Thursday, January 15, 2015
Fair Grading in a World of Curves? Concepts and an Algorithm...
Thursday, January 01, 2015
AALS and Other Acronyms
Greetings everyone! It’s a pleasure to be here. I’ll be heading to AALS later this week, where I hope to see many of you. Washington, D.C., has always been a city of acronyms for me. Acronyms have an insider/outsider quality to them. If you understand the acronym, you’re in the know. If you do not, you’re not. When I meet with friends in town who happen to work for the government, they talk in acronyms to me. There’s the NSC, the NSA, the SFRC, and DOD. There’s OMB, the FCC, and OSTP. Even some of the city’s law schools, like the GULC and GWU, are known by acronyms. And let’s not forget POTUS and SCOTUS.
On my way to AALS, itself an acronym, it occurred to me how few acronyms exist in the legal academy by comparison. For those who are newbies, there is the VAP. For those teaching property, we have the RAP. And our public interest students sometimes get LRAP. But if I begin using APOL, POL, and ADFAA (for Professor of Law, Assistant Professor of Law, and Associate Dean for Academic Affairs), you would surely frown and cease reading my posts.
What other acronyms in the legal academy can you think of? What others should there be for terms that law professors commonly use? I’m curious. I’ll be blogging this month about the quirks of the legal academy. Let’s start with its acronyms. The comments are open.
Tuesday, December 30, 2014
With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law. There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate. There are a few articles here and there with advice for those who may wish to opt out, but not many. Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice. This figure includes many, if not most, law professors. Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?
Monday, December 29, 2014
Going to the Dogs
It seems that things have become so stressful for some law students that therapy dogs are in order. Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief? Does “dog rental” go too far?
Tuesday, December 23, 2014
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Tuesday, December 09, 2014
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
Faculty Teaching Loads
This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads. Specifically, we are looking at whether there is a disparity in how much each of us teach.
To that end, it would be helpful to hear what other schools do to allocate teaching resource. In the comments, would you be kind enough to share whether your teaching loads are based on:
-Credit hours taught
-Student contact hours (credit hours times number of students)
I'll start: at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.
Monday, December 08, 2014
Tattoo . . . You?
I was reading an interesting article about lawyers and tattoos, which led me to question the practice among law faculty. Although dress codes have certainly become more relaxed since the days of wingtips and shoulder pads, some of the old taboos remain. Are tattoos one of them? After all, I cannot recall ever seeing a lawyer or a professor with a tattoo. Have you? Perhaps more importantly, should it matter?
Friday, December 05, 2014
LSAC numbers, law school closings, and macabre wagers
Al Brophy reports that law school applications are down almost 10 percent from last year's numbers, bringing the anticipated number of applicants to under 50,000 for the year. That would be about 5,000 fewer than last year. Over at Slate's Moneybox, Jordan Weissman has announced a bet with Berkeley's Steven Davidoff Solomon that at least one ABA-accredited law school will close in the next four years. He's encouraging side wagers. (I used the word "macabre" in the title because the bet involves the "death" of a law school.)
So I'm wondering, to the extent that folks are willing to talk about it, what the buzz is on law school closings around the country. If you work at or attend a law school, are there any rumors of closure? Is it a faint rumor, discussed obliquely, or are there actual conversations about staving it off? Who is bringing it up -- other faculty, deans, the university or board? If you are an entry level candidate, is it something you are considering in your search? Please -- no mention of a specific school unless you are willing to put your name down.
Tuesday, December 02, 2014
The People’s Law School (Revisited)
Back in 2012, I posed a question about what a law school for “the people” would look like, and I specifically asked how it might compare to schools already in existence. This question produced a fruitful discussion. Since then, there have been many discussions throughout the legal academy about the need for law schools to produce “practice-ready lawyers,” with many recommendations for improvement that focus on nut-and-bolts skills training (as opposed to doctrinal topics). My question today is, how far have we come since 2012, and what will it take to reach the goal of either creating law schools for the people or practice-ready lawyers, or both?
Thursday, November 20, 2014
My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.
Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.
Monday, November 10, 2014
Washington & Lee Law Review: Exclusive Submissions
The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST. The Law Review will extend offers for publication by December 8, 2014. All authors who submit articles to this program agree to accept a publication offer, should one be extended. For more information and submission instructions, visit this description.
Sunday, November 09, 2014
A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.
So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.
Friday, October 31, 2014
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
Thursday, October 30, 2014
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
On Being Sued, 3
In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.
So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it.
One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.
