Thursday, May 30, 2024

What Michael O. might have said

Thinking today about my late, Michael Olivas, and his larger than life advocacy on behalf of law teachers of color, and especially Latinx faculty (that locution coming more recently, but whatever term is au courant, Brown law professors and others know what's what).  One especially aggressive piece of MO advocacy was his distribution of the so-called "dirty dozen" list -- in essence, a list of various law schools, including some of the more "elite" ones, and their baleful record of hiring Latinx faculty.  The impact of Michael's advocacy was meaningful.  When I started my teaching career at UC Berkeley in 1989, I was the second Latinx faculty member in the law school's history and the first Latino. The numbers increased with our hiring of Ian Haney Lopez and we hoped and expected that things would take off from there.  Measured by numbers, a crude but important way of determining the scope and magnitude of diversity, Latinx faculty members steadily made their way into law schools, across the range of hierarchy and geography.  So far as leadership was concerned, I came to Northwestern's deanship with colleagues such as Rachel Moran (UCLA), Eduardo Penalver (Cornell), Kevin Johnson (UC Davis), and several others who I came to know and appreciate as Latinx leaders in legal education.  I expected that the impact would only increase.

But I have, as I sit here in the early summer of 2024, with an uneasy feeling that things have stalled.  It is extraordinary and important that the ranks of African American law deans, the majority of women, has exploded in number.  Other diversity groups (including LGBTQ+ and Asian American/Pacific Islander) have seen meaningful strides.  So far Latinx law deans, and I believe the law professiorate more generally, it is my impression -- although I admit I don't have the exact numbers handy -- that progress with respect to Latinx law school faculty and, especially, leadership is not where it should be, and indeed is not where it was.

To be sure, diversity in law school hiring, including at the leadership ranks, is not a zero sum game.  We can and should expect diversity to expand within distinct sub-groups without facing the dilemma of one group displacing another.  And yet the progress that has been celebrated by so many of us, noting especially the great, and overdue, strides made by groups who have suffered the special brunt of racism and exclusion over the lifetime of the academy -- and I am especially thinking here of our African American women colleagues -- seems by one measure to be achieved without anything at all similar, even in a long stone's throw, for those Latinx professors whose history of exclusion, of discrimination, of intersectional subordination has been amply documented and is (ought to be?) the occasion for advocacy and progress.  Where is Michael Olivas's voice when we need it?  Where are the Latinx law deans?  (In my count, the number is, excluding the law schools from Puerto Rico, less than ten total).


Posted by Dan Rodriguez on May 30, 2024 at 04:30 PM in Daniel Rodriguez | Permalink | Comments (0)

Thursday, May 16, 2024

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.


Posted by Dan Rodriguez on May 16, 2024 at 11:33 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, May 15, 2024

Bar reform in California. A promising start

Innovation in legal services is a slog.  One that rewards those who take the long view, and who can find some cautious optimism in a world of setbacks -- of protectionism, parochialism, inertia, and even the occasional crisis (financial; pandemic, etc) that knocks back fruitful experiments to the beginning or off the stage altogether.  This is at least as true of lawyer credentialing and the administration of the much-maligned bar exam.

And so we should welcome the interesting experiment just announced out of California.  The Golden State is eschewing its cooperation with the Nat'l Conference of Bar Examiners (NCBE), the organization based in Madison, Wisconsin -- peculiarly, given that this is the state that grants the diploma privilege to state law school grads, but I digress.  The NCBE has had an iron death-grip on the content, and many elements of administration, of the bar exams of states around the country.  The organization has not had a reputation for being especially innovation minded; nor has it been, in my experience, a constructive cooperator.  Anecdote: I was once in a meeting of twenty or so deans with the then-director of the organization, in the hopes of facilitating a useful exchange of student performance and bar data, data which has long been critical to a better understanding of where law schools fail, where NCBE and bar authorities come up short, and how we might improve the world for our students.  The response was, and this is mighty close to a direct quote:  "Well, we have high-level psychometricians at NCBE who work on these difficult issues and law schools (and other groups) couldn't possibly grasp the nuance of this performance information."  Us pea-brained deans got the message, and left without any optimism that law school/NCBE cooperation would be forthcoming.  About a dozen years later:  Same as it ever was.

Into this frustrating status quo comes California's decision to work internally on key matters of bar administration, including the possibility of an in-home version of the test -- something that so many grads pleaded for during Covid, and disabled grads would benefit from going forward.  Even more promising is the prospect that, in collaboration with Kaplan, Inc., California will develop some ambitious new types of content -- something that is really truly a "new generation" bar exam, which the NCBE has been touting with some fanfare for the last few years.  By way of context, I was involved in some conversations with state bar staff and an organization whose name I won't here disclose about the prospect of leveraging new ways of assessing knowledge, perhaps drawing from developments in gamification and AI/machine learning.  While I honestly don't know if this future-oriented discussion is part of this new initiative, I hope California will use all the big brains it can muster to give us novel, constructive ideas.

To be sure, this is a partnership with a company that has skin in the game.  I won't speak to either the incentives or the bona fides of Kaplan in regard, not for any cagey reason but just from a dearth of actual knowledge of the arrangement struck.  But I'll just say that the fact that California apparently knows what it doesn't know and seeks out external help from an organization other than one whose monopoly over bar exam ventures has hobbled innovation, is a promising development.  Many things betwixt cup and lip for sure, but we should watch with great interest what happens in California.  A failure will be a setback, but this natural experiment will yield valuable information.  That's what laboratories of experimentation are all about.  And if this succeeds, both in solving some serious financial problems that plague Cal Bar and in advancing the welfare of our graduates, that's a game-changer.  And change is what we need.

Posted by Dan Rodriguez on May 15, 2024 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

Saturday, February 17, 2024

Passing the batons: Reform and Reckoning in 2024 Legal Education

To say we are experiencing "a moment" risks cliche.  But as to the potential for reform in the legal education space, there may in fact be a moment, for two colliding reasons:  First, the problems that have long plagued legal education are not fundamentally abating, and, indeed, some are worsening.  The annus horribilis (plus) of Covid may have masked persistent problems that had little to do with the pandemic as such.  Now a couple years past the worst of that crisis, we might return to what we saw simmering and, in some ways, boiling over.  The American model and practice of legal education disserves renewed scrutiny.  Problems need to be solved for the betterment of our enterprise, of our profession.  Second, it just so happens that there is a very large turnover in leadership at the organizations that have long been the primary regulators and engines of influence.  To name names, Bill Adams will step down as ABA Legal Ed Section managing director at the end of this academic year, and will be replaced by Dean Jennifer Rosato Perea.  Kellye Testy will leave LSAC to become the next executive director of the AALS.  Kellye will be replaced, although I have no idea at all about the identity of her replacement.  One other interesting fact along these same lines:  The incoming chair of the ABA Legal Ed council is a well-known maverick and fearless innovator, Bridget McCormack, the former chief justice of the Michigan Supreme Court.  And so we are at one of those rare moments where new leadership might steer this big, bulky legal ed ship in a new direction.

I intend this as not merely a gesture of hope, but one of urgency and imperative.  Among the issues that call for close attention and action from these able new leaders:

1) Resolving an issue that is currently before the ABA Section council and has been a hornet's nest for the past several years:  What can law schools do by way of admissions testing?  In 2021, the ABA gave its stamp of approval for the use of the GRE as a valid & reliable admissions test.  Before and after that, the Section twice proposed the removal of Standard 503's requirement of a test, but was met by fierce resistance within the ABA, stoked by LSAC naturally, and backed away.  And this month the council considers whether to approve the use of a novel new initiative -- called JD-Next (on whose academic  advisory board I sit as a volunteer) -- as a possible supplement or replacement for the two tests, the LSAT and GRE, which have previously been approved.  JD-Next has provisional approval under a variance; the question is whether law schools will be able to use it at their discretion going forward. (I am likely to post separately about JD-Next, and so I won't get into the arguments' weeds now).  The matter of admissions testing, and holistic admissions in general, has an urgency, of course, as a result of the Supreme Court's recent affirmative actions decisions, not to mention the continuing struggle to land on systems that reveal student ability that will enable them to succeed in law school;

2) Confronting the issue of cost and student debt.  These problems have not gone away; rather, they seem to be worsening.  Tuition rates continue to climb; university bailouts that might have cushioned somewhat the impact on schools looking to furnish adequate financial aid have basically ended; and the post-Covid legal job market (even including Biglaw) struggles and strains to furnish positions and remuneration sufficient to keep most graduates from leaving law school with crushing debt.  This is, not to be glib about it, a collective action problem.  Law schools will likely fix this in their own backyards only when the market pushes them to do so.  That said, the relevant legal regulatory/influence organizations can implement policies, and decline to implement others, that alleviate some of the cost drivers.  In short, they can help constructively to address these economic problems, even if they cannot (and will not) solve them for the schools themselves;

