a high level. This is so not because of innate qualities of brilliance or even temperament; it is so because that is what they are hired and required to do and, further, because they have the fertile environment of institutions filled with capable, ambitious colleagues and equally capable, ambitious law students;
- To be sure, at its worst, legal scholarship is banal, remote from considerations of both the bar and the academy, and is overwrought. The same can be said of bad judicial opinions, bad statutes, and bad work product in nearly every field. At its best, however, legal scholarship can and does help shape the law in constructive directions, can help shed illuminating light on difficult legal and policy puzzles, and can help advance important societal goals. Choose your favorite example. The work of environmental law scholars from the 70's and 80's helped transform modern environmental law; actual people benefited from these efforts. The work of constitutional lawyers helped propel the cause of marital equality in the past fifteen years. The work of libertarian legal scholars and political economists are helping shape the debate over eminent domain in the post-Kelo world. The list is a long one. The value of legal scholarship should be judged by its best practitioners, not its worst excesses.
So, let me just end the big picture take on the "why" question by raising, as a thought experiment, the question of what would law schools look like if you took the scholarly dimension out of this space entirely: It would be one in which both positive and normative explorations and insights would be carried out by lawyers and judges who would be doing this as essentially a hobby (or perhaps as a veiled effort to advocate vigorously on behalf of a client's interest). Scholarship of some sort would emerge, but not from the hands and brains of those who are hired, trained, and incentivized to undertake it at a high level. Further, scholarship involving law done by full-time academics would be left to those within our universities who are not in any important way teaching and training law students. Thus, the divide between the concerns of the legal profession and the preoccupations of academics would grow, not shrink. Let's be clear: Student tuition would still subsidize scholarship, but it would, instead, be principally the tuition of undergrads and grad students. Scholarship about law wouldn't go away; it would just be done by folks not law professors.
Why subsidize the production of legal scholarship? Because we believe this to be a public good (even though some of the scholarship is surely bad) and because we believe that the nexus between how we teach and train law students and how we understand, describe, and reform law should be tethered in meaningful ways to this teaching function.
Central questions remain about whether this goal should be universal, whether it is the business of outside accreditors, whether it must be modified in light of difficult employment circumstances and high student debt, and how best to fund it. But some agreement should be had, at least by the vast majority of stakeholders within and outside the legal academy, about why we ought to promote and fund scholarship in our law schools. If we can't agree on that, the rest of all this is jibber jabber.
Monday, February 24, 2014
American legal scholarship and legal education misconceived
Duke's Ralf Michaels has undertaken to celebrate Germany superiority in legal scholarship. This is a peculiar venture, one that Rob Howse has skewered elsewhere on this blog, he focusing on the comparative aspects of the project. This seems to me a good enough skewering, although I would have to leave to the experts in the comparative law & German elements to speak knowledably about Michaels' perspectives on this subject.
Let me just say a few things about the depiction of contemporary American legal scholarship.
Here, says Michaels, "faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed." ???!!! I suppose one can say that everything is embedded in the meaning of "succiently exact." Here, as elsewhere, law in action is seen as a necessary supplement to law in books. Legal doctrine doesn't enforce itself; the social elements of doctrine in, at the very least, framing fundamentally matters of implementation and administration of public policy are well understood. This is not about the "here," after all. Max Weber understood this. So did William Blackstone. So, who does Michaels imagine believes that doctrine is sufficient or is exact?The notion that American legal scholarship does not include foci in earnest on doctrine, its content and shape, is naive. The work of the American Law Institute, on whose council I am proud and privileged to serve, illustrates powerfully the enduring contributions of essentially doctrinal work. And the connection between doctrinal exegesis and analysis and social advancement has been embedded in the work of the ALI for decades. Such work thrives in American law schools as well, as does interdisciplinary work of the highest order.
But here is where Michaels' essay takes a peculiar turn. Here is what he says by way of framing the current critique of American legal education:
"The consumer model of legal education requires, ultimately, that law students are taught nothing other than skills. Doctrine itself has only instrumental value for students, but importantly, “mere doctrine” has no scholarly value for academics. The consequence for scholarship may be dire: interdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded."
The dots Michaels wants to connect are these: American legal education is attacked because it is insufficiently skill-centered; law schools cannot advance skills-training under extant economic models; they have, as the only alternative, relentless interdisciplinary scholarship; attention to doctrine is impossible because it has been "descredited;" Germans have figured this out and thus the future of German law schools is comparatively rosy.
This narrative is highly problematic. Skills training is largely a product of American legal educators, especially clinicians, who have developed curricula and deployed resources to the salutary aim of improving the practical skills of (post-graduate) law students. To be sure, this development is resource intensive and is challenging in the current environment in which costs of legal education loom large. But the notion that this can be recast as a struggle between public and private modalities of financing education is seriously flawed. With the public subsidy of European law schools, where is the attention to the sort of skills training and public service initiatives within law schools that would, presumably, advance salutary public purposes?
Moreover, the notion that American law schools will move further away from "discreted" doctrine in order to maintain their death grip on interdisciplinarity as an educational luxury in trying times seems patently absurd. American law schools, highly imperfect and under serious strain, could be expected to adapt to currents of both legal pedagogy and legal scholarship, currents which see doctrine as a coherent and necessary element of advanced legal education and advancing professional competence. Interdisciplinary legal scholarship need not and will not be abandoned in this quest. Indeed, the building of bridges between law and other disciplines is a result (and not uniquely an American one) of an appreciation for the interconnectedness of academic explorations and the imperatives of solving society's central problems through combined, intersecting modalities of scholarship and knowledge. I would have thought that Ralf Michaels, surely a scholar understanding the German conributions to the origins of the modern University, would appreciate this especially.
"[T]he ABA report suggests that our culture of scholarship and education is untenable and must be, essentially, discarded. I hope they are wrong."
Two things wrong with this penultimate statement: First, the so-called "culture of scholarship and education" is here misunderstood. American law schools pursue scholarship in order to advance key purposes, including elucidating doctrine, bringing to bear insights and expertise from other disciplines in order to illuminate legal issues and ground public policy, and in order to advocate on behalf of central societal goals and initiatives. Moreover, the best evidence -- along with a century-plus worth of experience -- suggests that American legal education, for all its flaws, does an admirable job at these ambitious ends. Second, there is precious little reason to believe that Ralf Michaels "hope[s] they are wrong." His essay advocates for a contrast that does not exist and an appeal for German superiority that is misguided. Whatever the essay's merits as a depiction of contemporary German legal scholarship, is deeply flawed as it pertains to American legal scholarship and the nexus between such scholarship and trends in contemporary legal education in the U.S.