Scholarship is a cooperative effort. Carissa's comments may have led me down defamation alley, but she was right about the paper, and the paper was better for the change. The funny thing is that I never really stopped thinking about the real case as a hypothetical. Yes, I used the litigants' real names, but in my mind the case was always just an entry point into a larger discussion about the limits of antidiscrimination law. It's easy to forget that the cases we write about and teach involve real people--real people with families and feelings and grievances.
I get this now in a very practical way. A colleague of mine taught Catalenllo v. Kramer in her advanced torts class, and I sat in for the discussion. The students were studying defamation at the time, and they were deep in it. During my case, I had to learn defamation law on the fly (I didn't study it much in law school), so my understanding of it, not surprsingly, was clouded by my feelings about my situation. But the students were incredible--engaged, supportive, deeply interested in my team's theory of the case.
For me, the experience was odd. The teacher in me was pleased, as the students dug deep into the material. The defendant in me wanted to hear them say that I was right, that I didn't do anything wrong. And the scholar in me wanted to stand up on the table--Oh captain, my capatain--and scream about the virtue of academic freedom.
The last thing I'll say is that I am grateful for the support. So many students, friends, and colleagues--some I had never met before--reached out during the case to say kind things. The best thing about being a law professor is the opportunity to engage with smart, curious, committed people. It's a wonderful way to spend your days. Thanks, everyone.
Wednesday, October 29, 2014
The "New Normal" and Generational Change
Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time. In the last generation or two, expectations have changed considerably. Here are some broad-brush thoughts on that shift.
My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this. First, getting an entry-level teaching job didn't require any scholarship. Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two. The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:
Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.
Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different. By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years. A typical professor up for tenure might have the following post-J.D. writing on her resume:
1. The pre-VAP article(s). This article (or articles) was written and placed to build credentials to get a VAP position.
2. The VAP article(s). This article (or articles) was written and placed during the VAP window in order to build credentials for the tenure-track market.
3. The tenure-track articles. These articles were written during the tenure-track in order to prepare for the tenure decision.
One consequence of the new patterns is suggested by Howard's post: For many junior professors, the stated tenure standards at their law schools seem low. If you wrote two or three articles just to get a tenure-track job, the requirement that you write two or three more over five or six years to get tenure has a certain Dr. Evil quality to it. It's not surprising that many tenure-track professors are doing more.
The contrast between the scholarly expectations of today's junior professors and today's senior professors when they were juior is particularly dramatic in the current hiring environment. With many schools struggling, and lawprof vacancies few, there are many candidates on the market who can't get a job but who have more scholarship than already-tenured professors at the schools where they are unsuccessfully interviewing.
Quantity doesn't mean quality, of course. Some might say that today's junior professors write a lot, but not well. But I think the relevant standard is a relative one. Let's accept Sturgeon's Law that 90% of everything is crap. Is the quality of today's tenure-track scholarship better or worse than that of tenure-track scholars in generations past? I'm skeptical that the quality of such scholarship has gone down, and I think there are good reasons to think it has gone up.
In any event, whether these developments are good or bad is a big question that is beyond this post. My point is really just that the dynamic Howard points to in terms of tenure standards is just a symptom of a broader shift over time.
(Update: I fiddled with this post a bit immediately after posting it.)
Tuesday, October 28, 2014
What can you tell about a law school by its building?
I did think about suggesting a list of the "Least Impressive Law School Buildings in the World" but I've never actually been in one outside of the USA so I'm perhaps unqualified. And there's always a danger when working in a 41-year-old state-constructed Law Center that your own abode could show up on such a list, sending the College's Architecture Committee into a tailspin. It may be that one in fact comes to work in a piece of "visual indigestion" (see below), but no one likes to admit that.
These days, with law applications down, most college kids don't have to leave their dorm rooms to get in-person visits from multiple law school deans looking to find them the perfect forward-leaning experiential student-centered program. Or you can take an on-line building tour on some schools' web sites.
But some will still trek out for a campus visit. For what should they be looking?
1. Can you find the faculty offices? At some law schools, faculty offices are located down some corridor that only a member of the MIT Spelunkers' Club could navigate. If you can't find faculty offices, there is a good chance you won't be able to find the faculty when you have questions on your paper or in preparation for an exam. Their offices are hidden for a reason -- they are hiding from you.
2. Where is the parking lot? Many law students will be going from dorm or dorm-like neighborhoods to living off campus for the first time in years. As I learned the hard way in law school, mountain bikes don't work in the snow. Or on California freeways. So other than those lucky Michigan quaddites (?), law students are commuters. That means they need parking. Is there a parking lot? Where is it? Is it shared with the music department? Particularly as students spend more of their time out in the real world in clinics and externships, but still have to make it back in time for twice-weekly Commercial Paper lectures, parking matters.
