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Saturday, March 31, 2018

Legal Ed's Futures: No. 43 (Dan Rodriguez)

Collaboration among Stakeholder Associations: Why and How

Legal education reform is, as has been pointed out by several contributors to this symposium, a team effort.  There is the imperative of collaboration among faculty and staff within the law school, collaboration within a university for those law schools who are part of what is typically a diffuse institution with myriad pressures and multiple strategies, and collaboration with folks in the profession. 

What I want to reflect upon briefly is collaborations, fruitful and occasionally freighted, with associations who work with and on behalf of law schools to foster common ambitions.  An incomplete list of key stakeholder groups includes:

  • ABA Section on Legal Education and Admissions to the Bar
  • The ABA writ large (often called  the “big ABA”
  • Association of American Law Schools
  • The Law School Admission Council
  • Nat’l Conference of State Bar Examiners
  • Nat’l Ass’n of Law Placement
  • Access-Lex Institute (formerly the Access Group)

Taken as a whole, these groups impact an enormously wide swath of legal education issues.  To be sure, the ABA Section on Legal Ed (“The Section”) controls accreditation and, therefore, is rightly listed at the top of this list.  But it is crucial to see, as law schools do, that many dimensions of influence are reflected in the work of other important stakeholder groups.

The challenge for leaders of these organizations is perhaps an existential one: How do best protect the interests and strategies of group members and affiliates while working collaboratively with law deans, faculty members, and other administrators to improve legal education.  But the more ordinary, which is not to say prosaic, challenge is how to navigate and negotiate matters where law schools might have different objectives – and, indeed, where they may have competing objectives.  Who guards these guardians, if not the law schools themselves?

Consider the ubiquitous demands faced by the Section.  In essence, they set the minimum bar for competence in legal education.  But can they and ought they to do more than that in the face of complex challenges to their members? To a greater or lesser degree over the years, they have assisted law schools (think of the various conferences they put on, for new deans, for development officers, etc).   However, current fiscal conditions within the ABA make this forms of assistance more remote.  And the relationship among law schools and the Section has been historically combative, this notwithstanding the fact that the brutal thread of disaccreditation is tiny to the point of being trivial for all but a sliver of legal academia.  Collaboration with the Section remains a puzzle, even though the fundamental structure of accreditation, with rules and objectives, standards and interpretation, cry out for a more synthetic set of relationships among Section leadership and managers within law schools.

Or what about the AALS?  This is formally an organization of law schools, and there exist structures of participation and support with and for law school members.  (A relatively new Deans Steering Committee, which I chaired for two years recently, is the latest instantiation of this support strategy).  However, the glue that binds the AALS together, and enables it to thrive in some form on behalf of the better versions of legal education, is the volunteer work of dozens of law professors and, as well, the participation of those law professors in a large, omnibus annual meeting held in January.  What is critically important, but to me rather under-theorized, is how exactly AALS can be mobilized as an organization to foster serious reform in a sustained way.  Reformism should be embedded into the structure and philosophy of the association.  But, regrettably, such reformism typically takes a back seat to both membership review and assistance and support to law schools and law professors.

The core values of the association, admirable and deftly configured, exist at a fairly high level of generality. In the trenches, however, are the truly tough questions:  What should be the basic economic model of contemporary American law schools? What diversity should be permitted (celebrated?) with regard to the component parts of the teaching faculty? How should external organizations assist the professiorate in advancing impact through legal scholarship and public service? These are hardly new questions, but the challenge for AALS as a stakeholder group is essentially how best to collaborate with member schools – not how to manage them, but how to collaborate with them and learn from them.  Functioning successfully as an association of law schools demands nothing less.

Some crucial issues are emerging in the work of stakeholder associations.  One of the more unfortunate, and even pernicious, spectacles we are witnessing right now is the full-court-press which LSAC is undertaking in order to save the LSAT, its breadwinner, from competition by a competing admissions test, the Graduate Record Exam.  As I write this post, the LSAC is engaged in a scorched earth strategy to beat down a proposed change in the accreditation standards, a change which would take away any requirement of one particular admissions test as a condition to admission to an ABA-accredited law school.  (You needn't take my word for this.  You can log onto the Section's page which collects comments on the proposed rule for more details).  Although one would imagine that the audience for LSAC’s ire and irritation regarding the GRE would be the law schools themselves, and it is in that arena that LSAC should make its case on behalf of the unique, intrinsic value of the LSAT, instead the LSAC’s strategy is to insist on a one-size-fits-all rule and, furthermore, to insist that those who disagree do not have the best interests of law students and, in particular, to diverse students.  This appeal builds on the manipulative argument that it is to the LSAC that law schools must look for assistance with their diversity objectives and that, in the absence of a heavy-handed rule, the LSAC will be forced to bring up their drawbridge and let law schools fend for themselves.

That’s the issue d’jour.  But the heart of the matter, and the point of this part of my post, is that highly-charged political battles such as this one emerge only when there has been a breakdown of sorts with regard to collaboration.  When stakeholder associations are viewed as impediments to law schools’ well-being, hindrances and nagging busybodies, then the prospect of meaningful cooperation evaporates.  It should be clear by now that these stakeholder associations are critical not only for the work they do to assist law schools with their good work (I haven’t mentioned AccessLex in this post, but let me do so now – their financial support of empirical research on legal education is very welcome indeed), but also for their power and influence in staving off threats to legal education from external organizations, be they the big university, state legislatures, Congress, or the White House.

Having commented on the “why” issue, just a few words on the “how.”  Stakeholder associations should get together on a regular basis with American law schools.  This is a unwieldy group to be sure, so perhaps such face-to-face meetings should be held with the Deans Steering Committee.  There should be, as well, regular communication both among these associations (I expect that some of this goes on already) and with law schools.  Each of these groups has a leadership structure and there are typically law deans and occasionally other administrators who are involved.  However, in my long experience as a dean, law teacher, and volunteer member of a number of these groups (especially the AALS), I can report that the communication between association leadership and members can stand to be improved.  In addition to this regular flow of communication, there should be sincere and serious attention to collaborative strategies.  I do believe that the LSAC would not have found itself in this combative stance with regard to the Section and to many member law schools if they were functioning in accord with a wider, more deliberate strategy.  And kudos to its new leader, Kellye Testy, for embarking on a major strategic planning initiative, an initiative which we can expect will bear fruit in just this way.  The Section, the AALS, and other groups listed above should engage in comprehensive strategic planning more methodically and more transparently.  In doing so, they will benefit from the wisdom of legal educators and law deans and will also forge greater collaboration.  There is no time in the history of modern legal education where such collaboration has been more needed.

Dan Rodriguez (Northwestern)

Posted by Dan Rodriguez on March 31, 2018 at 01:14 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 42 (Bill Henderson)

“Every good idea sooner or later degenerates into hard work.”

This quote comes from writer Calvin Trillin, but I first heard it from NYLS Dean Rick Matasar over a decade ago as he shared some realism regarding innovation, in legal education or elsewhere. 

I wanted to participate in this forum earlier, but alas, I was stuck doing hard work that followed a good idea.  A handful of innovators, including myself, have created a new nonprofit called the Institute for the Future of Legal Practice (IFLP, called “i-flip”).  Details online here.  I have been matching IFLP law students with summer employers. Unless this gets done well and quickly, the IFLP idea will fail.  So writing about the future of legal education had to wait.

I’ve been reading all the symposium posts and wholly appreciate the growing intellectual ferment.  Legal education is going to transform itself. I’m confident we’re in the early days of something great.

To help the cause, I would like to share a story about another idea that degenerated into nearly a decade of hard work.  The idea came from the initial publication of NALP’s bi-modal distribution, which revealed some very peculiar features about the market for entry-level legal talent.  We can argue over how we define legal ability or potential, but there's little doubt it's normally distributed.  Therefore, as noted by Harvard economist Greg Mankiw, labor markets should not have two distinct modes.

That insight led to the creation of Lawyer Metrics (now LawyerMetrix, owned by AccessLex Institute), an applied research company that, among other things, sought to bring analytics and measurement to legal hiring.  Of course, to make the idea work, we needed clients.  In the early days, I was very fortunate to be placed in front of the Chair of an AmLaw 50 law firm. To prepare, I circulated a four-page, single-spaced Moneyball memo.  I also created a PowerPoint.  Because I had sailed through tenure at Indiana on the strength of my empirical work on law firms, I was confident I could impress.

Yet, the meeting did not go well.  The Chair was certainly receptive, but she found my approach “too academic,” both orally and in writing. God love her, she was kind enough to tell me so.  If I wanted to do business with her firm, it was entirely up to me to close a very large communication gap, as she had other tough business problems to solve.  Suffice it to say, you don’t get too many one-hour meetings with law firm chairs. That was beginning of a steady humble pie diet.

Around that same time, Marjorie Shultz and Sheldon Zedeck used gold-standard IO psychology methods to empirically derive 26 lawyer effectiveness factors.  See LSAC Final Report. One of the key takeaways was that academic predictors (LSAT, UGPA, 1st year grades) were correlated with only a handful of the effectiveness factors, with some of the relationships being negative (e.g., UGPA and practical judgment; LSAT and business development).  In contrast, a handful of well-validated assessments (e.g., Hogan Personality Inventory, Hogan Development Survey, biodata instruments) had much better correlations with lawyer effectiveness, and all of them were positive. 

The Shultz-Zedeck findings strongly supported the business premise for Lawyer Metrics, which I documented in a lengthy 2008 memo.  But that is not the point of this story. If I scored myself on the effectiveness factors, I came up short.  For Lawyer Metrics to have any chance of surviving, I had to develop skills that were far beyond what tenure required.  Acquiring those skills (more specifically, attempting to acquire them) was the hardest and best thing I have ever done. However, on the front end of the “good" idea, I saw none of it coming. 

I am not going to risk obliqueness here.  The narrative on legal education won’t materially change until one or more markets get moved.  And there is an ocean of distance between a good idea to better legal education and one’s ability to plan, finance, and execute that idea in a way that redistributes things that law schools care about (e.g., jobs for students, applications, philanthropic dollars, prestige, etc.).  What are the odds of that happening if we approach these challenges in our familiar academic way?  

In Post 37, the wonderful and thoughtful Mike Madison asks the question, “How do we bring non-academics [legal tech, legal practitioners, access to justice advocates] meaningfully into the dialogue?”

My answer is simple.  We don’t. This is because academic dialogue is not what is needed.  Instead, we leave the building and visit these legal industry stakeholders in their natural environment.  We bring sandwiches.  We observe what is happening.  And we ask thoughtful and respectful questions, so we can come closer to seeing the world through their eyes.  Then we go back home and build prototypes that fit this new world.  Then we repeat.  

This journey starts very messy. That is more than okay. What I am offering is a friendly admonition that our symposium won’t have an impact unless it degenerates into hard work – work likely beyond our current academic skill set, though hard work can fix that too.

Many thanks to Dan, Mike, the PrawfsBlawg editors, and the many contributors for a thoughtful month of dialogue.

William Henderson (Indiana-Bloomington)

Posted by Dan Rodriguez on March 31, 2018 at 11:31 AM | Permalink | Comments (0)

12(b)(6) denied in Beckman v. Chicago Bears

I wrote last year about Beckman v. Chicago Bears, a First Amendment lawsuit by a Green Bay Packers fan who holds season tickets and a Personal Seat License ("PSL") at Soldier Field and was prohibited from participating in an on-field event for season-ticket holders because he was wearing a Packers jersey. The district court denied the Bears' 12(b)(6); Beckman plausibly pleaded a connection between the event and the Chicago Parks District to make the Bears a state actor and viewpoint discrimination. (The court granted the NFL's motion to dismiss on standing grounds).

The state-action analysis relies on a combination of the CPD retaining power to approve certain on-field events for PSL-holders and receiving revenues from certain PSL sales. Beckman filed the complaint pro se, so the court's Iqbal analysis bent-over backwards to draw inferences in the plaintiff's favor. The court identified several inferences as plausible despite no express allegations to fill the gap. For example, there was no allegation that CPD approved the event at issue or that Beckman held one of the PSLs from which CPD gained revenues, both facts necessary to the state-action analysis. But the court insisted that both inferences were plausible, which was sufficient.

Posted by Howard Wasserman on March 31, 2018 at 10:30 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, March 30, 2018

Continuing "Futures"

We will continue our Futures of Legal Education for one more week, concluding next Friday, April 6.

Thanks for your readership!

I encourage you to send me guest posts.  As you see, we have had some great contributions from guest posters.  You can email me at [email protected]  I just need permission to include your name and affiliation, and won't edit for content.

Dan Rodriguez


Posted by Dan Rodriguez on March 30, 2018 at 12:40 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 41 (guest post, Ian Holloway)

“But you don’t understand. They’re completely different.” That was the snorted response I received a few years ago from a lawyer when I suggested that as a profession, there were things we could usefully learn from accountants.

I’ve had exchanges like that several times over the years. But I was reminded of them when reading Hari Osofsky’s Post no 24 in this series (“Moving Forward Together”). In my time as a dean of law, my list of eureka moments is far, far shorter than the “Yikes! We shouldn’t do that again” ones. But without question, a bathtub moment occurred a four years ago, when I arranged for the associate dean of our medical school to take part in the work of our curriculum review committee.

On a scale of one to 10 in terms of revelation, it ranked a solid 12. For what my colleagues and I learned from him was that in medical school today, very little actual classroom work takes place, at least beyond the basic sciences taught at the beginning. Rather, almost all medical education takes place through what the docs call problem-based learning.

What will happen — and here at the University of Calgary’s med school it begins in Week 1 — is that an actor will present to a group of students with, say, yellowish-looking skin. The students are meant to ask questions, and then go away and do some research. They meet the “patient” again, and ask more questions. More research follows, followed by recommendations regarding treatment. That is the process by which they learn about the liver and liver-based diseases like jaundice.

This problem-based learning model is now the norm in North American medical schools. The fact our med students no longer have structured lectures on the four chambers of the heart or the endocrine system or infections of the sigmoid colon seems not to have done violence to the cause of medical education. On the contrary, many specialists today will say that the juniors arrive at the hospitals much better prepared for the rigors of hospital life than in their day.

After our colleague from the School of Medicine spoke, we reacted in the traditional instinctive lawyerish way: “Well, this is interesting, but the law is different.”

But the associate dean had a remarkable forensic persistence: “Why?” he kept asking. What was it about our learning objectives that are so different from the learning objectives in other learned professions?

Yes, we want to inculcate theory, but does anyone think that our doctors don’t have to have a theoretical understanding of their work? And, like the doctors, don’t we prefer our graduates being able to actually have at least some grounding in skill? If not, how are we different from a graduate philosophy program?

And, by the way, do we actually know much about how much our students retain from what we think we are teaching them?

For all of us on the committee, this really was a eureka moment. After that, we went out of our way to connect with others. Or course, this included members of the profession (who could not have been more helpful), but it also included an expert in learning theory, who was able to tell us more about how adults learn. (Spoiler alert — it’s way different than it was understood in the late 19th century when the Langdellian model of legal education was developed.)

And when it came to things such as leadership, entrepreneurship, business skills and project management (all things we offer at Calgary alongside Jurisprudence and Feminist Legal Theory, by the way), we reached out — to arms that we found extremely welcoming — to our colleagues from the business school, who’ve been teaching these things for years.

In our case, I have no doubt our ultimate reforms were far stronger than they would have been had we not tried to learn from the experience of others. Yes, law as a substantive profession is different from medicine, accountancy, or engineering. So, of course, our courses are different from theirs. But does it have to follow that the experience of our sister professions doesn’t hold directly applicable lessons for us? Not a chance.

Hari concluded her piece by saying, “collaboration is not just a positive way of interacting, but a practical strategic tool.  The more we can work together, learn from each other, and take steps forward informed by varying perspectives, the better we will serve our students and society.” She couldn’t have been more spot-on. The common law is a system grounded in the experience of the ages. The premise of the precedent system is that the wheel need not be reinvented with each new case. Why shouldn’t that apply to our pedagogical lives as well?

Ian Holloway (Canada, U. Calgary)

Posted by Dan Rodriguez on March 30, 2018 at 12:34 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 40 (guest post, Joan Howarth)

Most symposium participants have not discussed attorney licensing as being ripe for serious reform.  In response, let me describe a licensing regime worth considering.  Its key features include:

  • A one-time examination, after three or four years of law school.
  • The examination is all or nothing, so the new attorney may handle any matter on day one, without regard to specialization or degree of difficulty.
  • The subjects tested have been understood to be foundational since 1870.
  • Memorization of common law rules is emphasized.
  • Although taken after graduation, the exam tests knowledge and application of doctrine mainly learned in the first year of law school.
  • The same multiple choice component is used across the country, but states get to determine competency by setting different passing scores on that single test. 
  • The test is sufficiently similar to the LSAT that elite law schools can make curricular decisions without being distracted by licensing concerns. 
  • Clinical experience – or even having seen an attorney with a client -- is optional prior to licensing.

Oh wait.  That’s our current system of attorney licensing.  Surely changing this is foundational for most of the other reforms that have been discussed. 

Joan Howarth (Michigan St.)

Posted by Dan Rodriguez on March 30, 2018 at 12:30 PM | Permalink | Comments (0)

Thursday, March 29, 2018

Sponsored Post: Promoting active learning

The following post is by Ellen Murphy, Assistant Dean for Instructional Technologies and Design at Wake Forest University School of Law. She can be reached at [email protected]

As an instructional designer and law professor, one of the most frequent questions I am asked about teaching law today is “what can I do to help my students become active instead of passive learners?”Now, these are not necessarily the words my friends and colleagues use; instead, they say things like:“how do I keep my students attention;” “how do I engage my students;” or if they’re reading teaching and learning blogs, “how do I flip my classroom?” But they’re saying the same thing: how do I get my students to engage with the material – and with one another – during class

And I tell them this: creating an active learning environment does not require abandoning that which we know works and with which you likely are comfortable: the case method. In fact, an optimal way to incorporate active learning, as well as practical, real‐world skills, is to create in‐class exercises based on the primary cases that drive your course. In much the same way our best exam questions and
hypotheticals frequently come from actual cases, so do the best active learning exercises. For example, I teach Professional Responsibility. When I teach the famous Buried Bodies case, I have my students draft a release of the attorney‐client privilege (which would have resulted in a very different outcome for Attorneys Belge and Armani!). When I teach the recent Sheppard Mullin case involving the waiver of future conflicts of interest, I have students role play obtaining “informed” consent from a client. When I teach the disciplinary decision of Duke Lacrosse prosecutor Mike Nifong, I have students prepare a media policy for a prosecutor’s office. I spend very little time lecturing, and my students are engaged (and certainly not passive), while simultaneously developing a range of lawyering and professionalism skills.

For our new book, Legal Ethics for the Real World: Building Skills Through Case Study, my co‐author Renee Knake and I developed a set of seven case studies just for this purpose – creating an active learning classroom for a course that many students don’t want to take, and some professors don’t want to teach. Each case study combines critical thinking with practical skills based on real‐world ethical dilemmas. We cover the most pressing issues in modern legal ethics, including social media use, lawyer substance abuse and wellbeing, client confidentiality, wrongful convictions, advance conflicts waivers, prosecutorial discretion, and advertising with new media. These exercises serve as a model for all subjects and courses in the law school curriculum in how to promote active learning, while giving students practical skills experience – without reinventing the wheel.