AALS should fund scholarship?
Earlier this month, Prof. Matt Bodie penned a collection of very interesting posts on legal scholarship and its funding model. I will have various things to say about his valuable, and controversial, ideas in the coming days. Let me start out by responding to a narrow point he made (mentioning me and Judy Areen by name in this post! We were blushing respectively from Chicago and Washington DC):
The AALS is funded principally by dues paid by member law schools and, secondarily, by receipts from meetings. (The meetings are, despite a chorus of complaints about high costs, essentially break-even propositions, but that is another topic for another day). The overall budget for the organization is, given the overall work, not a large one. And the financial pressures upon law schools counsel caution with respect to either changing the structure of dues or increasing dues annually. Indeed, the last three years has brought very modest increases of said dues, unlike the ABA.
Administering research grants through the AALS would, quite clearly, require a wealth transfer from law schools, many quite strapped, to the AALS. It is hard to defend such a choice under current conditions.
Moreover, it would be hard to fathom that the AALS would be a better steward of law schools' money for scholarship than the law schools themselves. The choices of how best to support and subsidize faculty's scholarly work are internal choices, driven the respective missions of the law schools. To be sure, AALS has, as one of its core values, legal scholarship. But the matter of how best to incentivize and promote such scholarship among member schools is properly a localized one.
This post, with due respect to Prof. Bodie, is an easy one, as the AALS grant idea is really a non-starter. He raises some harder and more complex issues elsewhere in the series. And I will join that debate in separate posts.
Monday, February 17, 2014
Law Schools Competing on Course Material Prices
Christine Hurt's post about the sales model of legal scholarship included a new approach for providing students with course materials:
The direct-to-student model for casebooks. I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp). So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea. For doing my job. (I know, others deviate from this model, including paying their own students back their royalties .) But why not just self-publish? I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online? All the cases are available on the internet, and so are all the statutes/Restatement sections/etc. The only thing missing is the commentary and the questions (which I usually skip). This could save students $1000/semester. I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents. It takes a lot of time, but it's not crazy. What about first-time professors? Well, I would be happy to share my materials. In fact, all the Torts professors here could combine forces. Just a thought.
I have written (here and here!) about moving to an open-source model for casebooks. But it hasn't happened yet. I think there are pretty clear reasons why: (1) casebooks provide value to professors by organizing and synthesizing complex material, and (2) professors and law schools do not have to pay the costs of those materials directly or personally.
Ian Ayers, in the op-ed cited by Christine, argued that schools should have a "textbook maintenance organization" that provides students with books as part of tuition. So I was thinking about revisiting this idea now, and adding a twist: schools could compete against each other on course material prices. Here's what one enterprising law school could do:
- Instead of having students buy their own books, have students pay the school a yearly "course materials fee," and then the school would provide them with all the books or other materials assigned for their courses.
- The school would then buy books for its students (and, in theory, negotiate a cheaper bulk rate) or pay its professors to produce their own materials for their classes.
This system would incentivize not only cheaper casebook prices, but it would also incentivize the production of course materials more specifically tailored to that set of students. So schools with a local employment base could, for example, teach the criminal law of that particular state using state-oriented materials. I think (almost) everyone wins here:
- Students would pay less overall, as the school would have an incentive to keeps its fee lower given the salience and openness of the fee. And they also might get course materials more directly targeted to their educational needs.
- Schools would get the money for course materials directly and then either pay the publishers lower prices (by negotiating) or pay their own profs to produce teaching materials.
- Profs who produce their own materials locally could get some compensation for the value they add.
- And even though it might not be "good" for them, it would incentivize casebook publishers to add more value for what they are selling, so profs continue to use them. (Ayres argues that publishers would sell more books, which is possible but seems unlikely to me.) Plus, the school would not cover supplemental materials and/or study aids, so publishers would still be able to get full value there.
Ayres argues for textbook maintenance organizations as an efficient and fair reform. But couldn't it also be grounds for competition? Schools would have to make clear that they were working hard to save their students money overall, rather than just hitting them with another fee. So one school could advertise: "Students at most schools can pay over $2000 in course materials per year. At X School of Law, we'll cover all your course materials for only $500."
The response to educational market change seems to be slow and sticky. But given the ever-increasing cost of casebooks, paired with the new incentives for schools to compete on price, some schools might find some success here if they are willing to be first-movers.
BTW: if you need more evidence about the crazy inflation of casebook prices, check out this line from Ayres's 2005 op-ed: "We're used to paying $25 for a hardcover novel, but my casebook on contracts now sells to students for $103 . . . ." The 2014 price is here.
Friday, February 14, 2014
Funding Legal Research: Suggestions for Reform
I thought I'd wrap up my series on funding legal scholarship with some suggestions for reform. As I laid out yesterday, the principle behind these reforms is that legal academia should move from school- & salary-based funding to field- and grant-based funding. I don't mean to argue that we should move entirely to a new system, even if such a dramatic change were feasible. Instead, this is a set of new approaches to align the system more appropriately:
- Do not pay profs to produce scholarship if they don't produce scholarship. There's an inherent contradiction: law profs are hired and judged on their scholarship, but post-tenure they will not get fired for failing to write. The solution, I think, is that we can't expect all professors to write post-tenure, but we shouldn't pay them for writing that they are not doing. There are a variety of ways of restructuring salaries to tie scholarship dollars to actual production, some of which I discuss below. Ideally, a school would cut back all salaries to some baseline "competent teaching & service" level, and then build up from there (each year) for superior teaching, committee work, and scholarship. But rather than maintaining the fiction that all law profs produce scholarship, we should acknowledge that not all do and alter compensation accordingly. This change would free up funds to use for some of the reforms discussed below.
- Schools should provide specific pay and/or benefits for scholarly production. Right now, most schools likely tie some portion of yearly salary increases to scholarship. Two problems: these increases are locked in over time, and the amount of merit pay avaliable is often unrelated to the quality of scholarship produced. Moving towards a grant-based system would allow schools to reward specific production, but then not lock it in. If a school is pressed for funds, it could also restructure teaching and/or service packages so that productive scholars have reduced course or service loads to "compensate" for that productivity. But the reduced loads would be year-to-year, rather than offered to all faculty or to a permanently blessed set of faculty.