3. Which are nicer, faculty offices or classrooms? You can tell something about the values of a school and its leadership, at least for an older and "updated" law building, from what they spend limited remodeling funds fixing first. If the faculty office suites are nicer than the classrooms, that might tell you something.
4. Are there names everywhere and does the law school look like they bought it at Ikea? If every classroom, conference room, washroom and water fountain is named the "A.C. Slater Memorial _____", that means the law school has alums who both (a) have money and (b) give money to the law school. Same for the law schools with slick new buildings with clean lines and rational HVAC systems that look like something you could buy at a Scandanavian import store. Knowing that alums of the school you are considering make money can tell you something about your job prospects (though the school's "employment outcomes" data is probably more reliable). That the alums give money back to the school tells you something about how they felt about their experience. Of course, if the school has a brand new building but no names appear anywhere, that might be a sign it borrowed more than it should have.
5. Could you fall in love in this library? We all know the great love story of our time, Bill and Hillary, and how they met in the law library at Yale. You may show up to law school single but leave not just with piles of student loan debt but also a spouse or a partner. At your wedding, when you recall meeting that special someone in the law library, will the memory be of vaulted ceilings or will it be of mold?
Friday, October 24, 2014
The push for quantity
Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).
1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.
2. Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.
3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.
4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.
5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.
6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.
Working all together, these create a lot of pressure to publish early and a lot.
Writing, Fast and Slow
Zachary Kramer's thoughtful post, "The Slow Writing Movement," brings up a broader choice between two approaches to producing legal scholarship. Fast versus slow. Or what I think of as the Chicago style versus the Harvard style.
The Chicago style is to pump out a bunch of articles every year. When you get an idea for an article, whether big or small, you write it up. The idea is to produce a steady stream of scholarship. Not every article will be a home run. But among your articles enough will be a hit that you'll produce a major body of influential work. I call this the Chicago style because it is most closely associated with the traditional faculty culture at the University of Chicago Law School.
On the other hand, the Harvard style is to write less but bigger. You focus on quality instead of quantity, not sending out an article unless and until you think it is the definitive statement about that area of law. You won't win any productivity awards. But what you send out should be a signficant statement -- if not a home run, at least a double or triple. And by focusing your efforts on really big ideas, the thinking runs, you'll produce a major body of influential work. I call this the Harvard style because I have heard it associated with the traditional faculty culture at Harvard Law School.
These diferences partly reflect different assumptions about what advances knowledge. The Chicago approach makes sense if you think authors are poor at predicting what ideas will take off. Better to write up everything and let the audience of readers decide. There's a risk that any one article may be a dud. But then you miss all the shots you don't take. By putting lots of ideas out there, the thinking runs, you're making the maximum contribution to the world of ideas.
In contrast, the Harvard approach makes sense if you think that really big articles are the ones that change the terms of the debate. A single profound work will change how people think more than a dozen less-developed pieces. As a result, taking your time with one big piece is better than wasting your time on lots of smaller ideas. By giving each article a long and sustained focus, the thinking runs, you're making the maximum contribution to the world of ideas.
My own sense is that neither approach is necessarily better. It depends on the person. Some professors hit on ideas relatively fully formed. For them, sitting on an article over time would just be lazy. Other professors work best by mulling over ideas over time. For them, putting out lots of articles quickly would mean sending out articles half-baked. And a lot of us are a mix of the two. Some articles come out quickly Chicago-style while others come out slowly Harvard-style. (With that said, going back to my earlier post, my recommendation for first-year professors is the same: Even if you see yourself as a Harvard-style writer over the long run, there are good reasons to start out Chicago-style.)
Finally, I should clarify that the labels "Chicago style" and "Harvard style" more accurately reflect the faculty cultures at those two schools ten or twenty years ago than today. Lateral moves and entry-level hiring have blended the categories over time. In particular, Harvard crossed the streams when it hired away several Chicago style professors from Chicago. An obvious example is Cass Sunstein, perhaps the epitome of the Chicago style, who probably wrote a new article during the time you read this blog post.
(Title with apologies to Daniel Kahneman.)
Thursday, October 23, 2014
The Slow Writing Movement
Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.
In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.
I tend to think that, as a general matter, we write too much, too quickly. Sure, there are execeptions, freaky people who pound out amazing stuff at an intimidating pace. But I've always admired the folks who take their time a little, who publish more like every other year. These folks tend to workshop the junk out of their stuff. They road test, reflect, restructure, rewrite.
One impact of VAPs on entry-level hiring is that new professors come to schools with writing habits/tendencies already built in. I have always felt that I am more a scholarly creature of my VAP than my home institution. My mentors during my VAP years pushed quality over quantity. Quality and quantity aren't mutually exclusive. But there's something to be said for beating the crap out of a paper before publishing it.