3) Related to the economics of legal education, but presenting itself as a more complicated "wicked problem," we have a serious access to justice problem in the U.S.  The vast majority of ordinary citizens cannot afford a lawyer; and so they are overmatched in matters close to the bone of their lives, including consumer debt, housing, and family law.  As a nation, we may be "overlawyered," but yet the A2J problem persists.  We must think creatively about structures and practices in legal education worsen this problem; and we should likewise think about how best to inculcate in our students lessons and strategies that will equip them to address the A2J crisis after graduation (even if for some, they will tackle these issues indirectly).  Happily, the new leadership of these legal organizations are all individuals who have made demonstrable contributions to these issues in their careers.  And so there is a basis to be hopeful that they will see this as within the scope of their agenda and objectives;

4) In an ambient sense, we should also see the reckoning in legal education as about our commitment to innovation -- in our educational structures, our pedagogy, how we configure our worklife as teachers, scholars, and administrators -- and our taste for creative problem-solving.  While these are individual choices (as professors) and institutional choices (as law schools), they can be mobilized and incentivized in the right general direction by leadership in legal organizations such as the ABA (both parts, the Section and the "big'" ABA), AALS,  LSAC, AccessLex, NCBE (and other orgs).  Will this transition in leadership bring a temperament for innovation, for bold ideas, for public-regarding, rather than private-interested reform?  Will the ghost of Daniel Burnham influence these leaders?  A commenter on a twitter/X post this morning (Patrick Lamb of ElevateLaw) wryly commented "the guild standing strong against innovation is so certain Vegas bookmakers won't take bets on it."  Nicely said, but I hope he's wrong.  

These leaders can show that they understand the reckoning we are witnessing and the reform that is necessary by coming strong and hard out of the box.  Let's look at what they do, not just what they say, and work with them to improve our collective legal ed welfare.



Posted by Dan Rodriguez on February 17, 2024 at 12:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (15)

Friday, January 12, 2024

Camping ban case

A fascinating and potentially important case from the 9th circuit involving Oregon's so-called camping ban.  Pits the wicked problem of homelessness in cities around the country with the capacity and efficacy of judicial intervention.  The specific legal question is whether these restrictions reflect cruel and unusual punishment.  Might seem like a stretch at first glance, but the opinions in the panel decision and, as well, Judge O'Scannlain's effort to convince the 9th circuit to hear the case en banc are carefully reasoned and worth a close read.

As with many contemporary issues of social policy, including housing policy, in its myriad dimensions, it seems hard to imagine the courts constructing a rubric that gives local governments clear guidance and assistance in dealing with problems that are hugely vexing, and given the magnitude of the homelessness crisis (not unrelated to the evolving situation involving migrants), quite urgent.  Is this the best use of the federal courts, given the local nature of the problem?  And, looking at this issue through an originalist lens, what true utility is the original public meaning of an amendment that could not well contemplate the problem to which these local anti-camping ordinances are directed?  

I suppose the smart money is on a SCOTUS reversal.  But what questions with the Justices asks and what opinion will the Court write to illuminate the complex issues involved and give shape to the question of the modern police power's utility and limits in a society with social divisions and civic problems?


Posted by Dan Rodriguez on January 12, 2024 at 06:30 PM in Daniel Rodriguez | Permalink | Comments (5)

Thursday, January 11, 2024

Teaching when the going gets tough

I don't always agree with Prof. Eugene Volokh, but I think he is spot on with this post.  The gist of the matter is whether and to what extent we as professors should be comfortable teaching and working with students whose views we find morally repugnant.  There will be gray areas for sure, but, like Volokh, I think the answer is basically yes.

The challenge for us is to provide the space in which students can share their views, at least to the extent relevant to the class, have these views tested and interrogated, and shape discussions and lectures in a way that enables the transmission of knowledge, and also perspective.  These morally terrible (maybe so views as more subjective than objective in this regard) views may evaporate; they may evolve.  But the university serves its best function by being a place where such views can be tested, in environments led by ideologically diverse and well-intentioned teaching.  Sometimes this testing will be easy, and consensus seamlessly achieved.  Other times the debates will be intense and difficult, and the professor will have some sleepless nights.  But we can do our best in our roles as discussion leaders and trained academics transmitting knowledge and fomenting learning.   

Posted by Dan Rodriguez on January 11, 2024 at 12:30 PM in Daniel Rodriguez | Permalink | Comments (0)

Reexamining the Bar Exam

A new year typically comes with high hopes about reform and innovation.  In legal services regulation, these hopes remain high, even though like the proverbial Charlie Brown and the football, these hopes are usually dashed in the face of inertia, parochialism, and protectionism. 

And yet our hopes might be rewarded in one key area of legal services regulation, and that is in the complex area of attorney licensing.  This is due to the important work of serious scholars and reformers who have been working hard to develop a truly comprehensive and novel body of research to illuminate the question of what is and is not successful in the examination of new law graduates.  Among these great contributions over the past several months in this space, two stand out for their deep rigor and refreshing reformism (maybe even radicalism?).  A year ago, Professor (and former dean) Joan Howarth gave us Shaping the Bar, a book distinctive in its highly informed connections between the troubled history of the bar and attorney regulation and the predicaments that we face in a rapidly changing, and hopefully more inclusive, world.  This should be required reading for all efforts to look anew at the current situation.  Likewise, Deborah Merritt, recently retired from Ohio State, has been working for years on professional competencies and bar issues (among other topics within her expertise).  With the COVID pandemic, a number of states started experiments in non-exam licensing, albeit usually provisional.  California, for its size and impact, was the most important of these states.  Professor Merritt, and her co-authors, have undertaken a major research study on California’s reforms.  They promise more deep and dense research on other states (Oregon, notably) that are experimenting with reform.

Progress in licensing reform has been rather glacial in he past many years.  The advent of the Uniform Bar Exam was important, but did not really disrupt the edifice of traditional post-graduate testing.  Nor does the so-called “Next Generation” bar exam, presently being crafted by NCBE, portend a revolution in how we evaluate law graduates and new lawyers.  It is, after all, a coat of somewhat different colors, but is not nearly the sort of comprehensive competency-based evaluation that diligent reformers recommend.

And so maybe, just maybe, the door is sufficiently ajar to see meaningful change.  In this area, scrupulous empirical work is required.  So, too, are bold ideas, and a new generation of reformers (whom I won’t name, only because I risk omitting some), building upon the great work of the titans in this space, are steadily offering such ideas for our consideration.  Will the gatekeepers listen and learn?

Posted by Dan Rodriguez on January 11, 2024 at 11:38 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, January 10, 2024

Bon Voyage to The Crown

With the holiday break, I was able to catch up on some TV watching, including the final episodes of The Crown.  It’s a terrific series, one whose flaws have been dissected from various quarters, certainly including those (not me) whose expertise in things Royal bring into question, or even into doubt, some of the renderings of this most interesting, complex family and of history Brittania over the more than half century time span depicted in this series.

At the end, the series leaves Her Royal Highness to ponder and puzzle the question of sacrifice and self.  Was it worth it?  Was it still worth it as she completed her decades of service with her death in the fall of 2022?  What was lost in her service to Great Britain – service who, in just the longevity alone, will likely not be equaled?  Ending the series with the wedding of Charles and Camilla, the writers and directors made no elaborate effort to interrogate larger questions of the worthiness of the Crown in the early years of the 21st century.  Was it moving along with Queen Elizabeth herself toward old age, if not decrepitude?  Could the Windsor family, with internal and external pressures, make the major pivot to bring this monarchy, surely the most important one in the world over the past century’s time, to “relevance?”  Alluringly, the series ends with, as we know, another two decades to go in this Queen’s reign and, with it, the waiting, the painful waiting of Prince Charles.  And, of course, we know that more drama would yet come, including the events that ruined Prince Andrew’s reputation and status and, even more notable, the separation of Prince Harry and his American, biracial wife, Meghan, from the royal orbit.  And so the series ends on a cliffhanger, with viewers left to fill in the meaning of the last two decades, not only in the grand and banal doings of this royal family under the constant spotlight, but also in the relationship between the creaky monarchy and modern Britain, on the island and in the world.