- Law reviews should pay authors for their works. I've always thought that it's a nice professional touch that law review authors provide their works for free. But I think the incentives would work better throughout the system if the reviews paid at least some small amount to the authors. Under the current system, the prestige is seen as enough -- in fact, I'm sure many profs would pay money to get in certain reviews. But schools should care not only about the production of their own scholars, but also about the quality of articles published in their review. If reviews paid, that would take off some of the pressure for individual schools to pay for placements.
- AALS should create a grant fund for scholarship. Dan Rodriguez and Judith Areen, I'm talking to you! An AALS fund which provided grants to schools and scholars for legal scholarship would provide a number of tangible benefits: it would incentivize scholarship with dollars, rather than just reputation; it would provide peer review at the beginning of the process, as well as connections and publicity for new projects; it would take some of the funding pressure off of individual schools; and it would give a concrete expression to AALS's mission to encourage the production of quality research. For those of you imagining an AALS secretariat with massive power to disburse funds to various schools, I'm thinking of starting small. So maybe start with 10 grants of $20,000 apiece? The grant money would go to the schools to fund a portion the professor's salary as well as any additional research expenses. It's too much to expect that most law profs can run out and be competitive for outside grants. But AALS can encourage this culture by starting a small grant-funding arm that provides seed money, at least, for some set of scholarly projects.
- AALS should advocate for more grant funding from interdisciplinary grant-funders. Individual legal scholars have a tougher road to hoe when applying to the NSF, NIH, or NEH, since they are not part of the traditional disciplines that get funding from these places. If AALS makes grant-funding a priority, it could work to make foundations and government agencies more receptive to law school applications. AALS could also host a grant-funding resource center for law profs looking to understand and utilize grants.
- The ABA should create a grant fund or funds for scholarship. Are legal professors spending too much time on Bulgarian evidentiary questions and not enough on common-law contract quandaries? The ABA could create a funding arm to provide grants for legal scholarship that deals more closely with doctrinal issues. Or ABA sections could each create small grant-funding programs for subject-specific scholarship. This may already be happening at some small level, in the form of awards or conference funding. But grant-funding would recognize a more tangible role for the bar in encouraging the production of legal scholarship.
I know there are solid arguments against many of these proposals. There's the scale issue: these reforms could range from being so small as to be meaningless, to so large as to be frightening in their power. The bigger the funder, the more power that funder would have to play politics or press an ideological or commercial agenda. At the very least, many of these reforms would impose a layer of bureaucracy on already busy folks. Our current model is pretty independent and flexible. I'm just saying we should trade some of that independence for some outside review and accountability.
Law schools will continue to care about the scholarship that their faculty produces and will compete on scholarly reputation. But I think legal academia as a whole has to think about incentivizing scholarship as a whole. And we could all fund legal scholarship more efficiently. I'd be interested in your thoughts about these proposals.
Thursday, February 13, 2014
Funding Legal Scholarship: Moving from School & Salary Funding to Field & Grant Funding
The first post in this series on funding legal scholarship discussed the basic law school model: individual law schools fund scholarship. And to a large extent, law schools fund only their own faculty's scholarship. Yes, law schools do fund law reviews, which generally publish the work of outside scholars. But schools pay their own faculty's salaries, provide special financial incentives for research, and pay for research assistants and research travel. A professor's research is largely funded by her own institution.
A strength of this model is that it encourages schools to compete against each other based on academic reputation. Although the most prominent ranking system (USNWR) is not directly correlated with research productivity, school reputation is a strong factor, and all of the top-ranked schools enjoy strong scholarly profiles. Schools regularly compete against each other in the entry-level and lateral markets to nab the best scholars for their faculties. Critics of this system have to contend with the success of the elite schools, which place their graduates extremely well and are largely left out of the "scamlaw" discussions. In a world that rewards the school's graduates for the reputation of its faculty, it make sense for individual schools to use some portion of their funds to get the best scholars.However, the school-funded system also has significant weaknesses. Paying for scholarly productivity through salary is a messy mechanism. When profs can't get fired for a lack of scholarly productivity post-tenure, scholarship essentially becomes optional. And many (most?) schools do not have the significant disparities between faculty salaries that could tangibly reward significant distinctions in production. Moreover, if salaries cannot go down, then merit raises get locked in, and a professor is paid for past productivity long into the future.
Perhaps more problematically, school funding encourages an insularity to legal scholarship. The professor need really only please the dean in order to get the salary and other research funding that the school makes available. Even assuming that the dean looks to outside markers such as placements and citation counts, a professor need not engage with her colleagues at the beginning of a project. The stereotypical law scholar sits amid books and Westlaw, working in solitary seclusion on a piece. Workshops, the star footnote, SSRN, and even blogs all encourage a scholarly conversation. But collaboration or peer input is not built as concretely into the beginning part of the process as it is in other disciplines.
Morever, the inward focus can make professors look selfish when they are working or getting paid for scholarship. Since individual law profs control much of their own scholarly agenda, scholarship takes on an individualistic quality. Add in the fact that some kinds of scholarship (under the sales model) provide payments directly to the professor, and you can get the notion that a law school is just a bunch of independent contractors working under one roof. The professoriate has insulated itself -- perhaps to better protect against outside influences, but at a significant cost. That may be part of the reason why you get articles like this and Chief Justice comments like that.
Just to be clear, I am not talking here about making legal scholarship more relevant to the bar. I am talking about making law professors more accountable for writing good scholarship by changing the funding mechanisms for producing such scholarship. Right now, we often simply give profs money and hope they produce something. But if we changed our models, we might get better scholarship (using whatever metric you like) for less money.
My overall suggestion is to shift away from an individual-school, salary-based funding model to a field- and grant-funding model. The grant-funding model uses third parties (of some kind) to judge the value of a particular project, and these parties then offer funding for that project on an incremental basis. Such a system has the following advantages over the school-funded, salary-based system:
- It takes at least some of the funding responsibility off of individual schools, thereby making that school's students shoulder less of the expense.
- It provides for more accountability for scholarly output over time.
- It provides some form of peer review and peer connection for projects at the beginning stages, rather than simply at the end.
- It can be structured to encourage collaboration and interdisciplinarity.
The identity of these third-party funders is critical. I'm not talking primarily about NSF or NIH -- although increasing those grants would be helpful. I'm primarily talking about the field of law -- law schools, AALS, the ABA, and other institutional players -- creating mechanisms that specifically fund legal scholsrship. If the field believes that legal scholarship is important, than the field should create mechanisms for funding legal scholarship beyond the individual school model.