There are other factors at work here, to be sure. Sometimes tenure policies specify a certain amount of output. Other times there are social norms that dictate a specific level of productivity. Tenure matters, and you have to do what it takes to get tenure. But if there is wiggle room, slow down.
Rather than cranking to submit in your first year, another option is to write and reach out. Orin is correct that faculties value productivity. But only when it's good. Rather than impress your colleagues with your speed, make your paper the absolute best it can be. Engage your colleagues, ask for advice, get their feedback on what you've done.
For the slow writing movement to take hold, however, faculties have to be on board. If newly-hired faculty members don't submit a paper in their first year, rather than whisper behind their backs about productivity, take them to lunch. Engagement is a two-way street.
On Being Sued, 2
Man kills puppies, allegedly.
In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.
Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.
At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.
The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.
Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.
I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.
While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.
More to come.
Tuesday, October 21, 2014
Tips for First-Year Law Professors
I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching. Everyone has a different perspective, of course, and if I go astray, I hope others will respond in the comment thread. But if this is your first year of tenure-track law teaching, here are some tips you might consider:
1. Send out an article in the spring submission window of your first year. When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar. Now they're watching you to see if their bet was correct. Prove them right by sending out an article in the spring of your first year. You'll benefit in lots of ways. First, your colleagues will be very pleased to see you off to a good start. Second, tenure will look (and be) so much easier with a new article already under your belt. And third, it will get you into the habit of sending out an article in the spring submission window. My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.
2. Invite your senior colleagues out to lunch. Your senior colleagues can be a tremendously useful source of wisdom and insight for you. They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined. Plus, some of them are even really nice people. (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops. Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're particularly prominent scholars -- and invite them each to lunch. Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can.
3. Don't assign too much reading. It's common for new law professors to assign a lot of reading for class. In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way. And in many cases, more reading means more students unprepared for class. I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark. If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester. Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.
4. Lay low in faculty meetings, with one possible exception. New profs usually don't know of any long-running tensions on the faculty. If you're lucky, the tensions will be very minor. Still, it's best to stay away from fault lines if you can, especially before your tenure vote. Given that, you should plan to stay out of any particularly contentious faculty debates that might come up your first year. Go to faculty meetings and pay close attention, but mostly stay out of controversies for now. A possible exception is entry-level appointments. Having just been through the appointments process yourself, you're particularly well-suited to weigh in on entry-level hires. You may know the candidates personally, and as a peer you'll be familiar with their accomplishments in a way that more senior faculty won't be. So consider weighing in on entry-level appointments as your one area of participation.
5. Consider guest-blogging, at least at some point. This advice is probably more for second-year or third-year professors than first-year professors. But relatively early in your academic career, consider guest-blogging for a month at a general-law-blog site like Prawfs. Ideally, write a handful of posts connecting your scholarly work and scholarly interests to some news story or issue of interest to the broader readership. This is a great way for your work to come to the attention of other law professors. Sites like Prawfs are widely read by legal academics, especially among more junior scholars. A few blog posts introducing your work is an effective and relatively easy way to promote your work within the academy.
Thursday, October 16, 2014
In praise of being a white belt
My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.
1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?
Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.
Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in. In beginner-ness is there is no shame, and only potential.
2. Practice makes you better, and practice involves failure.As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.
Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.
3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.
4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.
5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?
Does Teaching Torts Warp Your Brain?
Maybe something just happens after 10+ years of teaching Torts. Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.
Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps). There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?
Or consider a simple object encountered in daily life - say, a pencil. The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).
The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination. They are Death, Dismemberment, and (Permanent) Disability.
Maybe this isn't unique to my favorite first-year subject. Maybe Evidence teachers reject new science stories not adequately supported by peer review. Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).
Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent. Baby walkers? Absolutely not. Keeping toddler in a carseat after exceeding its recommended weight? Misuse! Preschooler riding inside the shopping cart? Not on my watch. Product recalls? Reasonably, nay - vigilently!, monitored. In fact, this laptop just got recalled so I need to sign off right now.
Tuesday, October 14, 2014
Squids, Whales, and the FRC
I watched part of Squid and the Whale this morning. I couldn't bear to watch the whole thing; it's just too awkward and painful. As soon as I finish this post, I will promptly go shave my beard and throw away my corduroy blazer. The Metamorphosis is very Kafkaesque.
Speaking of corduroy blazers, the FRC is this weekend. This will be my eighth visit to the meat market--once as a candidate, the rest on the interviewing side of things.