Posted by Howard Wasserman on March 29, 2018 at 03:41 PM in Sponsored Announcements | Permalink | Comments (1)

Legal Ed's Futures: No. 39 (Robert Ahdieh)

The Promise of Shared Governance

Inspired by Luke Bierman’s description (#16) of the robust dynamic of faculty engagement that gave rise to Elon’s bold set of curricular and professional development reforms in the last few years, I wanted to share a few reflections on shared governance in legal education today.

To begin, I think we do well to recognize distinct phases of decision-making in academic settings (and beyond) and the appropriately distinct role of faculty at each of those phases.  The first phase is defining the strategic vision for our school: Where do we want to go?  The next phase is developing ideas for how best to pursue those goals. What are our tactics?  The third phase is executing on those initiatives, and the fourth is assessing them:  Was the program a success?  Should we abandon it, modify it, or continue as is? 

Our role as faculty should be at its acme in the first and last phase.  Too often, however, we brush past the first phase.  (Let the one among you who likes strategic planning speak up!)  And we don’t give nearly enough attention to the role of faculty at the assessment phase.  We desperately need structures to ensure that when we do something, thus, faculty join in measuring the results against the vision set forth at the outset.

What about the second and third phases?  I see that as a more nuanced question.

Faculty have an invaluable role to play in the second phase – developing new ideas and approaches – but we can sometimes be overly cautious on this score: until we know everything, we feel like we shouldn’t try anything.  The changing landscape of higher education, however, requires greater receptivity to experimentation.

It is at the third phase of execution, however, that the effects of that changing landscape show up most starkly.  Simply put, I don’t believe we have the luxury of not granting administrators and staff the lead role in executing on the vision and initiatives the faculty has determined to embrace.  The alternative – that we retain that task as faculty, to be carried out alongside our scholarly and teaching obligations – creates the risk that important undertakings will fall by the wayside.  If the faculty’s role in defining the vision and assessing outcomes is not shortchanged, however, I believe that delegation can be a powerful tool.

Beyond that, one broader reflection:

In my own experience, strong faculty engagement is essential to the success of any effort at moving an academic institution forward in a sustainable fashion.  I fully appreciate why many academic administrators see peril in such engagement – fearing some resulting push toward perfect transparency or decision-making by committee of the whole. 

In my own experience, however, it is far more often disengagement of faculty that is the greatest challenge.  Not any excess enthusiasm to be involved.  The latter, I believe, can almost always be channeled to productive ends.  In the absence of engagement, however, it is all but impossible to do great things.

Robert Ahdieh (Emory)

Posted by Dan Rodriguez on March 29, 2018 at 12:00 PM | Permalink | Comments (0)

Wednesday, March 28, 2018

Legal Ed's Futures: No. 38 (Jerome Organ)

I greatly appreciate the thought-provoking views that have been shared through this virtual symposium.  Let me add my expression of thanks to Michael Madison for getting this launched, to Dan Rodriguez for facilitating the symposium, and to all of the participants for sharing their insights. I write to highlight three points, connecting to some of the ideas expressed previously by others. 

My first point follows up on Mark Tushnet’s idea that law schools should be encouraged to pursue institutional pluralism.  There certainly is some sense in which that is happening. Andrew Perlman highlights some of the efforts to foster greater integration of technology and to support innovation in which a number of law schools have been engaged.  If one were to review carefully the Learning Outcomes Database I mentioned in my first post, one can also see some evidence there of institutional pluralism in terms of some distinctive learning outcomes that two or three or four dozen law schools have embraced.  At the same time, however, the Learning Outcomes Database also provides some evidence suggesting a remarkable foundational similarity across law schools, with a few dozen law schools embracing just the basic learning outcomes mandated by the ABA.

Indeed, I am struck that this virtual symposium is taking place concurrently with the release of the US News Rankings.  While many people complain that the ABA Accreditation Standards constrain institutional pluralism, in my view, a much greater constraint on institutional pluralism is the set of incentives embedded within the US News Rankings system.  As is often stated in the world of assessment, “what matters is what is measured.”  Frank Pasquale made this point as well in noting the risks of managerialism.  The various metrics on which the US News Rankings are based do not support the concept of institutional pluralism; rather they discourage institutional pluralism.

My second point follows upon Hari Osofsky’s discussion of collaboration across many spectrums.  While she argues briefly in favor of the importance of collaboration in faculty governance, I am not sure Dean Osofsky acknowledges the difficulties of fostering faculty collaboration.  The biggest challenge to faculty collaboration is the academic culture we have fostered and sustained within legal education, which places profound emphasis on individualism grounded in a misunderstood conception of academic freedom.  I do not think it is a great stretch to suggest that the vast majority of law schools do not have a collaborative faculty culture.  Rather, the faculty function as a collection of independent contractors.  How often at your law school do the people teaching Torts or Criminal Law or Property or Evidence talk with each other to make sure their students have comparable experiences in terms of course coverage, skill development, and professional identity development – the three apprenticeships discussed in Educating Lawyers?  This is a different facet of the point Michelle Pistone made earlier about the composition of law school faculty.   If we want to foster collaboration, we need to recruit and hire and mentor people inclined toward collaboration.  I am not sure that is what we have been doing, for the most part, with our collective hiring decisions over the last two decades.

This brings me to the third point.  While I have found most of the contributions to this virtual symposium to be very thought-provoking, I have been struck by how little discussion there has been about learning outcomes.  Whether people fully understand this or not, the most significant change in the ABA’s Accreditation Standards in the last two decades is the mandate that law schools develop learning outcomes for their graduates and then assess their students and graduates progress on those learning outcomes.  This shift in accreditation from an input-based approach to an outcomes-based approach, if it is going to be taken seriously, requires that law schools embrace a more collaborative approach to legal education.  The outcomes-based approach is a competency-based approach in which each law school collectively needs to make sure that its students and graduates are making progress in developing the various competencies the law school has identified within its learning outcomes.  This is only going to happen if the faculty collaborate to assure that across a set of required and elective courses students and graduates receive opportunities to develop and demonstrate the identified competencies. 

For example, Michael Waterstone highlighted that law schools should be helping students and graduates develop an orientation toward life-long learning.  To some extent, this can be captured within the concept of self-directed learning in which our students take ownership of their learning not only during law school but after law school.  Of those law schools with published learning outcomes, roughly 50 law schools have identified self-directed learning as a learning outcome.  But for those law schools to accomplish this learning objective, they are going to need to create curricular interventions to help students develop and assessment mechanisms to help students demonstrate self-directedness.  Self-directedness might be a particularly vexing learning outcome for many law schools, given that the first year is generally a required curriculum (in which students get to assert limited autonomy or self-directedness).  Moreover, for those students who do not do well in the “first-year tournament,” a common response appears to be disengagement and despair rather than a sense of agency and ownership in which students decide to become self-directed and begin the process of life-long learning. Without some direction and coaching – some intentionality among faculty and staff – I am not sure we can assume students will figure out how and why it is important for them to be self-directed within the new legal marketplace.

For what it is worth, the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law is leading a collaborative effort to support greater emphasis on professional identity formation.  This not only includes a series of summer workshops to which the Holloran Center has welcomed nearly 200 faculty and staff from 35 law schools over the past five years, but also a set of working groups that are trying to generate stage development rubrics and corresponding curricular tools and assessment mechanisms to support five professional identity formation learning outcomes that have been embraced by a significant minority of law schools.  The competencies on which the working groups are focused are cultural competence, integrity, professionalism, self-directedness and teamwork/collaboration.  We are hoping to see the fruit of this collaborative effort in the next year or two.

Jerome Organ (St. Thomas)

Posted by Dan Rodriguez on March 28, 2018 at 01:37 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 37 (Michael Madison)

A thousand thanks to all contributors to this Symposium. I have a handful of additional provocations to share:

  1. Regulation of the profession and accreditation of legal education providers:

The current system of accreditation and regulation of US law schools is seen by some as critical and by others as retrograde. As I type, a Site Visit Team from the Section of Legal Education and Admissions to the Bar of the American Bar Association is visiting my campus, my law school, and (as of 9 am this morning), my class.  I’ve seen the “classroom observation” rubric that the team is using.  It is hardly rigorous.  Nor is it inclusive of non-standard pedagogy.

Among the commentators in this symposium, Scott Norberg and Jackie Gardina in particular have addressed the role of the ABA in accrediting law schools.  Several commentators have broached the idea of non-JD legal education.  Frank Pasquale has cautioned appropriately against “managerialism.”  Law schools can game accreditation and rankings systems by masking their efforts as “innovation.”

My questions are:  Should the ABA continue to play any role in accrediting law schools and/or other providers of legal education?  How should legal education programs other than the three-year JD be accredited or otherwise regulated?  What is the appropriate relationship between regulation of legal education, which the ABA now dominates (in the US), and regulation of professional services / legal information delivery, which state Supreme Courts and/or state bars dominate?  How do we appropriately connect questions about the future of legal training (the academic side) to questions about the unauthorized practice of law (companies such as LegalZoom, Rocket Lawyer, and Avvo) and about unbundled legal services (the services side)?  In that ecology, what is the proper role (or roles) of professional licensure? 

     2. Bringing the professions into this dialogue:

For all of the thoughtful commentary “here” in a community of legal academics, there’s a ton of ambitious and energetic dialogue out “there,” in communities of law practice, legal tech, and access to justice.  Float around Twitter for awhile, and/or blogs on these topics, then ask: Why do so many of the energetic reformers in the services/impact spaces seem to have so little meaningful interest in what is happening in the core programs of legal education?  To me, “why?” isn’t the more important issue.  The more important issues are whether a required first-year JD curriculum of Contracts, Torts, Civil Procedure, Criminal Law, and Property, plus a side dose of Legal Analysis and Writing, still offers the best way to begin the acculturation of a new generation of lawyers, and whether law professors are the right people to decide?   A suite of outside, non-academic perspectives may be critical parts of answering that the identity-of-the-core-program question and equally important parts of asking and answering related ones.  I don’t think that we need “outside the box” thinkers.  I do think that we, as academics, need help in identifying the box.  Or boxes. 

My question is:  How do we bring non-academics meaningfully into this dialogue, taking account of the hope (my hope, anyway) that we’re not talking only about short-term or micro interventions of the sort represented usually by the idea that law schools should teach more X and less Y?

    3. Risk management:

We’ve heard from Deans at some law schools that have taken substantial steps toward implementing a newer, more integrative, broad-brush reform agenda (Luke Bierman at Elon, Dan Hunter at Swinburne).  We’ve also heard praise for more incremental approaches and an acceptance of evolving institutional pluralism (Mark Tushnet, Harold Krent).  If legal education writ large embraces the former approach, what’s the scope of the risk that we miss markets altogether, by training graduates who are technologically adept but incapable of dealing effectively with humans? If it embraces the latter approach, what’s the scope of the risk that legal education teaches its way into irrelevance, by failing to prepare graduates for ever-growing diversification of need among clients and communities? Given that we have incomplete information about changing social needs for legal services and legal information, where and how do we place our bets? 

My question is:  Is there a suitably flexible middle ground, and what does it look like?

  1. Higher education matters:

Hari Osofsky has been vocal here in trying to situate legal education in a broader higher education context.  Here’s more on that note.  No law school is an island, even stand-alone law schools.  A law school in a university is part of the economic, cultural, and political ecologies of that university. As law professors, we should no longer assume that that what a law school does or wants to do is basically a matter of law faculty governance (subject to ABA review) and/or the law Dean’s ability to bargain with the Provost.  Any law professor with recent experience in Dean searches should appreciate the wisdom of the Rolling Stones. You can’t always get what you want / But if you try sometimes you just might find / You get what you need.  Faculty parochialism is giving way to presidential vision.

For good or for ill, the university is the world that we all live in, and understand the imperatives that drive the university we must.  If you think that law schools and law Deans are struggling with enrollments and budgets, take a second and talk to a university president!  It is the rare law school these days that can look to its parent institution as a well-funded, reliable “bank.”  Even the small number of stand-alone US law schools are not immune from these concerns.  They don’t have Provosts and colleagues in English and Engineering, but they do compete for students and faculty in markets that are dominated by law schools that do. 

None of that implies uncritical deference to university goals.  Frank Pasquale’s counsel against managerialism is relevant not merely to thinking about the uses of the law school.  It is most relevant to the uses of the university.  The university is where the action is, even for law faculties and Deans.

Langdell’s Harvard Law School emerged out of Eliot’s vision for Harvard University, which itself reacted to global social and economic shifts.  The American college was becoming the Germanic university.  Late 19th and early 20th century law schools that professionalized law as an academic subject were part of larger shifts to research-based higher education.  Twenty-first century universities are organized around different changes and challenges. The professionalized legal academy may be a barrier – to justice as much as to innovation -- as much as an opportunity.

My question is: How should law schools participate in new and emerging systems of higher education?

     5. Vision, Barriers, and Action:

I’m keeping in mind the “change management” framing that I included in my initial “invitation.”   

My question is:  What’s next?  I have some ideas, and when the symposium winds down I am hoping to keep the momentum going.  Meanwhile, I recommend to all a little book by John Kotter, “Our Iceberg is Melting: Changing and Succeeding Under Any Conditions.”  It’s more than a little hokey, but there’s a lot of truth in it. 

Michael Madison (Pittsburgh)

Posted by Dan Rodriguez on March 28, 2018 at 12:59 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 36 (Deborah Merritt)

Past, Present, and Future

 Several symposium participants have praised law schools for their innovations over the last generation. They note that schools have strengthened legal writing programs, expanded clinical offerings, and created new experiential courses. These advances are real, but they have been achingly slow. The MacCrate Report called for these improvements twenty-six years ago, and practitioners believed they were already long overdue. Law schools have made progress during the last quarter century, but the changes have often been grudging—and we still fall far short in preparing our students to serve clients.

I’m troubled, moreover, by the fact that these paeans to progress omit other ways in which legal education has changed during the last quarter century:

  • Tuition has risen dramatically.
  • Salaries for tenure-track faculty have also risen.
  • Teaching loads for tenure-track faculty have fallen.
  • Course sizes have declined, so that faculty grade fewer students in each course.
  • Despite these reductions in teaching load, few tenure-track faculty have created experiential courses or increased the feedback they offer students. Instead, most schools have enhanced feedback and experiential learning by creating a pool of second-class professors.
  • Resources devoted to marketing, admissions, career services, and other auxiliary services have grown markedly.
  • Schools have developed elaborate systems of “merit” based scholarships.

If we want to plan effectively for the future, we have to acknowledge all of the ways in which legal education has changed during the last generation. We also have to ask whether these changes are sustainable—or appropriate for a profession committed to serving client needs.

We already know that the tuition increases of the last twenty-five years are not sustainable; most schools discount tuition significantly to attract students. Is our current scholarship system sustainable? Is it fair? Evidence suggests that our system of price discrimination maximizes income to law schools while disadvantaging minority, female, low-income, and first-generation students.

Are generous tenure-track salaries sustainable? Are they necessary? Today’s job market is demanding, risky, and unforgiving. Do law schools really have to pay as much as they do to attract talented faculty away from practice?

Can those tenured faculty members continue devoting so much of their time to research? Law professors do not support their scholarship through outside grants or alumni donations; we support most of our work through student tuition. Will students be willing to continue directing so many of their dollars to scholarship? Is it fair to ask them to do so, given the uncertainties of their own earning potential?

Finally, what are the effects of maintaining multiple categories of separate-and-unequal faculty members? These divisions undercut claims that law schools value writing, clinical, and other experiential courses. The divisions create considerable tension among colleagues working under the same roof. Our separatism also challenges a fundamental premise of higher education, that research complements teaching. If scholarship is essential for good teaching, then why do our scholars teach so little? And why do the faculty members who bear the brunt of teaching (especially in experiential courses) have no time or support for scholarship? 

We need to confront the full scope of our past and present in order to prepare for the future.

Deborah Merritt (Ohio St.)

Posted by Dan Rodriguez on March 28, 2018 at 12:54 PM | Permalink | Comments (0)

Tuesday, March 27, 2018

SCOTUS: Hall v. Hall and the limits of all-purpose consolidation

SCOTUS decided Hall v. Hall, unanimously (in a most-Robertsian opinion) holding that consolidated cases, even those consolidated for "all purposes," retain their independent identities for finality purposes, so judgment on one set of claims is final and appealable, even if other sets of claims remain in the district court. I called this one wrong, before and after argument. My SCOTUSBlog recap is here.

What I did not expect was the Court's seeming rejection of any distinction between limited and all-purpose consolidation, at least for appealability purposes. (The Court never discussed the scope of consolidation in the case, because it did not matter). Consolidation for all purposes should create a single action--as if separate sets of claims and parties had been joined in a single action in the first instance under FRCP 18 and 20.* In a single action, even complete resolution of some claims or some parties does not produce a final-and-appealable order (absent FRCP 54(b) certification). The Hall Court disclaimed any suggestion that all-purpose consolidation was not allowed. But it pulled finality and appealability out as issues affected by all-purpose consolidation; in other words, all-purpose consolidation does not create a single action for purposes of finality and appealability, although it may create a single action for other purposes. But that takes much of the force from all-purpose consolidation, which no longer produces the same procedural effect (in at least one respect) as if joined in the first instance. And without the finality benefit, it is not clear why else parties or courts would consolidate for all purposes, as all other benefits are available with limited-purpose consolidation.

[*] I teach that consolidation for all purposes is permissible only if the claims and parties could have been joined in the first place--not only because of a common question of law or fact (required in both Rule 20 and Rule 42(a)), but also where the claims arising out of the same transaction or occurrence.

Posted by Howard Wasserman on March 27, 2018 at 02:48 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Legal Ed's Futures: No. 35 (Dan Rodriguez)

Debbie Merritt’s two posts (here and here) focus sharply and shrewdly on the matter of curricular elitism in law schools.  In her first post, she makes the global point that law schools are sub-serving the agendas and objectives of big corporations and the super elite of our profession.  In the second, she uses the example of criminal justice to drill down on the ways in which law schools give little purchase to the diversity of the vexing issues in our criminal justice system (for example, policing), issues which affect disproportionately those lesser advantaged.

Let me suggest that she is clearly right in her depiction of the state of the world (noting that some innovative exceptions are various law schools are the exceptions which prove the rule), but sketch some reasons to believe that the diagnosis is highly problematic, given the state of the profession.

Law school curricula track (at least) three conditions:  the nature and scope of the demand in the legal marketplace for students educated in a particular way; the availability of faculty resources and, relatedly, the general and particular interests of law professors; and, the identification of law schools with a version of a law school ideal type.  All three of these conditions make it very, very difficult to imagine law schools eschewing elite values and strategies.  (Alas, I should say at the outset, as I expect that Merritt and I share many normative priors).