Tomorrow I'll address particular ideas for funding reforms. In the meantime, I'd be interested in your thoughts on the overall approach.
Wednesday, February 12, 2014
Funding Legal Scholarship: The Sales Model
Under the traditional law school model, the individual schools fund legal research; under the grant-funding model, third-party non-profits and government agencies supply a big chunk of the resources. There's a third model that exists in law schools today, and that is the sales model. Under this model, scholars act as individual entrepreneurs selling their research to publishers for personal payment. Much of the action between profs and publishers is in teaching materials, which I do not count under the research rubric. However, I do count academic books and doctrinal treatises as research, and professors sell their IP interests in these works to publishers in exchange for advances and/or royalties.
These contracts are generally private, and I'd love to hear any additional information on this, but my understanding is that purely academic books do not offer much remuneration. In fact, the business model for academic presses has suffered a series of blows over the last twenty years. As a recent AAUP report states:
[T]he simple product-sales models of the twentieth century, devised when information was scarce and expensive, are clearly inappropriate for the twenty-first-century scholarly ecosystem. As the report details, new forms of openness, fees, subscriptions, products, and services are being combined to try to build sustainable business models to fund innovative digital scholarly publishing in diverse arenas.
So even though a law professor might "sell" her book to an academic press, the relatively low return to the prof means that that book has been funded, in large part, by the professor and/or the law school itself. However, treatises offer more remuneration, at least as a general matter. One advantage of doctrinal publications is the broader audience, which includes not only libraries and fellow academics, but also students and practitioners. Some treatises, like Bob Clark's Corporate Law, are notable for their longevity; other treatises prosper because of their breadth and their continual updates which keep the readers current. I know of no treatise-writer who does not have a regular "gig" as professor or practitioner, but the money incentivizing the production of treatises is more substantial. And it flows directly to the author, rather than the author's institution like a grant. The author may also build on the expertise signified by the treatise to land paid consulting opportunities or "of counsel" status at a law firm.
A big benefit of the sales model, like the grant-funding model, is that third parties provide funding and support for the research. But the sales model is more business-oriented; rather than spending their funds for the public good, publishers buy materials that (they believe) will make the most money. And professors get the money directly, rather than funnelled through their home institution. To that extent, it is more responsive to demand in a traditional capitilistic way, which may be good or bad depending on your outlook. The sales model of research is likely limited by the limited market for doctrinal, generalized legal research itself. But at least some percentage of the research going on out there will find funding from publishers who are willing to bet on a market for the material.
One question I have for our readers: why don't law schools use the "work-for-hire" doctrine on these publications? Not enough money at stake? Or do faculty contracts explicitly reserve copyright to faculty? If so, why do schools give this up?
Tuesday, February 11, 2014
Funding Legal Scholarship: The Grant-Funding Model
Under the traditional law school model, scholarship is an expense that the school shoulders as part of its mission. In many academic disciplines, however, research is a revenue generator. The primary way in which schools generate income from their research is through grant funding: a third party will agree to pay the school a certain amount of money in exchange for the production of a specified research project or agenda. So instead of the school paying for the research, the grant-funder pays the school to pay the professor for the research.
In those disciplines where grant-funding is substantial, it is common to refer to the school's or division's research portfolio by a dollar amount, signifying the amount of grant-funding in play at any given time. And no wonder -- the funding can be quite substantial. For example, this 2011 report on UT-Austin found that the faculty generated $161 million in tuition revenue and $397 million in external research funding. The report came in response to an earlier effort to quantify UT faculty productivity based primarily on two metrics: number of student hours taught and amount of grant funding brought in. As one might imagine, law faculty who taught small courses and were traditional yet productive legal scholars did particularly poorly on these metrics.The grant-funding model differs from the traditional legal scholarship model in several key respects. First, and most obviously, grant-funding is usually supplied by a non-profit or governmental agency that operates outside of the school. The NIH provides over $30 billion annually in medical research funding to over 300,000 researchers at more than 2,500 research institutions. (These numbers alone make one realize how relatively small the whole law school universe is.) A myriad of other grant funders exist, reaching out to a variety of different disciplines. But I think it's fair to say that there is no non-profit or governmental grant-funder that focuses primarily on legal research.
Grant-funding is not just different in terms of who provides the money; it's also different in how the money is provided. Here are a few of the salient differences between grant-funding and the traditional law school model:
- Grant funders provide money not as salary to a particular person, but as an allocation for a particular project. Of course, part of any grant includes salary or salary reimbursement, but the grant is directed toward a project, not a person.
- Grants are generally awarded through a peer-review process, in which the researchers and the project are scrutinized to determine if the research is deserving of the award.
- Grants are limited in time, and may or may not offer an opportunity to renew.
- Universities generally take a big chunk of the grant as overhead, and may or may not have restrictions on how this overhead is allocated.
- Although grants do not generally have financial penalities for failure to produce the research, they may be structured to require deliverables. Some funders use contracts or "cooperative research agreements" to maintain even more control over the research and the disbursement of funds.
How does grant-funding affect the salaries of researchers? It's hard to say as a general matter, but in those fields with significant grant-funding, researchers are expected to get grant funding. Faculty may even be expected to get almost their entire salary covered through grants. Tenure generally protects tenured researchers from being terminated for failing to obtain grants. However, grant success is a factor for tenure in many fields, and failure to get grants post-tenure may have a significant impact on salary. Grant-funding may also affect how much money a particular school is allocated from the university.
If legal education went to a grant-funding research model, faculty would be expected to look outside the school to find funding for their research. Funding would be based on projects, rather than people (at least nominally), and would pay for the professor's time spent on the scholarship as well as associated expenses. Funds would likely be disbursed based on a peer-review system, combined with whatever policy angle or political interest the funder brought to the project. However, even in the absence of third-party grant-funders, a school could also adopt a grant-funding model to deploy its own research funds. In fact, some schools use such a model for funding such as summer research grants.
My assumption is that grant-funding in legal academia is is relatively small but growing. As the academy becomes more interdisciplinary, it will be easier for professors to hop onto projects with other researchers in grant-funding fields. It may also be the case that foundations and government agencies are looking for more legally-related projects to fund. However, federal government funding is definitely getting squeezed, making overall grant-funding dollars scarcer. So it seems unlikley that significant grant-funding sources for legal research will soon spring up on their own.