Best of luck to all the faculty candidates. I hope you can make the best of an awkward process. There's lots of good advice swimming out there about how to succeed in these interviews.
I don't remember seeing much about interviewer best practices, however. Like, for instance, don't read the newspaper during an interview. That happened to me. The dean in one of my interviews didn't even get up to shake my hand, just read and crumpled a copy of USA Today for twenty minutes. It's hard to be cooped up in a room for two days straight. It's hard to sit on an uncomfortable coach, scarfing down overpriced cookies while your colleagues aren't looking. It's hard to muster an enthusiastic answer to the "How do you support junior faculty question" on Saturday afternoon. But I guess a good rule of thumb is to remember that this is a big moment for the candidates. They've got a lot invested in these interviews. So please, if you must, read a more reputable news source.
The Wardman Tower is the filet of the hotel.
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Monday, October 13, 2014
Law School Centers
Many law schools have centers or institutes, most of which seem to be ways to carve out market niches, to attract students, to help graduates market themselves, and to attract scholars in a particular field. We have three of them at SLU (the Center for Health Law Studies and the Center for International and Comparative Law), and I am the director of one: the William C. Wefel Center for Employment Law. This center has been a part of the law school since 1987, and in that time has served as an institutional home for our employment and labor law concentration and provided a way to coordinate interesting programming and bring in outside speakers. The center has also provided a way to connect faculty who teach, write, or provide legal services in related areas.
For many years, the center was supported by the efforts of one or two faculty members, simply added onto their other full teaching and research responsibilities, with occasional help from one of the faculty support staff. Now, as a result of some new educational programming and shuffling of staff, the center has more support, including a full-time program coordinator. Additionally, we are in the midst of developing metrics and processes to evaluate our programs, as many law schools are, in line with the ABA's learning outcomes standard, a standard that has been required by other educational accreditors for some time. As a result, we are exploring what our center could be.
We are surrounded by some useful examples. Our own Center for Health Law Studies has been very successful in that field, bringing together researchers, advocates, students, and those who work in health law settings. The Institute for Law and the Workplace at Chicago-Kent, which Marty Malin wrote about for a recent symposium we held on teaching labor and employment law, is an example in the labor and employment arena. In addition to being home for a certificate program, the ILW has business, union, and law firm members, which contribute to the center and participate in its programming. There are opportunities for students (experiential and scholarships), a peer edited law journal and Illinois public sector newsletter, and a number of workshops, conferences, and events with outside speakers.
Our main focus is to provide the best educational and experiential program for our students. We already have a solid curriculum, including the opportunity to spend a semester in Washington, DC, working full-time for an agency that works in the area. We also want to be able to focus on the needs of our community, and provide a home for research, both of which we have made some forays into. So what else might we consider for our center? Are there any centers or institutes you know of that are doing interesting and important things? Have there been difficult tradeoffs in centers or institutes you know about? I'd be interested in any thoughts in the comments.
Wednesday, October 08, 2014
On Being Sued, 1
In 2011, I published a paper called "Of Meat and Manhood." It's a paper about vegetarianism and sex discrimination. It's about how discrimination has changed in the half decade since Congress passed the Civil Rights Act. And it's about what the future of civil rights law might look like.
Here's a link to the version posted on the Wash. U. Law Review's website. Look at the bottom of the page. There's a link called "Editors Note to Of Meat and Manhood." When you click on it, a pdf opens, which says the following:
Editor’s Note: The allegations that are drawn from the publicly filed complaint in the case of Pacifico v. Calyon et al., No. 100992-2009 (N.Y. Sup. Ct. filed Jan. 26, 2009), are footnoted or sourced to the Pacifico complaint in the Law Review Article. The defendants in that case filed answers denying the referenced allegations of the complaint. Subsequent to the Law Review Article’s publication, the plaintiff in Pacifico voluntarily discontinued the case with prejudice.
No one ever said lawsuits produce poetry.
In late December 2013, I was sued in federal court in New Jersey. The case was dismissed in May of 2014, in a decision by Judge Engelmayer of the Southern District of New York. I haven't spoken much about the case--first because I couldn't while itigation was ongoing, then because I didn't want to.
So now I'd like to share some thoughts. Here's my first take.
I learned about the lawsuit from a reporter, who email me for a comment. I had no idea what she was talking about. I had to google the plaintiff's name. Now when you google his name, a picture of me comes up. How strange to be linked to someone I will probably never meet.
When I write a paper, I think a lot about who my audience is. Until I got sued, I never imagined anyone but lawyers and professors would read what I write. It didn't occur to me that, if I wrote about a case, the parties to the case might read it. And even more importantly, they may not like what I have to say. Maybe I was naive about that. If you knew the people you were writing about were going to read the paper, would it change the way you write? I know it has changed the way I write.
