Monday, October 07, 2013
Law and Society 2014 CrimProf Announcement
For the last five years or so, I've been involved with planning a "shadow" crimprof gathering at the annual Law and Society conference. Carissa Hessick (Utah) has been my partner in crime the last couple years, and the endeavor has gone very well, with this last year's event including over fifteen panels and something like seventy participants or so.
Sadly, Carissa and I are deciding to not play much of an organizer's role this year for the upcoming gathering in Minneapolis. There are a few considerations at play. We've always chafed under the somewhat peculiar participation rules that limited our sense of what number of panelists made optimal sense. But aside from that, we now have to deal with the unwillingness/inability of LSA to coordinate more than four panels for us or for any other group that would like to ensure that we could attend each other's panels without conflict in time and place. We might reconsider in future years, but for now, we figured that we'd let crimprof type people who want to go to LSA in Minneapolis this spring use the comments to this thread as a vehicle for putting together panels.
I should add: while we may return to LSA in the future, we are also considering just having a stand-alone crimprof conference at a law school, probably in May or June also, so that early drafts can be shared and repaired over the summer. (In my own head, it would like something like the ImmProf biennial gathering about which you can read here.) If your law school is interested in hosting this, either this year or in future years, let Carissa and me know. We anticipate that we would keep costs down by requiring participants to pay their hotel, perhaps most meals, and airfare.
In any event, if you're a crimprof and want to go to LSA, please feel free to include an expression of interest and abstract that you'd like to present. Remember that panels need to be packaged within the next week or so (october 15 is this year's early deadline).
HLR has more women. Discuss.
The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).
Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?
Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.
Thursday, October 03, 2013
2013 Faculty Hiring: Will Schools Be Looking for More This Year?
In making new faculty hires, law schools have traditionally focused scholarship and teaching, often looking specifically at a candidate's research agenda and teaching package. Most of the questions asked at those 25-minute interviews revolve around these topics. But I'm wondering if this year will be different. My hypothesis is that some schools will go beyond the traditional research-and-teaching-package questions to see what else a candidate might provide to the school. And my guess is that these questions will focus on how the candidate could help with employment outcomes and new pedadgogical directions.
These are not traditional topics for questions, and schools with higher employment and salary numbers will be likely focus on the candidate's scholarship. But at schools where students are struggling harder to find jobs, and where graduates may be looking for more practice-readiness, schools may be thinking more broadly about what a candidate can bring to the table. So -- does a candidate have a connection to the market(s) where the school's graduates are looking to work? Would she/he be able to facilitate connections between students and a new set of potential employers? Does he/she have subject-matter expertise that would lend itself to a center, not just for academic reasons but also because it would help students find jobs in the area? And some schools might be looking for profs who can teach not only the traditional doctrinal subjects but also more innovative or practice-oriented offerings. So -- would a business law prof be interested in working with an entrepreneurship clinic, lab, or externship program? Would a civ pro candidate want to work with appellate moot court teams, or help to set up a state supreme court clinic? Would the candidate consider working on a capstone course, like a ten-credit practicum, that the school is considering adopting?
There's a traditional dialogue in the hiring process, captured nicely by Christine Hurt's animated short. But I'm wondering if this year might be a little different. Hiring committees and candidates, feel free to weigh in. Will schools be looking for something different? Should they?
Friday, September 20, 2013
Notice to all law faculty: Read this Report
According to the ABA Task Force Report released today, you prawfs out there need to "Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School." So get to it! (However, in a separate statement, Task Force member and former OSU Law Dean Nancy Hardin Rogers "see[s] no need" for such a command.)
Having endeavored to follow the Task Force's directive, I was somewhat surprised with the lack of data in the Report combined with its willingness to make sweeping empirical observations and reforms. I saw no specifics in the report about attorney employment rates, law student debt levels, or law school tuition rates, or any analysis about how these might have changed over time. There is no data about faculty salaries, faculty workloads, or faculty scholarly productivity. There is no real discussion about what kind of education might be needed to be a 21st-Century attorney, and how this might differ from the education currently being provided. Instead, there are pronouncements such as these:
- "Prevailing law faculty culture, and the prevailing faculty structure in a law school, reflect the model of a law school as primarily an academic enterprise, delivering a public good. This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship." (p. 26)
- "Rankings of law schools strongly influence the behavior of applicants, law schools, and employers. Some ranking systems (in particular U.S. News) purport to supply objective consumer information. However, little of the information used in ranking formulas relates to educational outcomes or conventional measures of programmatic quality or value." (p. 9)
- "Law schools price a J.D. education by reference to their cost of delivering it, less revenue from other sources (such as endowment income or state subsidies). In general, law schools do not take market price as given and seek to manage costs on the basis of that market price." (p. 10)
- "What is not reasonably disputable, however, is that the [ABA] Standards do not encourage innovation, experimentation, and cost reduction on the part of law schools." (p. 11)
- "The current market forces now require more drastic changes for law schools than they have faced in the memories of current law faculties or administrators. Universities are requiring law schools to become financially self-sustaining, and competition for students and tuition revenue has come to resemble competition in the non-education economy. Many, if not most, law schools lack the expertise or the organizational structure to deal with these new conditions; some constituencies in law schools resist dealing with them; and in some cases universities are unwilling or unable to support law schools as they attempt to make a transition to a new market-oriented way of conducting their affairs." (p. 13-14)
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
- "There continues, and will continue, to be a need for professional generalists. However, there is today, and there will increasingly be in the future, a need for: (a) persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services." (p. 23)
I think all those involved in legal education can roughly agree on two things: (a) over the last five years, the available legal positions have fallen significantly lower than the number of new graduates; and (b) over the last decade, law school tuitions have increased to levels that create unsustainable debt for new graduates. Although these points are contestable, I think one would find large consensus about them as well as data to support them. However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up.
As anyone who has written a term paper or law review article knows, the policy recommendations are always the "fun" part. But the work is largely in establishing the facts and principles that make those policy recommendations compelling. The Task Force Report is an almost entirely normative document, proceeding from certain descriptive assumptions and value choices. I wish it had spent more time establishing the factual assumptions and value choices before moving into its rather specific and contestable recommendations.
Thursday, August 29, 2013
When former students return as hiring-committee members
Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students. I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing. Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving! If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).
Saturday, August 24, 2013
The Problems with the President's Two-Year Plan
At a town hall event in Binghamton, N.Y. earlier today, President Obama was asked the following question:
I'm a faculty member of the computer science department. I'm very excited and encouraged by your plan on the affordability reform. My question is related about the quality of future higher education. As you know, many universities are trying their best to provide the best value by doing better with less. But the challenges are real, and they're getting tougher and tougher as the budget cuts are getting tougher and tougher. So my question is what your administration will do to ensure the best American universities remain to be the best in the world in the 21st century?
After acknowledging that state educational funding had dropped off significantly (". . . what you've seen is a drop from about 46 percent of the revenues of a public college coming from states down to about 25 percent"), the President then turned to ways in which universities could also cut costs:
So states have to do their jobs. But what is true also, though, is that universities and faculty need to come up with ways to also cut costs while maintaining quality -- because that’s what we’re having to do throughout our economy. And sometimes when I talk to college professors -- and, keep in mind, I taught in a law school for 10 years, so I’m very sympathetic to the spirit of inquiry and the importance of not just looking at X’s and O’s and numbers when it comes to measuring colleges. But what I also know is, is that there are ways we can save money that would not diminish quality.
This is probably controversial to say, but what the heck, I’m in my second term so I can say it. (Laughter.) I believe, for example, that law schools would probably be wise to think about being two years instead of three years -- because by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.
Now, the question is can law schools maintain quality and keep good professors and sustain themselves without that third year. My suspicion is, is that if they thought creatively about it, they probably could. Now, if that’s true at a graduate level, there are probably some things that we could do at the undergraduate level as well.
The full transcript is here.
I'm sure a lot will be said about this in the upcoming days, but since it's a Friday night in August, I thought I'd weigh in with a few initial thoughts. So here they are:
(1) The President's proposal does not lower tuition. It may seem obdurate to suggest that lopping off a third of the legal education provided to students would not reduce the tuition they pay. But it won't -- at least, not on its own. Yes, it will cut the costs of providing that education, at least in theory. But it won't lower tuition.
Frankly, I'm somewhat baffled that proponents of the two-year plan -- and, in fact any proposal to cut the costs of providing legal education -- fail to grasp this point. We just went through a period where a lot of law schools raised their baseline tuition at rates significantly higher than inflation despite the fact that the J.D. remained the same number of credits. In other words, over the last decade law schools charged significantly more per credit hour. What's to prevent them from doing this in the future?
But, how, you may ask, could law schools really charge the same price for 1/3 less education? Well, play it out. Let's suppose some states allow students to sit for the bar after two years, rather than three. Some schools would change their J.D. programs to two years, but many would not. In fact, it's more likely that the higher-ranked schools would keep their programs as is. But putting that variable to the side -- yes, there would be competition at lower-ranked schools, and many would create two-year programs. But they would charge what the market could bear. And up until very recently, that market could bear about $100,000 to $150,000 for a J.D. with many students lining up for it. Why wouldn't that market dynamic remain the same?
If you need further proof, just look at Matt Leichter's school-by-school analysis. As he said, "law schools do not care about controlling their costs and will shift them onto students who don’t realize that their predecessors had a significantly better deal than they did." Since I'm a law professor, I would frame this differently (schools will keep spending to improve the education they provide and their reputation), but the point is the same: law school tuition is not constrained by credit hours.
If someone magically changed the J.D. program at my law school to two years, I wouldn't shrug my shoulders and go, "Oh well -- guess we're only two years now!" I would work with my colleagues to figure out how we could make those two years meet the needs of our students -- and pack as much in as possible. If the same U.S. News rankings remained in place, don't you think schools would continue to compete on class size, expenses per student, and educational reputation? And wouldn't that drive up costs? What if, in the new two-year law school, we added a clinical component, an externship component, and a ten-person small section component to the basic Contracts class, and then assigned it to a doctrinal professor, two clinical professors, and four adjuncts? That would be a better class, no? But it'd also be a lot more expensive. A school could easily justify spending $60,000 or more a year per student -- again, if the market rewarded schools for offering such classes. (As an aside: is it better to have two years of intensive classes or three years of broader offerings? That's an interesting pedagogical question -- but it's a pedagogical, not a financial, one.)
So I do think, initially, a two-year program would lead to reduced tuition. But would it hold that way? I don't think so. The pressures towards education excellence would increase costs to meet whatever students and their lenders were willing to pay. That's not necessarily a bad thing, if consumers have the proper price sensitivity. But if you want tuition to go down, work on that. Otherwise, the assumption that law school tuition will go down if costs go down is like the argument that 11 is louder. It assumes that law schools just can't make 10 louder themselves.
(2) The President's plan would worsen the jobs aspect of the current crisis. No one doubts that a significant part of the current crisis is based on the drop in employment opportunities for law school graduates. If we change the requirements so that lawyers from here on out would only need two years of school, there would be more of them, and they would come to the market more quickly. And that would be a bad thing for those lawyers who are currently in the market.
Again, this seems to be a point that many reformers are either missing or are conveniently ducking. If you think there are too many law grads chasing too few jobs, then you really want fewer law grads. And if you are making legal education cheaper to provide, either by lopping off a third of the education required, or getting rid of tenure, or loosening other accreditation requirements, then you are putting down incentives for *more* law grads to be out there. And here's the Scylla-and-Charibdis: either tuition will not go down, and law schools will just make more money off their students as their costs drop, or tuition will go down, and more students will have the economic incentives and ability to go to law school. Pick your poison.
(3) Choices about the required program of legal education should be based on pedagogy. The President proposed lopping a third off of legal education because "by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much." That's not much of a pedagogical theory -- I guess he doesn't like clinics -- but then again, there's not much pedagogy to a lot of these theories. I believe that with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared. Of course, it is always the job of law schools to provide the necessary education at a sustainable price. But schools can provide a three-year legal education at a sustainable price. In fact, we've done it in the past.
If we find that a two-year J.D. provides an adequate education, then we should adopt it. But if we reduce the quality of our legal education -- and reduce it in ways that leave lawyers less able to handle their vocations -- simply because we can find no other way to reduce the price, then shame on us.
Tuesday, August 06, 2013
The Angsting Thread (Fall 2013 Submission Cycle Edition)
Friends, I have it on good authority that Redyip is not yet visible but he is making preparations for his journey this autumn. You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.Oh, one last thing: if you're bored while waiting for him to fly, Redyip whispered to me that y'all should feel free to read and send comments on this little paper.
Friday, July 19, 2013
Anxiety on the Tenure Track: What YOU Can Do
Drexel Law Professor Lisa McElroy has an important piece on Slate.com (here) dealing with her struggles with anxiety while on the tenure track. Anxiety while untenured is common, indeed almost unavoidable, but Lisa's essay is about the hidden toll her severe anxiety disorder imposed on her during the already stressful tenure process. She tells her story to help others in her situation have the courage to get the help they need and to start the process of breaking down the stigma attached to mental illness. Another benefit, she notes, is allowing herself to finally be known by those around her, to be who she truly is. Her essay reminds us all that our friends and acquaintances and, yes, colleagues--even those who are tremendously accomplished by all objective measures--are often carrying heavy burdens that we know nothing about. We should do what we can to alleviate their suffering and not let fear prevent us from getting help to alleviate our own.