The legal profession is profoundly stratified and is at least as snobby as the most elitist law school.  Not only do the Cravaths and Wachtells run toward the nation’s 20 or so most highly ranked (I won’t say “best” nor even “top”) law schools for their associates, but so do the highly coveted federal and state prosecutor offices.  Ditto judicial clerkships across the spectrum.  And certainly ditto prestigious public interest placements, be they ACLU, NAACP, etc.  These private and public organizations care precious little about how socially eclectic was the experience of these newly minted law grads. Nor do they care a whit about how deeply immersed these young people were in professional responsibility and legal ethics.  They will care about clinics (to some degree) as a signal of interest in law and of some value in developing expertise, but it won’t be a nuanced appreciation for the ways in which, say, a faculty developed a curriculum rich and variegated in the ways Debbie Merritt sketches in her second post.  So, as professional opportunities track a highly elite mindset, law schools will continue to give the people what they want.

Second, the expertise and interests of faculty members are self-reinforcing.  In many areas of the curricula – including Debbie’s focus, criminal justice, and mine, administrative law/regulatory policy – it would be of enormous value to draw faculty members from areas in which they have gained valuable and diverse experience.  We can surely point to top legal scholars who are “top” largely because they draw upon enormously interesting experience in, say, public defenders’ officers or regulatory agencies.  (James Forman Jr.'s wonderful book, "Locking Up Our Own" is a great example). And, beyond their scholarship, their experiences would provide a foundation from which students would benefit greatly.  But, unfortunately, such faculty members are few and far between.  More commonly, faculty members’ own elite legal experience will drive their interests and their approach to teaching. 

Finally, we must acknowledge that law schools continue to gravitate toward an ideal type.  It is a law school whose reputation was built on their ability to service elements in the elite of our profession with the best and the brightest.  For a hundred or so years, it was Harvard, Yale, Columbia and maybe five or six other law schools we could name.  In the last half century, it has broadened to include, interestingly, perhaps as many as a hundred more law schools – not, I would hasten to add, because a hundred law schools are producing large numbers of graduates who are quickly entering the elite strata of the profession.  But the key point is that these hundred aspire to do this, they aspire to be more like law schools up the ladder and their image tracks an ideal type of the “major” American law school.  Although a comprehensive history of legal education has not been written, any effort would surely focus on the ways in which law schools continue to be seriously stratified by prestige and defined by reputational signals (USN rankings being by far the most important modern signal) but, at the same time, the profession itself is crying out for diversification of mission, for serious attention to the access to justice crisis, to more attention to the complexity of the subjects studied and taught (Merritt’s point), and for myriad innovations which improve our ability to provide value and service a rapidly changing profession.  There is a point to be made here about technology, but I will leave this for a future post.

Dan Rodriguez (Northwestern)

Posted by Dan Rodriguez on March 27, 2018 at 01:52 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 34 (Luke Bierman)

The devil may be in the details and the proof may be in the pudding but at Elon Law we learn by doing.  Adjusting Elon Law’s curriculum and calendar demonstrates that wholesale change can be accomplished to positive effect.  Of course, there are many effects that can go into assessing the outcomes of legal education.  USN&WR rankings may be one but more on that for another day.  Our assessment of the comprehensive redesign undertaken at Elon Law must first be measured by our stated objective “to create a bridge from legal theory and doctrine to the practice of law.”  Likewise, our efforts to address the primary critiques of legal education as too long, too expensive and too disconnected from the profession that we had identified offer another approach for assessment.  And our identification of learning outcomes along the logical continuum of preparation in Elon Law’s new curriculum provides yet another point of departure for assessment. 

Perhaps most pertinent to our efforts, the first class admitted under the new curriculum graduated in December 2017 and now anxiously awaits the results of the bar exam.  These pioneering students arrived at Elon Law in August 2015, persevered the transitions inherent in changing the curriculum, and graduated with guidance and advice from NC Chief Justice Mark Martin, who delivered the address at this important milestone event that also was our 10th commencement.  These students successfully navigated the new residency-in-practice program with experiences at law firms, corporations, government agencies including prosecutors and public defenders, and judges’ chambers including CJ Martin’s.  Surveys about the residency experiences reflect uniformly high results from both students and supervisors, which provide a foundation for much closer relationships for our law school with the bench and bar. 

These students also succeeded in reducing their debt some 20% compared to earlier Elon Law classes and, of course, they have the opportunity to enter our profession earlier than others who started law school when they did, thereby adding to the value of this approach to legal education.  We already know that some of these students have translated their residency experience into full-time law jobs although the full impact of that possibility awaits further assessment after the bar exam results are delivered.  We are proud that we successfully have begun to address in meaningful ways the length and cost issues affecting a variety of decision making by prospective and enrolled students. 

We also have some early results about the appeal of our innovative educational program to those interested in being a lawyer, which may offer further insight into the issues affecting access to law school.  This is especially critical considering the characteristics we are identifying in a new generation of prospective students and the adaptations of our profession to the information age and accompanying technologies.  Of course more precise assessments, which also will inform how we continue to refine this curriculum, will await deeper study and we are very appreciative to have the support of AccessLex to conduct a longitudinal review of aspects of this transition. 

For now, however, we know that over the first three academic years of our new curriculum, while applications to law school nationally remained flat, Elon Law saw an increase of about 40% in applications.  This academic year, as we completed our transition to the new curriculum and applications nationally are showing some amount of a bump up, interest in Elon Law’s innovative approach to preparing lawyers continues to remain strong with applications to date ahead of last year by about 35% with noteworthy increases in the metrics typically viewed as important including LSAT, UGPA and diversity.  Recognizing that we remain early in the admissions season, we nonetheless are pleased with these results thus far and see strong indicators of turning applications to admissions to enrollees.  We expect to continue this path as surveys of our applicants indicate a strong self-selection based on various aspects of our curriculum including the highly experiential components and the value proposition embedded in that curriculum. 

It is worth recognizing that as an innovator in preparing lawyers, Elon Law has taken a long view to achieving success, recognizing that it will take some time to refine the curriculum while explaining the advantages of our approach to legal education.  This is consistent with our strategic approach to respond positively to those aspects of legal education that suffer serious critique and that we sought to improve including cost, length and disconnect from the profession.  From those perspectives, our assessment thus far is positive although we have some important aspects to continue to monitor and fulfill our strategic imperative for continual improvement. 

Moreover, in the reputation heavy enterprise of law, where long held opinions are tough to shake, we at Elon Law fully understand that innovation may take time to permeate our collective professional consciousness.  The changes reported and advocated for in this virtual symposium are necessary because we are writing on a foundation some 150 years in the making.  Changes in complex enterprises like higher education do not come easy or quickly.  And we are making adjustments not just to address past critiques but to accommodate future trends. 

As we must be thoughtful about attracting law students coming of professional age in the 21st century, we need to be adaptable and responsive to social, cultural, economic, political and technological trends as well as those legal.  To educate a generation born of technology, schooled in service learning, and delayed into maturity, we cannot simply replicate our experiences but must focus on a curricular program, cost structure and professional development path that considers a new generation’s worldview.  For example, the next generation of students’ experience with service learning suggests a more fulsome integration of experiential learning into the curriculum.  Likewise, the contemporary presence of technology is yet another example of a trend that must be more integrated into the law school experience as a curriculum component and in other ways.  Much of the discussion in this virtual symposium informs the thinking about how to adapt these many trends and I hope that our experiences at Elon Law are useful to that thinking and eventual doing. 

This will conclude my posts about our experiences at Elon Law, where we have turned thinking into doing, heeding the Call to Action by Professor Madison that sent off this virtual symposium.  I look forward to sharing more about our experiences at Elon Law but that will await other venues.  I will post next some thoughts derived from the interesting observations and musings of the other participants in this virtual symposium. 

Luke Bierman (Elon)

Posted by Dan Rodriguez on March 27, 2018 at 01:10 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 33 (guest post, Harold Krent)

In most of the world, legal education is focused on undergraduates.  The tradeoffs between the undergraduate and post-graduate models are many.  On the one hand, graduate education yields more mature students and students with more varied backgrounds and life experiences.  On the other hand, targeting undergraduates ensures that more people are exposed to the importance of law and its methodology, whatever their ultimate profession, with the added benefit, as my former colleague Dan Hunter reminds us in this symposium, of substantial cost savings.  Then, with concentrated training after graduation, the graduates could satisfy much of the current unmet legal needs, albeit at modest compensation.  We cannot rely exclusively on pro bono services to meet those needs, even as we use technology to expand the reach of such efforts.

There will always be need for the sophistication of attorneys in a Cravath or in the Department of Justice, and the graduate JD model that we currently follow may prove best to educate students for that path.  But, it is not as clear that graduate education is needed to prepare students to handle uncontested divorces, real estate closings, and administrative claims.

Although it may be anathema for a dean to suggest such a refocus, my prediction is that the market forces that many in this symposium have alluded to will precipitate such a move, sooner or later.  Arizona already offers a robust undergraduate program, and its success at least demonstrates that demand for undergraduate education currently exists.  And, why not – I believe we have much to offer undergraduates interested in learning about our legal system while enhancing their critical thinking and writing.  

But, I am not convinced by Dan Hunter’s second modest proposal that we integrate the LLB degrees currently awarded around the world with our own JD programs to graduate students in 5-6 years prepared to practice in more than one jurisdiction around the world.    Dan’s proposal of a LLB/JD is certainly doable, and would not look that different from a traditional 3 + 3 program.  With some entreaties to the ABA, we could offer integrated programs not only so that students upon graduation could practice in common law countries such Australia and the United States, but simultaneously in civil and common law countries as well.  And, those students – while missing the joys of history, anthropology, and chemistry during their undergrad years – would save time and money.  Indeed, Dan might have added that some foreign students accomplish a similar goal currently by gaining an undergrad degree in a foreign jurisdiction, pursuing a one-year LL.M. here, and then passing a U.S. bar exam.  We have students from China, France, and Georgia and elsewhere who have followed that path.  And, we even had one U.S. student who travelled that route, majoring in law as an undergraduate overseas, then returning here for one year to earn an LL.M. and then take a bar exam.  Clever, indeed.

Yet, Hunter’s proposal would not put a dent in satisfying the unmet legal needs facing both countries.  If lawyers are not available to help those with modest resources navigate through divorces, small business problems, or evictions, we should be training students to address such issues rather than the complex and somewhat rarefied corporate or insolvency issues that demand familiarity with both Australian and U.S. law.  Washington’s limited license legal technician has opened the door to reimagining the structure of the legal field so as to meet more legal needs.   Perhaps one-year of graduate education (or six months training after an undergraduate degree in law) would be sufficient for real estate closings and for representing social security disability claimants at the administrative level.   Regulatory obstacles exist, but Washington’s example along with the success of Arizona’s undergraduate program provide the first steps towards a more cost effective match between the legal education provided and the tasks needed.   And, change will likely come at the individual state bar level, whether Washington’s relatively recent experiment with limited licenses or California’s longer experience (as Jackie Gardina relates) with accrediting schools outside of the ABA system.  So, while I hesitate to accept Dan’s offer to build a joint LLB/JD program, I offer to work with him and others to encourage state bars to experiment in approving more limited legal  licenses to expand access to justice.

Harold Krent (Chicago-Kent)

Posted by Dan Rodriguez on March 27, 2018 at 01:07 PM | Permalink | Comments (0)

"Bound and gagged in body armor, hung upside down"

My analysis of Monday's argument in United States v. Sanchez-Gomez is on SCOTUSBlog. It was a good argument--both attorneys were very good, the Justices asked probing-but-not-obnoxious questions, and the bench left room for both attorneys to answer. I believe the Respondents will win--Kennedy seemed inclined towards them. The title of the post (and of my SCOTUSBlog post) comes from a hypothetical from Breyer.

On a different note, what is going on with the male Justices and Justice Sotomayor. Justice Kennedy interrupted her three or four times yesterday. And in NIFLA v. Becerra (the clinic compelled-speech case) last week, the Chief cut Sotomayor off when she interrupted an answer to a question from Justice Breyer, snapping " Maybe could welet him finish the answer, please?", something the Chief virtually never does--and certainly not as sharply.

Posted by Howard Wasserman on March 27, 2018 at 10:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Jurisdictionality of presidential immunity

Michael Dorf writes about a mini debate with Josh Blackman over whether Congress could by statute grant the President a temporal immunity from suit while in office (overcoming by statute Clinton v. Jones and, for the  moment, Zervos v. Trump). They agree that Congress could do so, although depart over whether Congress could grant the immunity in federal court only (Blackman) or federal and state court (Dorf). The debate, Dorf argues, is over the nature of this immunity--would it be a substantive limitation on other rights or a jurisdiction strip? Dorf says the former, which means it is substantive federal law applicable in state and federal courts.

Count me in the Dorf camp on this. Most immunities are proprly characterized as substantive rather than jurisdictional--they affect who can be sued and for what conduct, core questions of the merits of the claim.

Posted by Howard Wasserman on March 27, 2018 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

JOTWELL: Pfander on Nourse on statutory interpretation and democracy

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Victoria Nourse, Misreading Law, Misreading Democracy (Harvard Univ. Press 2016), arguing for a "legislative decision" approach to statutory interpretation that recognizes how the legislative process functions.

Posted by Howard Wasserman on March 27, 2018 at 01:13 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 26, 2018

Legal Ed's Futures: No. 32 (Hari Osofsky)

Reimagining Law and STEM

Many of the posts in this virtual symposium have mentioned the Law-STEM interface in some fashion. They have tended to focus on two main aspects of this interface: innovative legal-tech and interdisciplinary collaboration between law schools and STEM-oriented units. This post will build on that discussion to argue that (1) Law-STEM covers much more than we typically reference in that context; (2) it is not just for law students, lawyers, and professors with STEM backgrounds; (3) STEM students often aren’t adequately exposed to law as relevant to their career path; and (4) law struggles to regulate fast-moving science and technology effectively across Law-STEM areas.

The Scope of Law-STEM

In my leadership work at the Law-STEM interface, I have often encountered narrow conceptions of what that might mean.  Most people understand that intellectual property and cyber law significantly involve STEM, but then it varies from there.  My list also includes health, energy, and environment, as well as numerous ways that many other areas of the law interact with science and technology. For example, my draft article on energy reinvestment with Jackie Peel, Brett McDonnell, and Anita Foerster is examining the role of corporate and securities law in shaping flows of money and choices around existing and emerging energy technologies.  In that context, corporate and securities law form part of the Law-STEM interface.

Similar issues arise regarding legal-tech. A wide range of technologies fall under that umbrella potentially. The conversation in this virtual symposium has tended to focus largely on emerging (and increasingly established) technologies, such as e-discovery, artificial intelligence research tools, block chain, and apps that help people gain access to legal information. Andy Perlman, who has been a leader in legal-tech at both Suffolk and with the ABA, details in post #14 some of the ways that law schools are teaching new skills that intertwine law with technology. Frank Pasquale’s post #19 on artificial intelligence analyzes how it will transform practice and the implications for legal education. Several US law schools – including BYU, Penn State in University Park, USC, and Suffolk – participated in the first Global Legal Hackathon. We are learning from these experiments as we prepare to launch our Legal-Tech Virtual Lab we are developing at Penn State Law in University Park.

But how should we deal with the basics together with these emerging technologies? One of my faculty members suggested we should spend some time developing a list of all of the types of technological knowledge our students might need.  Should this include software literacy in programs like the Microsoft Office suite?  Accounting programs since that plays such an important role in small firm practice and particular practice areas like family law? And Westlaw and Lexis, which even my generation received training in, remain important legal research tools even as we talk about new ones.

Online and distance education both belong in the legal-tech conversation as well. As these tools mature, schools, legal practitioners, and corporations are increasingly using them. The subject of an online course or virtual lecture may not be Law-STEM, but technology is changing our methods of communicating about legal subjects. This opens up new possibilities for gathering – I’m really excited that the SALT Teaching Conference Penn State Law is hosting in University Park October 4-7 will include virtual participation options and a collaboration with the AALS Technology, Law, and Legal Education Section. These technologies also have critical implications for access to justice; our Entrepreneur Assistance Clinic serves more rural clients through distance learning technology, for example. They also facilitate transnational collaborations, such as the ones Dan Hunter suggests in post #26.

Law-STEM Impacts All Lawyers

This question of scope is important because many of our law students and lawyers do not have a STEM background or a fondness for math.  As a consequence, a number of people assume that this conversation about Law-STEM is not about them and their intended area of practice. 

But lawyers and the future lawyers will encounter technology in practice and increasingly state bars are recognizing the need for these competencies. Although most of us in the legal field will never understand exactly how artificial intelligence works, we will need to be able to use emerging research tools that operate using artificial intelligence. Similarly, discovery has evolved greatly from those boxes in warehouses that my classmates pulled all-nighters going through as part of “document production.”

This transition raises important curricular questions about what competencies all students need and what competencies specific students need. Not all law schools need to be STEM and legal-tech leaders, but more of these technologies may increasingly become part of core preparation.

Building Pipelines from STEM to Law

When I talk with undergraduate STEM students, they often have not considered getting a law degree, even when they have interests in policy.  Cultural presumptions that underlie this lack of exposure that are often deeply imbedded.  Advisors in these programs often don’t mention legal career paths, and even at times have expressed to me that their students are unlikely to be interested in law school. But as Frank Pasquale highlighted in post #18, the STEM community needs legal knowledge.

For areas of legal practice with significant science and technology aspects, students who pair substantive and legal training have a substantial leg up.  This can take the form of joint degrees, but also strategic use of the 12 credits the ABA allows outside of the legal curriculum and development of innovative courses in law schools that involve various forms of partnerships with other units, from co-teaching to mixing students.

My experience partnering with a number of the STEM-oriented colleges at Penn State this year has made me optimistic that this culture can change rapidly because real opportunities exist – so many rich career paths abound for these students once they consider law.  For example, as Penn State Law and the School of International Affairs has worked with the College of Engineering to establish a comprehensive partnership, that planning process has already led to cultural change.  We have been sending each other appointments candidates and considering affiliations and cohires.  As we have brainstormed topics where law and engineering come together, we have developed an ever-growing list that now has topped 20 areas that go far beyond patent law.  These include, for instance, election security, 3-D printed biomedical devices, sustainable buildings, and nuclear safety and security, just to name a few. I am excited by the potential value to society of these emerging educational programs and research collaborations.

Law Needs More Effective Approaches to STEM Problems

My interest in trans-substantive dialogue emerged from my experience directing the University of Minnesota Law School’s Joint Degree Program in Law, Science and Technology. It was striking how many of our Proseminar speakers, on diverse topics in health, environment, energy, IP, and cyber, made a nearly identical core point – regulation simply is not keeping up with rapidly evolving science and technologies.

I encounter this issue repeatedly as a dean at Penn State. For instance, the first pilot project of our new Center for Energy Law and Policy, which will be the first in the country to draw from the full breadth of a major research university, has focused on methane emissions regulation of unconventional oil and gas; the core question we are asking is whether we could come up with regulation that is better for both the environment and industry’s bottom line by incorporating emerging science and technology more effectively.  And we are developing our Legal-Tech Virtual Lab not simply to train our students in emerging technology and create innovative learning experiences, but because students across the university need to understand the legal issues around artificial intelligence and machine learning, immersive technology, 3-D printing, block chain, etc. – what the law is now, the complexities created by current gaps, and where the law might go.