The primary claim was for defamation. There were also supporting claims for publication of private facts and false light invasion of privacy. I wasn't the only defendant, at least initially. The plaintiff also sued Wash. U. and Western New England College of Law. Wash U published the paper in its law review. I gave a lecture at WNEC about the paper. I gave probably ten or so talks at different schools about that paper. WNEC was the only one that put the talk online.
The basic facts were this. The plaintiff in my case was the defendant in an employment discrimination case in 2009. The plaintiff in the underlying case alleged that he was fired because he was vegetarian and perceived to be gay. When I wrote my article, that case was still ongoing, stalled somewhere in the pre-trial phase. It was voluntarily terminated--I assume because of a settlement--in 2012, more than a year after my paper was published.
How did the plaintiff (my plaintiff) find out about my paper? I don't kow for sure. I've always assumed he googled himself and stumbled upon my stuff. I few blogs and other outlets wrote about my paper, so he could have found me indirectly. At the hearing on my motion to dismiss, counsel for plaintiff said that the plaintiff served on a Federal Reserve Board subcommittee and that another member of the committee had seen the article. So perhaps the plaintiff learned of it from someone else.
A couple more things to set the stage.
1. As a professor at a public law school, I am a state employee. Not only did the university support me, but so did the state of Arizona. The Attorney General's office coordinated my defense. Indemnification is a beautiful thing.
2. As a state employee, I am covered by the state's notice of claim statute. In order to sue an agent of the state, a plaintiff must give notice of the claim in advance of filing suit. That did not happen in this case. If we hadn't won at the motion to dismiss stage, we likely would have prevailed at summary judgement, when the notice of claim issue would have come before the court.
3. Before the lawsuit, I always thought academic freedom was something lazy professors raised when something was required of them. Academic freedom, you can't make me teach the statute of frauds! Academic freedom, you can't make me assign a different casebook! Not anymore. I love academic freedom. And not just because I was able to use it to cover my ass. Academic freedom is why we are able to do this for a living. To write and explore, to fight for justice and right wrongs, to make the world a better place, one measly law review article at a time.
4. I always hoped my scholarship would be covered by an outlet like the Wall Street Journal. I never imagined I would have to get sued for that to happen.
5. In the world of injustices, my lawsuit is small potatoes. But it wasn't to me. It was something that loomed large in my life for well over a year. Even if the lawsuit never had much of a chance of success--which many people told me from the start--for me it always felt very real, very accute, and very scary.
More to come.
Saturday, October 04, 2014
A Law Professor Who Doesn't Want Tenure
So, I decided a while back that I didn’t want to apply for tenure, and advised the administration and (more recently) the faculty at Santa Clara Law of my decision. I reached this conclusion after conducting an inventory of my strengths and weaknesses. Pursuant to this census, I determined that, assuming I remain in academia, I’d probably be a better teacher and scholar without the cushion that tenure provides.
The post concludes:
I don’t want to be that guy — the professor who gets tenure, and then sits on his hands and reads straight from the casebook in class. I don’t think I’d be that person even with tenure. But why take chances? And although a professor without tenure is more likely to get dismissed than one with tenured status, that’s OK, too. I see it as my job, going forward, to perform well enough to make certain that doesn’t happen. If it does, well, I’ve still got my bar card, and being a park ranger wasn’t so bad, either.
Thursday, October 02, 2014
What Do We Talk About When We Talk to the Media?
One of the fun things about being a law professor is talking to journalists. Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market. It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university. From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.
Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:
1. Talk in sentences: Advising student writing, whether in the form of legal memos or law review Comments, we teach our students to write in paragraphs. The media isn't interested in paragraphs. At most, a journalist will quote a few sentences of your thoughts. While you don't have to limit yourself to soundbites, you're unlikely to have more than even a few sentences quoted even after conducting a 20 minute interview.
2. It's not your story: I've seen a few professors complain over the years about being quoted out of context. If you're worried that you won't be able to give the complete law professor answer, "it depends...", then you shouldn't talk to the media. Once you hang up the phone, it's out of your hands. The good news is that you can always elaborate or clarify on your own blog, or on your Twitter feed. Thanks to Twitter, these days we're all insta-pundits. So save the full explanation for a different venue.
3. Be right most of the time: The best way to get a repeat call from a journalist, or have her refer you as a source to a colleague, is to be right most of the time. If you can accurately predict, say, the outcome of a labor dispute, then you're far more likely to get a follow up call for a future story. In scholarship it may be that being interesting is more important than being right, but that's not usually what interests journalists.