Thursday, July 11, 2013
Clinical Legal Education and the Future of the Academy
I may be naive, but it's mystifying to me that there's still serious debate over the value and import of clinical legal education. I admit that I'm not an objective observer -- participating in a clinic as a law student was the most valuable thing I did during those three years, and I've spent the past decade happily teaching in a clinical setting. Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I'm surprised that more law school deans aren't promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.
Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it's those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead. In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape. In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the "gold standard" and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses. The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.
Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training. The State Bar's Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court. Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others.
Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete. At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week "theory to practice" residency that is "designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs."
Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years "to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses." The report also called for the full inclusion of clinical and legal writing faculty in law school governance.
On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.
Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum. I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school. Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of "transition to practice" type courses, externships as well as clinical course offerings. They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves -- something that the down economy can no longer subsidize. In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.
Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted "the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum." More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client's legal problem. In contrast, other professions -- including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy -- require at least one quarter, and up to more than one half, of a student's pre-licencing education be fulfilled by in-role supervised professional practice.
So, why the academy's reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum -- and that faculty who teach in these areas receive comparable pay and voting rights? As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools -- both public and private, rural and urban -- have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., "Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum," 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)). As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.
Your thoughts? Please share in the comments.
Tuesday, July 09, 2013
Expenditures, Tuition, and U.S. News
Back in November I argued that reformers should be working to get one of the big drivers of tuition increases -- the U.S. News rankings -- to include tuition as a factor. If folks want tuition to go down, it helps if there's a reputational incentive, and right now the U.S. News rankings incentivize higher and higher tuition rates. Now comes word from Brian Leiter that the ABA will no longer ask schools (on an annual basis) for information about their expenditures per student. I agree with Paul Caron that this is a very big deal. But it may not have any real effect if U.S. News does not take the cue and stop using expenditures as a factor.
And I think there are good reasons for Robert Morse to pause and consider a moment before eliminating expenditures from the formula. Expeditures per student reflect the amount of money that the institution is actually spending towards the education it provides. Yes, it provides a perverse incentive to spend, spend, spend. But on some level, as a consumer I want a law school to spend its money on my education. The expenditures-per-student factor is a type of consumer protection mechanism -- it makes sure that law schools use the monies they take in on legal education, rather than diverting them to other uses. In non-profit schools, that money could be diverted to other schools or programs; in for-profit schools, it could go back to the shareholders.
So if U.S. News simply eliminated expenditures as a factor, that would only mean that schools would no longer be incentivized to spend money on students. Would tuition automatically go down?Not necessarily -- it depends on the price sensitivity of the consumers. It could, in fact, lead to a worse result for students -- tuition levels remain steady, but spending on students goes down. A worse education at the same price!
[As a sidenote, I have the same response to those who think a two-year J.D. would be a great way to help students. Law school tuition has climbed rapidly over the last decade without any real changes in legal education. This is based in part on historically weak price discrimination by students. Why would law schools charge less for two years than for three, if they could charge the same rate? Sure, tuition might drop initially, but over time it could and likely would rise to the same level as it was before. That's a great deal for students -- a third less education at the same price!]
If U.S. News follows the ABA's lead and takes out expenditures, it needs to add in a factor for tuition. It could choose either list price or "real" tuition (as discounted by scholarships); both have their pros and cons. But adding in tuition is necessary to keep the rankings's consumer-protection focus. If U.S. News wants to encourage schools to trim back or even eviscerate their educational spending, then eliminating expenditures would be sufficient. But I don't see how that alone would help students.
Monday, June 24, 2013
So Where WAS Fisher Anyway?
Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case. Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.
1: I suggested a "very long" majority and a "very long" lead dissent. Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4. So much for that theory.
2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it." But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]
3: I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent. But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.
4: Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment.
This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail. There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors. (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)
So what did happen? Obviously my own reliability at guessing is subject to serious question. But my new guess is that there was a long struggle to get five Justices to join a single opinion. From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter. At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter.
Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case. So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion). There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages. But obviously you shouldn't take my word for it!
Friday, June 14, 2013
Signing Off, Thanks, and Call for Applications for Petrie-Flom Fellowship
Thanks to the Prawfs' gang for letting me blog this past month. Thanks also to the commentators for their insights. There was a nice symmetry in that I started this stint with the oral argument discussion of my brief for Eric Lander in the Myriad gene patent case, and the decision came yesterday along the lines we urged the court to follow. I will sign off by mentioning that my Center at Harvard, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, has just opened our call for academic fellows for the 2014-2015 year. Here is the call:
PURPOSE: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics is an interdisciplinary research program at Harvard Law School dedicated to scholarly research at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research and innovation, and bioethics. The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. Our prior fellows have found employment as law professors at institutions such as Harvard, UC Berkeley, BU, UCLA, Cornell, the University of Illinois, and the University of Arizona. More information on the Center can be found at: http://www.law.harvard.edu/programs/petrie-flom/.
PROGRAM: Petrie-Flom Academic Fellowships are full-time, two-year residential appointments starting in the summer of 2014. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Center does not impose teaching obligations on fellows, although fellows have often taught a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on health law, bioethics, and biotechnology, and other events designated by the Center. Fellows are also expected to help plan and execute a small number of events in their field of expertise during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Center also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor our Student Fellows. Finally, fellows are expected to blog periodically (about twice per month) on our collaborative blog, Bill of Health: http://blogs.law.harvard.edu/billofhealth/
STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with a private office, a research budget, options for health insurance, and a stipend of $5,000 per month.ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship.
Wednesday, June 05, 2013
More on MOOCs
Glenn Cohen beat me to the punch in blogging about MOOCs, but I thought I might build on what he's written by giving a different perspective: describing my own (admittedly limited) on-the-ground experience with MOOCs.
Taking a MOOC, or at least signing up for one, is extraordinarily easy and painless . A MOOC--Massive Open Online Course--is a course that is open to anyone and everyone and requires no tuition or fee, but also carries no actual academic credit. There are at least three major providers of MOOCs--Coursera, Udacity, and EdX--and signing up is as easy as entering your name and email address.
For the sheer fun of it, I suppose, I signed up for a literature course through Coursera and a statistics course through Udacity. I am just starting both. Some very brief and mostly practical observations, aimed primarily at those of us who may be doing some online teaching in the future:
1. Udacity and Coursera have radically different styles, or at least the courses I'm taking do. The Coursera course, offered through Brown, is rather sparse and staid and feels more like a traditional lecture. The Udacity course, offered through San Jose state, is flashy and interactive and self-consciously entertaining. The Udacity lecture segments are short, and they are spoken not by the professors themselves but rather by someone who appears to have been hired by Udacity for the purpose of presenting the material in an appealing way (read: an attractive young woman with a pleasant voice). Moreover, Udacity seems to be totally asynchronous, whereas Coursera requires you to follow an overall week-by-week schedule. In other words, there are a lot of choices that can be made about presentation style in the online format, and the above are just a few examples.
2. It is exceedingly hard to pay close attention to a lecture on a video, even an engaging one, even for the brief 10-minute segments that Coursera offers. In real life, I have found that I can have difficulty focusing on live lectures for more than about 20 minutes or so too, unless the speaker is unusually entertaining. But with the computer format, it is even harder, because you are at an additional remove from the speaker, and because it is just too easy to start surfing the web, checking email, checking your bank account, etc. while still convincing yourself you are "listening" to the lecture in the background.
3. Because thousands of people can (and do) take these MOOCs, the discussion threads are extremely lengthy. Though I suppose they are meant to give the student of feeling of interactivity, I find them rather overwhelming and not worth the time -- especially since many of the comments are relatively devoid of useful content.
4. It is really fun, but weirdly intimidating, to be a student again.
Tuesday, June 04, 2013
Higher Education From Scratch
Hello Prawfs readers: it's nice to reemerge from the comments again for the first time in a few years. But my first post here will be in the nature of a comment, or at least a thought inspired by Glenn's post below on MOOCs. I'm sympathetic to a lot of what Glenn writes, especially the skepticism of those whose arguments (albeit understandably) seem to be focused more on short-term distribution effects rather than long-term gains for society.
But I'm much more skeptical of a refrain that Glenn employs a couple of times in his post-- the idea that it's helpful for us to imagine that we were "creating the first universities for our day and age," and use those imagined ideal first universities to evaluate whether and how our actual universities ought to change. Maybe it's my inner Hayek, but I'm not sure how good our imaginations really are, and I'm not sure how relevant the product of those imaginations ought to be.
I mean, for starters, once we are in the imagining business, why universities?If we were creating the first system of higher education for our day and age, is there any reason to believe we would do it via university, rather than some much more unbundled combination of written and oral materials? Would we have general rather than specialized certifications? And if we did decide to invent universities, what ought they be like? Despite having thought about this for a while, I honestly have no idea, and I'm skeptical of most of those who do have a confident idea.
I come at this problem quite differently. One of the defining characteristics of American universities is the way that they've become embedded in our society over time, and the set of social norms in and around them. You don't have to be Tyler Cowen to think that two of the main reasons people learn things by going to universities are the effects of socialization and the higher social status obtained by going. We can tell stories about the superiority of interactive class discussion over the internet and the library, but surely those embedded social effects are a huge part of any such superiority. And many of those social norms are bottom-up, not top-down. Imagining new from-scratch universities pushes us to dissociate the university from some of its most important virtues.
So I'd evaluate the role of MOOCs and online education by asking: To what extent can we introduce the advantages without dramatically changing the social norms on which the univeristy system depends? (And, if the social norms will change dramatically, will it be worth it?)
As for lectures, it may well be that students pay a lot more attention when there is a real human being at the front of the class. Similarly, it may be that the success of classes relies in part on the desire of many students to "impress" the professor because he is a high-status person, and that repeatedly seeing the professor in the flesh is important to inspiring that desire.
As for cross-subsidization, again I'd ask whether unbundling research and teaching is consistent with the current status games on which universities depend. I'm not sure about the answers, but I propose that these are the more relevant speculations than the question of how we'd design universities if we were doing it from scratch.
Monday, June 03, 2013
Three Reflections on the MOOC Debate
Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:
(1) A failure to disentangle distributive impact from merit of MOOCs:
Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.
One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.
(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.
The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.
The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.
(3) What is so great about the traditional live lecture?
I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?
Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.
If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.
* * *
None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.
I am sure many will disagree and look forward to hearing your thoughts.
- I. Glenn Cohen
Friday, May 31, 2013
Starting a summer series on the upper-level law school canon and my marijuana seminar
As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.
As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and at my home blog Sentencing Law and Policy) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.
Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series here at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both here and at SL&P in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."
Speaking of substance, I will conclude first this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. I believe there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into the modern marijuana law and policy; my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.
But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.
Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.
Cross-posted at Sentencing Law and Policy.
Thursday, May 30, 2013
Grant Funding and Buying Out Your Time: Request for Information
In part because my work lies at the intersection of law and medicine, I have been able to participate in some wonderful grant-funded projects. So few of my non-clinical colleagues do grant-funded work, that Harvard has faced a series of interesting and new-ish questions about how to manage my time in relation to these grants. For those who are unfamiliar with "soft money" environments, many of my colleagues at our medical and public health schools, in particular, are "soft money" funded. Essentially this means they are expected to raise much of their salaries through grants, and end up teaching more or making less if they do not reach their goal in grant funding.
The law school environment is quite different, of course. I love teaching and would like to think I add some value to the teaching program there. At the same time, grant-funded work can be a really nice way to influence policy and contribute to solving tangible problems and working with stakeholders I would never encounter writing more theoretical or doctrinal scholarship. For example I am extremely excited that myself and my center at the law school will be working with our medical school, other parts of the university, and the National Football League Players' Association, on a 10-year 100 million dollar Harvard Integrated Program to Protect and Improve the Health of NFLPA Members funded by the players through the association. This is the kind of work I could never do except in the grant-funded milieu and I am also excited to involve our students in this kind of work.
As law school resources become more scarce I think many schools will be thinking more about whether there are grants that their non-clinical faculty could and should pursue. For thos schools that have encountered these situations before, though, I am very curious to learn if there are policies in place regulating non-clinical law faculty and their time in these regards? For example, does your school have a limit as to how much time you can buy out? Should it (my own prior is yes, but I have not deeply thought about it yet). To the extent your school has limits on the amount of "outside activities" such as consulting you can do (we have such limits at Harvard), is grant funded work counted as such? Should it be? In medical and public health schools the ability to get grant funded work is a major component of promotion and tenure decisions. I am also curious whether law schools have considered this in lateral or promotion cases?
- I. Glenn Cohen
Wednesday, May 29, 2013
Bill Henderson Is Burning Through His Reputational Capital
As the person who brought the bimodal salary distribution to the legal masses, Bill Henderson has earned a substantial amount of respect from academics, practicing attorneys, and law students. His early warnings about the dire job market and its effect on law schools, students, and recent alums have proven correct. His academic research on the future of law firms, the plight of junior associates, and the use of LSATs scores has moved the ball forward in these areas and has often challenged the conventional wisdom. Henderson is not afraid of being a prophet, even when the people reject the prophecy.