We need regulators, lawyers, future lawyers, people in a range of STEM fields, business and non-profit leaders, and scholars across universities who can together envision innovative regulatory solutions grounded in substantive understanding of science and technology. Law schools have a critical role to play in getting us there through teaching, research, and projects in collaboration with a wide range of partners.

But the path there starts way before law school. I am grateful for my junior high math teacher Phyllis Hoyt and high school math teacher Sheila Collins who made math fun and interesting and, most importantly, believed in me, and for parents who supported their girl in math and science. In panels on diversity in STEM that I have observed and participated in, people often talk about the transformative impact of early teachers.  At the same time, Street Law and other programs in secondary schools play a critical role in creating much-needed greater exposure at younger ages to the role of law. How can and should law schools support bringing those efforts together?

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 26, 2018 at 02:06 PM | Permalink | Comments (0)

Sunday, March 25, 2018

Legal Ed's Futures: No. 31 (Robert Ahdieh)

From Training Lawyers to Teaching Law

I have been pleased to learn from the perspectives and insights of so many of the symposium postings to date.  With this post, I hope to engage the discussion in several previous posts – including especially Michael Waterstone’s post on “Law Schools Teaching Non-Lawyers” (#23), but also earlier posts by Megan Carpenter (#11) and Kellye Testy (#5) – regarding the role of law schools in educating non-lawyers.  Having been closely involved in building out Emory Law School’s master’s degree offering in that space over the last seven years, I heartily endorse – and enthusiastically commend to others – the value of that role.

The Rhetoric of Legal Education

To begin, a quick word on relevant rhetoric:  In her post, Kellye speaks of shifting our focus “from educating lawyers to teaching law more broadly.”  I have likewise spoken for some time about the need for law schools to determine whether we are solely in the business of “training lawyers,” or whether our mandate is better understood as “teaching law” – whomever the audience.  Someone is going to teach those going into business, the healthcare industry, and other fields the law; the only question is who.[1]

In something of a similar spirit did the University of Southern California – under the leadership of path-breaking Dean (and now Senior Judge on the Ninth Circuit) Dorothy W. Nelson – adopt the moniker of “Law Center” for its law school decades ago.  And have I (among others, including Emory’s president, Claire E. Sterk) suggested the notion that law schools might come to think of themselves as “Graduate Schools of Law.”

Complexity and the Education of Non-Lawyer Professionals

While there is some history behind the notion of law schools doing more than training lawyers, thus, I would suggest that such an expansion of our mandate is of greater importance today than ever – given the growing complexity of our social, economic, and political life today.  As the world has grown (and continues to grow) ever more complex, the breadth, depth, and volume of regulation has grown with it.  And likewise, the universe of professionals in need of some grounding in law and regulation.  And even in the skills of complex problem-solving that are the core of what we teach in law school.

If the world is indeed more complex today than it was a decade ago (and will be yet more complex a decade hence), then, law schools do well to think about their role in educating the increasingly broad array of professionals who might benefit from an understanding of law and regulation – and even from knowing “how to think like a lawyer.”  Especially in heavily regulated fields – from finance to energy/natural resources, and from healthcare to human resources – that need is both readily apparent and highly urgent.  We may thus stand on the cusp of the world Michael describes: one in which law is viewed “as an essential core curriculum for professionals in any discipline.”[2]

Financial Considerations?

In his analysis, Michael brackets the question of the financial implications of law schools expanding their offerings for non-lawyers.  He is right to do so, in the context of determining whether a law school should undertake to offer non-lawyer programming – be it a master’s degree, a certificate program, executive education offerings, or otherwise.  As Robert Schapiro, former dean at Emory Law, always took care to emphasize: We must ensure that each and every one of our academic offerings serves to advance our mission, and not simply to pay for it.

That said, we should not shy away from acknowledging – and even embracing – the financial benefits of such offerings.  And not simply (or even primarily) because of their potential to help underwrite maintenance of the quality of our JD student bodies and the breadth of the academic opportunities we offer them.  Rather, as Kellye suggests in her post, such programs should be understood to “provide more diverse revenue bases to support overall quality.”

Assuming relatively non-variable expenses, the absence of an open credit line from the university, and a resulting imperative to “make budget,” a law school with a single degree program must necessarily admit students into that program to the point of meeting its revenue target.  With only a few exceptions among law schools, that is likely to require the admission of at least a few (marginal) students, who might otherwise not have been admitted.  Where a second degree program exists, by contrast, admissions in the first program can be halted before crossing that marginal point, and admissions initiated in the second program instead.  With only two programs, however, one might expect to see an analogous need to admit students outside the school’s preferred pool to the second program.  A third program, of course, would help with that.  And so on, and so forth.

Of course, there are costs to having too many programs.  For many law schools, though, I suspect that a manageable number of programs would likely suffice to minimize (if not eliminate) the need for admissions outside the school’s preferred pool of matriculants.

From that perspective, academic programs for non-lawyers may serve an important revenue function – but not in the narrow sense that function is sometimes understood.  A diversified set of programs allows a school to build a community of well-qualified students across multiple programs – who add up, I would argue, to much more than the sum of their parts.

The Benefits of Non-Lawyer Education for JD’s

Why does a law school community including students who do not aspire to practice law add up to more than the sum of its parts?  I have suggested, to this point, that non-lawyer offerings can be understood to respond to the growing complexity of the world around us.  Further, they create a community of more qualified students, coming from a broader range of backgrounds, and pursuing a broader range of post-graduate goals.

That community, in turn, is precisely the right setting in which to educate our JD students.  The degree of understanding, effectiveness, and perspective with which JD students leave law school is dramatically enhanced, thus, by the presence of students with diverse educational backgrounds, professional experiences, and ultimate goals.

In my own classes, I have seen just this dynamic at work.  Teaching notice-and-comment rulemaking to first-semester 1L’s in Legislation and Regulation proved dramatically easier, for example, when one of their classmates was an expert on biological risk management.  As she unexpectedly volunteered, in the midst of my unsuccessful efforts to offer a sense of the informal rulemaking process:  “I remember my first notice-and-comment rulemaking…”  Likewise, in Emory Law’s course on the Regulation of Healthcare Providers:  There, the long-time adjunct professor described his first time offering the course with our then-brand new “Juris Master” students in the mix as the best semester ever – given class discussions that now included not only the future lawyers, but also the hospital administrators and even medical doctors.

I do not want to overstate my point:  The teaching of non-lawyers comes with significant challenges – including both psychic and practical.  I would be the first to acknowledge those, and am glad to walk through them with any and all comers.  But the concomitant benefits, I believe – not only for law schools, but in creating a more just and orderly world, and even advancing the Rule of Law – more than outweigh those challenges.

Robert Ahdieh  (Emory)

[1] Most business schools already teach law – in some cases with a substantial array of mandatory and elective course offerings.  Increasingly, medical schools and others are following suit.  Like Michael, however, I am firmly of the view that law schools are the institutions best positioned to offer that education.

[2] Kellye suggests the potential emergence of a more diversified universe of legal professionals – as we have seen in the healthcare industry, with the rise of nurse practitioners and other healthcare professionals besides physicians.  In fact, that world may already be upon us, judging by the job advertising statistics she cites.

Posted by Dan Rodriguez on March 25, 2018 at 10:51 AM | Permalink | Comments (0)

Thursday, March 22, 2018

I Just Got Tenured: sing along & poem

If you are newly tenured - meaning last 30 years or so as they say in the song - sing along:

I Just Got Tenured!

and some Dr Seuss parody (or satire ? good IP hypo right there):

Oh the Shit You'dd Do After You're Tenured 

Posted by Orly Lobel on March 22, 2018 at 11:10 AM | Permalink | Comments (3)

Wednesday, March 21, 2018

Student suspended for uttering profanity to congressional staffer

A 17-year-old high schooler in Reno was suspended last week for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the school walk-out (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected).

The ACLU of Nevada sent letters to the school and to Amodei. The letter to the school laid-out the First Amendment argument the ACLU would make in a lawsuit. This could not have been in-school speech because it was made during a non-school-sanctioned event for which Noah was marked as being impermissibly out of school; if at school, it was non-disruptive because no one in school heard what he said; and the punishment was more severe because of Noah's viewpoint and his past expressive activities (during a school debate, Noah criticized Donald Trump, rather than talking about the assigned topic). I find the first point especially important--if speech made while a student is impermissibly outside of school is school speech, then the school can reach everything a student does. The letter demands rescission of the punishments imposed, which also presumably would be the remedy sought in the lawsuit, along with nominal damages.*

[*] This case illustrates a unique remedial and framing problem. Noah is presumably in 11th Grade, so he likely will have graduated by the time litigation is complete, allowing the school to vacate any remedy and avoid attorney's fees when the case becomes moot. The claim for nominal damages avoids the mootness problem. But a claim for nominal damages is subject to qualified immunity and there is almost certainly no robust consensus of authority arising from factually similar cases. Noah could sue the school, which does not enjoy immunity, but then the problem is whether the principal who imposed the suspension is the policymaker for the entire school board or school district. I will have to keep this in mind for class.

The letter to Amodei called for a public apology for retaliating against the student by enlisting the school to sanction him, ending with the rhetorical flourish that "[w]hat actions you take next will determine you and your office’s commitment to the First Amendment and the Constitution you swore to uphold and defend." The idea of a Bivens action against the congressman (which the letter did not threaten) raises two interesting problems: 1) causation and 2) Speech or Debate immunity (constituent interactions are viewed as political rather than legislative), but it would be fun to see the argument play out.

Posted by Howard Wasserman on March 21, 2018 at 04:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (10)

Tuesday, March 20, 2018

Calling Chicago - Come tomorrow Wednesday 6PM for a book talk at Seminary Coop Bookstore

Hey Chicago readers - would love to see you tomorrow March 21 at 6pm at the Seminary Co-op. Come and bring your friends and family - and make sure to say hi and maybe we can get drinks after! Free and open to the public. The next day at noon I am speaking at this fabulous BookIt series.

I’ve been thrilled to see the rave reviews of my new book You Don’t Own Me in The New Yorker, the Wall Street Journal, the Financial Times, Times Literary Supplement, Times Higher Education, NPR, Modern Law, National Law Journal, TechDirt, SF Chronicle, Washington Blade, LA Review of Books, Above the Law, Kirkus, Publisher’s Weekly, Booklist and many more. It seems there is something in the book for everyone – whether you think about innovation, IP, work relations, creative industries, antitrust, litigation and juries, entrepreneurship, feminist and race critique, consumer psychology, or mostly interested in a thrilling market battle over our icons, with colorful personalities and rollercoaster twist and turns. Here's a blog post on the Seminary Coop site about books that inspired You Don't Own Me.

Image result for you dont own me lobel


You are cordially invited to a book signing and speaking event for Orly Lobel's new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side



Wednesday, March 21, 2018 
6 - 7:30 pm
Seminary Co-op Bookstore
5751 S Woodlawn
Chicago, IL 60637

You Don’t Own Me reveals the cutthroat competition and innovation in the toy industry, with the twists and turns of a thriller, including colorful personalities, egos and keen questions about law and ethics, innovation and creativity, consumerism and market competition, trade secrets and economic espionage, parenting, childhood, feminism and race.   

In this free and open Chicago event, USD Don Weckstein Professor of Law Orly Lobel discusses her new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side. The book is received rave reviews from numerous journals including the Wall Street Journal, the Financial Times, Times Literary, NPR and the New Yorker.

“Like Condoleezza Rice, Ivanka Trump and Michelle Obama, Orly Lobel played with Barbie dolls when she was growing up. “Fortunately,” writes the San Diego law professor in her new book, “I was also encouraged to challenge the distorted realities of Barbie’s world. No toy has been deconstructed so thoroughly as Mattel Inc.’s iconic plastic doll. But Ms. Lobel’s “You Don’t Own Me” is something different. The world that she explores is not a dollhouse but a courthouse. Her brisk and engaging book chronicles the decadelong copyright clash between Mattel and MGA Entertainment Inc., an upstart rival that had a mega-hit with its “Bratz” doll line but that was nearly obliterated by Mattel’s scorched-earth legal offensive. Journalists tend to overuse words like “war” when writing about lawsuits. But if ever there were an example of a civil dispute meriting military metaphors, it is Mattel vs. MGA. According to Ms. Lobel, the combined legal expenses of the battle went north of $600 million….” - The Wall Street Journal

You Don’t Own Me has been getting advanced praise from Publisher’s Weekly (“impressive”, “thoroughly researched”, “entertaining”), Kirkus Reviews (“crisp narrative”, “aggressively researched”, “dizzying” drama) Booklist (“outstanding”), Yahoo!Lifestyle (“book not to miss!”) and more (“gripping”, “sparkling prose”, “thrill ride”, “brilliantly and meticulously” “amazing story and great read”, “all the ingredients of a great story”, “Colorful and dramatic. ...Orly Lobel masterfully draws us in”; “A thrilling page-turner. Orly Lobel delivers the impossible. A fast-moving, fun book about marketing, litigation and the culture we create,” “Elle Woods would eat this story up”...). 


Posted by Orly Lobel on March 20, 2018 at 03:37 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 30 (guest post, Harold Krent)

Michael Madison’s thoughtful posts have kicked off this symposium.  Most of us would agree that economic and technological developments are forcing law schools to reassess their role.  Fewer traditional jobs in law; fewer high paying jobs for graduates; fewer students willing to shell out sticker prices for a legal education, and even some uncertainty over Congress’s willingness to continue student loans spell trouble for the legal academy.  Megan Carpenter, as have others, has talked about the need for stratification in legal education, both with respect to what type of education law schools provide, and also with respect to the training needed to perform legal-related jobs such as real estate closings or incorporation of an LLC. 

I have futuristic views as well, but want to start by reflecting backwards.  We should keep in mind the substantial changes most law schools have made in the last generation.  It is hardly an exaggeration to say that experiential training has exploded in that time, and it has flowered in many ways.  Legal writing, skills and advocacy programs are no longer niche programs at a few non-elite schools. They are standard fare at almost every law school and, just as important, schools take them seriously.  Clinical students no longer focus solely on criminal law, government benefits and housing work for low-income clients, but have opportunities to immerse themselves in appellate work, legislative work, entrepreneurial law, small business advising, and family law.  In many of these clinics, students learn not only how the practice of law works, but how the business of law works because an increasing number of law school clinicians are now fee generators. Schools have invested heavily in externships and in simulations – we are familiar with the Washington and Lee experiment to offer (almost) exclusively experiential courses during the third year.  Pragmatic courses at the intersection of law and technology, like data analytics and block chain, are now offered, often instead of the law and humanities or law and social science classes that used to populate so much of the non-core curriculum.  Moreover, a number of schools such as ours offer courses in project management and problem solving.  Perhaps uniquely, we offer a certificate program called Praxis based on the idea that law students can and should  gain expertise in the soft skills that many sociologists have concluded contribute so substantially to  successful lawyering. 

Moreover, the attention that all of our schools place on pro bono has expanded even as our revenues dip.  I am impressed by efforts I have read about at any number of schools, from working with immigrants to reforming tenancy laws, and an increasing number of schools including ours seek to enhance access to justice through technology.  And, I know that many schools encourage students during spring break to volunteer their time, as a large group of our students did last week at an immigration detention facility in Texas.  Students learn important life lessons through these experiences:  what they are good at, what they care about, and how they want to define success for themselves.  If law schools in the past had paid more attention to the importance of these experiences, there might not have been as many lawyers who were so dissatisfied with their professional choices.

So, while I agree that, in the long run, legal education will change dramatically in the future, we should remind ourselves of the significant changes that been wrought in the last generation.  These changes in law schools reflect shifts in both the legal marketplace and in the student body.   We are producing a far more diverse group of graduates than ever before.  Some of these students want traditional legal careers, many do not.  All of them want a solid education that equips them better to become the professionals they want to be.  What the market wants and what our students want evolves, although  we may not have been as quick to change as some would like, we have adapted in important ways.  There is every reason to believe we can continue to do so, without fearing the future, and without losing sight of the beneficial changes we have made in the recent past.

Harold Krent (Chicago-Kent)

Posted by Dan Rodriguez on March 20, 2018 at 08:24 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 29 (Luke Bierman)

My approach in this virtual symposium has been to lay out the experiences of Elon Law in changing our curriculum and should not be read as ignoring the postings of others.  Indeed, I have kept abreast with each posting and have the filled binder, laden with handwritten notes, to prove it.  I am especially interested in the postings about adapting for and teaching of technology, offering undergraduate degrees, reducing cost and debt, and providing cautionary tales for the future.  Upon reflection, I will keep to my original design of describing the think and do approach of changing the curriculum at Elon Law and then turn to other thoughts, random and responsive, to complete my posts in this virtual symposium.  I appreciate your indulgence in allowing me this opportunity to present, which concomitantly has provided some personal perspective on Elon Law’s recent endeavors to adjust to the changing environment of legal education.


Achieving a substantial curriculum change in six months is a notable accomplishment; I have been reminded more than once that is rare in higher education.  But our experience at Elon demonstrates that it is possible.  But, alas if it were all THAT easy.  The revisions to the curriculum required alterations to calendar, course sequencing, credits, teaching assignments, budgeting, space, and many other aspects of our operation.  We also needed to publicize the changes and recruit students while continuing to educate current students under the preexisting curriculum.  Approval of the University board of trustees also needed to be accomplished.  Alumni were notably interested in what was going on and many town hall meetings, virtual and otherwise, occurred.  There was no rest for the weary.

Since final approval did not occur until after we had begun recruiting for the next academic year, we moved expeditiously to edit our admissions materials.  And we decided to do something else, which has proven significant in our journey – we began to interview prospective students.  This step, taken to emphasize the uniqueness of our new curriculum, also allowed us to begin to distinguish candidates who demonstrated an aptitude for learning by doing, whether by work experience, prior service learning or other focus points.  Because I remain skeptical of the utility of standardized testing generally and of the LSAT specifically (a topic notably lacking of attention in this virtual symposium), I supported the idea of different admissions emphases for our law school with a difference.  Indeed, we began to redevelop our recruitment approach including materials around the idea that Elon Law’s highly experiential approach to legal education was distinctive.  The University administration supported this approach as the University board, after hearing from the President, Provost and me, approved of our redirection. 

The board’s support derived from assurances that the academic approach was sound but also that the fiscal issues were likewise.  The board was well aware of the challenges permeating legal education, including those of a financial nature.  Accordingly, the board was reassured that the approach being proposed was no worse than what was expected if we did nothing, with a much more substantial upside predicted with the change.  This required us to rethink how to approach pricing.  Since one of our stated goals was to address cost and debt issues, we decided to freeze cost for the life of a student’s time in law school and that the best way to do this was to base tuition on the cost of degree rather than by credit or term.  Working from this perspective, we were able to devise a budget for several years that, based on anticipated increases in enrollment, reduced the overall cost of the JD by about 20%, and promised no increase during enrollment, the latter of which we also promised to currently enrolled students. 