4. Air quotes don't show up on TV or the radio: I recently gave a 30 minute interview to a local TV channel. I summed up a somewhat confusing explanation by saying, with visible air quotes, that "my 'expert assessment' is..." Of course, the video clipped out my air quotes. It would be funny if I actually talked like that, but when my mom watches the .wav file it sure looks like I do.
5. Keep a jacket in your office: Not everyone boasts a Serious Professor Goatee that's worthy of Joe Slater. And sometimes we show up to work, particularly when writing in the summer, in plastic pants. Amazingly, one can don a lawyer costume from the waist up in a matter of moments. I don't want to veer into this blog's alleged sartorial obsession, but it's handy to be able to look the part when an unexpected opportunity arises.
6. A wire service is worth a dozen interviews: It's super cool to know what you sound like in Croatian. If you are lucky enough to comment in a story for Bloomberg, AP, or Reuters, particularly one with international application or interest, you can find yourself quoted in dozens of papers, including many overseas.
7. You know more than you know: There are of course reporters who cover legal issues exclusively, or are lawyers themselves, and they may know as much or more law than you do. But many reporters are really looking for someone who has legal training to respond to an emerging development, not for the world's leading expert. You need not have written a treatise on an issue to be able to add some value. Free of the conflicts arising from having to represent clients, with a little bit of legal research you can often help a reporter unpack legal issues and translate our professional "-ese" with ease. It's okay to take a few minutes to read up on some issue before offering to talk to a reporter.
8. TV will cancel your interview if Gary Bettman is available: I've had more than a few TV stations call to see if I could rush down to the local affiliate (after rushing home to change out of my plastic pants) to appear on some show or other via satellite uplink. And then, as I don my professor costume furiously, they call back to cancel because the commissioner of the league the story is on wants to appear instead.
9. Answer your phone: The best way to get a media opportunity is to be responsive, both to telephone calls and emails. For me, the reporter most likely called McCann and Feldman and only got to me because they were booked or couldn't comment due to other obligations. But even if I'm not the first person they call, if I answer the phone or respond within a few minutes to an e-mail, I'm more likely to be the one they use for an interview than the next person down on their list.
Wednesday, October 01, 2014
Over the summer, my friend Dan Markel invited me to be a guest at this blog. I was one of probably hundreds who received that twice-yearly call for guest bloggers. Yet another exmaple of how many people floated in Danny's orbit. It had been years since I blogged, but I decided to respond to the request this time because I wanted to write a little about Catalanello v. Kramer, a defamation lawsuit in which I served, grudgingly, as the defendant. Current guest blogger Geoffrey Rapp blogged about the case back in April of 2013.
I do have thoughts on the case--what was at stake, what I learned from the process, how I came to love the concept academic freedom--and maybe I'll get to them while I'm here this month. But it feels wrong not to say something about Danny first.
Danny was one of my first friends in the academy. We met on the tennis courts at SEALS, and Danny absorbed me into his life immediately. He introduced me to people, invited me to conferences, demanded to read my work, shared my work with others, and called me regularly to check in. He was relentless. In a significant sense, he taught me how to be a good law professor. Not good in terms of the quality of my teaching and writing--though I'm confident he helped me become a better writer and reader--but in terms of our obligations to the community. Mentorship is the lifeblood of the legal academy. Academic life can be a solitary existence. My phone doesn't ring that often. If I want to, I can spend the workday all by myself, holed up in my office, not responding to knocks at the door.
But I don't. Because that's not how you do the job. We are at our best when we treat this job like a collective enterprise. Give as much as you take, and make time for the community. That is how Danny did the job. And like a baby duck, I imprinted on him. I suspect that many of us did.
Thanks to the rest of the PrawfsBlawg crew for hosting me this month. Quack.
Life is short
Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.
I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:
Living is no joke,
you must live with great seriousness
like a squirrel for example,
I mean expecting nothing except and beyond living,
I mean living must be your whole occupation. . . . .
Sunday, September 28, 2014
ASU Aspiring Law Professors Conference
Yesterday I attended the sixth annual Aspiring Law Professors Conference at Arizona State University. I thought I would share a little about my experience for those who might want to attend in future years. Overall, I found the conference to be very helpful to me as someone who is on the market this year, and I really appreciated the enthusiasm and generosity of Dean Doug Sylvester and all the professors who attended. They are doing all of us aspirants a great service by spending their free time on a Saturday trying to prepare us as effectively as possible for the process that lies ahead. (I haven't attempted to reproduce most of the specific advice that we received, but a quick Google search reveals that past conferences were recapped in further detail by permanent Prawfs bloggers here and here.)