This year, however, Henderson's tone has begun to change. It started in January, with news of the unprecedented drop in law school applications. In a New York Times article about the drop, Henderson and others reflected on its causes: a poor job market, big jumps in tuition, perhaps even pedagogical failures. At the end of the article, however, came this fairly specific prediction from Henderson: "There are going to be massive layoffs in law schools this fall. We won’t have the bodies we need to meet the payroll.” That line became the takeway message for the ABA Bar Journal and other blogs.
I want to leave to the side -- way to the side -- the normative question of whether law schools should be undergoing massive layoffs. Henderson's was not a normative point -- it was a descriptive one. For someone who made his bones as an empiricist, Henderson's claim seemed to come out of left field. Yes, law school applications were down to historically low levels, and schools were (and still are) offering substantial tuition discounts in order to maintain an incoming class with the right qualifications. But I have not seen anything about massive layoffs, other than the Vermont Law School story that was itself cited in the NYT article. Hastings cut a significant number of staff positions, but that was spring 2012. And yes, there is still plenty of time for Henderson's prediction to come true. But one would have expected that, given that the writing is on the wall this point, some layoffs would have already started, if there were massive ones to come. Professiorial hiring is certainly down significantly, but it is not non-existent. As my own institution has experienced, good folks are still getting lateral offers.
Now it seems that Henderson has taken a "double-down" strategy to his predictions of institutional collapse. In an op-ed published by the National Law Journal, he argues that massive layoffs would not be nearly enough -- instead, schools need to close. Framing his piece as a "letter" to a hypothetical university president, Henderson essentially argues that law schools have two choices: close or adopt a radical new pedagogical agenda. Here he is at length:
In summary, there is significant excess capacity in the legal education system. So the dilemma facing a large proportion of university presidents, such as yourself, is the need to choose one of two difficult paths. You can either tackle head-on the difficult restructuring issues facing your law school, or alternatively you can cut your losses today and close the law school rather than risk another devastating shortfall as your school edges toward open enrollment and disastrous future problems with bar passage.
One key factor to consider is the employment prospects of your current students. Since the American Bar Association began tracking more granular information, we learned that some regional law schools — such as Alabama, Kentucky, West Virginia and Louisiana State — enjoy relatively strong placement records (greater than 80 percent in full-time, long-term jobs that utilize the law degree) that are on par with the national law schools, albeit these legal jobs tend to be in Alabama, Kentucky, West Virginia and Louisiana, and few jobs pay six-figure salaries. In contrast, many law schools are feeding highly saturated regional markets. For example, for law schools located in California, the average rate of bar passage-required employment is 48.9 percent, with several schools below 30 percent. Law schools located in Michigan are in worse shape, placing only 42.3 percent of their graduates in bar passage-required jobs.
Because you are in one of several jurisdictions with [employment] numbers similar to California and Michigan, closure may be the best long-term course for the university. One step short of closure may be rolling the law school into the College of Arts and Sciences under a newly created law department that can service the undergraduate population. Faculty teaching loads and salaries can be rationalized accordingly. This would permit a dramatically pared down J.D. program that could one day be rehabilitated.
The one militating factor is your faculty's willingness to restructure its curriculum and mindset. . . . The first hurdle in restructuring is the faculty itself embracing the need for change. The second hurdle is your own willingness to expand the scope of academic productivity. The most successful law schools in the future will be closely engaged with employers seeking to adapt to a rapidly changing industry. These same schools will also need to effectively collaborate with professionals from other disciplines, including systems engineering, information technology, finance, marketing and project management. Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands. As the university president, you need to provide the law faculty with the latitude to adapt.
Frankly, saving your law school is going to require courage and leadership. Brace yourself for vilification. Even if you are successful, your efforts and intentions will not be appreciated for years to come. I do not envy your choices. I certainly wish you the best of luck — you will need it.
These recommendations come at the end of Henderson's case that law schools are in really bad shape. He frames his argument using emotional terms -- "brutal facts," tradeoffs that are "extraordinarily difficult and painful," and "million-dollar shortfalls" with "no end in sight." In some respects, Henderson actually understates his case: he focuses only on declining enrollments and does not discuss the need to bring down tuition as well. There are undoubtedly huge changes in applicant pools -- many would call them corrections -- and law schools and universities have to deal with these changes. But why closure?
Henderson's analysis offers strikingly little insight into the actual market structure of law schools and universities. The decision to close should not be based simply on whether one is in Alabama or California. Law schools have far-ranging differences on a variety of axes: employment outcomes, tuition, applications, margin provided to university, fixed costs, marginal costs, endowments, etc. To say that a law school should close because it is in California, Michigan, or a jurisdiction with "similar numbers" is frankly ridiculous.
Looking at Henderson's hypothetical only adds to the confusion. He does not limit the fictional "President Smith" to whom his letter is addressed to any particular type of university. The only specification is that enrollment declined by 15% producing a $1.5 million shortfall. Henderson doesn't explain those numbers, but let's assume that the school dropped about 40 students from a prior enrollment of 270 at a tuition just less than $40,000. Why the drop in enrollment? Is it because the school wants to preserve its incoming qualifications at traditionally strong levels, or because the school accepted 100% of its applicants and could take no more? What is the margin that the law school has previously provided to the university? What is the endowment, for both the law school and the university? Is tuition too high? And that's before considering the variety of cost cutting measures that could be implemented, including the aforementioned massive layoffs. Henderson ignores all of those issues. No, it's simply enough that the school cut 15% of its incoming class and is located in California, Michigan, or similar jurisdiction. Illinois has a tough legal market -- goodbye, Northwestern Law?
Am I saying that law schools don't have to cut costs? No! In fact, back in the fall I wrote a whole series about how law schools could think about cutting costs (here, here, here, here, and here). My point there, as here, is that these issues may be caused by national trends, but the local impacts and school responses are very context dependent. Sure, it may in fact be a good idea for some schools to close, but I'm in no position to judge that. And I think the number is smaller than Henderson seems to imply, because he says (in effect) that at least half the schools should close.
Henderson doesn't seem to be interested in other solutions. He instead is generating an idea--a meme--that the "rational" university response is to shut down law schools. He doesn't discuss the underlying economics -- he's engendering panic. Chaos is key to Henderson's ultimate goal, which is reshaping the pedagogy of legal education. He talks about his proposal here -- it's an interesting one, and it has intuitive as well as empirical support. But it is one model among many. Henderson's problem is that in order for his reform to work, he needs massive buy-in from faculties who would be willing to convert to a new approach. (Part of that buy-in, it should be noted, is throwing scholarship out the window: or, in his words: "Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands.") Given the difficulty of that task, Henderson is essentially pulling an end-run around faculties to other decison-makers. In his "letter," Henderson appeals to those dismayed university presidents who are facing sharp declines in law school revenue. According to Henderson, these presidents should give law faculties an ultimatum: adopt Bill's new approach or we'll shut you down.
This would be troubling enough if Henderson simply burned with the zeal of the converted. But his interest in dramatic reform to legal education may not simply be academic. Henderson is a principal and founder of the legal consulting firm Lawyer Metrics. The firm specifically offers its services to law schools:
In a legal marketplace increasingly focused on results and value, the best law schools will be those that understand — and help solve — the challenges facing legal employers.
Lawyer Metrics offers a powerful tool to connect with legal employers, gather data, enhance curricula and measure outcomes. By tapping into the expertise of faculty, prominent alumni and recent law school graduates, we build a competency model that strengthens relationships and gains the buy-in of all stakeholders.
Is Lawyer Metrics looking to work with law schools on Henderson's pedagogical reforms, such as "closely engag[ing] with employers seeking to adapt to a rapidly changing industry"? I don't know. But it seems like Lawyer Metrics would be a natural place to start for university presidents seeking to reform their law schools in the ways that Henderson recommends.
Henderson, like other reformers ("rebels"), has a strong perspective not only on the problems faced by legal education but also on the proper solutions. His solution to the law school crisis -- one that involves a substantial and largely unexplored change to legal pedagogy -- may be the answer to the field's longer-term problems. But I fear that instead of reporting on the crisis, Henderson is now using it to try to leverage a few shocked university presidents into adopting his methods. In the process of drumming up panic with wild-eyed claims and the specter of closures, Henderson risks squandering a pile of reputational capital that only a few legal academics have managed to achieve in the first place.
Friday, May 24, 2013
Trouble with the Curve
Though I was taken by surprise by the extent to which my last post touching on the topic of grading provoked rather strong responses, I am now presenting a proposition that I very much hope and assume will provoke controversy. Here it is: There is no (as in, none whatsoever) pedagogical justification for the traditional law school curve, and it should be abolished.
Here are my problems with the curve -- by which I mean a strict curve requiring x% As, x% A-, etc. all the way down to the lowest grades, and not something like a "target mean grade." First, it corresponds to nothing at all. I'm no statistics expert, but even if there is reason to think that students somehow naturally fall out on such a bell curve if you take a large enough sample, I'm pretty sure there's no way any first-year section is actually large enough or diverse enough in its talents to ensure that the curve will be accurate in every case or even most cases.
Second, the curve hides and fails to discourage poor teaching. We should be trying to bring every student in our class up to a fairly high level (although that is not going to happen, of course, with every student). But whether or not most or all students reach whatever we perceive to be the basic level of competence we are shooting for (call that level of competence a "B"), we have to assign a certain percentage of students grades below that level. And in fact, it's better -- or certainly no worse -- if a certain number of students don't reach that level of competence, because then we can justifiably assign them grades below that level. And when students come to see us wanting some justification of their grades, we really don't need to (and in some cases can't) give them any explanation other than, "you got that grade, not necessarily because you deserved it, but because other people did better than you." It doesn't require us to think about what a "B" really signifies, or whether there is any consistency across courses or years in terms of the grades we give.
Now let me outline what I think might be some traditional justifications: First, curves protect against grade inflation. This is undoubtedly true, but it can be accomplished with the far less arbitrary system, such as a target or maximum mean grade for a course.
Second, I suppose one could argue that grades are inherently arbitrary and correspond to nothing in reality anyway. In other words, the only thing a grade ever meaningfully represents (or perhaps more modestly, is ever meant to represent in the law school context) is one's performance relative to others who happen to be in that same class. But this strikes me as somewhat cynical. I doubt many of us fully accept this view. Maybe employers see it that way to some degree. But if employers' expectations are driving the curve, I would first point out that this is still not a pedagogical justification. What's more, even if this is a reasonable defense of having a curve, it has to be weighed against the unfairness of using an arbitrary curve in the first place--one which does not necessarily correspond even to the differing levels of relative ability among students (i.e., even if you can come up with a relative ranking of exam scores that accurately reflects relative strength, which is what employers most likely really care about, you are still required to draw an arbitrary line between a B+ and a B exam, for example, which doesn't necessarily correspond to a meaningful drop-off in quality).
Finally, the other justifications are .... well, I have no idea. I'm out of them. I'm stumped. Can anyone defend the curve?
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
Thursday, May 09, 2013
Interview with Brian Dalton about Above the Law’s New Rankings
You’ve no doubt heard about the new Above the Law Top 50 Law School Rankings. But have we really had the chance to scrutinize them to death? ATL itself has done the job for us, to some extent, with self-criticism here and here. But perhaps you still have questions? We here at Prawfs did, and ATL’s rankings guru Brian Dalton was kind enough to answer them. Brian is a graduate of Middlebury College and Fordham Law. He joined ATL’s parent organization Breaking Media in October 2011 after spending seven years at Vault.com, most recently as Director of Research and Consulting. Before that, he was, among other things, an associate at a Manhattan law firm, a French teacher in Brooklyn, a Peace Corps volunteer in Mali, and a security guard at a waterslide park in Albuquerque, NM. Here is our discussion.
Why did you use only SCOTUS and federal court clerkships? Is there data out there on state court clerkships?
For the federal clerkships, solid data was available and we thought it made sense to use it to augment the "quality jobs" metric. The SCOTUS clerkship stat really serves to differentiate among the very top schools -- it's not much of a factor outside the top 10-15. State court clerkships are accounted for in the overall employment scores.
It looks like you double-count federal clerkships -- both as an individual factor and in quality jobs as well. Why?
We didn't-- federal clerkships are a component of the "quality jobs" score and federal judgeships is a standalone metric.
My apologies -- I read the "federal judgeships" category as a "federal clerkships" category. Is there data on state judgeships or state supreme court clerkships? If so, did you consider using that data?
We did consider state court clerkships, but the data sources all lumped "state and local" clerkships together, so we stuck with federal. We did not consider state judgeships, but that doesn't rule out our looking into using them as a factor in the future. We feel we've created a useful ranking but we know of course it can be improved and we are benefiting from all the feedback we've received so far.
How and when did you conduct the ATL alumni survey? What was your overall response rate? What was the average number of responses per school? Do you have max and min numbers (school with the highest number of responses & school with the lowest number of responses)?
We've been conducting the survey since March of last year, we typically promote it through research-based posts on the main ATL page. We set minimum thresholds based on the size of the school and all 50 ranked schools exceeded the minimum. We've received about 11,000 responses to date. The lowest threshold is about 40 responses, though many schools have hundreds. [Ed. – If you want to take the survey, you can go here.]