We then had to adjust the semester calendar for a trimester system that led to graduation in 2.5 years but also brought 1Ls to campus in August for a new introduction to legal studies course designed to ease the transition to law school.  This required balancing tuition with financial aid allotments, courses, credit hours and teaching loads.  Luckily, members of the faculty 4C committee, employing James Madison-like instincts, were dedicated to this work and, with input from staff, other faculty and administrators, helped to devise the system that then fell to the registrar and senior administrators to coordinate.  This approach really took 3 years to implement, with adjustments made along the way as we encountered unanticipated consequences, such as rescheduling a spring moot court competition run by 3Ls, who no longer would be enrolled at school in the spring, and reorganizing law review and student organization selection processes. 

Running essentially 3 calendars simultaneously was challenging but did provide some comic relief as we kept straight which students were at what point in their studies.  We also had to devise new processes and procedures for the residency-in-practice while faculty were recalibrating their syllabi to ensure adequate coverage of classes under the trimester system.  Although the amount of class time was not diminished under the new calendar, trimesters are more compact than semesters, which permits greater focus on fewer courses at a time but also require adjustments to preexisting and practiced pedagogies.    

While we were pleased to see that prospective students seemed to be self-selecting to attend Elon Law’s new approach to legal education, continuing students did express some trepidation that they were not getting deserved attention.  We had been wary of this possibility so had implemented a number of new and expanded courses, especially in bar preparation, for those students while keeping their tuition steady, thus providing them with more class time and educational support than they had expected and had paid for.  While this mollified many of the continuing students, others were less sanguine and we continue to work with our alumni group.    

The residency-in-practice component went surprisingly well considering it was without any real analogue elsewhere.  We were relieved when we found any number of lawyers in many settings including judges not just willing but anxious to assist by serving as supervising attorneys, so that placing students was readily accomplished.  This may have been facilitated by the fact that all of the students on residency were eligible and in fact received a student practice certificate, permitting them to undertake more work independently than a typical clinical or intern student.  We also designated a faculty member to lead the program and with some training, guidance and examples, the faculty and supervising attorneys did a more than credible job in their first efforts. 

As the third class entering under the new curriculum arrived in August 2017 while the first class of 3Ls under the new curriculum prepared for their final trimester, Elon Law was able to return to a single calendar based on the 2.5 year curriculum requiring the residency in practice, among other innovations.  We have begun studying the effects of our changes and, with wisdom from our experiences and the input of students, made some adjustments along the way.  We will benefit from a substantial grant from AccessLex for a three year study of the new curriculum, performed by independent researchers, the results of which will be published so that we can share in more depth what we have learned from our comprehensive approach to redesigning the law school experience.  In my next post, I will report on some preliminary results of what Elon Law has accomplished to date and what our next steps may look like. 

Luke Bierman (Elon)

Posted by Dan Rodriguez on March 20, 2018 at 07:29 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 28 (Frank Pasquale)

Institutional Pluralism, Metrics, and Diversity

Mike Madison’s “Invitation” has sparked much insightful commentary here, and I wanted to continue the conversation by engaging with an important point from Mark Tushnet’s intervention. Mark observed that “there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).” Having started my career at a religiously affiliated law school (Seton Hall), and having published research based on Catholic Social Thought, I agree. So I worry about the tensions between humanistic, religious, and civic aims, and the type of neoliberal managerialism all too common in the discourse of higher education reform.

As Sameer M. Ashar has observed, when it comes to legal education, “Leading reformers accept the accelerated disaggregation and commodification of legal practice without attention to aspects of the profession that privilege the public good over market norms and rationales.” This is part of a larger ideological bent to mainstream education reform---the type now celebrated in Congressional committees and the pages of the New York Times. The disruptionist mantra is to deliver more, for less, faster. What is the “more” we are to maximize? In the dominant legal education reform discourse, it is almost always some combination of workforce preparedness, starting pay for graduates, and JD-required jobs.

All of these are good things. But taken to an extreme, focus on them risks trapping us in a finite game, an arms race for spots in an arbitrarily defined hierarchy of graduate placements.* Such a focus also erodes institutional pluralism. To the extent metrics dominate the profession and even menace the existence of some institutions, they draw resources away from non-monetizable quantities (such as a commitment to religious or other moral traditions, social justice, or diversity). As Bruno Frey and Margit Osterloh have observed, “instead of improving performance through accountability, too much energy and time is being consumed in reporting, negotiating, reframing, and presenting performance indicators, all of which distracts from the performance that is desired.” Rankings generate forms of academic capitalism that squeeze out other values.

If we are truly committed to institutional pluralism, and to values in the legal academy beyond pecuniary dimensions of training, we need to cultivate a healthy skepticism of managerialism. We can start with some crucial points of caution about metrics from Christopher Newfield and Heather Steffen: “indicators help create the inequality they measure, while assuring their consumers that the inequality is a natural, preexisting fact. They do this by ignoring distinctive qualities that cannot be quantified and compared.”

That is not to say that metrics are useless. As Jerry Z. Muller argues, “Performance metrics can be beneficial, especially when used not for reward and punishment, but for diagnostic purposes by the practitioners themselves, and are shaped by their professional values, experiences, and expectations.” However, risk-adjustment is essential, especially once we consider the many ways in which external environments drive outcomes that are all too often credited to (or blamed on) institutions.

For example, one school may not do as well as another at placing students in certain jobs, but that may be due to many factors: perhaps the laggard is not teaching relevant topics, or perhaps the leader has engaged in risk selection, by admitting a disproportionate share of students from well-connected families. Discerning the relative merits of each institution depends on careful, qualitative judgment, because even as we compensate for circumstances, that risk adjustment, too, can be gamed (as I explained in another context in a webinar for the Centers for Medicare and Medicaid Services two weeks ago). There are multiple “bottom lines” in accounting for excellence.

So to return to my original point: I hope that in the future, the legal education reform discourse is more sensitive to the ways in which managerialism tends to impose “double binds.” We can’t say that we are committed to institutional pluralism, diversity, and freedom of thought if our main ways of evaluating our success are economistic metrics in which such values are merely an afterthought. We should be proud of our civic role—indeed, as Danielle Allen argues, that is what education is for. On that foundation, we can build a clearer case for the type of financing that will support the many public goods now provided by the graduates, faculty, and staff of law schools.

*Michael Waterstone has constructively suggested ways out of that game by observing the broad relevance of legal training beyond such jobs. And I agree with Hari Osofsky that ““JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.”

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 20, 2018 at 07:24 AM | Permalink | Comments (0)

Monday, March 19, 2018

The Challenge of Teaching "Internal Administrative Law": Bureaucratic Secrecy

I agree 100% with Gillian Metzger's and Kevin Stack's excellent recent article on "internal administrative law" that the major action in administrative law is within agencies, before any bureaucratic decision is subject to judicial review. As Metzger and Stack note, an elaborate web of rules, guidance documents, MOUs, EOs, and statutory provisions govern the process, substance, and jurisdiction of agencies, and agencies' lawyers, bureau chiefs, and ALJs enforce these internal rules against themselves and each other. The natural conclusion is that we ought to spend more time teaching internal administrative law in our classes.

The big challenge is finding publicly available materials: Bureaucrats tend to hold their internal legal arguments close to their chest. (That's what makes them "internal"). Sure, I can give my students the guidance documents and other rules: These are generally published on the agency's website. But I cannot show them how the bureaucracy implements or argues about or ignores these general rules. Those interpretative arguments take place behind closed doors. Unless one was in the room where it happens, one really does not know how much influence internal law had on the some agency GC's decision regarding one division's jurisdiction or another division's procedures: that's what makes both "internal." By contrast, the briefs and oral arguments presented to courts are available to the public: Outsiders can observe, applaud, criticize, the lawyers' arguments and the judges' responses.

Is there any easy way to overcome bureaucratic secrecy and obtain genuinely "internal" legal reasoning? One could work for an agency -- but then one's internal deliberations are privileged. One can assign excerpts from NPRMs and Final Rules "Bases and Purposes" that focus on agencies' statutory interpretation before a rule reaches the courts. (A great way to find fun leg-reg problems is to do searches on regulations.gov using Latinate canons as search terms. When an agency says "expressio unius" or "noscitur a sociis" in a rule's Basis and Purpose, you know that there is an exam question buried in the rule). But note that the Basis and Purpose is a document drafted in anticipation of judicial review: It really is not "internal" in any meaningful sense. The same goes, of course, for the reasons in ALJs' opinions. (To the extent that Chevron induces ALJs to pay attention exclusively to higher agency tribunals within the agency, I guess that those opinions should approach the status of being genuinely "internal" -- but Chevron is a murky enough line that it is hard to be confident that an ALJ is making a decision on purely internal grounds).

All of this leads me to a request: If any readers out there have syllabi containing genuinely "internal" materials or, better yet, tips on finding such materials (teach a man to fish...), I would be grateful for your sharing them with me (and sharing offline is fine).

Posted by Rick Hills on March 19, 2018 at 08:02 PM | Permalink | Comments (6)

Lega Ed's Futures: No. 27 (Jackie Gardina, guest post)

I want to thank Michael Madison and Dan Rodriguez for inviting me to join this conversation about the future of legal education. I have enjoyed the posts and the insights offered by so many of my colleagues.

I hope I can add a different perspective, one that challenges an explicit or implicit assumption in almost every post – that ABA accreditation is a necessary part of the future of legal education. It’s not. Indeed, in some states graduating from an ABA- accredited law school is not necessary to obtain a license to practice law. If we are willing to look beyond an exclusive ABA model and work with state bars, we may discover that we can address some of the issues raised and engage in the innovation necessary to respond to a changing legal market.

I come to this conversation with some experience. Almost two years ago I left a tenured faculty position at an ABA-accredited law school to become the dean of a small California Accredited Law School (CALS). California is one of a handful of states to allow aspiring lawyers to take the bar exam without going to an ABA- accredited law school. My school, the Santa Barbara and Ventura Colleges of Law (COL), is accredited by the state bar as well as the Western Association of Schools and Colleges.

Although some colleagues questioned my decision, I had no hesitation. I wanted to be part of an institution that lived its mission to provide an affordable, accessible, and quality legal education. I wanted to be part of an institution where the sole focus was on opening the doors to the legal profession and improving student outcomes, untethered to a ranking system. I also wanted to be a part of an institution that embraced innovation.

I have no doubt that I made the right decision.  Since its founding nearly fifty years ago, COL has been committed to creating a pathway to the legal profession for non-traditional students. The school’s demographics data show significant diversity across age, gender, and race. The student population is approximately half men and half women with an average age of 35. Nearly 50 percent of students identify as students of color and a growing number of our students are first-generation college and graduate students.

COL also works to ensure that students have the tools they need to succeed on the bar. The school’s cumulative bar passage rate on the California bar is 70% and 67% of the 2017 graduating class passed the bar, nearly matching the ABA pass rate. Yet, the school does not require an LSAT or GRE score for admission.  Aided by the state bar’s flexible admission standards, the school is able to open the door to the legal profession for a diverse group of individuals.

Importantly in today’s environment, the school is committed to helping individuals meet their goal to obtain a JD without saddling them with seemingly insurmountable student debt. Students at COL currently pay $67,620 for their entire J.D. degree. And all students pay the same tuition rate. While the school and the local legal community offer modest scholarships, the school does not “discount” tuition based on an LSAT score or undergraduate GPA.

Finally, the state bar is also open to innovation in educational models. In August 2018, COL will become the first accredited law school in California to launch a hybrid JD program. In creating this new program, COL sought to address the long-standing critiques of legal education by employing advances in educational research and pedagogy to provide students a solid foundation in the basic skills needed to enter the practice of law as well as succeed on the bar exam. In short, it is built to expand opportunities and improve student outcomes. You can read more about the program and its origin at https://www.collegesoflaw.edu/blog/2018/03/05/hybrid-jd-program-backstory/.

COL is an example of what can happen when a state bar is open to creative pathways to licensure. While currently most state bars require that an applicant graduate from an ABA-accredited law school to sit for the bar, thus providing only one option to enter the legal profession, perhaps the time has come for expanding those options.  

Our discussion about the future of legal education shouldn’t exclusively focus on changing the ABA, but instead it should include challenging state bars to create alternative pathways to licensure.

Jackie Gardina (Santa Barbara & Ventura Colleges of Law)

Posted by Dan Rodriguez on March 19, 2018 at 06:13 PM | Permalink | Comments (0)

Writing is Architecture First, Interior Design is Secondary: On Trains, Houses & Pyramids

That's a variation on Hemingway, again. I posted a few days ago a fun, though a bit random list of quotes about writing (oh the Internet, where curating quotes has become the soul-less pastime of too many who've never actually read those they quote. May we always quote soulfully is my wish to us prawfs and writers at large...). Hemingway said prose is architecture, not interior design and that the Baroque is over. I think he meant that the substantive of what you want to say needs to guide the writing and that you need to write in a punchy concise way, avoiding fluff for merely decorative purpose. Say what you mean and mean what you say and get rid of all the garnish. I like garnish and I think interior design is important too. I'd even argue for bringing a bit of Baroque back (Bach J), carefully . But I completely agree that the structure is first and foremost in writing a good article or book. The bare bones are the piece of the writing puzzle that needs to be done right.

Today I spoke with my seminar students about their research projects and I thought I'd offer here, as a second installation of posts about writing, the metaphors I use with my students to help us think about structure. One of my favorite teachers in law school, who later became one of my doctoral advisors, was Martha Minow. I remember her telling us in a seminar on law and social justice, similar to the one I teach today, that you can write a house or a train. I think she said houses are what books look like and trains are articles. I don't agree with that division, I think both articles and books can be houses or trains. But the visual I've always found useful in thinking about what I am doing and how to build my project. If you are building a house, you take the reader with you through a pathway into a place where you have a nice entrance, a main hall and some public spaces, and then doors, and windows into rooms, each holding an interesting set of ideas about a related topic. Together the house makes sense but each room also stands on its own. If you are building a train, you think linearly about your project. It could be chronological or it could be a problem in search of a solution and the solution unfolds as your present and analyze layers of evidence, perhaps empirical data, theoretical arguments, policy claims. To the houses and trains I added today in class the visuals of pyramids and reverse pyramids. In every discipline, a good portion of research involves the qualities of lumping or splitting. In legal scholarship, often insights come from taking a broad issue, a broad base of a pyramid, a classifying and regrouping the issues to show how we actually have separate questions emerging from different subcategories and these should be addressed distinctly. We also often have insights when we look sideways, from a reverse pyramid narrow tip into horizontal fields, related topics that offer new insights. Research is often an import-export business.

I don’t know if these visuals are useful only to me or beyond but I’ve found that sketching my next writing project, including actually drawing stuff, not just outlining gets me into better architectural shape and only then can I begin to think about the décor.  

Posted by Orly Lobel on March 19, 2018 at 05:22 PM in Blogging, Legal Theory, Life of Law Schools, Odd World, Teaching Law | Permalink | Comments (1)

Tulane Forrester Fellowship

From Tulane Law School:

Tulane Law School invites applicants for the Forrester Fellowship. Forrester Fellows are promising legal academics who teach in the first-year legal writing program. Fellows teach legal writing to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are invited to participate in all aspects of the intellectual life of the law school. Fellows are encouraged to present their work at faculty workshops and “brown bags,” and members of the full-time faculty serve as mentors to fellows. Fellows receive a stipend to support travel and research.

Fellows are appointed to a one-year term with the possibility of a single one-year renewal and are expected to enter the law-teaching market.

Applicants must have an outstanding record of academic and professional achievement, a J.D. from an ABA-accredited law school, and at least three years of law-related practice and/or clerkship experience. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.

Please apply at this link by April 2 and direct any queries to Erin Donelon, director of Tulane Law School’s legal research and writing program.

Posted by Sarah Lawsky on March 19, 2018 at 05:20 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Legal Ed's Futures: No. 26 (Dan Hunter)

Who needs two law degrees?

(Modest Proposal #2)

I’ve been really gratified at the open-mindedness of the commentary around my first modest proposal, to offer an LLB for US entry. Let me offer an another, equally whacky idea about how US law schools might change their value proposition to students.

But first, some context…

Globalisation has been a fundamental feature of economics and geopolitics for decades now. Everyone knows this, everyone understands the effect of global logistics on international trade, and how the development of the EU and China’s entry into the WTO has changed every part of our lives, and so on.[1] Yet the basic approach of law schools is blind to the possibilities that globalisation offers for grads. Forty or fifty years into the globalization revolution, law schools remain basically parochial. Of course, there are a few bits of legal education that recognize the outside world: International law and/or comparative law are taught pretty much everywhere, many schools offer LLMs for international students, and you occasionally see electives that connect students across national boundaries, such as Michele DeStefano’s Law Without Walls. Each initiative exposes students to other legal systems and foreign law students to some extent; but the main focus of the US law degree is always domestic, assuming that grads will practice US law, probably locally. Maybe if they are very adventurous or go to a “national” school they’ll move interstate to one of the big US cities.

With the exception of maybe one or two schools, no-one seems to be focused on the possibility that its grads might want to practise law in multiple jurisdictions.[2] And yet this is the reality of many smart grads from a range of places, who leave their home jurisdictions to work in the world’s commercial and financial centers, typically taking years to retrain when they get there. These grads have to work out how to do this for themselves, because no school sets out a pathway for them to practise in multiple jurisdictions from the jump. This proposal does that. And at the same time, it presents a way for US law students to get themselves qualified two years faster than currently possible...

Modest proposal #2:

The dean of a US law school should work with me to design a combined LLB/JD, that satisfies the admission requirements of both US and Australian practice, and avoids the need of students to do a pointless undergrad degree.

It looks a bit like this:

  1. A US college student doesn’t do a BA (or whatever) at a US college. Instead they enrol in my Australian LLB. They study the first year of this degree in the US, at your school. This is mostly so that parents (and your school administrators) don’t fret about sending their kids off to me to be brainwashed. (You can brainwash them first! And take their money :) It doesn’t have to be a whole year, but let’s work with that for the sake of simplicity. By way of background, there is no fundamental reason why I can’t offer my LLB for overseas students in a foreign location; although it takes a bit of fancy footwork with my accrediting agency to make work. Leave that to me.
  2. After one year in the States, the students come to Australia to do the next one or two years of their LLB. The course of study in this LLB will comprise half mandatory Australian legal subjects, and half classes on US law. Because of the way that Australia regulates admission to practice, students essentially have to do 11 or 12 mandatory classes on core Australian law. Once these subjects are completed, the Australian regulators are basically fine with more-or-less whatever electives the schools wants to provide. These electives can easily be US law classes, including all of the ones that the ABA really cares about. So, the US students in the program can do a year (or two) at my school completing these classes.
  3. This means that for the last year of their LLB degree, students could return to the States and study your standard first year JD classes. Once this is done students will have completed an undergrad degree, thereby satisfying the eligibility requirements of the ABA for entry into the JD. There will need to be some discussion with the ABA about accepting Australian bachelor degrees for entry into the JD, but I don’t think this will be a really big deal.
  4. Students then complete the last two years of their JD at your US school.
  5. The only tricky bit is to ask the ABA to credit the last year of my LLB as the first year of your JD. But I’m prepared to bet that we could convince the ABA that this is ok. It’s basically a sub-matriculation program, which is often recognized by regulatory bodies. We’ll have to fight for this, of course, and I’d be interested in commentator’s views about whether this is winnable. But I have to believe it is, especially these days, given the state of perpetual crisis in US legal ed that we’ve been hearing all about during this symposium.