I think legal education could use aspects of the grant-funding system to provide more incentives and support for legal research. These reforms will be discussed more on Thursday and Friday. In the meantime, I'd be interested in hearing if I've characterized the grant-funding system properly, and if I've missed any of the basic policy effects of that system.
Should Law Schools Fire Professors Who Do Not Write Post-Tenure?
My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship. And that this is true from the schools with the highest scholarly reputations on down. But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:
Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.
Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.
To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.
Just to be clear (and not go through the entire thread) -- I actually agree with Brian that law profs have an obligation to produce scholarship. But is that obligation legally enforceable? Has any prof been fired for failing to write post-tenure? Or has any professor been pushed out the door *solely* for failing to write post-tenure? So -- good teacher, good institutional citizen, no scholarship, and threatened with termination? My sense is that this just doesn't happen. Am I wrong about this? And if not, why do we not see more of the enforcement that Brian suggests?
Monday, February 10, 2014
Funding Legal Scholarship: The Traditional Law School Model
This is first in a series of posts about how we fund the production of legal scholarship. To begin, a definitional move is in order: what exactly is legal scholarship? For purposes of this series, I want to be broad. I'll include any published research on the theory, doctrine, or practice of law, whether it be an academic book, a hornbook, a law review article, or an interdisciplinary or other-disciplinary piece that focuses on law in some respect. Legal scholarship is original research that attempts to contribute to our understandings of legal doctrine, human behavior in the context of law, or other aspects of our legal system. I'd draw a line between the research itself and the promotion of the research, so lengthy docrinal bar journal articles can be scholarship, but op-eds and blog posts are not. I don't think amicus briefs are, either, although I suppose a "Brandeis brief" could be. Happy to discuss this definition in the comments. In addition, I should note that I am leaving out legal scholarship that is produced by students as well as practitioners, at least for today.
So how is legal scholarship funded? I think we can separate the creation of that scholarship -- the research and writing -- from the publication of it. To take publication first, law schools pay a fair amount of the publication costs of legal scholarship, since they fund law reviews. Law reviews do receive revenues from subscribers (generally other law schools) and from Westlaw, LexisNexis, and Hein Online for electronic rights. But my assumption is that most law reviews are not self-sustaining. Reviews also usually have some level of school-provided support staff, and publishers are paid by the review/school as well. However, law reviews do receive a lot of "free" labor. Students are generally not paid to either produce or publish legal scholarship, although many students receive school credit (which they pay for) and some receive bagels.
Outside of law reviews, legal scholarship is published in bar journals, which are funded by the affiliated bar, or by academic presses, which are likely closer to self-sustaining but also may receive university support. (Here's a recent AAUP report on the finances of academic presses.) The current X factor is whether "publishing" through SSRN and/or Bepress will ever become independently acceptable. As of now, these databases are repositories for papers that generally hope to be published, are in the process of being published, or are already published elsewhere. SSRN and Bepress are both private companies.
On the creation side, law schools pay their own professors to write scholarship. But this deserves a lengthier breakdown. Salary hinges on a professor fulfilling her job requirements, and those requirements are generally described as scholarship, teaching, and service. Most schools require a professor to write three or more articles to obtain tenure. However, after that, the scholarship "requirement" is enforced much more spottily. Some schools may attribute the bulk of any merit-based salary increases to scholarly production. However, my guess is that there is a wide range, both between the amount of merit raises awarded from year to year, and the percentage of those awards that are based solely on scholarship. At most schools (if not all?), professors cannot be fired post-tenure for failing to produce any scholarship. And given the salience of teaching and service, I would imagine that a very small percentage of post-tenure salary rides solely on the professor's production of scholarship.
Many schools also have direct grants for scholarship. For example, summer research grants, which pay professors between $5,000 and $20,000 to produce an article over the summer, are an apparently direct payment for scholarship. A couple of provisos, however: (1) some schools have only lax enforcement mechanisms to ensure that an article was actually produced and published; and (2) the grant is limited to one piece, so any article after the first does not receive specific funding. In addition to summer research stipends, some schools provide bonuses for high-ranking journal placements, but these are generally less than four figures.
Larry Cunningham has opined that a highly-placed law review article can be worth $100,000, as has Richard Neumann. But I have problems with their math. Cunningham argues that the award is not only worth the $12,500-$20,000 summer grant, but also the 1-3% raise that the professor receives for having written the article, which is then made a part of base pay for the rest of the person's career. Cunningham's math, however, not only assumes a relatively high summer grant, but also a high salary: $200,000 for a mid-career scholar, or $250,000 for a senior scholar. Maybe I am naive or in the dark, but those salaries seem pretty high for most law schools. Cunningham admits that a junior scholar getting $100,000 and a 2% raise would only get about $35,000 from salary increases over a lifetime. And Cunningham also has to assume: (1) there are no salary freezes in effect the year of publication, and (2) the 2% raise is solely attributable to that one article.
Richard Neumann's calculations seem even more problematic. He assumes a professor at a high-ranking school who spends 30-50% of her time producing one article per year. Thus, in his view, 30-50% of the person's salary and benefits go to that article. So if the prof produces three articles a year, they cost $33,333 apiece, and if she writes one article in five years, it's worth $500,000? You can see the difficulty. Since professors must teach and must perform committee assignments, but generally need not produce any scholarship post-tenure, their salary cannot be attributed to scholarship unless it is directly tied to such scholarship. I have a similar problem with Brian Tamanaha's claim that the reduction in teaching loads is an allocation of funds towards scholarship. That may be the intent, but if the school does not require faculty to write more, it's just an allocation of funds to freeing up faculty time.
The real X factor here is the lateral market. A productive professor can either secure a higher-paying salary from another school, or may be able to use a higher-paying offer to get a substantial raise at her current school. Again, internal school policies are so varied (even within the school!) that it's hard to know how much to attribute to scholarship. However, it is generally true that professors at higher-ranking schools are paid better, teach less, and produce more scholarship. Thus, higher-ranking schools attribute more of their salary to scholarship (past, present, and/or future).
Beyond paying professors to produce legal scholarship, schools also fund resources for the production of the scholarship. So schools pay their own students to act as research assistants, they pay for staff to facilitate professors' work (which includes scholarship), and they pay for libraries and data sets that are necessary to the research. Libraries also serve students and the public, but at least a substantial portion of their expenses are designed to facilitate research.