In the factor on education price, did you just use the sticker price for tuition, or did you take the scholarship discounts into account? Did you also include living expenses? Where did you get this data?
No scholarships or aid were taken into account. COL was accounted for only in the case of schools where the majority of employment placement was in the local market. COL data came from 2012 Q3 Cost of Living Index Council for Community and Economic Research (Published October 2012)
I'm a little confused about how you used the COL information. Did you use it to modify the cost of tuition, or did you incorporate a set of expenses meant to cover living expenses (as a lot of folks do in coming up with approximate debt levels)?
The "Cost" metric in our rankings is not equivalent to "tuition," it's the non-discounted, projected cost for the span of a student's debt-financed legal education. It includes indirect costs (room/board/books) as well. We used COL data to modify this projected cost for schools where most grads work in the local market.
Dan Rodriguez of Northwestern has already questioned your exclusion of "JD Advantage" jobs. What do you think about his criticisms?
Dan Rodriguez makes many fair points and we will always be looking to refine our approach, but I have to assume parsing out the "good" non-legal jobs from the rest would require a level of engagement from the schools that I can't imagine is forthcoming. Over the past year, we've spoken to many deans of law schools about how to make that distinction and we heard many interesting ideas, but I have doubts about whether anyone will share data with us, but we will ask next time around.
Can you take us through the individual factor scores for one of the schools and show us how you came up with the overall numerical score?
The perfect overall "ATL score" is 100. Each school is awarded a maximum number of points based on the weight of each metric (a maximum of 30 points for highest Employment Score, 15 points for lowest cost etc.) The points are awarded on a sliding scale from highest to lowest. Those points add up to the total ATL score seen on the rankings table.
Did you feel the need to jigger with your factors in order to get the traditional top schools (Yale, Harvard, Stanford) on top? A cynic might say the SCOTUS and federal clerk scores were ways of getting the traditionally high-ranked schools up there. I mean -- there's no way that Lat is allowing out a ranking that doesn't have Yale on top, right?
A cynic might say that. But we didn't game the various weights in order to achieve a specific result. I would suggest that the traditional top schools really are the top schools and any sound rankings approach will confirm that.
How many schools did you look at in making your rankings? Why did you decide to cut it off at 50? Do you have rankings for beyond 50?
We have rankings for over 100 schools. We looked at about 150 schools. We made an editorial judgement call to cut it off at 50 -- we felt that there are only so many "national" schools for which meaningful comparisons can or should be made.
Did you use the USNWR rankings to come up with the 150 or so that you ranked, or did you use another metric?
No. Since last summer, we've had our own directory of schools in our Career Center with about 150 schools profiled, so that was the starting point.
One somewhat vague set of nuts-and-bolts questions -- how exactly did you transform the data into numerical scores? So, for example, the federal judgeships score: How does a school get a score of 7.5 -- by having the highest score? What if I came in second? What if I came in last?
If you came in first place you would get the maximum number of points awarded in that metric (so, for federal judges you would get 7.5 points). If you had no federal judges, you would get zero points for that category. Anyone in between is awarded points between zero and 7.5 in accord with their rank.
So just to pose a hypothetical, let's say you had ten schools with the following number of federal judgeships:
- A: 30
- B: 27
- C: 20
- D: 18
- E: 15
- F: 10
- G: 6
- H: 5
- I: 0
- J: 0
How would you score those?
Let's assume the numbers you provided above were being used for one of our metrics for federal judges or SCOTUS clerks (weighted 7.5%). The points awarded would look like this:
This is not an entirely accurate picture because we work in percentages rather than raw numbers (i.e. % of all federal judges are from school X), but this gives you an idea of how the scoring system works. The amount of variance between the scores directly relates to how "far apart" the raw numbers are.
Is there any data you would really like to get for next year's rankings?
We would really like to know the default rates for federally backed student loans for individual schools. Yet now the default data is segmented only by something called an “Office of Postsecondary Education Identification Number” and nothing else, so the stats for individual graduate schools within a university system do not exist, at least as far as the DOE is concerned. In other words, for the purposes of tracking the default rates at, for example, Harvard, the DOE lumps all the alumni of the business, medical, law, divinity, and all the other grad schools into the same hopper, with no way to untangle the data.
Elie Mystal said that "Next year will be even better!" Anything you've already decided to do differently for next year's rankings?
No decisions have been made, we are still sorting through all of the feedback.
Spousal Hiring, Ethics, and the Theory of the Family
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.
For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.
1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.
2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.
3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.
4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.
5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector in its law school clinic.
So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5. 3 and 4 at least are what average people would call family relationships, so this is interesting.
By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.
One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?
What do people thing about these cases?
Reflections on the Rhythm of Academic Life
Apologies for showing up a bit late to the Prawfs party, and many thanks to Dan for inviting me back again. Like many of you, no doubt, I am overwhelmed at the moment with grading and administrative responsibilities, so the most I can muster here today is a post about academic life. I hope to provide more substantive posts later in the month.
I often find myself reflecting about the rhythm of academic life at this time of year, when the day-to-teach teaching routine of the regular semester seemingly grinds to a halt and my day is suddenly filled with stacks of papers and exams, along with the accompanying tedium of assessing them with a grade.
I remember thinking long ago that an appealing part of becoming a professor would be the up-and-down rhythm of each academic year: first, the intensity of the semester with regular teaching, student and colleague interactions, meetings, and—squeezed in between those—some writing and conferences; then, the slow, lazy pace of summers, with lots of time for reading and reflection combined with intensive writing in large, uninterrupted chunks. Although the summers have not usually turned out quite as relaxed as I had imagined, and although other fields (litigation, for example), do offer a similar up-and-down rhythm, I have found that I appreciate this rhythm for more than just the intermittent respite and constant variety it provides.
I find that the (often frantically) present-focused pace of the semester, together with the mundane, if not frankly mind-numbing, task of grading exams, actually stimulates creativity and original thought. There is nothing that makes me itch to get back to writing like a stack of 80 exams, all answering the same three issue-spotter questions, to slog through while painstakingly allocating point values to each issue discussed. There’s nothing that sends my mind off on tangents like trying to force it to focus on one narrow set of doctrinal questions. (And at the same time, there is nothing that builds excitement for getting back in the classroom like a summer spent navel-gazing in the form of a lengthy law review article.) But the creative power of disciplining oneself to do non-creative work is something that I have come to value greatly, and I might even dare to say that I am in some sense more productive (though perhaps not in the pages-written-per-day sense) when I am most busy with other things. How about you?
Monday, April 22, 2013
How Many Years of Famine to Follow Seven Years of Feasting for VAPs?
I was guest-blogging at Prawfsblawg seven and a half years ago when I wrote a post about trends in law professor hiring. As that post described it, VAPs and JD / PhDs were taking over the academy. People with a profile like mine (JD to clerkship to big law firm / government to tenure track teaching position) were becoming rarer and rarer. Top schools were interviewing people with fellowships or PhDs, and in many cases both fellowships and PhDs. I talked about the benefits of this shift, and encouraged candidates interested in law teaching to think about fellowships, ending my post with the words of advice: Do as I say, not as I did.
I think it is time to update that advice.
As various posts have made clear, a number of candidates on the entry level hiring market struck out this year, and they are scrambling to land other fellowships or transition back into legal practice. I am very cognizant of the privileged position I occupy as a faculty member at an elite school. The Bigelow Program's track record of placement into tenure track jobs is unusually good, even compared to fellowships at other elite schools, and that has always enabled the school to cherry pick aspiring academics. Each of the five University of Chicago fellows on the teaching market this year have accepted excellent tenure track offers or are still weighing elite school tenure track offers. But the contracting market raised anxiety levels for many of them (and for those of us who were advising them).
Nobody knows what law professor hiring will look like seven years from now. We can be pretty confident that next year will be a buyer's market, though. So candidates thinking about going on the law teaching market in the next few years need to be very selective about the sort of fellowships they are willing to take. Taking a fellowship, even at a fancy school, is risky because the professional doors a fellowship closes may be as significant as the academic doors it opens. In a market where permanent faculty hiring is substantially constrained, the question "can this applicant develop into someone who will be hired into a tenure-track job two years from now?" has taken on increased significance among those who decide who gets hired into the best fellowship programs.
In this sort of market, those of us who are involved in hiring fellows and VAPs ought to ask ourselves at the time of hiring whether a candidate is sufficiently promising to enable us to predict with a high degree of confidence that the candidate will be able to transition into a tenure track position at the conclusion of the fellowship. Tenure track hiring is a grave responsibility, and fellowship hiring ought to be as well. A vote of confidence from the fellowship programs that combine high hiring standards with extensive due diligence ought to entice good candidates to take the leap from practice into a fellowship. A fellowship offer that follows little vetting or minimal outreach to existing references ought to set off alarm bells for the candidate who receives it, at least if that candidate has other options for gainful employment.
In a world where promising but risk-averse candidates might still worry about taking a fellowship, schools with the resources to hire that have shied away from hiring "straight from practice" law professors in the past might need to re-calibrate their expectations so they can identify unpolished talent. Perhaps they might even go back to reading published student notes / comments again and taking them seriously as an indication of scholarly potential (or lack thereof). If one result is more practice experience among newly minted assistant professors, few will bemoan the trend.
In recent years, a fellowship has become a proxy for candidate quality, but that may no longer be as true a few years from now. By then, having a fellowship on a CV from a program that isn't quite elite might merely signal some combination of commitment to the scholarly enterprise and tolerance for risk. Decreased interest in such programs, combined with budgetary constraints, might kill off less-established fellowships. A process that begun this year could accelerate next year.
In the short term there will be fewer tenure track positions. In the medium term, tenure track positions may be filled by a more balanced mix of candidates with elite fellowships and no fellowships. And for aspiring professors currently in law school, the importance of finding the right topics to write about, finding the right mentors, and finding one's voice while still on campus may become more important than ever.
Thursday, April 18, 2013
The $200 Casebook
UPDATE: I didn't mean to imply that only one book and/or publisher has crossed the $200 threshold. Here is another: same subject, different authors and publisher.
Monday, March 11, 2013
"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times. Here are excerpts (with a final key point stressed by me below):
A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”
This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.
While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.
Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.
Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.
Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....
The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades. They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....
After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases.
There is no shortage of lawyers to do this work. What stands in the way is an undemocratic, deep-seated lack of political will.
I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers. This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt.
Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution. Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern. But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers.
In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.
Cross-posted at Sentencing Law & Policy (where I do most of my blogging).
Saturday, February 23, 2013
Scholarship and Indemnity Clauses by the Law Reviews
I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:
I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses. These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases. The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc. I have just finished trying to help one of my faculty members negotiate one of these releases. We came across the following problems:
1) While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions. For example, the State of Ohio prohibits its institutions from indemnifying other institutions.
2) Insurance protection does not work. I looked at whether the faculty member could purchase insurance through AAUP. The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.
3) The faculty member is thus stuck. We are placing the burden on the people least able to bear it. From the university to the faculty member and the faculty member has no means of protecting herself.
4) Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk?
5) Journals might also say: the author has the most control to determine if they are committing a tort. But there is no protection for frivolous suits or for suits generated for political reasons.
6) These indemnity clauses, I am led to believe, were standard. I did not think that was the case but I have a list of a number of top journals that had similar clauses.
7) Finally, I was told that the AALS model agreement had an indemnity clause – and it does. So we as an institution are contributing to this mess.
To me, this is what institutions do. They protect academic freedom and they should shoulder the burden of dealing with frivolous suits. They should not then seek payment from an author. It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me. As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause: http://www.aals.org/deansmemos/98-24.html
The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.
Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other!
Wednesday, February 06, 2013
The Problem(s) with Accreditation
There are a lot of answers being proposed to the current law school crisis. The problem is that there are a lot of different questions, as well. The controversy over accreditation is one example.
Brian Tamanaha, among others, has proposed a more flexible accreditation system in which different models of legal education are allowed to work within the market. The current ABA system, it is argued, loads up schools with expensive requirements that have led to the tuition spikes of the last decade. A more flexible -- read, permissive -- system would allow low-cost competitors to drive prices down and even import more of a practitioner focus.
One problem with this narrative is that is has been tried, to some extent, in California.California allows students from non-ABA-accredited law schools to take its bar exam. The results from the July 2012 bar:
Percentage passed of first-time takers:
- California ABA-accredited schools: 76.9%
- ABA-accredited schools outside of California: 63.6%
- California accredited (non-ABA): 31%
- California unaccredited: 22.2%
The sample size for non-ABA-accredited takers is pretty small -- only 380 students, compared with over 5,500 students from ABA schools. But the swing is pretty dramatic. And it seems to indicate that students emerging from non-ABA-accredited schools are not in the same position to earn entrance to the profession that ABA students are.