As to the last series of the season itself, so much intrigue, so little time.  The much-maligned first half of the final season is taken up with the variegated dramas of Princess Diana.  But to call these episodes, as many have, overly melodramatic and oddly stylistic is, I think, to miss the point that she was truly larger than life.  The series, to me, did an admirable job of interrogating both the elusive Diana, the troubled relationship between her and her long-suffering (?!) husband, her emerging efforts to find a new life under unimaginable scrutiny and, after all, in her young 30’s.  The episodes also helped frame her connection with the stage upon which she was thrust (and, to be sure, thrusted herself in various ways).  That she died when she did was, in addition to being a terrible tragedy, left Britain’s citizens, and so many of the rest of us, bewildered (was she in love with Dodi?), bereft, and frankly akimbo.  The great counterfactual is what would become of the royal family in both its extravagance and in its struggle toward meaning and prominence in a complex world, a world in which Princess Diana (and next the two boys, becoming men) would always have the glamour, the attention, and in many ways the impact.  Someone will someday write that novel or make that movie that imagines totally this counterfactual and looks (in a way akin to the Last Temptation of Christ) to what might have been.

To me, the most interesting episode in this last season was the one involving Queen Elizabeth and her relationship with Tony Blair.  The Clintonesque charisma of the prime minister meets the wise old monarch and beyond mere jealousy there is the fascinating dynamic of the two single most important Brits interacting, tangling, and figuring out their place, and their empire’s place, in the world.  I thought the ending was much too tidy, with PM Blair getting his come-upings in a speech before a crowd well within the wheelhouse of Her Royal Highness.  But within the confines of what you can do in an hourlong episode, it was interesting and fueled more thought.

Viewing this as not much of a Royal watcher, and not even a reader of biographies and other missives about the Windsor family or of British monarchs generally, I was nonetheless aware of the limited scope of the series, and also of its resort to the usual methods of drama and narrative to tell a story that is neither principally historical nor analytically.  Still, the Crown nudges folks interested in leadership in a difficult world to think more about a rather large counterfactual, and that is what if there was no Queen Elizabeth, or if her tenure had been merely ordinary, or . . . one can fill in so many “what ifs.”  Inescapably prominent as well, even if looming only in the background of the series, is the place of a monarch of extraordinary cultural, if not so much constitutional, relevance in this troubled modern world.  If there had not been a seven-decade-long reign by the remarkable Queen Elizabeth, would we have wanted the invent one?  And what does her rein truly portend for, barring a possible upending of the whole apple cart, another half century that may be marked by two most intriguing kings, now Charles and next William?

(These are hardly scholarly reflections, but, fwiw, here is a paper by Tom Ginsburg (lead author), me, and political scientist, Barry Weingast, that reflects upon the place of a constitutional monarchy in nation-states.)

Posted by Dan Rodriguez on January 10, 2024 at 12:22 PM in Daniel Rodriguez | Permalink | Comments (5)

Tuesday, January 09, 2024

AALS, forward

I was sorry to miss this year's AALS annual meeting, a meeting I have long participated in, in both "official" and unofficial capacities, from my earlier years up to the present.  Flawed, inconvenient, and expensive, it still is the single best gathering of law profs to schmooze, exchange ideas, make and renew friendships, and participate in the extra-law school community of which we are a part.

This year was momentous in one key respect:  It reflects the end of the tenure of Judy Areen, the long-time executive director (before that, the acclaimed Georgetown law dean).  As a point of personal privilege, I led the search that brought Judy to AALS many years ago, a search that involved not only the methodical vetting of talented candidates but, frankly, a full court press on Judy to convince her to undertake this major role in legal education following so many years of service she had already provided as dean and in other respects.  We said yes, she said yes, and the rest has been a splendid history, with Judy contributed so much to the organization and to the legal academy.  Mazeltov, Dean Areen, and thank you for your exceptional service.

As we turn our direction toward the future, I would put at the top of my wish list of fundamental improvements to the Assn'n, improvements which can only happen with the resolve and hard work of a new director, and the contributions of volunteers who are part of the leadership crew:

First, AALS needs to step up as an organization to collect in a meaningfully systematic way data, data about all sorts of matters critical to our collective welfare.  This includes data concerning entry-level hiring (the pool, outcomes, etc), lateral hiring, visits, deans and other leadership positions -- in short, key data which bears on the workforce of the professiorate and management of member schools.  My colleague, Sarah Lawsky, has done yeoman service to us in her efforts to collect and collate data on, especially, entry-level hiring. But Sarah has frequently noted that without the muscle and skill that AALS could and should provide as an organization, the ultimate information is incomplete.  This is absolutely critical for AALS to get deeply engaged in, with the help of the many empiricists who populate member law schools.  Do it, AALS!

Second, and related to the above, AALS should actively encourage analysis and studies (small, medium size, and big) involving law school issues.  This includes not only faculty-related issues, but issues involving students, expenditures (including law school costs and financial aid), curricular initiatives, and outcomes.  Even if the AALS believes itself limited in its capacity to do big studies internally, there is an army of law professors ought there who would be adept at undertaking important analyses, if only they had data and some logistical help.  AALS could and should provide such help; it currently doesn't, except in the thinnest of ways; and under new leadership, if should step up its game;

Third and finally, AALS should look more actively for opportunities to facilitate conferences, meetings, and other gatherings (because of costs, it may well be that remote gatherings are a more reasonable compromise) to assist law professors, especially younger ones, with their work.  Strangely, professional development used to be a bigger part of the AALS agenda than currently.  Thanks to the good efforts of student law journal editors and myriad centers and institutes, there is much activity in the scholarly space.  (The work of clinicians, under the aegis of AALS, CLEA, and other relevant orgs, should be noted).  But AALS can contribute through important, focused efforts and energies.  Some of this started during the pandemic; new leadership should accelerate these efforts.

There are many more suggestions I could make; and perhaps even better suggestions that others could contribute from their own experiences with AALS.  But, with new leadership, and the fresh energy and perspectives it brings, it is a very good time for reflection upon what AALS could do but presently does not (or at least does not so much).  

Posted by Dan Rodriguez on January 9, 2024 at 12:41 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Wednesday, January 13, 2021

Seminar with Educational Testing Service on the GRE and other issues

Working with ETS, we have put together an information seminar on Tuesday during which ETS leadership will discuss the GRE and law school admissions and a panel of deans and admissions directors will discuss key issues. There will be ample time for Q & A and for exchange among schools and ETS professionals. 

Here is the summary from the invitation:

As the GRE® General Test becomes a more significant part of law school admissions, ETS is committed to engaging with law schools, providing insight into the empirical basis for the test’s efficacy in law school admissions, and to explore the ways in which ETS can support the law school community. 

Please join David Payne, Vice President and Chief Operating Officer of ETS’s Global Education Division as we open a conversation with law schools about ETS and the GRE® Program, allowing for a dialogue with participants.  Julie Shurts, Associate Director, Global Higher Education at ETS, will share an overview of the GRE General Test, including its content, format and validity, and GRE score use best practices. 

I can testify first-hand that ETS has been developing really interesting and innovative strategies to enhance law school admissions, including expanding diversity (race/ethnicity, gender, and academic background) and developing tailored strategies that improve our work.  The GRE is at the fulcrum of this, but there are other initiatives underway.  2021 promises to be a great year for these partnerships.

All of which is to say that I hope interested folks will join with us next Tuesday, 1pm EST.

Posted by Dan Rodriguez on January 13, 2021 at 07:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Wednesday, September 02, 2020

Nominations for AALS Administrative Section Emerging Scholar Award

Posted on behalf of Prof. Kent Barnett

The Section’s Executive Committee is pleased to announce the bestowal of an Emerging Scholar Award for the Administrative Law Section at the 2021 AALS Annual Meeting.

A section-award committee comprised of five members will select a substantial scholarly work—whether a law-review article, monograph, or chapter—published between September 1, 2019 to August 31, 2020 on an administrative law topic by early-career fulltime faculty members without tenure at the time of the work’s nomination. (Those with fellowships, visiting assistant professorships, or similar positions are not eligible.) Scholarly works on any administrative law topic are eligible, although the committee may favor works with greater general applicability.  

To nominate a work, please send an anonymized version to Kent Barnett at [email protected] by September 25, 2020. The Committee will select a work in mid-December and present the award at the virtual Administrative Law Section Meeting at the AALS Annual Meeting on Saturday, January 9 from 11:00 a.m. to 12:15 p.m. EST.


Posted by Dan Rodriguez on September 2, 2020 at 03:30 PM in Daniel Rodriguez | Permalink | Comments (0)

Thursday, August 06, 2020

Emergency bar admission rule for law grads

This week, the American Bar Ass'n passed Resolution 10G, which urges states to cease in-person bar examinations until which time that they can be carried out with appropriate attention to the examinees' public health.  It further invites states to consider which mechanism of licensure is appropriate, whether providing a remote bar exam (if that could be administered effectively, given technology issues), limited practice under professional supervision, a diploma privilege, or some other device. 