The day began with a keynote address by my Pepperdine colleague, Paul Caron, titled Law School Rankings, Faculty Scholarship, and the Missing Ingredient. The address started by asking a question Paul had previously raised with a co-author in What Law Schools Can Learn from Billy Beane and the Oakland Athletics, namely how we can better measure faculty contributions to a law school’s success. Paul went on to argue that, while existing rankings based on faculty scholarship are undoubtedly important, more metrics need to be developed to assess other aspects of a professor’s value to the institution, particularly with regard to the student experience (the “missing ingredient” in existing rankings).
After Paul’s address, we broke into three concurrent sessions: one for people who are on the market this year, another for clinical or legal writing candidates, and a third for people who are thinking about going on the market in a future year. I of course went to the first session. The panelists there shared helpful tips on issues such as how to prepare thoroughly but still have a natural conversation in the interview, how to ask thoughtful questions, and how to stay energized and be your best self for the duration of the hiring conference. I’d picked up a decent amount of similar advice from friends and colleagues who have gone on the market recently, but I still found it helpful to hear some additional perspectives.
After lunch, all the participants were invited to sign up for a mock interview, mock job talk, or both, and all the sessions were open to everyone to observe, including current and future candidates. I watched three of my fellow candidates deliver 10-minute versions of their job talks and answer a few questions each before receiving feedback. Apart from the very useful suggestions I received on my own talk, I found it more helpful than I expected to watch other people deliver their presentations and get feedback on what they did well and where they could improve. Doing and watching some mock interviews likewise helped me to better appreciate the unique challenges of that setting, and I left with a good plan on what I needed to prepare between now and October 17.
All in all, I found the conference to be very worthwhile. For those who are considering whether to attend in the future, I think the conference would be essential for anyone going on the market straight from practice or perhaps a Ph.D. program. I also think the conference would be useful for people, like me, in a smaller or relatively new VAP program. I have been very fortunate to get lots of advice and tremendous support from my colleagues at Pepperdine, but it was still helpful to have a chance to practice my job talk in front of an additional audience and to get advice from people at a few different law schools. Not surprisingly, there were fewer attendees from some of the larger fellowship programs, and I imagine people at such programs have multiple opportunities to do practice job talks and watch their colleagues do the same. But even for them I think the conference could be useful in giving opportunities to practice with strangers, as a past conference speaker pointed out.
As for people who are only thinking about law teaching or planning to go on the market in a future year, I don’t know exactly what was covered in the concurrent session, but I think the usefulness of the conference will depend on how much you already know about the process. If you went to panels on how to become a law professor as a student in the relatively recent past, then the main value of the conference would be the chance to watch some mock interviews and job talks, and I’m not sure that alone would justify the trip for anyone who has to travel a long distance. But if you didn’t get this advice as a student, then the ASU conference would seem to be a great opportunity to get firsthand insight that’s not otherwise readily available, and then the chance to observe the afternoon mocks will give you a nice headstart on the process.
Thanks again to Dean Sylvester and all the professors who came to this year’s conference!
Tuesday, September 09, 2014
Call for Papers: AALS Program of the Business Associations Section
You may have seen this elsewhere on the web, or on the listserv, but if not -- you have until Friday! You can submit a paper or an abstract.
CFP: AALS Program of the Business Associations Section
AALS Program of the Business Associations Section
The Future of the Corporate Board
AALS Annual Meeting, January 4, 2015
The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC.
The topic of the program and call for papers is “The Future of the Corporate Board.”How will boards adapt to recent changes and challenges in the business, legal, and social environment in which corporations operate? The recent global financial crisis and the continuing need for many corporations to compete internationally mean that today’s boards face economic pressures that their predecessors did not. This pressure is heightened by the rise of activist investors, many of whom aggressively push for changes to corporate management and governance. On the legal front, new regulations, such as Dodd-Frank, impose heightened compliance and other burdens on many companies and boards. And on the social front, pressures for socially responsible corporate behavior and greater racial and gender diversity on boards continues. Our program seeks to examine the ways in which boards have, and will in the future, respond to these challenges.
Form and length of submission
Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of papers they propose. Papers may be accepted for publication but must not be published prior to the Annual Meeting. Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.
The initial review of the papers will be blind. Accordingly the author should submit a cover letter with the paper. However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
Deadline and submission method
To be considered, papers must be submitted electronically to Kim Krawiec at firstname.lastname@example.org. The deadline for submission is SEPTEMBER 12, 2014.
Papers will be selected after review by members of the section’s Executive Committee. The authors of the selected papers will be notified by September 28, 2014.
The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member law schools are eligible to submit papers. The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.
Please forward this Call for Papers to any eligible faculty who might be interested.
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."