I think this example illustrates the complexity of dealing with the current law school crisis. If schools cut costs and lower tuition, demand for law school should, in fact, go up, leading to more law school graduates. Economies of scale work best if you increase production. But most commentators seem to think that the number of law grads needs to shrink, not increase. So to address the unemployment problem through typical market reaction, law schools should be shrinking and getting more expensive. That would saddle the next slate of students with even more debt -- but maybe they would have better job prospects. Similarly, the ABA has been simultaneously criticized for being far too lenient in allowing new schools to open, yet at the same time for being too strict and onerous with its accreditation requirements. The Duncan Law School saga provides an interesting example. There are ways to thread this needle -- you can limit the number of seats and still lower tuition -- but lowering tuition should, all things being equal, increase demand. And making accreditation more flexible should, all things being equal, increase the number of seats.
California recently altered its own accreditation requirements to require schools to maintain at least a 40% bar passage rate over a five-year period. That's nine percent below the 2012 first-timers average -- but the calculated rate would be cumulative. Making accreditation requirements stricter, rather than more flexible, seems to be counter to what many reformers are proposing. And yet outside of comments from the dean of the Southern California Institute of Law, no one seems too concerned with the change.
Wednesday, January 30, 2013
Thinking of a visit or a lateral move?
A friend at the AALS writes with the following:
Have you ever considered making a lateral move or had to advise a junior faculty member regarding how best to do so? One possibility you might consider is signing up for or advising your colleague to sign up for the AALS Visiting Faculty Register. This register lists experienced faculty members willing to visit for a semester or a full year in the next academic year. Associate deans and hiring chairs check this resource often to fill their curricular holes, especially at this time of year. Moreover, being on this list may signal to hiring committees your willingness to relocate; however, you should be willing to consider various visiting opportunities should they become available. Notably, many schools like to hire laterals as visitors first to test compatibility. Please note that you must have at least three years of full-time law teaching to register and be a full-time faculty member at an AALS Member or Fee-paid school.
Ranking the Rankings
There are lots of law-related rankings out there. And many of them are law school-related rankings. But, with all apologies to Juvenal, quis iudices ipsos iudicabit? Why not me?
So, here’s the first-ever ranking of law school rankings. The methodology is simple: it’s wholly idiosyncratic based upon what I value, which is, of course, what I expect others to value. I can’t include all rankings, but I try to include some of the most significant ones out there.
- Intentionally left blank. That’s right. The top slot goes to no ranking. Because I don’t think any of them deserve the top slot. Edgy.
- Sisk-Leiter Scholarly Impact Study: Formally Sisk et al. at the University of St. Thomas, but operating under the Leiter methodology, the study tidily measures scholarly impact of tenured faculty in the last five years. As peer assessment is one of the most significant categories in the U.S. News & World Report rankings, it objectively quantifies much of the academy’s impressions. And absent Green Bag’s promised Deadwood Report, it’s the next best thing. As they say, “Do your job or get fired.” Drawbacks: narrow focus; rewards “old” scholarship that gets a number of recent hits; limited utility for prospective students (except that it provides a good indicator of the strength of the institution).
- NLJ 250 Go-To Law Schools: It’s about as specific and clean a ranking as you can obtain: the percentage of graduates of each school who landed position at a NLJ 250 firm last year. It also finds alumni promoted to partner. Drawbacks: biglaw-centric; a single associate placement can significant change the percentages and ranking; does not include judicial clerkships, which can skew placement.
- Princeton Review Rankings: The strongest trait of PR is perhaps counterintuitive: it refuses to create a comprehensive ranking, and instead provides 11 ranking lists. As overall quality is a difficult task, I, for one, admire the concession. Additionally, it provides student feedback from the relatively near past, a more immediate evaluation of the institution. Maybe you think it’s too quirky. I guess I like the fact that it’s trying to do something different than the field. Drawbacks: black box methodology that refuses to disclose response rates; some less-relevant categories; fairly subjective student surveys.
- SSRN Top 350 U.S. Law Schools: One of the better ways to sort this data, I think, is by “total new downloads” in the last 12 months. That gives a sense for freshness, recency, and output. Drawbacks: narrow focus; driven heavily by a few heavy hitters.
- The Black Student’s Guide to Law Schools: While this survey may not get very much attention, and is admittedly narrow in focus, I appreciate a serious reflection on aspects of legal education that are of real concern to law students. Cost and cost of living are important. One additional thoughtful factor: “Distinguished Black Alumni,” a category that helps identify the long-standing institutional quality in a unique way. Drawbacks: “local legal job access” factor (perhaps unjustifiably) punishes schools in more rural communities; narrow audience.
- Rogers Williams Publication Study: With a more inclusive selection of journals [UPDATE: study of schools; a friend corrected that it only includes the top 50 journals, while Sisk-Leiter includes all journals] than the Sisk-Leiter studies, the study highlights some of the publications at “non-elite” law schools. For those who want to see school rankings all the way down, this fills a gap left by Sisk-Leiter. Drawbacks: narrow focus; relies on Washington & Lee Law Journal Combined Rankings scores from 2007, without updates; band-only rankings below top-40; nearly 20-year publication period may not detect more recent movement.
- Law School Transparency Score Reports: It’s not a formal ranking, but there are a number of categories where one can rank schools from top-to-bottom. It nicely aggregates some of the data otherwise found in disparate places. For instance, here I sorted by the percentage of graduates in federal clerkships. You can poke around for admissions data, costs, or employment outcomes. The real problem is less the format; it’s the data itself. And this isn’t LST’s fault. It’s just that the schools have not been inclined to provide more detailed data. That leaves LST a nice place for sorting single characteristics of self-reported data, but not much else.
- Wall Street Journal Law Blog’s Best Big Law Feeder Schools: The good folks at the WSJ took the ABA figures of those who landed full-time, long-term jobs at firms with more than 250 attorneys and made a chart. It is what it is: a much narrower, less useful version of the NLJ 250 list.
- U.S. News & World Report: I don’t need to write anything about this, right? It’s far and away the most important to most prospective law students. But, in case you haven’t heard, there are flaws with it. And I’ll just say one thing about the methodology: 9.75% of the ranking is based on how expensive you are and how much money you spend on things like electricity, plumbing, and chalkboards. Really. The more expensive you are, the better your ranking. If you’re a prospective law student, re-read that bold sentence a few times. Think it over. Read about it. And ask Robert Morse why that’s still in there. As schools are looking for ways to cut costs, and as other rankings value low-cost options, USNWR still rewards high costs and high spending
- Business Insider 50 Best Law Schools in America: It’s driven entirely by a survey of 650 readers, and only 60% have JDs. The curve is harsh: most schools score under a 3 on a scale of 1 to 5. Not a terribly scientific survey, but at least it measures perceptions and aggregates those perceptions into a score.
- QS World Law School Rankings: I don’t know. Comparing Yale to Melbourne to Singapore to Monash to McGill is a little too broad a series of rankings to have much value. Unless, I suppose, you care passionately that your decision to attend Victoria University of Willington over Cornell was a wise investment.
- Seto Rankings: Professor Theodore P. Seto’s rankings have been thoroughly debunked by my colleague Rob Anderson over at WITNESSETH. I certainly can’t top his perspective (DeLorean metaphors and all).
- National Jurist Best Value Law School Rankings: An ostensibly noble project that tries to merge affordability, employment, and bar passage into a ranking. Unfortunately, it’s basically just a list of flagship state schools, and one with a number of flawed metrics because of data reporting.
- Top Law Schools Rankings: What a hot mess. It includes the Gourman Report, which hasn’t been updated since 1997. Then, it lists Professor Brian Leiter’s “recently updated law school rankings,” which it doesn’t link. The first clue it’s out of date is the identification of Leiter as “a professor at the University of Texas law school.” And it turns out “recent” means 2002. Otherwise, it just lists the last four years’ worth of USNWR rankings. For a rankings list that concludes, “Put time and thought in to what is one of the most important decisions of your life,” one would expect some thought put into the rankings. But, if you’re interested in rankings possibly relevant to viewers of Seinfeld, Friends, and X-Files, go for it.
- Cooley Rankings: Res ipsa. And who can resist repeating this justification for “Library Seating Capacity” as a factor: “To study, a student needs a place to sit.” But, at least the school stopped publishing its self-promotional rankings in 2010.
So, how would you rank the rankings? (And, by the way, if anyone in the future wants to rank the rankings rankings, let it be known that I was a first mover in this space.)
Wednesday, January 16, 2013
Do We Grade Typing Speed?
Grading exams is the hardest part of being a law professor. Evaluating essay exams with any precision is a challenge. And I frequently revisit what I’ve done to ensure that I’m grading in the most accurate way.
Exams are often scored as a series of points. The more a student says about the essay prompt, the more points a student earns. The more points a student earns, the higher grade she earns.
Well, that’s not quite it. The first stage, “The more a student says about the essay prompt,” comes with a caveat: the student must say something relevant, something in response to the call of the question. But that’s hasn’t stopped law students from passing along the tale that one of the most important things to law school success is typing as many words as possible.
It’s hard to read the advice given to law students, usually from one another, discussing exam-taking techniques to this effect. One is the “attack outline,” a pre-written series of answers (mostly black-letter law) that the student can vomit upon the screen when there’s any essay prompt in the general vicinity of said pre-written answer for an open-book exam. For instance, if the question is one about, say, “personal jurisdiction,” a four-paragraph regurgitation of everything about personal jurisdiction, relevant or not, will appear on the page.
So, is there any truth to word counts as a proxy for better grades? Mostly no, in my experience.
Yes, of course, the student who types more usually has more to say because she usually “gets” more. She usually spots more issues, she usually grasps nuances, she usually has a superior analysis. So, more words would mean a higher score.
But, that’s not always the case. Longer answers invite discussion of irrelevant material. Well-crafted outlines threatened to go unused if none of the essays ask about certain topics, and students find an outlet for discussion of them. Students find themselves addressing tangential material as a prophylactic measure.
I look at my answers each year to see if I can find a trend. These are essay answers from a first-year course, the X-axis point values, the Y-axis word count. (Also, I’m deeply grateful to my colleagues Rob Anderson, who blogs at WITNESSETH, and Babette Boliek for their data-driven support.)
The answer lengths ranged from around 1200 to 3100, with a median of 2311. Scores ranged from the high 30s to over 140, with a median of 87. The red dot in the center represents both medians. (Points were later added to other graded components and converted to a grading scale.)
I ran a regression analysis, and, as you can see, the R² is only 0.31, which is fairly low, but not insignificant.
But let me slice the data one more way. The relationship is largely driven by outliers on the negative side. If I take out the five lowest scores (it’s unlikely those students performed poorly because of typing; it’s probably that they simply didn’t have as much analysis), there’s not much of a relationship at all, as the R² drops to 0.14. (For those not statistically inclined, that's pretty low.)
I note a few items. First, it was almost impossible to exceed the median score using fewer than 2000 words. That suggests some minimum threshold of analysis necessary.
Second, high scores didn’t necessarily come with wordier answers. There were answers in the range of 3000 words below the median, and answers in the range of 2200 words among the very highest scores in the class.
Third, it doesn’t necessarily mean typing speed (as opposed to word count) is unimportant. Fast typists may well type the same number of words as their peers, but have more time to think and analyze.
This, I think, is pretty consistent with the “mostly no.” Longer answers tended to have better analysis; but, it isn’t highly correlated with higher scores.
So, how about your experience?
Sunday, December 30, 2012
Prof. Bainbridge takes up the cause of faculty in his own way by a post with the ill-conceived title "Dean Dan Rodriguez Thinks Making the Faculty Work Harder is the Solution." Uh, no, not exactly. But I'll leave y'all to decide whether my various posts suggesting ways of getting a handle on the too-high costs of legal education can be read as such.
But Steve nonetheless raises a serious point, a point made frequently elsewhere, and one which deserves serious scrutiny. What are we going to do about high administrative costs and the impact on law school budgets and, thus, student well-being?
First, some essential points of agreement:One, in this new environment, law schools must be prepared to justify thoroughly and concretely existing administrative costs -- and, indeed, we should do so with a dose of skepticism about whether the current configuration of administration can be sustained in a period in which students are suffering and in which our basic economic model (albeit at some places more than others) is in jeopardy. Two, any augmentation to administration must be justified in clear terms and with compelling evidence that such initiatives are directly tied to student well-being, both with respect to the learning environment and with respect to expanding professional opportunities after graduation. And, third, tuition revenues should be a last resort for these (if any) augmentations. As we ask, and even press, our alumni for financial support of our respective law schools, we should be looking to them to support infrastructure where we can explain and justify it as contributing directly to the law school's ability to (a) improve student learning; (2) enhance professional opportunities; and (3) ultimately reduce student debt.