This resolution is merely advisory, as these choices are all made within the states, and typically via the state high court.  Moreover, the resolution comes too late for the graduates in the twenty-three states that late last month gathered to take in-person exams.  There is one documented case (Colorado) of an examinee testing positive for COVID-19.  We can only wonder whether and to what extent there are other cases.

I was pleased to participate in the debate on behalf of this resolution, a resolution supported by myriad organizations within the ABA.  Notably, however, members of the board of trustees of the Nat'l Conference of Bar Examiners opposed this resolution.  Curious and dispiriting, but ultimately unsuccessful, as the resolution passed by a wide margin.

Prof. Deborah Merritt of Ohio State gave oral testimony to the House of Delegates on this matter.  It is an especially cogent statement of the dilemma and the reason for decisive action.  I reproduce it here in full:

"Thank you, Mr. Chair. This is a very simple resolution. It calls first on states to postpone in-person bar exams until health authorities declare them safe. That is a necessary recommendation. By the end of this month, COVID-19 will be the third leading cause of death in the United States. For most victims, it is a prolonged, painful, and lonely death—one without family or loved ones at their side. Even for victims who survive, there are long-term consequences that we are just starting to understand. That’s not what we want for applicants to our profession. Nor is it what we want for the support workers who will clean the toilets, floors, tables, snack bars, and hotel rooms used by these applicants.

Gathering hundreds of young adults in a single city spreads COVID-19, especially when those adults come from all corners of the state and country. It is horrible to think of an exam-taker falling ill from COVID-19, lying helpless on a ventilator, and perhaps dying from this disease. It is equally horrible to think of low-income workers suffering that fate because our profession was not willing to adopt alternative methods of licensing during a fatal and uncertain pandemic.

This resolution also urges states to adopt one of those alternative methods, rather than simply halt licensing. That recommendation is just as important. Half of newly licensed lawyers work for government agencies, nonprofits, or law firms with fewer than 10 lawyers. New attorneys are an essential part of the team in those offices. I know this because I have taught those new lawyers for 36 years and closely followed their work after graduation. Many of you know this too: You work with new lawyers in the organizations and law firms that serve the most vulnerable clients. If states don’t find alternative ways to license these lawyers, even if just through well-supervised, temporary licenses, we will be reducing the flow of legal support to disadvantaged members of our communities—just when the pandemic and economic hardships have dramatically increased their legal needs.

I have just completed a nationwide study of the work that new lawyers do, as well as the knowledge and skills that they need for their work. Together with the Institute for the Advancement of the American Legal System and more than two dozen researchers, we held 50 focus groups with new lawyers and their supervisors in 18 locations around the country, from rural North Carolina to Silicon Valley. I led that project, have read all of the transcripts, and coded the data. I know from that work that there are many ways to assess minimum competence on an emergency basis, during this pandemic only, that won’t impose the health risks of an in-person exam. The resolution leaves the choice of method to jurisdictions.

This is not a resolution about the future of the bar exam—or about granting diploma privilege to all 2020 graduates. A few states have chosen that route, and this resolution recognizes that. This resolution is about many ways to solve a once-in-a-lifetime urgent problem. We have ways to solve this problem that will preserve access to justice, protect the integrity of the profession, and respect the health of our communities.

One of those ways is through a remotely administered, online exam. That’s what the third part of this resolution addresses, laying out a series of recommendations that are simply best practices for an online, high-stakes exam. Most of these appear in the Standards for Educational and Psychological Testing, known as the “Bible” to all test-makers and administrators. These are the standards that NCBE itself follows.

We cannot administer an online, high-stakes exam without assuring that the online platform works, that reasonable accommodations have been provided to test-takers, that we follow data privacy protocols, that we provide information about exam conditions to candidates in advance, and that we assure the reliability of the exam’s cut score. NCBE is providing the materials for this online exam, but it is leaving these other matters to jurisdictions. Jurisdictions urgently need the recommendations in this resolution. Without them, we risk administering exams that do not serve the purpose of reliably measuring minimum competence.

Friends, I am not a voting member of this distinguished body. I am just a law professor and part-time prosecutor preparing to teach a clinic online in two weeks. But I can tell you that we need this resolution. Our communities need it to protect their health. Vulnerable clients need it to continue their access to legal services. Candidates for admission need it. And our profession needs it to affirm our ethic of responsibility. I ask you to vote in favor of the resolution."




Posted by Dan Rodriguez on August 6, 2020 at 06:16 PM in Daniel Rodriguez | Permalink | Comments (2)

Saturday, July 18, 2020

Law schools still in denial

I predicted several weeks ago that law schools committed to some jury-rigged hybrid schemes would retreat from that as the summer continued, and as more evidence accumulated both of the folly of pursuing in-residence learning and also as faculty became more adept at remote/online learning modalities.  It appears I was wrong.  Through some combination of hubris and predicament (and maybe the lack of autonomy in bureaucratic university structures), most law schools are plowing ahead with these ventures.  A big virtual conference on "law school logistics in the time of COVID-19" indicated that law schools are determined to try these schemes; it also revealed enormous unease with these choices.

The unease is warranted.  This strategy continues to be folly.  And the ambient denial is both remarkable and dispiriting.  Our students and faculty deserve better.

Scott Galloway has a big picture essay that lays at the dilemma at the university-wide level.

And law professor Tim Duane, an expert in environmental science, inter alia, gives some grim information about this hybrid world in our law schools.


Posted by Dan Rodriguez on July 18, 2020 at 03:26 PM in Daniel Rodriguez | Permalink | Comments (9)

Thursday, July 02, 2020

COVID-19 and state bar licensing

There has been fairly widespread coverage of the situation with state bar exams and new law school graduates.  As befits our highly balkanized system -- what I have called in a paper I am busy working on, "Our Bar Federalism -- there are fifty different conversations underway.  Some states (Utah, Washington, Oregon) have adopted a version of a diploma privilege; some states have constructed forms of limited license practice -- so a variation on the diploma privilege scheme; others have postponed their bar exam and/or committed to administer it on-line; many states have not yet made up their mind.  So, lots going on in space.  As more solutions emerge, there will be more information available, perhaps also on this blog.

Incredibly, a few states remain intransigent about administering the bar exam on time and in the ordinary way, albeit with social distancing protocols and other adaptations.  In some of these states, bar authorities are requiring students to sign waivers of liability so as to protect the bar examiners.  It is fair to say that the supreme court and bar authorities in these states are getting an enormous amount of pressure, led by worried, and well-organized, new graduates, to revisit their decisions to go ahead with business as more-or-less usual.  These students are working to collect allies from throughout the profession, including leaders in legal education, to speak out on their behalf.  

A number of other letters continue to circulate, in California, Illinois, Texas, Florida, North Carolina, and elsewhere.  Typically these letters highlight particular "impact statements," depictions of the special burdens and dilemmas that new graduates face.  Without summarizing in any way these personal stories, I can assure you that there are truly heart-rendering, and occasionally even tragic.  They reveal a cohort under enormous stress, facing health and economic difficulties that undergird their worry. And, too, they illustrate the costs of a broken system, that is, the potential erasure of so many graduates who would otherwise succeed on the bar exam and in their new careers. Here is one letter from a graduate of an east coast law school speaking to the New York bar authorities:

"I am a recent graduate of an ABA-accredited law school. Like thousands across the country who also registered for New York’s bar examination, I remain eager to serve as an attorney in the State which Judge Michael J. Garcia of the New York Court of Appeals aptly described as “one of the most robust legal markets in the country.” Drawing further from Judge Garcia’s letter to the Deans of each of New York’s law schools, I am certain of our collective agreement on at least one other principle: that we candidates for admission to New York’s bar continue to face challenges of grave magnitude, owing primarily to the continued spread of COVID-19 absent a vaccination’s (imperfect) promise of safety to otherwise quell our fears.

. . .

What good is the talent New York hopes to attract if it dies (literally or metaphorically) at the testing table or the bar prep desk, weakened in the physical sense by this virus or emotionally and mentally for having endured months of study and of encouraging the courts and the Board of Law Examiners to adopt the common sense alternatives to the in-person bar examination which many in the legal community have supported? The American Bar Association first urged states to cancel their bar exams on April 7; the deans of all law schools in California have united to support a diploma privilege there; the deans of Texas law schools and the Bar Associations of Houston, Austin, San Antonio and Dallas have done the same; and I’ve now lost count of the number of professors and lawyers who stand in support of either a diploma privilege or a remote exam administration. Contrariwise, the NYSBA’s Bar Exam Task Force and the Court of Appeals insist with great fervor that we need to take this test in person. The same Task Force has reservations about the exam’s ability to measure preparedness for practice in New York  – reservations which, coupled with mounting recognition of the fact that the bar exam is more likely a revenue-generating gatekeeping tool than it is a yardstick of attorney competence cannot be reconciled with the State’s unwillingness to consider an emergency alternative in the wake of a pandemic.