This overview of funding on the creation side is not complete. It leaves out (a) grant-funding for certain legal research projects and (b) royalities for academic books, hornbooks, and other compensated publication opportunities. These two models (grants and sales) will be discussed on Tuesday and Wednesday. But (a) is still relatively unusual in the legal academy, and even book-publishing professors do not receive a significant amount from (b), as non-teaching academic titles do not usually offer substantial royalties.
So how are we funding legal scholarship? As a general matter, schools are paying their own professors to research and write legal scholarship, they manage their own students in editing it, and they pay a publisher to publish it. Most law schools are funded primarily by student tuition, although state funds and alumni giving supplement to varying degrees. So students are funding at least a big chunk of legal scholarship. To the extent the federal government is funding legal education through IBR, it too is also a source of funding for scholarship.
Most of this overview will be familiar to the seasoned readers of PrawfsBlawg. And most will be familiar with the weaknesses of this model, particularly in a time of law school belt-tightening. From a management perspective, schools want to provide the best (or most market-desirable) education possible for the lowest cost. Many schools may look upon scholarship as a "luxury good" that the school can no longer afford, especially when compared with teaching and service. There are, though, two mitigating factors against this trend: (1) Prestige is still important (or perhaps more important) to the market desirability of the education being provided, and the higher-ranked schools have stronger scholarly reputations, almost uniformly. So a school that cuts its commitment to scholarship could see its reputation fall, which could decrease the desirability of its educational services. (2) Many schools use law reviews are important components of their education and curriculum, and cutting them would require replacing them with course offerings that may be just as or more expensive.
Despite these mitigating factors, however, there are a strong set of forces pushing schools to decrease their funding for their faculty's scholarly production:
- A smaller applicant pool, resulting in smaller class sizes;
- A need to offer scholarships to maintain a strong student body as to LSAT scores and GPAs;
- An increasing emphasis on course offerings emphasizing practice-readiness and skills training, often offered by non-research faculty; and
- A skepticism from members of the bench, bar, and academy about the value of legal scholarship.
So it seems like a good time to think about other options, other systems for scholarship funding. We'll turn to grant-funding tomorrow.
Friday, February 07, 2014
A Series on Funding Legal Scholarship
Next week I'll be running a series on funding legal scholarship. The series stems from my experience as associate dean for research a few years back, along with several trends that are converging to put pressure on the traditional methods of supporting legal scholarship. These trends include: (1) strong incentives to cut the costs of legal education, both from drops in student bodies and cuts in tuition (sticker and post-merit-scholarships), (2) an increasing emphasis on practice-readiness and skills training, (3) a huge drop in entry-level tenure-track hiring, and (4) concerns about the value of legal scholarship to the schools, the profession, and the society as a whole.
These posts will not be about the value of legal scholarship -- at least not directly. Instead, they will focus on the ways in which we fund the production of legal scholarship. This moment of great market flux provides an opportunity to reassess where we are and think about how things will be changing and how they could be changing.
The series will address the following topics:
- Monday: The Traditional Law School Model
- Tuesday: The Grant-Funding Model
- Wednesday: The Sales Model
- Thursday: The School- and Field-Supported Models
- Friday: The Future of Funding Legal Scholarship
I hope you will join us for the series.
Wednesday, February 05, 2014
The 5th Annual CrimProf Conference--Call for Papers
Here's the text of an email that the incomparable Professor Carissa Hessick and I sent out earlier today to the CrimProf list-serv. Not everyone who is interested in this conference subscribes, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.
Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP.
Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10. Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu
To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:
(a) The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;
(b) Whether you are willing to serve as chair or discussant for another panel; and
(c) Any date restrictions you have. We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)
We hope that many and more of you will be able to join us. And we hope that this conference will be the herald of many more summer crim gatherings in the future.
Carissa & Danny
Discounted Hotel Information:
Hilton Hotel = $149 per night
Contact person for the Hilton is Lucile Cox, her direct number is 973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Robert Treat Best Western = $99 per night
Contact person for the Robert Treat, Mercedes, she can be reached at 973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Guests should refer to Group#5529 when they reserve the room.
Tuesday, February 04, 2014
Rethinking Faculty Compensation
I wanted to bounce off a Faculty Lounge post by my colleague Jeff Redding, and particularly a comment to the post by recent guest prawf Nancy Leong. Jeff had posted about buy-outs, and Nancy "raise[d] the larger question of what faculty compensation should look like more generally." Nancy suggested:
For example, we might imagine an alternative compensation model in which faculty base salaries were much lower and less differentiated by seniority, and a larger percentage of compensation came in the form of merit pay determined by teaching effectiveness, scholarly productivity, and service to the institution. The buy-out incentives would be quite different in that model.
Nancy's idea raises a host of interesting issues -- I've broken out a few of them below.
- Tenure Contracts and Reductions in Pay: What if a dean told the faculty: "All faculty base salaries for next year will be 60% of their current levels. We are also cutting 10% off the current pool. The remaining 30% will be distributed according to merit, with three merit pools for scholarship, teaching, and service." My sense is that a lot of people believe this would violate tenure contracts. But I'm not sure why. I suppose that a significant enough cut would constitute a constructive discharge. But I've seen some people say that a 0.000001% cut would violate tenure contracts. That seems baffling to me, but maybe I haven't read the contracts closely enough! I'd appreciate thoughts from folks who might know better.
- The Pros and Cons of Merit Pay: My example above not only imagined a cut in overall pay; it also imagined what could be a significant redistribution of faculty compensation. It would depend on how aggressive the dean is -- things could look pretty much the same, or the dean could give huge bonuses based on scholarship, teaching, and/or service. Even more aggressively, a dean could say: "All tenure faculty will get a base pay of $50,000, with merit pay to be recalculated annually." That would eliminate the effects of seniority and past performance from the system. The immediately obvious critique is: "Wow! That's a lot of power to give to the dean!" And as a labor law guy, I chafe at giving management that much discretion. On the other hand, it would be much more of a "pay for performance" system. And perhaps an innovative group of faculty could follow the Munger, Tolles lead and have all faculty vote on each other's salaries. That would eliminate the dean problem, but it would add to the problem discussed next.