Now, to those insistent that administrators are the main (sole?) problem here. The claim that law schools are filled with "administrator bloat" is not an argument, it is a slogan. Responsible analysis of our current situation requires information and perspective. Faculty members have long looked around their law school and wonder what all these "administrators" are doing. "I remember the good old days when the dean ran the law school with the help of his cheerful secretary, Mrs. Jones, a librarian, a couple admission folks, and a guy who made sure the podium and chalk was set up in the classroom. Ah, those were the days . . . " Yadda, yadda. Not only were the good old days not unequivocally good, but let us take a step back and look at what the increase in law school administration over, say, the past quarter century has brought us:
(1) Student services. The expansion in academic support as law schools looked to broaden their scope to historically disadvantaged students and, unlike the days in which they simply flunked out under performers, actually committed to the success of these students. Counseling services and more sophisticated exam administration (that the guy moonlighting from Star Market who has hired to proctor several exams when I was in law school) is one example. Specialized student support for foreign students is another. Administrator bloat here? Perhaps so. But the expansion of student services and recognition that this is a career path and not simply something to be outsourced to overworked legal writing instructors has been a cost driver;
(2) Techology. The need for specialized expertise in and with regard to technology has pushed law schools to make investments. Most law schools have separate IT departments; and, to a greater or lesser degree, these investments have enhanced students and faculty work. Current law students don't remember and can't easily fathom when technology support was the part-time person in the library or, even worse, was someone on central campus who might return your phone call and get to your law school problem as she went down her list;
(3) Career services. Can anyone doubt that law schools ought to invest significantly in job placement and advising services for their students, especially now? To be sure, law schools often do this inefficiently and haphazardly. But the single biggest complaint from involving administration is that there isn't enough effort and energy (all requiring resources) mobilized in the service of expanding professional opportunities for students. At Northwestern, for example, we have created an office of external partnerships, designed to increase opportunities -- that is, paid jobs -- for our law students by tactical and targeted networking. Career services in the new normal is not just advising; it is outreach and it is placement-centered. Lumping such efforts into the bromide "administrator bloat" doesn't capture it.
(4) Alumni relations & development. One commenter noted that NYU has 32 individuals devoted to ARD. I don't know whether that number is correct, but I do know that they were able to increase their endowment by over one half a billion dollars in the past few years. Increases in endowments decrease student tuition pressure; it's that simple. So, the significant augmentation in ARD within law schools have enabled law schools to continue to support their alumni communities, to enhance the reputation of the law school by strategic communication and marketing, and to raise money.
This all said, there is no doubt that there are serious inefficiencies in how law schools configure their administrative efforts. (Some of the administrator expansion has accompanied regulatory pressures, but that is a subject for another day). That there are such inefficiencies and that it is incumbent upon law schools to continue to look for ways of doing more with less and, to Steve's valuable point, to make sure that administrative enhancements are not coming at the expense of actual education. Moreover, none of the above -- let me say this in bold font, none of the above -- is intended to justify by its own terms the present (unsustainably high) level of law school tuition.
But the notion that any serious law school leader would suggest that budgets should be balanced and even reduced on the back of faculty members while administrators run riot is a foolish one. That is not my point. There are myriad places to look for meaningful changes to the economic model which is causing significant challenges to our students. The modern law school is made up of many "houses." We should be looking at getting all of them in order, no?
Saturday, December 29, 2012
law & technology: stepping up our game
Good post from Bill Henderson on how we learn or don't learn about law & technology. Definitely gets my attention, as it should other deans & profs.
Three (at least) dimensions of the matter:
How should we best use technology in educational instruction?
How can technology be mobilized in the service of faculty research and its external impact?
How should we educate our law students about new modalities of technology and technological innovation in the new world of legal practice?
Tall order indeed! I confess to great uncertainty, from a dean's perspective, about whether these complex matters are best left to a chief technology officer, perhaps combined with the law library's functioning, or should be more widely distributed within faculty and administration. Happy to be educated on this subject.
Wednesday, December 26, 2012
As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution pedal. Market pressures make the exhortation "pay the bastards less" ring rather hollow -- and all the shouting and screeching from the disgruntled won't make it otherwise. Salaries for incumbents will remain more or less where they are (albeit with rarer raises). Faculty hiring is what will take the hit. In this environment, law schools will be asked to do more with less.
So how ought we to think about these great(er) expectations?
(1) Teaching regularly and well and with sufficient accomodation to institutional needs, as these needs evolve in this new and difficult era. Deans, including this one, will be reticent to enter into permanent teaching reduction agreements. Scheduling will need to follow the imperative of student learning and sensible organizational management, not principally the convenience of full-time faculty members. Faculty leaves, whatever the reason and whatever past practice, should be discretionary and timed around the needs of the school and its learning environment. And teaching must be excellent -- sophisticated in content, coherent in expression, up-to-date, and connected increasingly to the essential project of making our students into first-rate young lawyers;
(2) All hands on deck. Faculty members are the professional portals to the students' legal careers. The work of training rests in their hands. But, to an increasing extent now, so, too, does counseling and placement. Developing opportunities for students to pursue remunerative, valuable careers should be part of the work of a faculty member. This will range from active career counseling, writing effective recommendations for clerkships and, where appropriate, law firm employment, and helping students with their employment search in imaginative, tangible, and reliable ways. This work is too important to leave solely to overworked career service offices and deans;
(3) Insofar as scholarship forms an important part of the modern faculty portfolio, expectations of excellent, impactful scholarship should be high -- indeed, in this difficult environment, especially high. Law profs have an exceptionally enviable gig. Let's just suppose that faculty members need to demonstrate their suitability for this gig on an annual basis, and with unimpeachable evidence that they are doing their scholarly work at a level that befits this great job.
In short, faculty workloads will grow. They ought to grow. The central question, to me, is how they ought to grow in a way that serves the professional objectives of our students, while also preserving what is tremendously valuable in the contributions of the law professiorate in the contemporary legal academy.
Monday, December 24, 2012
cost v. curricular innovation: that infernal dilemma
So the blogo-mediasphere is rightly concerned with legal education's too-high costs. For some radicals (here used in a neutral sense), that is the signal issue around which all other considerations orbit. Other voices decry traditionalism in law school curricula, celebrating innovations, preaching the wisdom of experential learning, and urging major changes.
And herein lies the vexing dilemma: Adapting to the new normal requires major curricular innovation; innovation costs money; the current economic model relies on unsustainable tuition increases and (arguably) budgets. How ought we to think about the tradeoffs?
Some general thoughts:
(1) Innovations should be evaluated on both pedagogical and economic dimensions. Experential learning is, indeed, an expensive proposition, but the challenge for clinicians and others invested in such worthy projects is to think about how to manage budgets in order to economize on particular parts of the clinical experience. To be more concrete, some admixture of public subsidy, Biglaw firm subvention, cy pres fees and other sources of court-generated funding, will help shift some expenses from recycled tuition;
(2) Legal writing should be heavily subsidized by firms. Innovations in legal writing (advocacy + transactional) are high priorities -- as Casey Stengel says, "you can just look it up." Firms such be urged by deans & other fundraisers to support generously, and ideally with endowments, creative legal writing endeavors. We should pursue tangible partnerships with firms who can afford this investment (here not being wholly naive about the economic challenges facing firms), making the case for new modalities of legal writing and the ways in which these programs will affect positively firms' bottom line;
(3) Fee-generating clinical initiatives. There are emerging initiatives to form what are essentially in-house law firms within law schools. Such programs, perhaps focusing more on transactional than litigation work, would look simultaneously to give students direct practical experience, including managerial/organizational skill-building while also generating at least a modicum of fees to offset clinical costs. Negotiating the politics of law school v. law firm competition is tricky. But this will, I believe, emerge as a novel strategy to realize both economic and pedagogical aims;
(4) Tuition breaks for externing students. I want to be careful with this suggestion for obvious reasons, but perhaps law schools, particularly the relatively well-resourced ones, should look at some tuition arrangements (reductions or one-time grants) for students who are spending a semester's worth of time externing. The traditional model of "a credit is a credit is a credit" may need to be adjusted; to the extent that students whose principal locus of activity is temporarily elsewhere impose somewhat fewer direct financial burdens on the school, schools should think about tuition adjustments;
(5) Fight the power. That is to say, push hard against regulatory costs of key groups including state bars, ABA, AALS, etc., so as to enable curricular experimentation without extraordinary external costs. Better yet, work with the central university and with external grant-funding organizations to subsidize experimental-experiental initiatives.
Here's a thought on this last issue: LSAC is sitting on a pile of money and would seem to be well positioned to subsidize law school curricular projects, particularly for those law schools least able to support them on their own. How about a major grant initiative directed toward these aims?
Tuesday, December 18, 2012
An interview with Patrick Griffin, author of "The Catcher in the Drain"
Last Friday I linked to a 1992 article in the Chicago Reader, a free weekly alternative paper. The article, called "The Catcher in the Drain," made the case why a big chunk of students were making a mistake by going to law school. He methodically went through the reasons for getting a J.D. -- higher pay, more prestige, degree flexibility -- and explained the problems with each. At the end, he compared himself to Holden Caufield, who dreamed off trying to stop others from jumping off the cliff.
The author of the article is Patrick Griffin. He is now at the MacArthur Foundation, serving as Program Officer for Juvenile Justice in U.S. Programs. Before joining the Foundation, he was a writer, researcher, legal analyst, and director of projects for the National Center for Juvenile Justice (NCJJ), where he became a national authority on comparative legal analysis of state transfer and blended sentencing laws. Griffin began his career as an attorney, and before joining NCJJ had practical experience as an editor of business-oriented legal publications and as a freelance journalist whose essays, profiles, and general-interest reporting appeared in magazines and newspapers nationwide. He graduated magna cum laude from the University of Michigan and received his law degree from Harvard Law School.
I wanted to check in with Griffin 20 years later and see what he thought of his article now, and on the state of legal education. He was kind enough to answer my questions below.
It's been twenty years since you wrote "The Catcher in the Drain." What do you think of that article now?
I had always thought it was a good piece and been proud of it. But re-reading it now, I’m less sure. I was writing for attention, obviously. I wish I could go back in time and tone it down, sober it up. But some of the ideas were worth raising, and people certainly responded to it—it was reprinted in a bunch of places. I got letters. It wasn’t like people needed to be told that there were “too many lawyers” in some sense. But the process that produced the too-many-lawyers condition had not been explored that much, I think.
Have you followed any of the recent press with regards to law schools? What do you think?
I sympathize with the law school grads who are suing their schools because they feel they’ve been misled. I don’t know what to say about it as a basis for litigation, but they’re probably performing a public service by calling attention to one aspect of the problem. My piece, somewhere near the end, actually proposed something like a “money-back guarantee” requirement for law degrees—and suggested that it might make law schools more cautious about scooping in wanderers like my young self. But of course I was focusing on career satisfaction and career fit issues, not on the more basic problem of lawyer unemployment.
Some folks would look at your article and say it was prescient. Others would say it's proof that this is all cyclical, and law schools will be back in full swing soon. What is your perspective?
I wasn’t predicting anything, but the phenomenon I was writing about—people going to law school for reasons that made no sense, from their own or society’s point of view—was certainly about to become more widespread.
Has anything changed in the practice of law over the last twenty years that would change your article, if it were written today?
If anything has I wouldn’t know. But I’ve changed. I continue to think that law was a mistake for me, but now I suspect that if I hadn’t made that mistake, I’d have made some other one. I think people like me are destined to screw up in their twenties. And then figure everything out, absolutely everything, in their thirties.
Would you tell a prospective law student today the same thing you would have told them twenty years ago?
A lot of it is still true! I probably wouldn’t argue as strenuously as I did then, though.
There has been a lot of criticism of lower-ranked schools for selling false hopes, but top-tier schools like Harvard are still generally assumed to generate value for their graduates. But you criticized law school from the perspective of an elite law alum. What would you say to someone planning to go to your alma mater?
Most of the things I said about law and its dissatisfactions were as true for Harvard grads as for anyone else. If law is a mistake for you, then Harvard Law is a mistake too. But I realize now that I failed to think very much about the elite/non-elite distinction at the time, just because I didn’t have a lot of experience. Or rather I only had my own, which is what I wrote about. In hindsight, having had a bunch of jobs and something resembling a career, it’s easier for me to see that brands like Harvard are worth something in the marketplace. It’s a little flag that signifies something vaguely positive, and I’m sure it has benefited me at times. It’s certainly not a reason to go to law school, but if you’re going anyway…
Did you ever hear from anyone at Harvard about the article?
I never heard anything from anyone at Harvard directly, but the article was cited a few years later by a Harvard professor—Mary Ann Glendon—in a really good book (I think it was A Nation Under Lawyers, which was much better and more serious than its title). She used me as an example of the kind of person who really doesn’t belong in the profession.
How has going to law school shaped your subsequent career?
At the time I wrote I was working for a legal publisher, but not long after the article came out I started writing freelance and watching the kids. Eventually I took a job in a delinquency research office—as a writer, really, not as a lawyer, though some of what I did had to do with law—and that led to my current job with a foundation. So…? I have no doubt that law school profoundly shaped my subsequent career, but I have a little trouble sorting out how. It opened doors and closed doors.It looks like going to law school has perhaps played more of a role in your career than the typical non-lawyer: you've done a great deal of work on juvenile justice systems, including being director of projects for the National Center for Juvenile Justice (NCJJ). Are you giving short shrift to the benefit of going to law school, even though you are not a practicing attorney?
It was three years with a lot of smart people, so there were intellectual benefits. And it’s a credential, which is a form of currency—in my case, pretty devalued, but not completely, not like Confederate money. I see the value now, in the experience as well as the credential, better than I did when I was younger. But the same would probably be true of any comparable experience, in retrospect. Three years in prison might have been valuable too.
What happened, eventually, was that I found jobs that were congenial to me, jobs I felt I could be good at, and then shaped them so that I could make use of as much of my experience as I could.Do you think some of the "scam" blogs have taken on the role of your "antilaw counselors," to some extent? Should there be a more formal devil's advocate in the law application process?