The other states I mention in this letter have demonstrated something you might think is simple but has proven itself utterly remarkable in light of New York’s treatment of bar admission candidates: trust - in the law school accreditation process, for those states that granted a diploma privilege, and in their graduates, in the case of both the diploma privilege and online, remote administration. I believe we who intend to sit for New York’s exam have done everything in our power to show that we deserve this level of trust from the State’s courts and legislature. We’ve shown a willingness to pay through the nose for it, too – registering for other states’ exams just for the chance to transfer our scores into the place whose people we are eager to serve.

What will it take for the Court of Appeals to hear us? I am an immunocompromised candidate whose father survived COVID and whose last living grandparents are still recovering from the virus’s deadly effects. Like many of my colleagues, I lost a loved one. I live in a constant state of fear, not only of contracting this illness but of failing to convince those who have taken this far less seriously that they ought to be more worried. My immigrant parents could not be prouder of me for making it further than anyone in our family ever has. I live in fear of letting them down, by taking the time to write letters like these – time they would prefer I spend studying. But I am tired of having to sing for my supper. I shouldn’t have to bear my soul to earn my keep, without contracting an illness in the process. I do not want to believe that the profession we know not to have always been welcoming of people who look like me, and less so of my Black brothers and sisters and gender non-conforming peers, is far more impermeable than any of us could have imagined.  I stand proudly before anyone who reads this, having achieved all that I have in this life against all odds, with one desire: to practice the law. I appeal to you on grounds of public health, safety, and shared struggle in the journey to becoming a lawyer, for those of you who know all too well the trials and tribulations of law school. You know that after three years of rigorous coursework and practical preparation, nobody should have to risk her life to sit for an examination. I urge you to make our voices heard by lending yours to the movement. Please support the cause for an alternative to the in-person bar exam in September, whether it be a diploma privilege or an online administration of the exam. Our lives and our ability to contribute that great talent of which Judge Garcia spoke in his letter quite literally depend on it."




Posted by Dan Rodriguez on July 2, 2020 at 12:12 PM in Daniel Rodriguez | Permalink | Comments (2)

Tuesday, June 30, 2020

Nonsense and sensibility: hybrid is not the answer

Since back in April, social media is filled with my warnings and exhortations, along with many other voices, about law schools pushing ahead to re-open in some hybrid form in the fall.  This parallels decisionmaking at the university writ large level, and the gauntlet was thrown down in this bigger space by notable announcements from opposite ends -- the presidents of Purdue and Notre Dame on the one hand, each insisting that this relative return to normalcy was somehow morally compelled, and the leaders of the California state university system (a giant system) and Cambridge University in the UK noting that there would be 100% online.  So far as law schools are concerned, the info continues to trickle out.  Harvard Law and Berkeley Law announced 100% online.  A few others in the so-called "T14" are proceeding either with a quiet hybrid scheme (my own law school, for example) or else are quiet, either because they are undecided or because they just don't want to say.

So, as I write this at the very end of June, there is a lot we still don't know about law school educational planning for the fall.  And, to say what is painfully obvious, there is a lot we do not know about the trajectory of the virus and therefore about what is realistic for schools to do any multiple scenarios.  As I have said elsewhere, I am dubious that even the most strategically savvy and well-informed law schools cannot know whether they will be able to follow through on their best laid plans to reopen in some form or fashion.

In all this discussion, I was struck by some observations by Prof. Deborah Merritt of Ohio State.  Readers of this blog, and other venues in which perspectives on legal education are shared, know that Debbie Merritt is one of our most thoughtful, rigorous legal educators, and someone who always puts students first in her thinking about legal education and its (dis)contents.  Here is what she had to say on Facebook about this predicament from the vantage point of her own law school:

"I listened today to a presentation on how our university will hold on-campus classes this fall. The on-campus venture is beginning to sound like the Ptolemaic model of the universe, with eccentricities and epicycles continuously added to address all the problems. First we decide to hold classes in super-sized rooms so that students can sit 6 feet apart. Then we require everyone to wear masks. Then we reduce the number of people in the building each day by having some classes alternate between in-person and online. Then we tell everyone to leave the building asap after class--no socializing in the hallways or other public spaces. I think it's time to realize that on-campus classes will not be the center of our universe this fall. We need to embrace a model in which online classes are at the center, with careful prep by professors over the next two months. Let students use their in-person time to be with friends and family, meet in study groups (1Ls), hold part-time jobs or externships (UL), and carry on their lives. What do they really gain from sitting masked in a classroom, separated from other students, and listening to a professor whose voice is muffled by a mask?"

And also this in a follow-up comment:

"Students, of course, are asking for tuition discounts given the compromised nature of this on-campus education. Universities, naturally, are rejecting that. Ironically, I think we would be in a better position tuition-wise if we said, "We are moving most of our fall classes online and the dean has directed faculty to spend the rest of the summer preparing first-rate online classes rather than conducting research. You can be confident that all of your tuition money is going towards maintaining a first-class legal education. We are also adding additional resources to externships and career services because we know those experiences and prospects are vital to students."

This is an honest reflection on a difficult issue, and I endorse it entirely. Prof. Merritt speaks simultaneously to the dilemma (and, potentially, the disaster) of reopening live and also the understandable angst of students who wonder "why exactly are we expected to pay 100% tuition for this experience?

What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this:  We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience -- excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.  Quite frankly, this doesn't answer completely the students' question about tuition.  That is a tough one for sure.  But, at the very least, the "best-foot-forward" online approach sends the sincere message that we are committed to excellent instruction and to the well-being of our students and their families and also our faculty and staff.  

Moreover, this commitment is even more urgent if, as I sadly predict, the hybrid/in-person plans will end up being scuttled in any event (maybe as early as July; maybe at the beginning of the term; maybe just as soon as there is an outbreak in a particular law school).  A message in, say, September that says:  "Well, this sucks, but we are going to have to reconcile ourselves to sub-standard online instruction for the balance of the semester, if not the year" is a sorry message.  Nor is it much better for law schools to tell their students that they are going to plan on this scheme for now, but might adjust quickly.  Students are making travel plans, signing leases, arranging for family circumstances, and assessing what their late summers and falls will look like.  Contingency planning is ill-suited to a situation in which the health circumstances are truly unknown, but the rather universal health protocols ensure that student and faculty day-to-day life will be really difficult in even the most modern facilities (to say nothing of those that are less well-suited and in law schools which face more serious financial constraints).  One quick word on this latter:  It has been said that law schools like Harvard and Berkeley are not good gauges, insofar as they are much wealthier than other law schools and so can more easily made these adaptations. But this strikes me as at least a red herring -- the expenses of online technology are coming down, and surely these jury-rigged adaptations (plexiglass protections, hotel rooms for quarantines, even porta-potties) come with comparatively greater expense (not even to mention the costs of hiring new part-time faculty if, as we can expect, full-time faculty become unavailable). What seems to motivating this response is something different, and that is the interesting and I think credible claim that the more prestigious law schools can afford to make adaptations without risk of student flight. Perhaps so. Yet this only reinforces Merritt's point, and also mine, and that is that even the less prestigious (however measured) law schools can speak in an unequivocally pro-student and imaginative way by championing their efforts to create a high-level, creative, and, yes, compassionate educational experience for the coming academic year.  This is what so many law schools outside of the so-called elite do regularly, by noting their differences from the T14, and their capacity and commitment to students first and students always.  Here too that imperative should rise to the surface, as online education is undertaken.

So, I think that, with the utmost respect for law school leaders who are working hard and a fully well-intentioned way to create schemes and structures to ensure that their students -- and especially their first-year students -- are going to get a good in-person experience in the new academic year, this is a fool's errand, one that does not truly account for the dismal experience that students will have in a setting that would give even the great MacGyver pause.  And it sells short our students' ability to comprehend and to adapt to a semester in which their faculty can develop through online methods a rigorous and creative educational and community-building experience.

Again, my prediction is that the hybrid approaches are going to be a bust in any event, given circumstances beyond our control. So why not use July to create valuable templates and strategies for a great, if highly imperfect, educational scheme?  So many of us have ideas about how best to do that, as clearly one size doesn't fit all.  But we need know from our law schools is a commitment to try.

UPDATE: Just saw this valuable post by Prof. Josh Blackman at S. Texas. He has posted on this topic a few times. 