So what does this all mean? The short version is that together we would graduate students in five years from the date of their entry to college, cutting two years of tuition from the total cost of getting to bar eligibility. In those five years we would be able to give them rights of admission to practice in two jurisdictions, not one. Students would be dual-qualified, more internationally mobile, and more domestically interesting and capable; all for $100K less than their current cost to be qualified in your jurisdiction. Actually, it will probably be more, because my undergrad degree is actually cheaper than a US degree, especially with the current exchange rate.

I’d be interested to hear why this idea can’t work. I imagine that some people will bring up the example of Peking University School of Transnational Law and other offshore schools that ran into a bandsaw a few years ago, because they couldn’t convince the ABA to accredit their JD for US practice. But, as I understand it, these proposals failed for trade protection concerns, because the ABA was worried about a flood of foreign lawyers into the US. This proposal doesn’t have that problem, since it’s aimed at American students.[3]

Of course, the smart US dean will realize that she could do exactly the same thing with schools in other jurisdictions that offer an undergrad law degree, swapping out my LLB for the same degree in those places. Although I don’t have a horse in that race, for her edification I’d suggest that the best ones to shoot for would be the UK, Singapore and Hong Kong. Combined with my LLB, this combo would give her grads the ability to choose to gain transnational right of practice in four major international jurisdictions.

Imagine a US school that offered students the option of studying in exotic locales, getting dual-qualified in a range of interesting and useful jurisdictions, all at $100K less than doing the usual BA-followed-by-a-JD.

Yup, sounds like a crazy idea to me. Crazy like a fox.


[1] Globalization is, of course, responsible for the current turn to populism and protectionism in domestic politics across the globe. I’m just glad that Dan Rodriguez turned off comments for these posts, because I can only imagine the pointless trolling and flame war that would erupt from any post that talks about globalization…

[2] The only one that I can think of is Peking University School of Transnational Law, which offers a Chinese accredited law degree to Chinese student, along with a sort-of-accredited US JD degree. A few schools teach their local degrees in a foreign jurisdiction—like UNSW teaching its Australian law degree to Chinese students, in China. 

[3] I haven’t spoken here about the reciprocal opportunity, for Australian students to be a part of this program. I won’t go into it here, but it’s basically the same deal, with slightly different economics. The interested law school dean can ping me for the details of this, since it would guarantee a new stream of Australian students into her JD program …

Dan Hunter (Swinburne, Australia)


Posted by Dan Rodriguez on March 19, 2018 at 01:25 PM | Permalink | Comments (0)

Argument preview: U.S. v. Sanchez-Gomez

I have a SCOTUSBlog preview on next Monday's argument in United States v. Sanchez-Gomez, which considers issues of appealability, mandamus, and mootness in a case arising from a district policy of placing all defendants in five-point restraints for non-jury proceedings. (The Court denied cert. on the constitutional merits).

Posted by Howard Wasserman on March 19, 2018 at 12:07 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Hughes v. United States and the Effects of the Marks Rule  

Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.

Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.

One interesting aspect of the briefing has to do with the Marks rule’s effects, particularly whether the rule tends to clarify or confuse the law. At one point, the United States cited my forthcoming paper to argue that Marks has proven workable:

Courts of appeals have issued more than 400 decisions in the past several decades applying Marks to interpret more than 100 divided decisions of this Court. Richard M. Re, Beyond the Marks Rule 11 [cite omitted]. Their ability to apply Marks in this way demonstrates that Marks is not difficult to apply in the mine-run of cases.

While I am flattered that the government cited my work, the reasoning in the above paragraph strikes me as unpersuasive. The fact that the Marks rule is often cited might show that courts view it as binding but has little bearing on whether the rule is “difficult to apply in the mine-run of cases.” And, in fact, my research suggests that Marks tends to generate confusion and disagreement. The petitioner’s reply brief makes essentially that point, citing my amicus brief. Here is the relevant passage (with some cites omitted):

The best alternative to the logical-subset test is not the government’s; it would be returning to true majority rule. Marks has generated uncertainty and confusion. The government responds that Marks is cited a lot. RB32 (citing Richard Re, Beyond the Marks Rule 11 (Jan. 5, 2018) (forthcoming Harv. L. Rev.)). But the scholar who compiled those citations explains that they reflect widespread confusion: “[T]he cases that are most often ‘Marks’d’ have tended to generate intractable circuit splits,” and “[o]ther frequently Marks’d cases ... have yielded little guidance.” Re Br. 16.

The extensive confusion occasioned by Marks could be taken as a reason to abandon it (as I argue) or as a warrant for clarification. Either way, Marks’s effects suggest that the Court should take seriously its opportunity to provide guidance in this important area. 

Posted by Richard M. Re on March 19, 2018 at 08:30 AM | Permalink | Comments (2)

Legal Ed's Futures: No. 25 (guest post, Brian Farkas)

Syllabus Surgery: Integrating Arbitration and Mediation into Modern Curricula

The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.

Arbitration and mediation have traditionally been viewed as elective courses. Sometimes they are lumped together into a single course, called something like Alternative Dispute Resolution or ADR. The “alternative” moniker implies that these methods of conflict resolution stand in contrast to litigation, or somehow involve different types of disputes than the disputes that are litigated. Most curricula view them as optional complements to the “real” litigation courses like Civil Procedure, Evidence, Federal Courts, Conflict of Laws, and Remedies.

Anyone who has ever litigated knows that this is a fundamentally false framing. First, mediation and arbitration are no longer “alternatives.” They’ve been mainstreamed over the past several decades. And while frequency varies by practice area, most litigators are likely to spend a substantial amount of their time in non-judicial fora. Second, these processes can’t be lumped together into a single unit or class on “ADR.” They’re entirely distinct processes that are used for different reasons.

Let’s start with frequency. Mediation now occurs in almost every litigated commercial case as well as many non-commercial cases. Courts increasingly require it, and parties (including insurance companies) welcome it. It is a well-known statistic that some 95-98% of cases settle before trial, and many of those settlements occur via mediation. Arbitration, by contrast, generally occurs when the parties have a pre-dispute arbitration clause in their contract, or a post-dispute arbitration agreement. All data suggest that the number of arbitration filings continues to increase over time. The reasons for arbitration’s popularity include its relative speed, cost, and finality. Companies are increasingly placing binding arbitration clauses into consumer and employee contracts (and, for better or worse, courts largely uphold such clauses). Simply put, mediation and arbitration are central parts of our modern legal system.

Yet traditional doctrinal courses spend the vast majority of their time – maybe all of their time – on issues arising under the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Schools have countless trial advocacy classes, appellate boot camps, and moot court teams to reinforce courtroom advocacy skills.

But where do students learn about effective representation of clients in mediation? Where do students learn to write a pre-mediation statement to frame issues effectively for the mediator? Where do students learn the procedural rules that govern arbitration? Where do students learn how to present a case in arbitration? Where do students discuss the ethical boundaries within ADR procedures? Where do students learn to advise clients on which type of dispute resolution might be most appropriate? Unless the students take an elective course, the answer to these questions is often “never.”

Admittedly, not every law school has the resources to offer (much less require) separate two-or-three credit discrete courses on Arbitration and Mediation. Several years ago, I explored these ideas at greater length with my Cardozo Law School colleague, Lela P. Love (see, Silver Linings: Reimagining the Role of ADR Education in the Wake of the Great Recession, 6 Ne. U. L.J. 221 (2013)). The financial crisis – and law school budget cuts – formed the backdrop for that article, which suggested that the Great Recession offered an opportunity to integrate ADR into doctrinal courses more intentionally. 

So, here is my modest proposal: Traditional doctrinal courses need to integrate arbitration and mediation, so that students understand how these increasingly prevalent processes fit into lawyering. A Civil Procedure course should discuss court requirements for good faith mediation. An Evidence course should discuss arbitrators’ ability (and tendency) to limit pre-hearing discovery and set aside traditional evidentiary requirements. A Federal Courts course should discuss the procedural motions that are commonly made with respect to arbitration – motions to compel or stay arbitration, motions to confirm awards, and motions to vacate awards.

The traditional 1L “Legal Writing and Lawyering Skills” course should be broadened to reflect that litigation lives alongside mediation and arbitration. Many creative legal writing professors already introduce some elements of negotiation and demand-letter writing into the curriculum. But process choice should also be introduced from the beginning in a more holistic manner.

In the 21st century, does any litigator really believe that arbitration and mediation are “elective” skills? Litigators don’t advocate exclusively, or even predominantly, in trial courts. Yet most law schools continue to treat arbitration and mediation as “alternative” models of lawyering – cool electives to be taken if one has the time. In fact, familiarity with these modes of conflict resolution is now essential. As we think about the Future of Legal Education, our syllabi might need some surgery to reflect this reality.

Brian Farkas (Cardozo, Adjunct Prof.)


Posted by Dan Rodriguez on March 19, 2018 at 08:23 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 24 (Hari Osofsky)

Moving Forward Together

 I have very much appreciated the rich interchanges in this virtual symposium thus far.  This post builds on that discussion by focusing on the key role that collaboration plays in achieving needed progress.  It argues that establishing cultures and patterns to encourage and celebrate needed innovation – ones in which it’s ok to try things that might not work – is deeply intertwined with effective approaches to collaboration.

A number of the posts have implied a somewhat atomistic view of innovation in which a limited set of people advance innovation and strategies must work around those who stand in its way. For example, posts have discussed the headwinds created by those who oppose change and called for hiring new types of faculty.

Similarly, posts have highlighted individual innovative initiatives at particular institutions without much focus on those ways those institutions currently do, or should in the future, collaborate. Although I agree with Mark Tushnet that institutional pluralism is needed, I worry that we often reinvent wheels separately without learning from one another.

This post makes the case for moving forward together.  It argues that multiple forms of effective collaboration are needed to help create legal education for a changing society. Although I acknowledge that barriers to change are real and that collaboration can be difficult, we will make more progress through prioritizing interconnection.  The post highlights four areas in which I think fostering collaboration is crucial.

  • Collaborative Faculty Governance

Collaborative faculty governance has not gotten much mention in this symposium thus far. But in my view, strong collaborative faculty governance cultures and processes are critical to accomplishing effective change. Having taught on the tenure track at four quite different law schools, and now as dean of another, I have become convinced that transparency, inclusiveness, fairhandedness, and opportunities for meaningful input and discussion are not simply positive values; they contribute in practical ways to progress. 

In my experience, in a healthy faculty culture, talking through disagreements is a crucial component of getting to an approach that the faculty is broadly comfortable with. Collaborative governance processes should provide iterative mechanisms for hearing legitimate concerns and thinking through how they might be addressed. Moreover, all key constituencies should be consulted, which depending on the initiative, may include lead staff, students, school advisors, university partners and leaders, externals partners, etc. These conversations are not always easy and consensus is not always possible, but what emerges from such a process is generally a better approach and a less controversial one.

In my view, collaborative processes are especially important in the innovation space. Substantial scholarly literature supports the idea that successful innovation is often built on repeated failures.  Having a culture in which in which we support trying things without being sure they will succeed is therefore crucial.

Some of the ways in which I personally try to foster this culture as a leader include articulating a philosophy of learning leadership, highlighting when I make mistakes and how I plan to learn from them, and valuing pilot projects.  But my support is made substantially more effective and powerful if it’s grounded in a shared understanding of our goals and why we are trying particular things. Collective discussion of new experiments, and what that means in practical terms at that institution, helps to make needed innovation possible. A resulting shift in the action plan to address a concern or reflect an understanding of an experiment’s parameters can help to create broader support.

  • Interdisciplinary and Other Collaborations Within Universities

I have been delighted to see a number of other posts, such as Dan Filler’s, emphasize the key role of interdisciplinary collaboration in moving forward.  I want to highlight here the many forms that helpful collaboration can take within a university.

Interdisciplinary partnerships can occur at an individual course or project level; between units in a variety of ways; and on university-level cross-cutting initiatives.  We have each of those at Penn State and they operate synergistically.  For example, our entrepreneur assistance and IP clinics are embedded in the university’s “LaunchBox” incubators, and our veterans and servicemembers clinic partners with the College of Nursing to integrate health assistance with legal assistance.  We are developing a comprehensive partnership with the College of Engineering and the School of International Affairs in Law, Policy, and Engineering which will include multiple academic programs and research opportunities, and at the same time are making our first cohire with the College of Medicine to help us develop innovative new partnerships.  And we are playing leadership roles in the new Center for Security Research and Education and Center for Energy Law and Policy.

But we need to think beyond just interdisciplinarity to achieve the full collaborative possibilities within universities. For example, Penn State has 24 campuses, many of which are in rural communities. Our collaborations with the campuses are crucial to our efforts to help address the access to justice gap – our entrepreneur assistance clinic uses distance learning technology to serve clients in those communities; we are working with campuses to ensure that their students receive effective advising on legal education and careers; and campuses are partnering with us on a number of our interdisciplinary initiatives, such as the Center for Energy Law and Policy. Or to give another type of example, World Campus (Penn State’s online campus), university-level IT and educational technology, and Global Programs are all important partners in our technology and other initiatives. And in yet another variation, I have been encouraging us to think in trans-substantive terms; for example, parallel issues arise in many of the Law-STEM areas such as health, energy, IP, cyber, but those scholars and practitioners often don’t talk with one another.

  • Collaborations Among Universities

One of my great frustrations over the years has been watching the amount of resources we waste creating parallel programs with limited collaboration at multiple law schools. For example, in my field of energy/climate change/environment, we often have programs tracking similar data or making similar policy interventions in parallel.  While certainly these types of collaborations sometimes happen and there are often good reasons why individual schools need separate programs, we could do a lot more to combine resources and work together.

Consider for example law schools’ efforts to understand and prepare their graduates for fast-moving technology. Posts by Dan Hunter, Andy Perlman, and Frank Pasquale highlight some of the innovations taking place and needed in this space, and there are many technologies and innovative programs continuing to emerge as we write that these posts don’t capture (this space is moving fast!). We need to make sure that these programs learn from one another and work together when possible. I created a new associate dean role focused on technology and innovation at Penn State Law to both shepherd our technology initiative and make sure we ground our efforts to develop legal education for a changing society in an understanding of the most innovative things that law schools are doing.

I think we need more exploration among deans and other key administrators and among faculty and staff of innovative ways of collaborating in new and existing initiatives. This will save resources and create better programs. Please consider this an open invitation to dialogue about such new collaborations with Penn State Law in University Park.

  • Collaborations with Legal Practitioners, Businesses, Governments, and Non-Profits

The kinds of needed innovation we are discussing require strong collaboration with the bench and bar, businesses, governments, and non-profits. Law schools need to make decisions grounded in the reality of evolving needs for legal services and information and serve their communities. Like with the previous three types of collaboration, we can maximize positive impact through working together.

These collaborations can take a lot of different forms. For example, our clinics at Penn State Law and other law schools already work with a range of organizational clients in addition to individual ones.  We are working to build partnerships with legal-tech companies to help us tailor our technology initiative to evolving realities and provide our students with access to the technology they are developing.

Working together can be as simple as receiving advice. On the topic of legal education for non-lawyers that Michael Waterstone was raising, we are working to develop online courses for non-lawyers based on advice we are receiving from them on what they need to know about law.  Our interdisciplinary efforts, such as in Law, Policy, and Engineering, are being created through listening to lawyers and engineers (and people who are both) about what the synergies do and should look like.

Bottom line: collaboration is not just a positive way of interacting, but a practical strategic tool.  The more we can work together, learn from each other, and take steps forward informed by varying perspectives, the better we will serve our students and society. This approach is not always easy, but the future of legal education depends on it.

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 19, 2018 at 08:16 AM | Permalink | Comments (0)

Saturday, March 17, 2018

Legal Ed's Futures: No. 23

Law Schools Teaching Non-Lawyers

I was recently asked to chair the search for a new Dean for the Business School.  It was a fascinating process, and I was struck by the diversity of programming and expansive way in which many business schools think about education.  Executive programs.  Part time programs.  Partnerships with business and industry. 

This experience enriched an important question I had been thinking about and building structures around as a new Dean: should the “futures” of legal education include an expanded focus on legal education for individuals who are not – and will likely never become – US lawyers?  In some circumstances, this move may have the potential to help law schools financially.  But for this post, let’s put that aside – assume that such a change would be at least revenue-neutral, to focus the real discussion on whether it’s a good idea.

The range of potential students of law, beyond the familiar “law students,” is enormous.  Foreign trained attorneys (although many are interested in taking the bar, usually either in California or New York).  Undergraduate students with an interest in law.  Executives who are not lawyers but interact with lawyers and want to be more sophisticated consumers of legal products and services.  Professionals who are looking to get closer to the legal department without joining it.  Journalists who cover legal issues.  Citizens with an ambition to become lawmakers, or those tasked with administering the law. Those who are just curious about law.  And so on.  Existing LLM and MLS degrees serve some of these individuals, but certainly not all.

Although these groups are all different, some common questions include:

  • Should we be doing this? To those who say yes, this is a move completely in line with developments in the legal profession – unbundling, commodification, technological developments, etc.  And to the extent that this sort of education trains future clients or colleagues of future JDs, it helps build a more informed market for the core of what law schools do.  To those that say no, there can and will be other educational opportunities for these students outside of traditional legal education, and prioritizing time and resources in this direction takes away from the important and core work of educating our JD students.  Count me firmly in the “yes” category.
  • Should we be doing this? That is, do law schools have advantages over other educators in this space?  Certainly we can claim a competitive advantage in teaching students to be lawyers (and although I believe we do it well, the reality is we basically get to dominate because of regulation).  And we have the ability to think deeply about areas of law and the modes of legal reasoning, and both influence its development and pass on that knowledge to students.  Is that needed or desirable when legal education is moved outside of the JD context?  Here too, I think so.  Just because other students will not become lawyers does not mean that they do not benefit from learning from those with subject matter and pedagogical mastery.
  • Related, residential faculty or adjunct faculty? Working more now with the rest of the University, I have been struck by how uniquely situated we are regarding adjunct faculty.  At least for those of us in major metropolitan areas, we have large numbers of highly experienced experts who are simply not primarily motivated by money when they seek to teach students.  And we have become adept at discerning which of these experts are also skilled in the classroom.  Should they be deployed to these new audiences?  I think yes, supplementing residential faculty, carefully.
  • Should these students be integrated into JD classes, or should there be separate instruction? At most schools, I think it is fair to say the JD is what we do best.  So anything we attempt to build for these other audiences – while maybe great in and of itself – probably won’t be as good, at least at first.  It will take experimentation and improvements to perfect.  Some of these audiences (many, I believe) will benefit from interaction with our JD students, and vice-versa.  Accreditation issues limit some of this, but those regulations are also always evolving. 

 Business schools are different from law schools.  But the delivery of education outside of what was considered a core audience is thought provoking. A great law school of the future (and perhaps even the present) will be about more than educating JD students.