I didn’t really know these existed! I’m pretty out of it. But it sounds like they might be useful. So might a devil’s advocate—but the problem there is that clever young people are always going to figure out how to say the right words. I’d have figured it out.
What advice would you have for law schools themselves?
I doubt they would take my advice. But I guess I would ask them to give thought to whether there’s any truth in the notion that there are too many lawyers in an objective sense as well as too many lawyers who would be happier doing something else. And if there is, what responsibility do they bear, and what should they do about it, singly or collectively? It’s easy to say that everybody should be free to make their own mistakes, but if you’re the one benefiting from those mistakes, year in and year out, doesn’t it create some obligation to do something at some point?
Friday, December 14, 2012
Decentering centers (more on law school sustainability and costs savings)
Law schools resist collaboration and efficiencies in scale economies where centers, institutes, and programes are concerned. This resistance may be unwarranted in many circumstances.
The incentives to proliferate academic research centers are understandable, yet fundamentally self-serving. A center on, say, health policy aims toward developing, nurturing, and disseminating theoretical and (especially) applied research to advantage knowledge and improve public policy. It may help, say, Stanford, Chicago, or Northwestern, to have it located only at their law school. But wouldn't the larger cause be better served by serious, sustained collaboration across institutions? Even the most ambitious and resourced law schools will have a small fraction of, say, intellectual property or environmental law/policy experts. But five law schools working together will have many more. The advantages of sustained collaboration among well-configured institutions seem rather apparent. And there seem to be rather palpable efficiencies -- and, critically, lower intra-institutional costs -- generated by such tactical collaboration.
Alas, centers, institutes, and programs are frequently (nearly always?) treated as local sinecures. Faculty recruitment and retention drive many design and implementation choices. And deans exhort their donors to, as Brian Wilson proclaims, be true to your school.
Where cost savings are a growing imperative, why not think imaginatively about cross-institutional synergies and cooperative endeavors? Some of these enterprises may involve similarly ambitious schools; others may trade on the advantages of local knowledge and structure -- so, a consortium of, say, Chicago area or SF bay area schools working cooperatively on programs with tangible benefit to the area.
Students, faculty, and the community benefit greatly from the work growing out of excellent research centers. But how much of this benefit requires all the effort, energy, and money deployed within one law school's four walls?
(Cross-institutional curricula raises similar issues and is a variation on this theme, albeit a variation that deserves separate discussion).
Two Past Perspectives on Legal Education
For a December Friday I thought I'd link to two older pieces on legal education that you may not have seen:
- Michael Froomkin's "A Virtual Law School?," which he describes as "only slightly tongue-in-cheek." The slide show was presented at the 2000 AALS conference.
- An 1992 article in the Chicago Reader called "The Catcher in the Drain." I think the author's advocacy of "antilaw counselors" has come to life on the web.
Wednesday, December 12, 2012
Sustainability and the future: Managing teaching resources
I echo Matt Bodie's call for candid scrutiny of our educational strategies. As a dean, I think daily about building a better product. Most of our dean colleagues do likewise. We know the objectives -- maintaining top-quality legal education (which, not incidentally, still remains the envy of the world -- this despite frequent calls for replacing our model with the European alternative) and reducing costs.
So leave the hyperbole to others. Let us the rest of us get to work on constructive solutions.
Here's a big cost driver, perhaps the biggest: resources for full-time, tenure-line faculty. Much of this is about building respective armies of able scholars. The incentives, internal and external, for most law schools, especially those high up the food chain or aspiring to move up, have been noted frequently. But a central question looms, that is, how best to deploy teaching resources to staff an electic, modern curriculum? This question becomes ever more pertinent as the demands of the marketplace drive law schools to more imaginative and, yes, more practical strategies for preparation.
Law schools have long looked to adjuncts and the occasional recurring lecturer for teaching. Yet, the wheelhouse for such teaching has more often been clinics and skills-training. Good sense here; after all, experienced lawyers are wisely deployed to train would-be lawyers and the beat goes on. However, non-tenure line faculty -- more specifically, lecturers/senior lecturers on long-term contracts with compensation and resources befitting the commitment to regular teaching and a durable investment in student well-being -- is an efficient way to strengthen teaching at law schools which cherish deep connections to practice and, as well, to save costs.
Let me focus on the latter: Even the well-remunerated residential faculty member requires less direct financial investment than a research faculty member. Leave aside the matter of base salary. Law school support for research endeavors of faculty requires serious money, both to provide an adequate base for the research cohort and to deal with the imperative of recruitment and retention.
None of this is strikingly novel, of course. Northwestern and many other law schools have been relying for the past several years on large numbers of residential faculty members. We are very proud of our lecturers and senior lecturers and, indeed, have just added another step in this latter -- the Professor of Practice -- to acknowledge the special role these distinguished lawyer-teachers make to the curriculum and programming of the law school. We aspire to treat these members of the community well, with respect to pay, job security, and governance. Anything less defeats, frankly, the purpose of creating a separate faculty track in a comprehensive teaching community.
In addition to the merits of this device, trust me when I say that the cost savings are considerable. As we think about maintaining high-performing faculties, we need to think creatively about managing the general teaching budget. The days of supersize tenure line faculties may be waning, to be replaced with leaner research cohorts alongside an efficient number of valuable, less expensive residential faculty.
Tuesday, December 11, 2012
Law School Sustainability
Law school applicants and LSAT takers are both down by double-digit percentages this fall. Law students are taking on higher and higher levels of debt and are met with a job market that is the worst in decades. Commentators at Above the Law, Inside the Law School Scam, and the New York Times lay out the numbers and ask why anyone would ever attend law school, unless they're essentially going for free.
Law schools and the law professors who help govern them need to confront these issues. However, in conversations with colleagues at other schools, I've heard about the difficulty in bringing up these concerns with fellow faculty members. In the face of the sometimes vituperative attacks on legal education, many professors have closed ranks, and a prof who brings up these issues may seem to be casting her lot with the critics. On the other hand, speaking up in defense of legal education draws cries that one is a Pollyanna or a con artist. As a law professor, I believe that there is a lot of good in legal education, but it's tough to say that to someone who is 26, unemployed, and carrying $120,000 in debt.
Law profs need to talk about these issues in an honest but productive way. Those of us who work in the field do not have the luxury of waiting to see what others do; we are responsible for change. And many changes will likely be unpleasant ones. But at the same time, there is a real opportunity here to reform an industry that has remained largely static for over 100 years. Taking the bull by the horns will give us a better chance to not get trampled.
So instead of continuing to debate whether law schools are failing, we need to recognize the problems and deal with them constructively. It's time to focus on the future. And if we want law schools to continue to be vibrant players in higher education, the legal profession, and society, we need to focus on sustainability.
"Sustainability" is generally used in the environmental context to indicate the ongoing health of a particular practice or system. But it can also refer more generally to the continued existence and flourishing of industries, firms, and institutions. Law schools have to focus on sustainability. That means asking what schools need to do now to ensure their long-term health and prosperity. Below I sketch out a few thoughts about law school sustainability:
Make law school more affordable. As discussed a few weeks ago, the short-term incentives for all law schools point in the direction of shrinking class sizes. But tuition and debt levels remain a long-term problem. To make law schools sustainable over time, we need to focus on making the opportunity to get a legal education something that doesn't saddle the student with overwhelming debt. This is not a problem that will be solved overnight. But it needs to be addressed, both now and continuing into the future.
Cut costs. If classes shrink and tuition drops, by necessity school budgets will shrink. But how they shrink is another matter. Those who govern schools need to think hard about the ways in which the budget will be cut. And if these conversations are focused on making the school more sustainable over time, professors will be more invested in the process, even if they personally feel the brunt. A salary cut is a postive step for the health of the organization if it is explicitly tied to a tuition cut. If the money saved just goes into a general university fund, profs may feel that their personal sacrifice has not contributed to a more sustainable institution.
Protect core values. There are a lot of different ways to reform legal education. Some of those can come from the inside, such as revised curricula, more experiential learning, and smaller class sizes. But some reforms would be imposed from the outside: revised ABA or state requirements, changes to federal loan programs, and huge market shifts in demand. Law schools need to think hard about what their core values are, and make sure to protect those core values. Along with providing excellent education and preparing our students for success on the job market, I think legal scholarship must also remain a core value to be protected. Now, there are lots of ways to do this; protecting legal scholarship does not mean continuing with the status quo. But I do think that a focus on sustainability includes a focus on keeping legal scholarship alive and well even when legal education is going through dramatic change.
I welcome your thoughts, particularly those of junior or prospective law profs. What should we be focusing on when we think about the long-term future of law schools?
Monday, December 10, 2012
Balancing scholarship and new course preps
Thanks to Dan for inviting me to blog on Prawfs, I am a long-time reader and I am excited to blog here in December. I plan to blog about a number of things, but with the semester just concluding right now I find myself thinking about how I could have managed my workload better this past semester. This Fall semester I undertook a new course prep: Torts. This was a big new prep for me, and I spent far more time than I had planned preparing for each class. Combined with serving on my faculty’s recruitment committee, this didn’t leave much, if any, time for scholarly endeavors.
My question for the Prawfs community is, then, how do you balance a new course prep and your scholarship? Do you negotiate less committee responsibilities in semesters when you have a new prep? Do you find that you get quicker as you undertake yet another new prep? Is this something that gets easier with seniority? I hope to get some advice I can utilize next time I undertake a new course prep!
Good idea: Two-year option for bar certification
Declaration against interest from an institutional standpoint as dean, but I am strongy drawn to Sam Estreicher's "back to the future" suggestion of an option for students sitting for the bar after two years. Such a system, if adopted, would respond in some meaningful way to student debt issues, allowing the financially burdened student to postpone -- or, in some instances, avoid entirely -- the third year and the corresponding tuition costs.
My suspicion is that most legal employers, and certainly the leading law firms, would continue to expect a law degree as a condition for employment. (Whether this would be accomplished in two or three years remains an open question. My law school, Northwestern, is currently the only top law school with a 2-year JD option). Indeed, they would depend upon the educational training that law students would get from the additional 25-30 credits and would insist on that despite the student's bar passage. That said, the ability of a student to move directly into practice, particularly in areas which would meet the woefully under-met demand by lower and middle class individuals for legal service, would create more opportunity.
Moreover, this scheme would put more good pressure on law schools to justify the work of the third year. Estreicher is convinced that this third year would be used principally for practical skills training and would move law schools away from academic intentions. I am not so convinced. Yes, some schools would run their entire third year as a clinic. Others would outsource the third year for supervised externships. However, some schools would continue to promote more academically-oriented programming, perhaps emphasizing specialities and the kind of cumulative learning that would facilitate students' career objectives. A small number of schools would provide opportunities, such as joint degrees and such, for students who aim toward academic careers. In short, we would see salutary diversity among schools -- and, to the point of the proposal, more accommodation to students' financial needs and dilemmas. Law students would vote with their wallets. And law schools would respond to market demand. This is all to the good.
Saturday, December 08, 2012
The Present and Future of AALS?
While I suppose this question is the rough equivalent of putting a "kick me" sign on my shirt, let me press ahead nonetheless and ask this:
What are your good ideas for the AALS as an organization going forward, especially in these remarkably difficult times for legal education? I have the opportunity to play a leadership role in the association for the next little while (being nominated as president-elect at the upcoming annual meeting). My sense is that we can do much better as a group in furthering the myraid objectives of the law professoriate. Moreover, I would like to use my (small) bully pulpit to advance objectives that are critical to our collective future.
I have various thoughts to be sure. What are yours?
Friday, December 07, 2012
New York as National Law School Regulator: The Two-Year Proposal
Earlier this week Dan Filler described how New York imposes more onerous requirements on law schools than do the national ABA standards. However, a proposal is on the table that would significantly reduce New York's requirements for sitting for the bar. The proposal, by NYU law professor Sam Estreicher, provides that:
the New York Court of Appeals amend Rule 520.3 of its Rules for Admission of Attorneys and Counselors at Law to allow a student to sit for the bar examination after successful completion of 60 credit hours at an accredited law school. As the proposal currently stands, no apprenticeship would be required. It is contemplated, however, that a student wishing to pursue this two-year option would be required to take a prescribed set of courses and could receive some form of certificate of completion. Law schools would be free to insist on a three-year curriculum before awarding their degrees.
Estreicher has a paper in support of his proposal here. A public meeting about the two-year option will be hosted by NYU's Institute for Judicial Administration on January 18, 2013, from 9:30 a.m. to 12:00 p.m. Chief Judge Jonathan Lippman and Associate Judge Victoria A. Graffeo of the New York Court of Appeals, as well as one or more representatives of the New York State Board of Law Examiners, are expected to attend the meeting. To RSVP or request further information, you can contact email@example.com.