Posted by Dan Rodriguez on June 30, 2020 at 12:34 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (6)

Thursday, May 21, 2020

ODR & COVID-19: Guest post from Prof. Stacy Butler (Arizona Law)

[Editorial Note: Stacy B. runs a remarkable legal innovation program at her law school. You can check it out here

What Covid-19 Might Mean for Online Dispute Resolution

When the Covid-19 outbreak hit, the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law and Pew Charitable Trusts were in the midst of evaluating the usability of the Utah State Court’s online dispute resolution platform for defendants in debt collection cases.  Like the rest of the world, we’ve been forced into a full-time remote existence.  As we work to pivot our research, we are discovering new challenges and opportunities related to online dispute resolution. 

A year ago, before anyone was thinking about the possibility of a global pandemic, approximately 50 county and statewide court systems in the United States were experimenting with online dispute resolution (ODR).[1]  Now, in the midst of Covid-19-imposed social distancing protocols, courts are rapidly moving to a “remote court model,” leaning on video- and teleconferences and on-the-briefs decision-making to keep courts in operation, while a backlog of cases builds.[2]  Covid-19 is going to force a permanent shift in court processes.  As Colin Rule, vice president of Online Dispute Resolution at Tyler Technologies, Inc. writes: “The courts were already struggling with existing caseloads before the crisis, and now they will be burdened with this additional backlog once processes resume. Combined with the huge number of newly laid-off citizens, the caseload in the courts may swell to unprecedented levels, and citizens will not be able to wait years for issues to be resolved.”[3]  Increased adoption of online dispute resolution – which promises a court-annexed, public-facing, digital space to resolve disputes quickly – seems imminent and inevitable.[4]

BUT … there are logistical challenges we haven’t prepared for.  Courts that have adopted ODR have leveraged in-person contacts to make the transition.  In New Mexico, for example, when courts began piloting ODR for debt collection cases, the state judiciary’s communication officer visited local libraries to introduce the program to librarians and leave brochures for library patrons.[5]  Those in-person opportunities are no longer available.  Adoption, testing and customization of ODR also takes time – time that now seems in short supply as case backlogs grow.  Some ODR programs rely on volunteer facilitators/mediators, a service model that may not scale well.  And ODR is nascent in the U.S.: there aren’t many well-developed, tried and tested choices for courts.  In fact, our project is the first to evaluate the usability of a U.S.-based ODR platform.  We are testing questions such as: are information and explanations about ODR and its justification available in a way that all users can find, understand, and act on?  Do changes within the ODR platform have an impact on users’ decisions? What impact does changing the user interface design or sequencing of information and features within the ODR platform have on the pathways or procedures that users select and pursue?  For now, those are unanswered questions, and a mass onboarding of ODR in courts across the U.S. without answers to those questions is risky.

Prior to Covid-19, Utah was piloting the only home-grown ODR platform in the country, making it available for small claims debt collection cases in three counties.  Initial user engagement in Utah’s ODR platform was impressive: of the first 2,000 cases tested in the platform, only 28 users opted out.[6]  But our Utah stakeholders recently walked us through the practical reality of how ODR is operating now.  Utah’s ODR platform requires the plaintiff to file electronically, and then personally serve the defendant with a summons and affidavit that directs the defendant to the ODR platform.  With shelter-in-place restrictions, personal service is not happening.  Small claims cases continue to be filed, but not served.  Without service, no new cases are moving into the ODR space.  Utah is preparing now for the possibility that it may need to automatically extend service deadlines for the cases in this particular bottleneck. 

Even if cases are served, there is a real question about whether defendants will respond and log in to ODR.  By the time social distancing protocols permit in-person service, the defendant being handed the summons will likely have been unemployed and sequestered for several months, possibly with health issues, while new debts – medical debt, consumer debt, back rent and more – have piled up.  ODR is intended to help parties negotiate a settlement, generally one that involves the defendant paying some amount.  For defendants facing insurmountable debt post-Covid, where is the incentive to engage? 

If ODR fails in the face of these Covid-19-related challenges, the new status quo could be worse than the old.  Federal Reserve statistics show that a large share of Americans cannot come up with $400 to deal with an emergency, which means many households are poorly positioned to deal with the financial impact of Covid-19.[7]  Absent more aggressive debt postponement/forgiveness policies, debt collection filings are going to increase this year, and defendant responses to debt collection actions are going to decrease.  Pre-Covid, a majority of debt collection cases filed ended in default judgments against debtors.[8]  Post-Covid, ODR may just grease the default judgment wheel.  ODR makes it even easier for plaintiffs to file debt collection actions and obtain default judgments: no physical court appearance required.  As default judgment rates increase in the year ahead, we should be measuring whether jurisdictions with ODR in place have higher rates of default than courts without it.

ODR in the time of Covid-19 also presents a serious equity risk: new ODR spaces may develop and launch without the involvement of those who need access to justice the most during this pandemic.  In 2017, the National Center for State Courts recommended that, “to glean the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve. Courts must involve the public as key stakeholder participants.”[9]  Three years later, we are conducting the first observation-based usability test of an ODR platform in the U.S. to encourage this type of participatory co-design between courts and communities.  Before the outbreak, that testing involved in-person engagement with potential ODR users in person, watching them navigate the platform from a smartphone and collecting data about speed and ease of use and user satisfaction.  It also included participatory design workshops with the low-income community, engaging them in identifying problem areas within the ODR platform and listening to their ideas about how ODR could better work for them.  Now, while sheltering in place, we are working on creative ways to complete our research.  There is no substitute for face-to-face engagement with people who need access to our civil legal system.  That real-time human feedback provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement.  Courts were not particularly inclined to apply this type of user-centric design before Covid, and the resource challenges associated with the pandemic diminish the odds that under-represented populations will have a voice in the design of next-gen ODR.  And once those platforms go live, only those with the economic and technological wherewithal to participate in the new online forum will be providing usage feedback to courts.

These risks can be mitigated if courts resist Covid-19 urgency long enough to create space and time to be thoughtful about the move to ODR:

  • Map your processes and bottlenecks: Court closures and case stays vary state by state. Assessment of ODR’s usefulness should begin by identifying whether your court is experiencing a pile-up of cases that cannot be filed, are filed but not served, or are served but not being heard. When barriers lift, will ODR help with those problem areas?  Or does your court need to think about ODR for future, post-Covid-19 cases?
  • What do you need ODR to do? ODR works well for high-volume, low-complexity, low-stakes cases.  What backlogs or anticipated incoming waves of court filings could be best addressed through ODR implementation?
  • Assess your ODR options: There are only a handful of private-market ODR vendors. Understand the features each can offer, and their willingness to customize their platform to your court needs.  If they cannot offer what you need, consider following in the footsteps of the Utah State Courts and build your own.
  • Where in the life of a case should ODR exist? Some ODR platforms are offered to litigants before they file, some are offered after filing.  Some require users to opt-in, and some give users the chance to opt-out.  All of those options need to be re-evaluated in light of Covid-19.  If a court is experiencing a post-filing bottleneck, a pre-filing ODR space may divert new cases and ease pressure on court systems.  The challenge will be educating court users during a global pandemic that pre-filing ODR is available.  ODR systems that require an opt-out are now going to require increased attention to the procedural fairness of service of process and user onboarding processes.
  • Don’t let existing court rules and procedures stand in the way: ODR presents an opportunity to improve court processes for the people who need them. Now is the time to question whether rules and procedures created in a low-tech era need to be adapted for the new, virtual world.
  • Involve your users: The best time to receive input from the potential users of your ODR system is before you launch it. Once the platform is live, changes will be much harder.  IAALS offers a simple guide for engaging users in court services here.   The Nielson Norman Group, world leaders in research-based user experience, have lots of advice about remote user engagement here.  Realistically, courts making an effort to include users in ODR implementation will have limited time, resources, and user-testing experience.  For those courts, any user engagement is better than none, so focus on these four questions:
    • For the case type you are considering, who are your users (plaintiffs and defendants)?
    • What do you want to know from those users? Think about what your ODR system should accomplish: procedural fairness, dispute resolution, user satisfaction.  What needs to work well in your ODR platform for those goals to be met?
    • If social distancing is still occurring, how can you reach your users? Some will have technology access and could be surveyed or engaged in early prototype testing online. But keep those without technology access in mind – can you reach them by phone?  Or can you talk to an organization that can advocate for the interests of that population?
    • When in doubt, use inclusive design. Microsoft’s inclusive design theory posits that designing for those with permanent disabilities results in designs that benefit people universally.  If your court only has limited space and time to engage users in your ODR design, engage your most vulnerable users first.

Learn from those who have paved the way: The National Center for State Courts provides comprehensive information about ODR in the U.S. here:



[2] For a comprehensive review of the global remote-court trend, see  For a state-by-state inventory of how U.S. courts are moving to virtual operations, see


[4] If China is an indicator of next steps for U.S. courts, as it has been an indicator of most Covid-19-related trends in the U.S., online courts are coming.  See (internet courts in Hangzhou, Beijing and Guangzhou had accepted close to 120,000 cases as of Oct. 31, 2019). 