Michael Waterstone (Loyola L.A.)

Posted by Dan Rodriguez on March 17, 2018 at 11:11 AM | Permalink | Comments (0)

Thursday, March 15, 2018

Legal Ed's Futures: No. 22 (guest post)

In Legal Ed’s Futures #14, Dan Hunter makes the “modest proposal” of allowing universities to offer a Bachelor of Laws (LLB) degree leading to the practice of law. My experience with this in a wide variety of other countries and cultures indicates that such reform might be much easier than one might first imagine.

Many proposed law school reforms, such as shortening the JD to 2 years, or replacing the third year with an externship, face considerable headwinds from existing faculty (and law school finances) for whom such reforms would threaten job and financial stability. Such reforms also would face headwinds from existing lawyers who would perceive the reforms as threatening their own status, prestige, and income. However, similar challenges to an LLB program are far from insurmountable.

From an institutional perspective, my experience in countries with LLBs is that the number of students in such programs exceeds by several factors the number of students in traditional J.D. or J.D.-equivalent programs. Many if not most LLB students do not intend to take the bar exam, but see the LLB as preparation for a job in civil service, middle management, or public advocacy. For universities with or without existing law schools, the LLB market is a huge potential untapped revenue stream. For universities with a law school, the LLB is an ideal feeder program -- and it provides advantages of scale because JD and LLB students can sometimes be enrolled in the same course.

From a faculty perspective, the exponential expansion in law student enrollment would commensurately expand teaching opportunities. One possible rub would be stratification – in prestige, teaching load, class size, research expectations/opportunities – between faculty teaching in the LLB program versus faculty teaching in the JD program. However, again, this problem is hardly insurmountable. At universities with both JD and LLB programs, teaching and research responsibilities could be spread equitably, or could be divided based in part on expertise or qualifications (however defined) or seniority.

From the perspective of existing JD graduates, one would expect much short-term wailing and gnashing of teeth as JD-holders complain that the market is about to be flooded with unqualified new entrants. Within a few short years, however, I expect that the market will become self-correcting via job-qualification stratification. Similarly, Career Services offices will need to plan proactively to help facilitate demand for a new degree for which the job market is not currently accustomed.

Megan Carpenter, Kellye Testy, Deborah Merritt, and others writing on this thread of Legal Ed’s Futures all have made the basic (and very accurate) point that legal education has priced itself (in both pecuniary and opportunity costs) out of all but the most lucrative markets, to the detriment of society generally. Permitting an LLB as Dan suggests would go a long way toward righting that ship.

Rick Bales (Ohio Northern)

Posted by Dan Rodriguez on March 15, 2018 at 10:41 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 21

At the outset, I will confess to two biases that likely color my view of the futures of legal education.  First, I am a former deputy managing director of the ABA Section of Legal Education, and so am prone to see many of the opportunities and challenges facing legal education through a regulatory prism.  Second, I am pessimistic about the futures of legal education, at least in the short and medium terms.  Change will come, but I believe it is likely to entail the demise of many of the existing structures, and so will be resisted fiercely and for as long as possible.  On the bright side, this dire outlook should help to reinforce Mike Madison’s premise that the need for change in legal education is urgent.

Symposium contributions so far have assumed but not explicitly detailed what I think most of us would agree are the two biggest problems facing most of our students: (1) the exorbitant cost of legal education, and the associated debt burdens; and (2) too many graduates chasing too few entry-level law jobs.  (I will not repeat the numbers here, but for those who are interested, I have collected and presented the relevant data in a paper to be published in the Journal of Legal Education, a draft of which is available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2998306.)  Add to this a rankings system that dominates student decisions about where to go to law school, and thus seemingly compels schools to pursue admissions, financial aid, faculty hiring, spending, and curriculum policies that preserve the status quo and make legal education an engine of wealth inequality.  At the same time, there is an appalling access to justice gap for millions and millions of people who cannot afford lawyers or obtain publicly subsidized legal services.

I would echo the comments of several others so far that curricular innovations within individual schools are not likely lead to a transformation of legal education. This is mainly because such innovations have only a very marginal impact on students’ decisions about where to go to law school.  Ranking, geography, scholarship offers/cost, and bar pass and employment outcomes (with these outcomes being a sizeable factor in rankings) drive enrollment decisions, while curricular innovations are relevant to only a few students and then only when they are deciding on which of a few schools in the same rankings band to attend.  Moreover, curricular innovations, including expanding distance education, are just as likely to add to the cost of legal education as to reduce it. 

There is one idea that I have seen so far in the symposium that has the potential to significantly reduce cost and debt (and thereby potentially address some of the access to justice gap).  Dean Hunter has suggested the “modest proposal” of making the law degree an undergraduate degree instead of a graduate degree.  He suggests that a university without a law school would be a more likely place to start the experiment, but the idea should be attractive to universities with law schools, too, if they think they could replace current net revenues from the law school (or stem the red ink). 

There are serious practical impediments to the idea, but they could conceivably be overcome.  Perhaps the two most significant are that (1) the ABA’s accreditation authority as granted by the Department of Education (ED) is for the JD degree; and, (2) because graduation from an ABA school qualifies graduates to sit for the bar in all U.S. jurisdictions, state supreme courts and bar admissions authorities would have to be assured that the preparation of a graduate with a B.A. in law would be reasonably comparable to that of J.D. holders.  While it would be possible for universities to add a B.A. in law that is regionally but not ABA accredited, as the University of Arizona has done, ABA approval generally is necessary in order for graduates to sit for a bar exam.  The ABA could seek to have its ED accreditation authority expanded to cover a B.A. degree in law.  If and when that is accomplished, the ABA Standards would have to be changed to eliminate the requirement that applicants have a B.A. and perhaps also the requirement of an LSAT score (which is currently under consideration by the ABA).  I’m not sure how best to go about assuring state supreme courts and bar admissions authorities that the B.A. graduate will be as competent as the J.D. graduate, but if they are taking the same bar exam, that would not seem to be an insurmountable problem.

Another “idea” that would dramatically change the cost/debt and graduate employment rate crises is for the federal government to put a cap on what law students can borrow under the title IV student loan programs.  This seems to be the elephant in the room that no one wants to talk about, but it is exactly what the House of Representatives Committee on Education and Workforce has approved in its Higher Education Act reauthorization bill, setting the cap at $28,000 per year for tuition and other costs of attendance combined.  Knowledgeable observers say that there is a reasonable chance that the Senate bill will include a cap, too, setting it at closer to $40,000.  A cap in either amount (or even $50,000 or $60,000) would immediately and dramatically impact non-elite law schools in direct relation to their costs of attendance.  Students would be forced into the private lending market for every dollar above the cap that they need to borrow in order to attend law school.  Unlike the federal loan program, private lenders underwrite their loans, which would likely mean that schools would have to reduce costs to below the cap or guarantee repayment on behalf of their students.  While making schools put some “skin in the game” would be a good idea in principal, they would bear the burden of proving the value proposition of their programs and almost certainly scores of schools would be unable to do that.  At more than a few schools today, the large majority of graduates likely qualify for an Income Driven Repayment plan.  On the other hand, a carefully calibrated cap could well have a healthy impact on both cost/debt and the mismatch between the numbers of law graduates and the numbers of available entry-level law jobs.

If legal education does not act to get a meaningful grip on high debt and poor employment outcomes for so many law graduates, it is more likely that a draconian solution such as a federal lending cap will be imposed on us.  What can we do to solve these challenges before a potentially disastrous solution is imposed from outside?  In the spirit of previous posts, here are a few ideas – I’ll call them less-than-modest proposals:

  1. Law schools should stop participating in the rankings.  The pernicious impact that they have on almost every aspect of the law school program, from admissions and financial aid decisions to the phenomenon of law school funded graduate employment, is almost universally acknowledged.  They have rewarded schools that increase per-student expenditures, fueling increases in tuition; and brought about the demise of need-based financial aid, restricting access to the profession by lower-income and minority students.  While we may have started down the rankings road innocently enough, the world we have created makes continued collaboration with US News ethically dubious at best.  A rankings boycott is not a new idea, and the conventional wisdom is that the prisoner’s dilemma cannot be solved, but perhaps we are finally at the breaking point.
  1. Do not increase enrollments along with the increase in applicants this year.  It is very good news that both the number of applicants and their scores on the LSAT are up this year.  But it would be a grave mistake for schools to increase enrollments where there is no evidence that the number of entry-level law jobs will increase in the foreseeable future.  Another prisoner’s dilemma.
  1. Work to change the culture around student borrowing within schools.  At Michigan State, a well-conceived and carefully-implemented plan brought average student borrowing down significantly over several years without increased tuition discounting.  

Scott Norberg (Florida International)

Posted by Dan Rodriguez on March 15, 2018 at 09:25 AM | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The President as Fiduciary

Jed Shugerman and I have an op-ed in today’s Washington Post, highlighting why the president’s pardon power and removal authority might be constrained by the fiduciary principles of his oath and his office.  If you have used up your free articles from WaPo this month: Download The Constitution could stop Trump from ..

Posted by Ethan Leib on March 14, 2018 at 03:58 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 20 (guest post)

New Interdisciplinary Horizons

We are in an interdisciplinary moment, and not just the Law & Econ or Berkeley Jurisprudence and Social Policy sense.  So many of the concerns we feel for the future of legal education – and for the future of practice writ large – are directly related to the work our colleagues are doing down the street, in computer sciences, math, engineering, and other departments.  If the old interdisciplinary tool was often critique – how should we understand law  in light of economics, political science or sociology – the new one has great potential to be actionable collaboration.  I’d love to see my colleagues working with those computer scientists producing analytical tools that search web comments for common linguistic strands – the better to identify individuals who present genuine threats to society.  I’d like to see them working with the folks in engineering as they develop cybersecurity interventions that intercept data at an early point before it can do its damage.  I’d like to see my law faculty colleagues working with the AI experts, the driverless car folks, the pharma researchers creating digital pills that send an “I’m here” signal to a smartphone app when they hit the digestive track.  Of course I know that a few legal scholars have made this move – but truly, very few.

There is so much to be gained by growing this part of our research capacity.  Our faculty quite literally could work on the cutting edge of the law.  They’ll have the potential of making a real difference in how we think about, and regulate, the immersion of new tech into society.  They’ll be more relevant for their students.  And that’s only the beginning.

Amazingly enough, there is even scaffolding for this future – in the form of the same grants our colleagues receive for their research.  Many of the granting organizations and institutes have already expressed a keen interest in interdisciplinary teams – and law faculty are a logical fit.  I take Dan Hunter’s concern about lawyers and law students seriously – many lawyers got into the business precisely because we weren’t meant to code.   But on these interdisciplinary teams, law faculty won’t have to do the technical work.  They’ll just have to understand it enough to offer thoughtful interventions.  They can use their cognate PhD if they have one, bringing in insights from economics, sociology or political science.  But this interdisciplinary work is really open to all comers because, in many cases, the skills required here are awfully similar to those of a sophisticated litigator. 

All of which is to offer up my call for a new kind of interdisciplinarity – not to displace the law/social science combinations we know well, but to supplement them.  If we’re looking to build bridges to the future, what better place to turn than to the folks right down the street who are building much of that future this very moment.

Dan Filler (Drexel)

Posted by Dan Rodriguez on March 14, 2018 at 11:41 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 19

Artificial Intelligence and Platforms

About a thousand years ago I used to do research in artificial intelligence and law. It was kinda cool back in those times, at least for a while, and then, all of a sudden, it was wasn’t. At the time the perception was that AI applications didn’t really live up to their promise, certainly not to the point where they could be called “intelligent.” So, the hype cycle moved on to newer, more interesting computer science areas like agent-based systems, cloud computing, and big data.

Having lived through the last twenty years of what is often called the “AI winter”, it’s remarkable how often nowadays that I get asked to talk about the impact of AI on legal education and legal practice. This is almost entirely due to the remarkable advances that have been made in one technology, deep neural networks. Gideon Lewis-Krause gives a nice history of this technology here: https://www.nytimes.com/2016/12/14/magazine/the-great-ai-awakening.html

Deep neural networks (aka convolutional neural nets) have made good on the promise that one day machines could actually learn. The areas where we see this most obviously are in machine vision and speech, and the headline applications of this are, of course, self-driving cars, voice recognition systems, speech production, and game playing. Other advances in semantic representation and analysis have tied neural networks to data systems like the web or music databases; giving us the miracle of Pixel2 earphones able to do translations on the fly, or having Alexa play Tom Waits when I say, “Play some music that I like.”

Although it’s impossible to know exactly how these advances will affect law, we can get a decent view of which areas of legal practice will be affected by focusing on how the technology works. By extension, we can get a decent sense of how we should be re-thinking legal education.

First off, we can say that anything which is simple to codify and which has a consumer focus is probably not a good area of practice to be betting on in the next ten years. Things like property transactions, probate, family law, and lots of criminal law, are going to be automated. Oddly enough, this isn’t actually so much to do with neural networks, but rather the twin effects of venture capital and rule-based computer systems (which is actually an old form of AI). Where the law is simple, and where there are lots of potential consumers, we can expect to see well-funded entrepreneurs swoop in with automation solutions that will supplant lawyers. This will involve a lot of basic document automation, chatbots (once they get better at sentence parsing, only a matter of time), and mobile apps. This development will be a particular problem for schools where grads expect to be main street lawyers, because main street lawyers are particularly at risk. But there is an upside for society, if not for grads: In the very many under-lawyered parts of society the huge unmet need for legal services will, in time, be satisfied. But by computers, not by humans.

BigLaw will be affected in a range of ways by AI and the next wave of computerisation. Predictive coding in e-discovery is already the most obvious example of neural nets in law. In these systems, litigation managers show the neural net a set of documents that are relevant to the discovery question, and then let it loose on a set of unknown documents. Lawyers check to see how many relevant documents the neural net identified from this new batch. They then retrain it, telling it which ones it got right this time, and which ones it got wrong. After numerous iterations, this rinse-and-repeat cycle results in a system that generates better discovery reports than any group of lawyers, at a much cheaper price. Similar neural nets operate in areas like contract review and M&A due diligence, although the systems available (e.g. RAVN, KIRA, Lawgeex, Luminance) have been hamstrung by spotty or small training datasets. But the thing about data-centric systems is that they inevitably get better with more data. So, it’s only a matter of time before these sorts of technologies start affecting the bottom line of litigation departments, legal process outsourcers, and the contract lawyer industry.

Separately from AI, the rise of platform technologies is likely to affect the nature of the law firm. As Adam Smith taught us, the organizational structure of the firm emerged to solve the coordination problem between the various specialist activities that the Industrial Revolution made possible. As we’ve seen with Uber, AirBnB and TaskRabbit, mobile/net-based digital platforms can effectively coordinate the efforts of large numbers of independent contractors without the coordinating structure of the firm. The uber-ization of legal services is already underway, with the development of digital platforms like Avvo and service providers like Lawyers On Demand, Axiom, and Vario. The days of the law firm are numbered. Law grads of the next ten years are extremely likely to work within a gig economy framework, and should not expect to work their way up from document review to the corner office. Because there won’t be a corner office. There will be rainmakers sitting in mansions, and a huge group of supporting attorneys working freelance in WeWork cubicles.

The combination of AI and platforms will have a huge effect on the training of lawyers and the transmission of legal culture. It was once the case that grads would emerge from law school like toddlers, unformed and blinking, and be taken into law firms to grow up slowly, to learn not only how to practice law but also how to be a functioning member of the legal community, alive to the vital role that lawyers have in our society. This process has been undermined over the last few years, especially since the GFC, as clients have resisted paying to train junior attorneys, and firms have reduced their grad recruitment numbers. As AI technology reduces the amount of introductory-level work available to young lawyers, and as platform technology hollows out the firm, we will see a “valley of death” emerge between law school graduation and the point when the attorney is capable of effectively handling client matters and making a living. There is no part of this which will be a good thing for anyone, except maybe the technology providers and the owners of co-working spaces.

All of these changes need to be recognized by those who purport to train the next generation of lawyers. Law school professors and deans can’t just assume that the future will look like the past, because it won’t. And these problems won’t just take care of themselves.

What then is to be done?

Concretely, I believe that we have an ethical obligation to change our curricula to give our students the tools to be able to navigate this new world. This symposium is a good start in discussing the challenges and responses; but obviously there is a lot more that needs to be said. It saddens me that most law professors and many law deans don’t really want to engage in this discussion. There are many reasons for this, of course, but the main ones seem to be a lack of understanding about the pace of change, a disconnect between the classroom and the reality of the legal service market, and a (vain) hope that maybe, just maybe, the status quo will hold. This doesn’t help our students much, it seems to me.

Further, I believe that we need to start a conversation with the profession, the regulators, and disruptive legaltech players about how legal knowledge and culture can be transmitted in a world that is about to suffer a big disconnect between how law was done before, and how it is about to be done. Law schools need to start thinking about the role that we play in training lawyers all the way through their lives, and what law in society should be. I don’t know what this conversation will look like. I do know that it’s not happening at the moment.

I agree with Michele Pistone’s earlier observations in this symposium; although I am perhaps more hopeful that the cultural shift can happen in law school. Either way, if we don’t tackle these problems, then we will soon have grads with no job prospects, and a legal system that is profoundly broken.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 14, 2018 at 10:09 AM | Permalink | Comments (0)

Tuesday, March 13, 2018

Legal Ed's Futures: No. 18

The Technology Community Needs Legal Expertise as Much as the Legal Community Needs Technology

in his invitation, Mike mentions the possibility of a computer program ultimately being able to compose a legal memo or brief. Mike’s considered reflections on the future development of legal technology are a refreshing break from the usual hype about robot lawyers. I’d like to go a bit further, expressing more skepticism about technological determinism in the legal field.

Three years ago, when I was co-authoring the essay Four Futures of Legal Automation, there was a wave of articles and books predicting that the professions were about to be automated. A fair amount of the hype came from software vendors looking to profit by overclaiming for their own products and denigrating the work of current attorneys. A trade press eager for ad revenue from such vendors quickly hopped on the bandwagon. As Riika Koulu, Lila Kallio, and Jenni Hakkarainen have observed, there has been “a severe lack of unbiased information available on the consequences of digital shift for the practice and study of law.”

At this point, however, the discourse is more reasoned. It’s becoming clearer that lawyers and coders are complements, not substitutes. Two articles in particular have carefully debunked the usual case for rapid automation of law. As Eric L. Talley observes, “the underlying evolutionary process that characterizes legal doctrine and precedent is irreducibly dynamic and complex – traits that are poorly adapted to pure algorithmic decision-making.” Dana Remus and Frank Levy “estimate that automation has an impact on the demand for lawyers’ time that while measurable, is far less significant than popular accounts suggest.”

I have joined the fray again to argue that what Talley, Remus, and Levy describe (about the recalcitrance of our legal system to many forms of automation), is often a good thing that we should cherish, rather than an impediment to progress. Indeed, I plan to speak at ICON-S later this year to explain how many visions of legal automation are little more than an effort to impose “rule by law” in the guise of algorithmic rationalization. Even when they are not, they all too often elide very important steps in the formulation of the purpose of a legal intervention, and the participation of affected stakeholders.