Friday, November 30, 2012
Tuition, Debt, and U.S. News
In the midst of the "Law School Finances" series of posts, I received an email from a "highly-placed source" in legal academia. This person was concerned that law schools weren't doing enough about our students' levels of debt:
I’m struck by how dismissive folks are of the notion that tuition is too high. The continued belief in a pool of “tuition-insensitive” applicants is striking. We’re not talking about tuition insensitivity as a function of financial ability to pay the sticker price, as only a few of the top schools make meaningful efforts at need-based discounting, in my understanding. 99% of the discounting going on has nothing to do with financial need. By “tuition-insensitive,” we’re talking about applicants who fail to appreciate the long-term ramifications of agreeing to pay sticker price. Shrinking class size may help on USNWR factors (a lot) and grads’ employment prospects (a bit), but it doesn’t do anything – and likely exacerbates – the financial struggles of those students who are asked to pay sticker. The fewer students available to shoulder the burden, the larger the burden grows. Shrinking the class size, which virtually everyone is doing by necessity, does next to nothing to alleviate the long-term problem of student debt. The current approach is simply not sustainable in the long term, but everyone is afraid to make a move given the potential USNWR implications.
These sentiments have been echoed by Brian Tamanaha, among others, who just posted yesterday about how the changes to IBR provide even greater disincentives for law schools to reduce tuition.
I think there's a fairly straightforward way to get schools looking at their tuition: make it part of the U.S. News calculus. Right now, the U.S. News rankings provide a strong incentive for schools to maintain or raise tuition. About nine percent of a law school's score is based solely on the amount of money spent per student -- a direct incentive to spend more. Significant weight is placed on entering student g.p.a. and LSAT scores, which a school can improve by offering merit scholarships. So if a school is going to cut tuition, it makes much more U.S. News sense to "cut" by boosting merit scholarships, rather than cutting the sticker. (See more here.) Similarly, it makes more sense to cut the number of students than it does to cut tuition, for a host of U.S. News reasons. And improving a school's U.S. News ranking is not simply a vanity contest; it improves the applicant pool, makes it easier for current students and alums to find jobs (particularly outside of the school's reputational heartland), and provides tangible evidence of achievement in a world that often lacks such markers.
Schools could decide just to bail out of U.S. News en masse, but it would be extremely difficult to be the first school to do this, and U.S. News could still rank even if schools did not cooperate. An easier and better solution would be for U.S. News to take cost of attendance into account. Malcolm Gladwell made this point in his 2011 New Yorker article on college rankings:
There’s something missing from that list of variables, of course: it doesn’t include price. That is one of the most distinctive features of the U.S. News methodology. Both its college rankings and its law-school rankings reward schools for devoting lots of financial resources to educating their students, but not for being affordable. Why? Morse admitted that there was no formal reason for that position. It was just a feeling. “We’re not saying that we’re measuring educational outcomes,” he explained. “We’re not saying we’re social scientists, or we’re subjecting our rankings to some peer-review process. We’re just saying we’ve made this judgment. We’re saying we’ve interviewed a lot of experts, we’ve developed these academic indicators, and we think these measures measure quality schools.”
As answers go, that’s up there with the parental “Because I said so.” But Morse is simply being honest. If we don’t understand what the right proxies for college quality are, let alone how to represent those proxies in a comprehensive, heterogeneous grading system, then our rankings are inherently arbitrary. All Morse was saying was that, on the question of price, he comes down on the Car and Driver side of things, not on the Consumer Reports side. U.S. News thinks that schools that spend a lot of money on their students are nicer than those that don’t, and that this niceness ought to be factored into the equation of desirability.
Given the real concerns on rising tuition in higher education, I would not be surprised if U.S. News started taking costs of attendance into account. But I haven't heard any buzz about this possibility. I'm surprised that reformers have not focused more on this potential change as a tool for encouraging tuition reform.
Friday, November 16, 2012
Reforming Legal Education's Finances: How to Decide
The last question for our series on reforming legal education's finances is: should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration? This question assumes that some cost-cutting needs to happen, and that may not be obvious. Many believe that law schools should have slowed the growth of tuition rates even when the applicant pool was significantly larger. So who should be making decisions about tuition, class size, and salaries? Should it be the faculty, the law school administration, the university, or some combination of these institutional players?
I don't think there's an obvious answer. Faculty may rely on the law school administration to oversee budgets, enrollment figures, and salaries while profs attend to teaching, research, and service. But part of service is faculty governance, and there is a tradition and norm of robust faculty governance at most institutions. Thus, faculty may feel it is their preogative and responsibility to set overall financial and pedagogical goals for the school. The nuts and bolts may be delegated to faculty-staff committees, such as admissions and budget committees. Assuming such committees exist, how much oversight for their work should the faculty as a whole provide? And what authority should a budget committee have? Can it look at salaries? Can it set tuition? Tuition and enrollment may be dictated by the university, either formally or informally. If the university sets the ultimate numbers and provides the law school's budget, how much should faculty and deans push for reforms that the university hasn't asked for?
I make the proviso here that schools have a variety of different governance structures. But with this caveat noted, I'd ask for your thoughts on the ways in which schools should address these issues. Should faculty take a proactive role in shaping tuition, enrollment, and budget issues? Or are these tough decisions best left to law school and/or university leaders?
Thursday, November 15, 2012
2013 CrimProf Shadow Conference at LSA in Boston
This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.
Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here: http://www.lawandsociety.org/boston2013.html
For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.
The paper panels will cover a range of subjects. Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.
We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area.
In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.
We would also like to identify people who are interested in serving as moderators or discussants for our various panels. So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.
In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.
If you would like to participate in the Shadow Conference in Boston:
By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.” That email should include:
(a) an expression of interest
(b) an indication of whether you would like to participate in a book or paper panel
(c) a description of your topic (an abstract would be preferable)
(d) whether you are also available to serve as a moderator or discussant
(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel
(f) if necessary, a heads up if you are contemplating participation on another LSA panel
Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.
Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference. (The LSA folks get kind of annoyed with us if our participants drop out. And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)
Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv.
Thank you, and we look forward to seeing many of you in Boston.
Carissa (& Danny)
Reforming Legal Education's Finances: How to Cut Salaries
Yesterday our series focused on different ways of cutting labor costs. Today, I wanted to focus on cutting salaries. Of course, as Orin commented yesterday, not all schools will need to consider such measures. But if a school has decided that it needs to reduce salaries for existing faculty, what are the pros and cons of various methods?
One way would be an across-the-board percentage cut. A wage freeze is one version of this. The advantages of an across-the-board cut is that is is fairly straightforward to understand and implement, and it seems fair in that it takes the same proportion of everyone's earnings. However, some may advocate for a larger chunk to be taken from those earning the most, on the same theory of diminishing marginal utility that justifies different income tax brackets. Others may argue for a merit-based set of reductions, based on performance. And different types of performance could be rewarded: a school could reward scholarship, teaching, service to the school and community, or some combination of these. Finally, one could combine a merit and market approach and base the reductions on the person's overall marketability. Staff or faculty members that are likely to get offers from other schools would take less of a cut than others less likely to leave.
One particular method of carrying out a cut is to "furlough" professors and staff for a certain period of time; it's a de facto across-the-board reduction in salary. The furlough may seem more palatable to university administrations, since it gives the employee the day "off." Since faculty are generally not allowed to cancel a class, however, in choosing a furlough date, they would not experience the furlough as a day off and would likely be angry that their reduction in pay is not acknowledged explictly as such.
One question that seems murky to me: to what extent can a tenured faculty member's salary be reduced? I have heard that even a 1% reduction could trigger a grievance. If a school has promised a certain salary for a certain period of time, it would have to abide by that promise. But it's unclear to what extent a prospective salary reduction would be infringe on tenure protections. Here's an Inside Higher Ed article about a plan at UMaryland that would have allowed pay cuts after three poor reviews. It was voted down by the faculty in part because it was seen as an infringement on tenure.
As an example of a moderate method of reducing salary costs over time, here's an excerpt from Brian Tamanaha's "Dean's Vision" speech where he lays out his approach:
During my full first term as your dean, I will not award a raise to any faculty member who currently earns in excess of $180,000. Faculty members who earn between $160,000 and $180,000 may receive merit based raises in flat amounts (not percentages), not exceeding $2000 annually. Those who earn between $140,000 and $160,000 will be eligible for merit-based raises of up to $3,000. To supplement these restricted raises, each year I will award several $1,000-$3,000 bonuses to faculty members who have made outstanding contributions to the school. Faculty who earn below $140,000 will be eligible for more generous raises.
So what do you think? What are the costs and benefits of different approaches to cutting salaries?
UPDATE: TooCloseToHome points out that I neglected to discuss pay and benefits other than salary, particularly summer research stipends. A big omission on my part. A school could cut pay by cutting or eliminating summer research grants or other benefits such as pension contributions, forgiveable loans, and housing assistance. Not all schools provide these benefits. But for those that do, these benefits might seem like an attractive target, especially if they are not provided to other professors at the university.
I've spoken before (in a comment) about summer research grants. I said: " eliminating summer stipends would be a regressive move. It would hurt those who are publishing more than those who are not, and it represents a much larger percentage of salary for junior folks than for upper-level senior folks. So if you think faculty salaries should be cut, that's fine, but simply eliminating research stipends is -- in my view -- a pretty poor way of doing it." Eliminating other benefits might have less of a connection to merit and also less of a regressive effect, depending on how the benefits were given out.
And just to respond to James Maxeiner's point -- I agree that this set of discussions has a detached, remote quality. We are not talking about specific problems faced by specific institutions. I was hoping to move the ball just a little bit forward by starting to talk about potential financial decisions in a more concrete way. But the discussions at individual schools will vary greatly depending on applicant pools, available cash, staffing levels, relationship with a university, etc. I do think James is right -- Brian's solution is geared toward more elite institutions. Profs at many schools would be in line for significant raises under Brian's plan.
Wednesday, November 14, 2012
Reforming Legal Education's Finances: Cutting Labor Costs
After two days of discussions on the revenue side of the ledger, we now turn to costs. A law school looking to cut costs must make a series of decisions. This post focuses on one set of those decisions. If a law school is looking to cut labor costs (particularly with respect to faculty), what are the pros and cons of various ways of doing this?
The easiest way to cut costs would be to not fill empty faculty or staff lines. Based on the AALS entry-level data, it looks like a fair number of schools have taken this approach. I say this is "easiest" because no one has to be fired or take a pay cut. But there are real costs as well. It unbalances a school's faculty by cutting off the influx of new talent. Moreover, if pursued by a large number of schools, it makes things particularly difficult for a set of young scholars who will find that their opportunities are much more limited than their predecessors'. One year of reduced hiring may be ameliorated over time. But if schools continue to cut costs, the decision to freeze hiring for two, three, or more years will have a significant impact on schools as well as a generation of aspiring professors.
So how about the other options? Tenured faculty presumably cannot be fired. A school that overtly denigrates its tenure commitments is likely to face a severe reputational hit. Schools may try to get around tenure protections more quietly by beefing up post-tenure review and then making life more difficult for tenured professors who are deemed to be falling short. Such policies will anger and alienate the targeted faculty, may demoralize the entire faculty, and may also lead to litigation. But they might (in some individual cases) improve performance or lead to exit.
The other option is to cut salaries. We'll talk tomorrow about ways in which salaries could be cut. Without getting into specifics, the advantage of cutting salaries is that you can maintain a larger faculty with smaller costs. But wages are sticky. It's true generally, and it has been true in law firms as well. The demoralization that comes from a wage cut is frequently seen by employers as not worth the cost-savings. A wage freeze may be more palatable, but given low inflation, it takes longer to have a substantial impact.
So what do you think? What are the costs and benefits of cutting positions versus cutting salaries?
Tuesday, November 13, 2012
Reforming Legal Education's Finances: How to Cut Tuition?
Yesterday I posted about the choice between cutting tuition and cutting class size. My conclusion was that whatever money schools had to "spend" on reductions in revenue, rational schools would always choose to reduce class size over cutting tuition. This is an oversimplification -- cuts in tuition can also attract better students, and therefore lead to better incoming credentials and higher bar passage rates. And in fact many schools have been cutting tuition (in various ways) this year. So what are the pros and cons of the different methods?
There are three basic paths to cutting the costs for students: cut the "sticker" price, offer merit scholarships, and offer a loan repayment assistance program (LRAP). Cutting the sticker price sends a market signal to all potential applicants and reduces costs for all students. Since it applies across the board, it may seem (or be) more equitable. However, merit scholarships allow the law school to apply the advantages of price discrimination; the school can pick and choose the price for each applicant based on the desirability of that applicant. Merit scholarships thus allow the school to improve its incoming class credentials more directly, which in turn helps the US News ranking.
Students may also be attracted to a school based on a generous loan repayment assistance program. In addition, an LRAP pays the money out on the back end, as opposed to the upfront losses that price cuts and merit scholarships entail. But because many applicants will be less certain about how the program will benefit them, the tangible effects on applicants will be diminished. In addition, there is more uncertainty for the school, as the number of alums who would be eligible for assistance cannot be clearly staked out ahead of time, unless the school limits the program in some way. Costs are thus more uncertain. Merit scholarships are also uncertain, however -- at least if the school offers more in scholarship money than it actually has to spend. And LRAPs do have the advantage of targeting those students who more clearly need the money, whereas merit scholarships often reduce costs for those who have the best chances of securing higher-income employment.
So what do you think? How schould schools cut tuition, and are the various incentives correctly aligned?