Posted by Dan Rodriguez on May 21, 2020 at 04:50 PM in Daniel Rodriguez | Permalink | Comments (3)

Wednesday, May 13, 2020

Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order.  In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages.  40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc.  Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay.  One of the concurring judges says she would impose a stay.  But she joins the majority opinion “in full” (see her fn.1).  So, it is confusing whether this is 4-3 or 3-3-1.  The answer to this question is of course essential as a practical matter.  Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers.  On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why.  They never were able to reach any real agreement about why the order was bad.  Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem.  Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected.  However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?"  If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four.  But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."


Posted by Dan Rodriguez on May 13, 2020 at 08:31 PM in Daniel Rodriguez | Permalink | Comments (8)

Monday, May 11, 2020

Call for papers -- AALS Prof Responsibility Section

posting at the request of Prof. Renee Knake of U. Houston.


Call for Papers

AALS Section on Professional Responsibility 2021

Co-Sponsored by AALS Sections on Civil Rights,

Employment Discrimination Law, Leadership, and Minority Groups


Legal and Judicial Ethics in the Post-#MeToo World

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g)  to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond.  Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

  • Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment? 
  • Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
  • What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
  • Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
  • If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
  • What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
  • Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
  • How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at [email protected] Preference will be given to completed papers, though works-in-progress are eligible for selection.  The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses.  Please note that AALS anticipates that the Annual Meeting will go forward (, and the theme is The Power of Words.

Posted by Dan Rodriguez on May 11, 2020 at 03:48 PM in Daniel Rodriguez | Permalink | Comments (1)

Sunday, May 03, 2020

LSAT-Flex, test adjustments, and predictive validity: At least some intermediate scrutiny is warranted, no?

The new LSAT-Flex being unfurled by LSAC will have one fewer section, Logical Reasoning being reduced from two sections to one.  Perhaps this has something to do with the administration of the test as it is being delivered in this new format because of the COVID-19 crisis.  Not expressing a view on this change, which we can assume was arrived at after careful deliberation.  But is it not odd that the GRE's use continues to be strictly scrutinized by the ABA under Rule 503 for predictive validity while this change is presumably immune from such scrutiny?

I will leave it to others with more sophisticated empirical chops to weigh in on whether this change could affect predictive validity in any meaningful way.  Again, credit what the LSAC says in its FAQ section here:  These questions to be used have gone through the crucible of careful review.  And they say, explicitly, that the test will be neither easier or harder. But this doesn't really answer the question of whether changing the number of questions and the number of sections from four to three can have an impact.  The question I raise is principally a process one:  The GRE has shown it itself to be have strong predictive validity in myriad different settings (though, to be sure, not all or even most law schools have done their own individual predictive validity studies).  Yet schools which would use it, and perhaps with greater urgency because of the current crisis, have significant hoops to jump through.  Meanwhile, the LSAC makes its tweaks, on its own initiative, without (as best I understand it; correct me if I am wrong) undergoing the same ABA review that would apply to ETS and its GRE.  And if this change is viewed as de minimus, what kind of change in the LSAT would trigger a validity review?

The LSAT-Flex initiative, provided in a remote form, is a positive step forward.  What would also be especially positive is if the ABA treats both LSAC and ETS fairly and transparently.  I hope it does; the ABA could easily confirm that this is so.

[As I have written on this blog before, I disclose that I have been consulting with ETS on the use of the GRE. Readers will impose whatever discount rate they think warranted because of this fact]


Posted by Dan Rodriguez on May 3, 2020 at 06:34 PM in Daniel Rodriguez | Permalink | Comments (4)

Tuesday, April 14, 2020

A call for a virtual summit on online legal education

This CNN report detailing the Harvard study about social distancing paints a scary picture of social distancing on an continuing basis through 2022.  Not continuing shutdowns, but periodic restrictions and, in any event, responsible restrictions on medium to large-group setting business as usual. 

Bottom line, our universities and law schools may not be able to function as they did pre-March 2020.  Here is another report along these lines.  We can push against this predicament; we can surrender to it. My tentative prediction is that we might be somewhere in between, and maybe for three or four semesters worth.

I am not here to debate the public health and regulatory aspects of this, but let us suppose there is something to this ominous situation. Let us suppose that cannot deliver residential legal education for all of the fall and spring semesters for the next academic year. 

We are going to need to develop some fundamentally creative and responsible strategies to deal with this temporary new normal.  The ABA is not going to rescue us from this, as it will, at most, say something like this:  Law schools can put their academic programs entirely online for XX period of time.  They will not and cannot make them do so.  State bars, as folks have pointed out to me privately, might push back hard against this brave new online world.  Just because the ABA gives law schools its blessing for all-online education does not mean that the states are obliged to license graduates who have taken, say, half of their academic credits online.  And our faculties are going to rebel even more actively against major adjustments to pedagogical adaptations, especially those that come from the top down. I could go on and on about the problems, but the point, I hope, has been made.

What I want to suggest is that we would do well to convene a big summit, in a virtual form, to discuss comprehensively, tactically, and in a data-driven way, how we might deliver excellent legal education in an online format (entirely, partially, to some of our vulnerable students).  Clearly these conversations are well underway in many law schools (I won't hazard a guess at how many).  But we need the wisdom of the crowds and collective conversation.

Frankly, I don't really care who convenes this summit.  AALS? Sure.  ABA Section on Legal Education? OK.  I and others can conjure up a list of folks who should have a virtual seat of this table.  Folks from within and outside legal education; innovators and skeptics. Educators and entrepreneurs.

We need to do something big.  Fingers crossed that the fall will bring relief is not the answer.  This strategic endeavor for how to maintain educational quality with fundamentally different pedagogy is a massive undertaking, one that falls squarely under the rubric of worst-casescenario contingency planning.  But if are not intentional and inclusive about this conversation, we could find our proud system of legal education imperiled, or at least knocked seriously back on its heels.

An early summer summit.  Please. 

Posted by Dan Rodriguez on April 14, 2020 at 09:51 PM in Daniel Rodriguez | Permalink | Comments (6)

Monday, April 13, 2020

More on the Utah bar proposal

Some scattered thoughts, adding to my post last week about the Utah Supreme Court's pending bar proposal, the proposal that permit graduates from law schools with at least an 86% rate of first-time bar takers (in any jurisdiction) to be admitted under the supervision of lawyers as elaborated in the proposal.

First, some of the commentary, including by BYU's dean, Gordon Smith, suggests that this is considerably more generous than Wisconsin's diploma privilege for the two in-state schools.  What is missing from this account, however, is a more detailed description of the Wisconsin rule.  Wisconsin requires that graduates of the University of Wisconsin and Marquette complete at least 60 (of their 84 required credits) in specified bar-related subjects.  There is no such requirement in the proposed Utah rule.  This difference is rather fundamental.  

Second, any implication in this proposal that graduates will help close the access to justice gap in their work with supervising attorneys is speculative.  Readers may recall that this ideal undergirded the New York Court of Appeal's proposal, spearheaded by then-chief judge Jonathan Lippman, for 50 hours of mandatory pro bono work.  There is scant evidence that this has moved the needle in New York.  Part of the problem, not unexpected, is the dearth of attorneys willing to undertake supervision of students doing this work.  We can imagine similar problems in Utah after the adoption of this proposal.  On some of the larger issues raised by efforts to yoke bar admission to an A2J rationale, I commend Paul Horwitz's terrific post here (not only for some insights on this topic, but on many other elements of these complex issues).

Third, Derek Muller has a thoughtful post here that, as he notes, comes at the issue from the opposite direction as I did.  That is, he worries that the proposal is too inclusive, in that it sweeps many schools whose graduates might not be successful in Utah.  This seems to me a plausible and important argument.  However, his suggestion that the remedy be to limit the scope of the rule to just BYU and Utah raises protectionist considerations. (And I remain unmoved by the argument that because Wisconsin does something like this, it's not problematic to do this again). Moreover, the fact that a very small number of out-of-state students are affected is small solace to that group.  Sure, the supreme court set the cutoff of April 1. But whether they can or will stick to it in the face of what will surely be objections, if not legal action, by individuals who would aspire to become admitted in Utah under these new standards, remains to be seen.

Finally, we should reflect, as I said earlier, on exactly what this proposal means for our state-by-state system as a whole.  Coming back to Professor Muller's point, if Utah and Wisconsin give special rules for their in-state schools, what we do make of a nationwide move to do likewise? For those of us who think that the lawyering world is better without artificial borders, this development is unsettling.