- The Politicization of Pay. The reason most schools will stick with the status quo is that it's a lot easier than having to decide from scratch. The time spent debating a new system, as well as the emotional costs of getting up in the face of your colleagues about what they take home each month, may overrun any benefits from a new compensation scheme. And that's assuming there's reform! It is perhaps more likely that any reform efforts would end in failure, with the reformers weakened and unlikely to easily jump to another school. However, as any good crit would tell you, the status quo is not "neutral." It is political as well. Fencing off faculty compensation from discussion, because it's "vulgar" or too personal, is a political move designed to protect those who benefit from the status quo. And as the outside forces of change grow stronger, those boundaries around the status quo are more likely to break down.
- The Politics of Faculty Hiring and Firing. Based on data about the entry-level job market, many (most?) schools are "cutting" faculty costs by not hiring. With class sizes largely going down, it makes sense to shrink faculties. But how faculties are shrunk is also a political issue. The path of least resistance is to not hire, rather than fire. But that means that a huge swath of people who would normally be entering the academy are not. Tenure and other job protections help senior workers but can harm junior workers -- just look at the American auto industry. In my view, tenure itself is a politically-fraught aspect of the law school universe, even for law profs themselves.
Saturday, February 01, 2014
Redyip's return: Angsting Thread Spring 2014 edition
So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.
If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.
Update: link to final page of comments here.
Saturday, December 28, 2013
Concluding on a high note: student papers highlight diversity of important marijuana law and policy topics
I was eager and excited to teach a law school seminar this past term focused on marijuana law, policy and reform in part because I have come to see how many diverse and dynamic legal and policy issues are raised and impacted by states legalizing medical and recreational marijuana use. Last week, my students providing a fitting final demonstration of this reality when they turned in their final papers. Below I provide the titles of the seminar papers submitted for this course:
You’re Fired…Maybe: How the Legalization of Recreational Marijuana Will Affect Employee and Employer Relations
The Anonymous Online Black Market
The Pliant Majority: Cognizing the Attitudinal Shift Toward Marijuana Legalization in America
The War on Federalism: Battleground Medical Marijuana
Federal Sentencing in Marijuana Offenses: How Should Federal Judges Reflect the National Changes in Policy When Sentencing Marijuana Offenders?
Marijuana or Xanax: the Lesser of Two Evils
Marijuana Policy and Immigration Law: Policing Borders, Blurring Lines, and Reforming Policies
Privacy Concerns Within the Ever-growing Marijuana Industry
Responsible Smoking – A Guide to Police Powers in a Recreational-Use State
Nuestra Voz Entre La Hierba: the Latino Vote and Marijuana Reform
“Weed Here, Get Your Weed Here!”:The First Amendment and Advertising Legalized Marijuana
Keeping the Flashing Lights On: Using Civil Forfeiture to Fund Law Enforcement by [Not] Punishing Drug Offenders
Additional Revenues for the City of Detroit and State of Michigan: An Initiative for Legalized Marijuana within the City of Detroit
Legalize and Tax Marijuana: The Path to a Better Fiscal Future for Ohio
A Guide to Marijuana Reform in the Buckeye State: How and Why Ohio Should Lead America’s March Towards Marijuana Legalization
Starting a Retail Marijuana Business: Colorado or Washington?
As these paper titles highlight, students used their final papers as an opportunity to explore employment law, cyber-law and markets, public opinion trends and minority voting patterns, privacy law, federalism, the First Amendment, federal sentencing and civil forfeitures, immigration law, and health law as well as the array of tax and business issues that surround marijuana reform policies and practices. (Once I finish grading all the papers, I am planning to post some or all of them in this space if I surmise there is reader interest.)
In some future "wrap-up" posts, I hope to discuss more broadly what I thought worked best (and did not work so well) in my development of this seminar. I also want to discuss a bit why I think I should probably wait until late 2015 or early 2016 to teach a course like this again.
Cross-posted at Marijuana Law, Policy & Reform
Monday, December 09, 2013
Prawfsfest! XI is about to start. Big thanks to Pepperdine and Michael Helfand
I'm so excited to announce that Prawfsfest! XI is about to start this morning. We used to run two of these a year, and then took a hiatus, but thanks to the efforts of Michael Helfand, we are reviving it and I'm delighted to publicly trumpet and thank our wonderful hosts in Malibu. We've been hearing lots of apologies by people about the weather, which is unseasonably cold, but unless these apologies are statements of regretful agency as opposed to "I'm sorry you're suffering" then I'm pretty sure I don't want to hear them anymore:-)
In any event, here's the schedule for today and tomorrow's program.
Prawfsfest XI | December 8th – 10th, 2013
24255 Pacific Coast Highway, Malibu, CA 90263
Monday, December 9
8:30 AM Gather in Villa Graziadio Executive Center lobby to drive to Law School
8:40 AM Breakfast at Law School | Seminar Room 1
9:00 AM Jack Chin (UC Davis): “Unconstitutional, But Reasonable? Race, Reasonableness, and Considering Whren’s Dicta”
10:00 AM Garrick Pursley (Florida State): “The Thin Constitutional Structure”
11:00 AM Break & Refreshments
11:15 AM Victoria Schwartz (Pepperdine): “Analogizing Privacy?”
*NOTE: Participants can choose one of the two options below for the lunch break:
12:15 PM Lunch on-site | Dean’s Conference Room or
12:30 PM Faculty Workshop Presentation by Dan Markel | Seminar Room 4
2:00 PM Eric Miller (Loyola LA): “Permissions and Discretions”
3:00 PM Break & Refreshments
3:15 PM Robin Effron (Brooklyn): “Ex-Ante Discovery”
4:15 PM Return to Villa Graziadio Executive Center for spare time
7:00 PM Gather in Villa Graziadio Executive Center lobby to drive to dinner
7:30 PM Drive to Dinner at Duke’s Malibu | 21150 Pacific Coast Highway, Malibu | 310.317.0777
Tuesday, December 10
8:45 AM Gather in Grazadio Executive Center lobby to drive to Law School
9:00 AM Breakfast at Law School | Seminar Room 1
9:15 AM David Han (Pepperdine): “Flexible Remedies in Speech-Tort Jurisprudence”
10:15 AM Margaret Ryznar (Indiana): “Child Support Obligations of High-Income Parents”
11:15 AM Break & Refreshments
11:30 AM Dan Markel (Florida State): “Luck or Law: The Constitutional Remedy for the Right Against Indeterminate Sentencing”
12:30 PM Lunch on-site | Dean’s Conference Room
2:00 PM Michael Helfand (Pepperdine): “Enforcing Co-Religionist Commerce”
3:00 PM Refreshments and Conclusion
Thursday, December 05, 2013
Interested in Developing As a Legal Scholar? (A note from Prof Chris Lund)
At the January 2014 AALS meeting in New York, the Section on New Law Professors is set to host a panel entitled, “Developing as a Legal Scholar: Thoughts for New Law Professors.” We’ve put together an impressive group of scholars—Jennifer Arlen (NYU), Sarah Cleveland (Columbia), Doug Laycock (Virginia), and Angela Onwuachi-Willig(Iowa)—who will join together for a roundtable discussion of how they became so awesome. They will focus on matters of vital importance to our membership (i.e., new law professors). Topics will include how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on which scholarly projects to pursue.