I make these points to raise a broader issue about legal tech. New technology can have some positive impacts upon law. But technology firms need legal guidance and intervention as much, and perhaps more than, lawyers need new technology. Moreover, pathologies found in search engines, social networks, and beyond, threaten to infect the legal sector, if we unreflectively embrace big data, predictive analytics, machine learning, or whatever the latest flavor of the month is. Understanding those problems is just as much a part of our “duty of technological competence,” as any imperative to adopt new software or machine learning methods.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 13, 2018 at 04:00 PM | Permalink | Comments (0)

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (27)

Legal Ed's Futures: No. 17 (guest post)


I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?

There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here.  I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago.  Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years.  Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.

Of course, the same could be said about nearly every other form of professional education.  As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades.  The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.

What should law students learn?

What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught.  This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?

My answer is yes and no.  There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world.  Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, problem solving, document drafting, and client counseling.

These skills are important and necessary, but they are no longer sufficient.  If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper.  Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”

What does this mean specifically?  The answer varies depending on the school, but at my own school (Suffolk), it means exposing students to concepts like legal project management and process improvementlegal design (accompanying story here), automated legal document assembly, expert system toolselectronic discovery, and other areas as well.  We’re also teaching students how to innovate the operations of a law practice to make legal services more affordable for currently underserved clients, and we are giving students paid opportunities to learn about new delivery options.

We’re certainly not the only ones pushing the envelope.  A growing number of law schools (and universities) have developed an expertise in this area and have emphasized a range of related skills, such as legal analytics.  Here’s a partial list of such schools.  (Please feel free to email me I have overlooked a relevant program.)

BYU LawX — Legal Design Lab

Columbia Law School – Lawyering in the Digital Age Clinic

Duke University School of Law – Law Tech Lab

Georgetown University Law School – The Program in Legal Technologies

Harvard – Center on the Legal Profession and LawLab (housed at Harvard’s Berkman Center for Internet & Society, but with many collaborators)

Hofstra University School of Law – Law, Logic, and Technology Research Laboratory

IIT Chicago Kent College of Law – Center for Access to Justice & Technology and The Law Lab

University of Miami School of Law – Law Without Walls

MIT – Computational Law Research and Development

Michigan State University College of Law – LegalRnD

Northeastern University School of Law  – NuLawLab

Northern Kentucky University Chase College of Law – Lunsford Academy for Law, Business, and Technology

Northwestern Pritzker School of Law – Technology, Innovation, and Entrepreneurship Concentration

University of Pittsburgh School of Law – Innovation Practice Institute

Stanford – CodeX The Stanford Center for Legal Informatics and the Legal Design Lab

Suffolk University Law School – Institute on Law Practice Technology & Innovation and Concentration

Vanderbilt University Law School – Program on Law & Innovation

Vermont Law School – Center for Legal Innovation

These innovations are paying off.  Students are getting jobs that did not even exist a few years ago, such as in legal project management, knowledge engineering, and legal solutions architecting.  For example, when my law school graduated its first group of students with some coursework in these new areas, employers specifically reached out to recruit them. (See, e.g., here.)  Granted, this is hardly an empirical study (the sample size is still small), but the available evidence suggests that legal employers are increasingly looking for students who have learned the skills taught at the schools referenced above.

Anticipating Objections

One objection to updating the curriculum in the way that I have outlined here is that law schools should not try to teach all of the knowledge and skills that students need for professional success.  Legal education is premised on the idea that considerable learning takes place on the job, so one could argue that the new areas of study, even though important, should be learned later.

I agree that considerable learning needs to take place on the job, but we should want our students to have learned enough in law school so that, when they see a particular problem or issue in practice, they have a reference point for how to deal with it.  They need to be able to “issue spot.”  The new skills and knowledge described above are simply giving students the ability to engage in a new kind of issue spotting.  That is, students should know these new concepts sufficiently well to identify when they can be deployed to deliver services more effectively and efficiently.

A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice.  Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills.  Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas.  In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.

The flipping of the traditional information flow has another benefit: it increases the relevance of junior lawyers.  At a time when the value of a young associate is increasingly questioned, law schools have an opportunity to give their graduates a knowledge base and skillset that clients increasingly demand and that most legal employers lack.  In short, teaching these new skills will position law schools and their graduates as leaders of a profession at the cusp of significant change.

A second possible objection to this new curriculum is that the skills will be quickly outdated.  This argument, however, proves too much.  In law school, we regularly teach students about doctrines that have changed or are likely to change.  When we teach an area of law (say an older, but now discarded, doctrine), we do so to convey both a conceptual point and a way to think about an issue.  In much the same way, teaching law practice technology and innovation is designed to help students think in new ways about legal services.  The technology will change, but the mindset will serve graduates well throughout their careers by giving them the conceptual tools they need to improve how legal services are delivered and accessed.  This will make them more competitive and better able to serve their clients and the public.  It is hard to think of a better reason to update the law school curriculum than that.


Andrew Perlman (Suffolk; Chair, ABA Center on Innovation)

Posted by Dan Rodriguez on March 13, 2018 at 09:29 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 16

The viewpoints and suggestions offered in this symposium are wonderful for their breadth and thoughtfulness, not to mention passion and immediacy.  Legal education has stewards from literally all over the globe earnestly interested in protecting if not expanding the rule of law, the delivery of legal services, and the education of new generations of lawyers dedicated to a nation aspiring to equal justice under law.  It is unfortunate then that our collective narrative is not more widely shared and internalized by a new generation who might be lawyers.  

We all know the story well – for a half century interest in attending law school increased, as reflected in more and more applications, culminating in just over 600,000 applications for admission in the fall 2010 … but then KABOOM.  The fall off was rapid and dramatic so that, in this case, a picture truly is worth a thousand words.  Here is a depiction of law school 1L enrollment over the last roughly half century:

Those 600,000 applications yielded over 50,000 1L students and then – BUST.  The enrollment growth of almost a half century disappeared in only five years so that by the fall of 2015, 1L enrollment was back to early 1970’s levels.  Ouch.  The modest bump in applications that we currently see this academic year does not mitigate some generally held impressions that we are not likely to return to 2010 any time soon, especially considering demographic predictions for high school and college graduation rates over the next 25 years. 


It is against this backdrop that in 2006 Elon University opened the doors to its new law school.  Starting off strong in an environment of law school fecundity, Elon President Leo Lambert charged founding dean Leary Davis and his successor George Johnson to create a law school with a difference, drawing on a mission based in experiential learning that had brought the University growth and renown over 20 years.  Justice Sandra Day O’Connor, speaking at Elon Law’s initial convocation in 2006, noted that the new Law School had strong bones and already was a “force with which to be reckoned.”  ABA accreditation followed in the shortest time possible.  And then, the bottom fell out. 

I arrived as dean in 2014 amid declining enrollment and budget challenges with a charge to revitalize the enterprise.  I had prepped for this assignment in and out of the academy, which turned out to be a good apprenticeship for this moment in legal education, but most recently had spent some time at Northeastern University School of Law, learning about its unique approach to preparing lawyers through co-operative education.  I was attracted to this pedagogy because I was convinced that the critiques of legal education held some serious validity – too long, too expensive and too disconnected from the profession.  Northeastern had made important strides to address at least the latter issue – by sending students out to work full time, the individual and the institution gained some real world connection that could, if guided, accelerate professional development and maturation.  Study and analysis of Northeastern alums undertaken by Bill Henderson tended to confirm this proposition.  

So, my arrival at Elon Law at the depths of the legal education bust offered an opportunity to reinvigorate the institution by developing these principles, which were entirely consistent with the approach Elon University championed and had infused into its Law School’s mission.  I quickly appointed a faculty committee to explore curriculum changes that might provide some of the advantages of co-op education while pushing those advantages and perhaps concomitantly addressing the cost and time issues as well. 

This committee was small to facilitate accomplishment but reflected diverse aspects of the curriculum, including 1L, upper level, writing and skills components.  This group met regularly for about 6 months, working quickly due to the urgency of the situation but consulting with others about issues like admissions and budget.  Four issues were identified as core to the work, including curriculum, calendar, competencies and communication, which gave rise to the moniker “the 4C Committee.” This group worked from the proposition that was embedded in the Law School’s strategic plan to establish and fulfill an overall curricular goal “to create a bridge from legal theory and doctrine to the practice of law.”  Approaching this mission from an outcomes oriented perspective, the 4C committee essentially worked backward by identifying the skills, knowledge and professional identity that students should acquire by graduation and then building a logical progression of learning to reach those goals. 

The signature experience would be a “directed practice placement,” or residency-in-practice, during which every 2L student would work full-time in a judge’s chamber or law office setting for academic credit.  This placement would differ from Northeastern’s co-op, which is essentially self-directed learning, through an accompanying course that the student would complete to enhance the experiential learning while keeping the student in touch with faculty at the Law School.  A “Bridge to Practice” course after returning to campus but before graduation would provide a capstone experience for the students in conjunction with required bar preparation instruction to ensure proper focus upon graduation.  Labs in the 1L courses starting with Criminal Law also were included to leverage the experiential focus of the curriculum. 

Working in this way, the 4C group deconstructed the calendar and was able to establish a trimester system that provided fewer classes per term, allowing more focus on them, and that allowed for a two and one-half year path to graduation.  The same amount of class time was provided so that credit hours for graduation would not change.  What this did offer was an opportunity to reduce tuition, and hopefully debt, for our students while diminishing the lost opportunity cost of being in law school for three years. 

This proposal generated significant debate, as anticipated and hoped for.  Over the course of several faculty meetings, the advantages and disadvantages were discussed as were alternative proposals.  In the end the 4C committee’s proposal was adopted by a two-thirds majority of the faculty.  Recognition that the law school with a difference should be even more different than it already was provided some support for the proposal but the real underlying theme around adoption was a palpable desire to create a more guided and pointed experiential curriculum that led students to capability for practice.  And so with the curriculum adopted, implementation became our focus.  My next post will describe how Elon Law turned thinking into doing. 

Luke Bierman (Elon)

Posted by Dan Rodriguez on March 13, 2018 at 09:22 AM | Permalink | Comments (0)

Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

Let me explore this point in the context of criminal justice, a field I know relatively well. Better funding for public defenders certainly would improve access to justice. But there is much that law schools could do without that funding. I outline here the flaws in our current curriculum; in my next post I’ll suggest some solutions.

  1. We educate prosecutors poorly. Prosecutors are the most powerful people in the criminal justice system: They have the power to dismiss charges, fashion plea deals, withhold evidence, and shape a defendant’s future. Prosecutors also hold a unique role among litigators: they are supposed to seek justice, rather than zealously advocate for a client.

Law schools do almost nothing to prepare prosecutors for this powerful, distinctive role. We steep future prosecutors, like the rest of their classmates, in the adversarial process. Throughout the curriculum, we urge them to “make the best case for their client.” We applaud arguments that push the boundaries of the law or skirt ethical constraints. Our focus on appellate cases ignores the intricacies of plea bargaining and the special responsibilities that prosecutors shoulder in that process. Even negotiation courses tend to focus on civil problems rather than criminal pleas.

We don’t teach law students much about interviewing witnesses; we certainly don’t teach them to interview with the skepticism a good prosecutor needs. Lessons in fact investigation and interacting with non-lawyers occupy marginal places in the curriculum. Nor do we provide the interdisciplinary courses that students need to become good prosecutors: classes on the causes and treatments for substance abuse, mental health problems, and domestic violence; courses on the limits of common forensic techniques; and cognitive science offerings that explore both the prevalence of unconscious bias and ways to fight that bias. Some schools offer some of these courses, but rarely in a systematic way that attracts and develops good prosecutors.


  1. We educate defense lawyers even more poorly. Our adversarial culture is appropriate for criminal defense lawyers: they should press zealously for their clients. But other parts of the curriculum fail these students. Future defense lawyers need courses on effective plea bargaining, fact investigation, witness interviewing, client counseling, mental health and substance abuse, forensic science, and bias even more than future prosecutors need those courses. Prosecutors have the full power of the state behind them; to counter that power, defense attorneys need the best preparation they can garner.

First-rate public defender offices teach many of these missing elements, but why should they bear that burden? We know that public defenders are overworked and underpaid: why should they spend their time and dollars on foundational education we could provide in law school? Many counties, moreover, lack organized public defender offices; in those counties, courts appoint counsel for indigent defendants. Too often, those lawyers are recent law school graduates who lack the skills they need for effective representation.

  1. We focus on felonies. The bar exam features more questions on homicide than any other crime—even though new lawyers rarely participate in homicide cases. Law schools, similarly, focus on murder, rape, armed robbery, and white collar felonies. Yet misdemeanor charges make up the bulk of criminal cases, and those are the crimes new lawyers will prosecute or defend. These crimes are far from trivial: misdemeanor convictions have a lasting impact on employment, housing, immigration status, eligibility for student loans, and other life essentials. These crimes also embody the systemic biases in our criminal justice system—often more clearly than felony prosecutions do.


Misdemeanors are not just “little felonies.” They involve different laws, different styles of plea bargaining, and more varied outcomes. A well prepared misdemeanor defense lawyer often spells the difference between a damaging conviction and a clean record. Our curriculum is topsy-turvy: We should prepare students to handle misdemeanors, then let them learn felony work in practice.

  1. We ignore the police. Several symposium participants have noted the growing number of workers who engage in law-related work without obtaining a JD or law license. Those workers are employed directly by their client (usually a business or government agency), which allows them to avoid restrictions on the unauthorized practice of law. Police officers count among these workers: they regularly apply legal principles to the facts of new cases. The police decide whether circumstances allow a warrantless search; they also decide whether the facts before them support an arrest. For felonies, the police sometimes consult prosecutors on these matters but in misdemeanor cases they act largely on their own. Indeed, in the two counties where I practice, the police even file the charging instrument for misdemeanors. A prosecutor can amend or dismiss the charges, but the arrest and initial charges remain a matter of public record.


Police officers, in other words, daily resolve the kind of questions we pose on law school exams—yet they lack all but the most basic legal training provided in police academies or undergraduate criminal justice courses. Why aren’t law schools more interested in how police officers are educated?

I’ll explore in my next post how law schools might tackle these problems. Education is powerful; if properly administered, it is our greatest weapon against injustice, poverty, and other social ills.

Deborah Jones Merritt (The Ohio State University Moritz College of Law)

Posted by Dan Rodriguez on March 12, 2018 at 03:57 PM | Permalink | Comments (0)

Futures of Legal Ed

We are one week into the March symposium on "the futures of legal education" and I hope that the various posts are generating interest and motivating thoughts among readers of this blog.  In the vein, I would like to urge you to send along posts with your own reflections.  I will not edit for content, but only for spelling.

The posts thus far been have eclectic and wide-ranging, but we would surely benefit from an even more diverse set of reflections and also of backgrounds.  I hope you will consider engaging actively with this big topic and I look forward to your posts.  You can send to me at [email protected]


Posted by Dan Rodriguez on March 12, 2018 at 09:03 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 14

Modest Proposal #1

My first couple of posts have been about how we’re doing things at my school to deal with innovation and technology. I want to shift the focus and start to address the observation I made in my first post about how the institutional form of the law school is a path dependent accident. Specifically, I want to start looking at the structural inefficiencies of law schools, and how the path dependency has led to a mismatch between the social need for legal knowledge and the way we deliver it.

I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.

Modest proposal #1:

A smart provost at a college/university that doesn’t have a law school should propose to the ABA that their university should be allowed to offer a Bachelor of Laws (LLB) leading to the practice of law. [1]

This idea seems so obvious, I feel that there must be a slew of reasons why it isn’t being done all across the States. The JD is a relatively recent phenomenon (https://asklib.law.harvard.edu/faq/115308) and I seem to recall reading that the main reason for the shift from the LLB to the JD in the late sixties was that entry in a grad degree guaranteed a Vietnam War draft deferral. My recollection here may well be wrong—I’m traveling at the moment, and don’t have access to the work I recall reading it in. Even if I’m wrong, it doesn’t change the fundamental point that although the regulators/accreditors may currently require a JD to be bar-eligible, there are good reasons to think that now may be the time to consider reintroducing the LLB to US legal education.

First off, the ABA/AALS/State Bar Associations are rightly concerned about the cost of law degrees, and they need to be seen to be doing something here. The fundamental problem with the JD degree isn’t (I think) the sticker cost, or the cost of delivery, or even its relevance to the legal service market—it’s the fact that it adds three unnecessary years to the value proposition for the higher educational journey of a law grad. It generally takes a minimum of seven years of instruction to be eligible to sit the bar exam, of which four years is utterly unrelated to law. It’s great that college grads with a BA in poly sci or economics or a BS majoring in biology have other skills and knowledge, and certainly it’s true that the college experience is a worthwhile rite of generational passage. But in an era when law grads can expect to carry anything from $100k to $300k in debt, we clearly need a better answer than “well, those four years of college weren’t a complete waste of time, Jenny did learn about sunk costs...”

The second reason that I think that this can work, is that it’s been working for ages in other jurisdictions. Essentially every other common law country makes do with the LLB, and these countries seem to have pretty decent legal systems and functional legal education systems. Places like South Africa, Hong Kong, Singapore, Malaysia, and Australia only require students to graduate with a 4 year LLB from an accredited school, before they can undertake the local equivalent of the bar exam. The UK is even more permissive, although its approach is too complicated to explain here. Australian law schools have, over the last ten years, introduced the JD, and begun to charge US prices for the privilege. But this is just because of the peculiar funding system for higher ed in Australia, which means that the schools with JDs can charge three times as much for essentially the same degree as the LLB.

Introducing an undergraduate law degree would cut three years of tuition off the cost of becoming a lawyer, without (it seems to me) affecting in any way the quality of lawyers it graduated or the integrity of the legal profession. Three times the average annual cost of college is a pretty significant amount of money that grads would save. We could expect a range of useful flow-on effects. Numerous underprivileged students to consider law school when they otherwise would dismiss the thought. With lower college/law school loan repayments, the cost of delivery of some legal services could well come down because grads wouldn’t be loading in their loan costs into their client bills . Etc etc.

Of course, in this era of closing law schools it would be a brave provost who suggests opening such a radical law school (or any law school). And there is still the small matter of the regulators like the ABA and AALS, who are going to be pretty seriously hard to convince to this way of thinking. But, actually, I think that these two problems are actually the best reasons for trying this. Disrupting the current status quo in US schools would be really easy, and the new program would be able to grab market share much, much faster than if the legal education system were functioning well. And there is some evidence that some regulators would be open to this, as we are already seeing a number of law schools getting ABA variances for things that would have been inconceivable just a few years ago.

This entry is already too long, so I’ll outline my next modest proposal in another post…


Dan Hunter (Swinburne, Australia)


[1] I suggest that this should happen at a university that doesn’t have a law school because this proposal is almost impossible to imagine at a university with a law school that offers the JD. The channel conflict and professorial agitation at an existing law school would almost certainly make this a non-starter.

Posted by Dan Rodriguez on March 12, 2018 at 08:56 AM | Permalink | Comments (0)

JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.

Posted by Howard Wasserman on March 12, 2018 at 08:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)