If you’re interested—and why wouldn’t you be interested?—please come. The panel is Saturday, January 4th, 2014, running from 4:00 PM to 5:45 PM. Put it on your calendar.
But here’s something else. The Section wants input from Prawfsblawg readers! You all probably have questions about growing as a legal scholar that you’d like the panelists to answer. Put them in the comments section to this post. During the discussion and during the Q&A, I’ll find ways of slipping in your questions (only the good ones, of course, but I have a broad notion of “good”).
(Chair, Section on New Law Professors)
Here, btw, is the full panel description:
Saturday, January 4th, 2014
4:00 - 5:45 PM
 AALS SECTION ON NEW LAW PROFESSORS
Developing as a Legal Scholar: Thoughts for New Law Professors
Moderator: Christopher C. Lund, Wayne State University Law School
Speakers: Jennifer H. Arlen, New York University School of Law
Sarah H. Cleveland, Columbia University School of Law
Douglas Laycock, University of Virginia School of Law
Angela Onwuachi-Willig, University of Iowa Law School
This panel brings together a number of prominent academics for a roundtable discussion of how they developed into legal scholars. With an eye toward aiding law professors new to the academy, the panelists will discuss things like how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on scholarly projects to pursue.
Saturday, November 16, 2013
Cutting the Sticker Price
Following up (indirectly) on Matt's post yesterday about the future of law schools, it's worth noting the news (via Brian Leiter's blog) of a big tuition reduction at Ohio Northern. Of course, many -- probably most -- schools substantially discount tuition for many of their students via merit scholarships, so a lot of students already are paying less than the full sticker price. That's not to say across-the-board tuition reductions are meaningless. Indeed, to the extent those scholarships are largely funded (as most law school expenses are) by tuition, the current structure amounts to some students subsidizing the legal education of their classmates. Some might find that troubling, others might not (at least if there's transaparency about the amount of scholarship money that's being doled out, how it's being distributed, and where those funds are coming from). It will be interesting to see if ONU's move gets matched, by whom, and what those schools end up doing with regard to scholarships.
Friday, November 15, 2013
Paul Campos and the Future of Law Schools
Paul Campos comes to the conclusion that even though 80-85 percent of law schools (in his rough estimation) are losing money, very few will close because there is plenty of room for cutting expenses. Based on my own sense of things, I think he's right. But I don't agree with his assessment that the rise in law school expenses has been "a spectacularly successful exercise in rent-seeking." His initial example for this rent-seeking is the drop in student-to-teacher ratio over the last 33 years. But is this drop really a bad thing? Isn't it better to have smaller classes? When you are looking for schools for your kids, do you say: this elementary school has *huge* classes -- terrific!
Not to rehash these issues for the ump-teenth time, but I wish reformers like Campos would at least acknowledge some of the benefits of the current (but likely passing) model for legal education, such as smaller classes, more clinical opportunities, and more extra-educational services. Sure, that's expensive, but is trying to provide a better product rent-seeking? Not to say that there aren't examples of rent-seeking, such as higher salaries and cushy benefits. But smaller student-teacher ratios mean you are hiring more teachers, not more expensive ones, and tenure existed in the 1980s, too.
Campos doesn't come out and say this, but apparently he wants to return to the days when law schools had largely big-lecture Socratic classes, a couple of clinics, and students teaching legal research and writing. If so, I wish he'd say it. I think there's a good argument for the old method: a "VW Bug" version of legal education may make more sense for more people than a Cadillac one. (The nice cars do have Corinthian leather!) But once he came out with something concrete, people would have grounds for criticizing his approach.
As a famous Vulcan once said, "As a matter of cosmic history, it has always been easier to destroy than to create." I wish Paul Campos would help us start rebuilding.
Friday, November 08, 2013
Great jobs for green lawyers in the new green ganja legal world(?)
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Cross-posted at Marijuana Law, Policy and Reform
Monday, October 21, 2013
Et Tu, Adam? The Lazy Critiques of Law Reviews Continue
When it comes to media stories on legal education, bashing on law reviews is evergreen content. Why, it was just two years ago that David Segal was offering his own attack on legal scholarship, referring to law review articles as "headscratchers" and quoting Chief Justice Roberts on Kant & Bulgaria. (And this was my response then, in case you missed it!) So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before. I find these critiques to be based on a blend of ignorance, arrogance, and incoherence. Ignorance because they don't really seem to know what's going on in actual law reviews. The CJ's quote is a good example -- it's a caricature of a cliche about law reviews, rather than an actual observation about them. Arrogance because there is always outrage about these "amateurs" and "incompetents" getting to touch the golden prose of scholars. Sure, some journals and some editors are worse than others, but on the whole students know the Bluebook and are respectful yet challenging of authors. I have gotten terrific editing from law reviews, including a set of edits at a specialty journal that I just turned around this past month. Would some peer review be nice? Sure, but (1) there are peer review journals and (2) meaningful peer review comes in the literature to follow. When a huge number of professors do their research on SSRN, which offers no review of any kind (other than download counts), the need for peer review to separate wheat from chaff is overblown. Finally, incoherence -- because the critiques don't fit together. Law review articles are incredibly esoteric and out of touch? Then why are they being chosen by editors who almost all go on to be lawyers themselves? Law blogs are better than law reviews? I don't know where to begin with that one. There are a lot of different tropes and agendas meandering around in these critiques, and they just don't hang together. The critique of internally-placed articles based on Albert Yoon's research does raise real concerns. But this is a much more subtle point than the rest of Liptak's post.
I have a lot more to say about this, some of which I said in "Law Students and Legal Scholarship" over at the Journal of Law. But law reviews are a resource for which law professors should be grateful. I hope more law profs come out of the woodwork to defend these institutions of research and learning, or they just might begin to disappear.