Posted by Dan Rodriguez on April 13, 2020 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (3)

Friday, April 10, 2020

Update on the TX abortion litigation

Dissent from Judge Dennis forthcoming.


Posted by Dan Rodriguez on April 10, 2020 at 06:08 PM in Daniel Rodriguez | Permalink | Comments (3)

Thursday, April 09, 2020

Utah emergency bar order, and the high costs of our bar federalism

The Utah Supreme Court made the important and, as Dean Gordon Smith of BYU notes on Twitter, courageous decision to permit emergency admissions of 2020 grads, under a deliberate set of attorney supervision rules.  These rules are in the spirit, even if distinct in some specific, from the supervision rules emerging from a growing number of states (New Jersey, Arizona, Tennessee, etc.).  I agree on the whole with this move, not grudgingly, but enthusiastically.  To be sure, there are difficult issues regarding lawyer supervision, which I leave to others to probe.  Our students need bold leadership in this time of emergency, and Utah here, as elsewhere in the legal innovation space, has taken this compassionate and thoughtful step.  And, insofar, as I suspect, the deans of the two excellent law schools in Utah, BYU and the University of Utah, were working hard on behalf of this result, they deserve our kudos for their work on behalf of these future Utah lawyers.

However, I note one of the peculiar features of Utah's rule and that is the privilege is limited to law schools whose aggregate bar passage is at least 86% of first-takers.  This clearly covers BYU and Utah, which I will surmise with no special evidence, was part and parcel of the rationale for this particular criterion.  However, one of the consequences, which, again, I will speculate was unintended, is to impose a bar on graduates of law schools who take the bar in states where the cut score is high.  California immediately jumps to mind.  But there are others who would have a difficulty meeting this standard.

As Dean Smith has said on Twitter, we should recognize that this includes a small number of students, that is, students who are already signed up for the July 2020 bar.  (I will push back slightly on this just to say that Utah might, if for no other reason than its strong LDS community, draw in a not trivial number of students who have studied elsewhere but look to return to Utah.  The University of San Diego, where I had the privilege of serving as dean a long while ago is such an example; so are the law schools in Arizona and UNLV. Anyway, you get the point).

This Utah result flags a larger phenomenon, and that is the rather wide diversity in bar cut scores and the resulting difficulty of reaching any defensible equilibrium on what is a good enough score on which to settle.  If other states are going to go down the path of Utah in requiring a bar passage threshold, they are going to face this same conundrum.  Some of my dean friends in California might, rightly, see this as another illustration of the particular disadvantage their students confront because of California's high cut rate.  Where I would point to is somewhere different, and that is the extremely vexing situation that exists and persists in a world in which all fifty states have their unique rules, rules which at least balkanize legal practice and, at worst, raise the spectre of protectionism.  Something for our state supreme courts to think about, now in this period of crisis and emergency.

Posted by Dan Rodriguez on April 9, 2020 at 07:32 PM in Daniel Rodriguez | Permalink | Comments (2)

Wednesday, April 08, 2020

LSAT, GRE, & Law Schools in Crisis: We told you so

Warning: There is some grumpiness in this post, but I hope it won't conceal an important point.

In the summer of 2018, the ABA House of Delegates had before it a thoughtful proposal from the Section of Legal Education which proposed removing the requirement of an admissions test for law school admissions.  Law schools, the Section insisted, could be trusted to develop coherent, evidence-based admissions criteria, including the LSAT, the GRE, or another test entirely.  As the Law School Admissions Council had become over the years a de facto monopoly on the testing business with the LSAT, the case for flexibility and local knowledge was ever growing.  Moreover, slavish commitment to the LSAT was harming diversity goals, by creating an anachronistic barrier to entry.  Finally, the haze of quantification embedded in an LSAT score added fuel to the baleful rankings fire.  

But a peculiar thing happened on the road to this brave new world.  The LSAC, under the politically shrewd (and quite capable in myriad other ways) new leader, Kellye Testy, hit back hard on these efforts, working with stakeholder groups within the ABA and also with the media to tell a story -- a fabulist story -- that painted a world in which law schools would utterly abandon standards of quality to grab anyone with a pulse.  Moreover, and this is really strange, Kellye, her board, and other troops she could call upon as the CEO of her large organization argued that diversity goals would be seriously undermined by this effort.  Pause for a moment on that one: We know that standardized testing has long been used as a gatekeeping mechanism to keep persons of color from accessing our universities and law schools and, likewise, we know that USNews rankings has that consequence. Yet groups within the ABA devoted to advancing diversity in the legal profession became persuaded that the Section's proposal was a trojan horse of sorts, one that would damage law school diversity by removing the requirement that the LSAT be used.

The political effort to preserve the LSAT and therefore the Law School Admissions Council's principal revenue source was successful, and the proposal, quite likely to be defeated, was withdrawn at the last minute.  Neither of the two Legal Education Section delegates were even willing to speak in its favor at the House of Delegates meeting.  

Regrettably, precious few law school deans or other legal educators spoke out in favor of this proposal. At the time the dean of Northwestern and the chair of the AALS deans steering committee, I was a vocal advocate, writing and speaking in its favor before and during the ABA meeting. But this was mostly a lonely endeavor.  The vast majority of deans either could not be bothered to voice their support in key venues or, perhaps worse, feared the wrath of the LSAC (or else the resources that LSAC leadership none-too-subtly noted were provided to law schools as part of their admission efforts).  So, basically Barry Currier, me, and a tiny handful of others.  We were no match for Kellye and LSAC.  The LSAC won this important battle and, to the victors go the spoils.

So now where are we?  The promises of LSAC to bring the LSAT fully into the digital age have not yet borne fruit.  COVID-19 has meant that the March and April tests are cancelled.  Perhaps some digital version will become available in the near or intermediate future.  Or perhaps not.  But even if it becomes available, there will be serious questions of its efficacy and its security.  Moreover, it will be a different test, as LSAC admits

Meanwhile, the Educational Testing Service, with lightning speed, has made available the GRE for applicants to take at home. Of course, ETS has been at this digital testing business for a long time, and so was can be confident that this is not a trial run.  (At this point, I believe it important to disclose, as I have before, that I have been working with ETS for about four months on its GRE law school strategy. For a rather small amount of money, I am embarrassed to add. But  there you go).

Of course, no one saw the coronavirus coming, and LSAC cannot be faulted for not being fully prepared to deal with the myriad issues now before us with the LSAT.  However, the larger "we told you so" point remains:  Flexibility in testing, constructing a coherent digital strategy, fomenting competition among different organizations providing testing and, lastly, giving law schools permission to use the GRE if they choose to, and without jumping through time-consuming and expensive bureaucratic hoops was a good idea in August 2018.  The present crisis puts into sharp relief why.

Law schools are rightly concerned about the stability of their classes for the coming year.  In the fall, this will give way to worry about the next year.  Whether LSAC will be able assuage these worries by concrete action, in testing and otherwise, is an open question. There is no one whose commitment to the welfare of legal education and our students is greater in my experience than Kellye Testy. But she sits atop an organization that will frankly struggle to meet the needs of law schools struggling now and in the near future with this crisis. I believe that a different outcome in 2018 by the ABA would have set three things in motion: First, pressure on the LSAC to improve their testing process (which didn't happen, at least not with the alacrity that serious competition would have facilitated); second, the growth in the use of the GRE and, with it, emergence of a key stakeholder organization, ETS, which would have been farther along by now with their efforts to support law schools.  (They have been inexplicably absent on all the calls, as I understand it, the ABA, the AALS, and law schools have had -- set up through the LSAC's conference line, as I understand it); and, finally, law schools would have much more flexibility to consider student applicants at this late date and also next year, without being forced to continue in the current testing regime.

Politics matter.  The politics underlying LSAC's masterful efforts to maintain its near monopoly led to the unfortunate situation we are in.  I hope deans and other legal education leaders will heed these lessons.


Posted by Dan Rodriguez on April 8, 2020 at 03:21 PM in Daniel Rodriguez | Permalink | Comments (0)

Tuesday, April 07, 2020

Texas COVID-19 abortion case

Interesting and important abortion case decided today by 5th circuit.  Basic issue is whether Governor Abbott's suspension of elective abortions is constitutional under the standard imposed by Jacobson, an early 20th century case involving quarantines.  Here is my quick take (re-posted by epidemiclaw listserv).

  • Framing of the Jacobson issues by the majority seems correct. Yes, a case that gives very wide berth to state d-makers, under the rubric of broad police power.  Emergency health conditions do not suspect civil rights & liberties, but do put them in sharp relief up against exigencies of the time. And state officials are given great deference.  (see In re Abbott for the money quotes);
  • Focus on the “error” of the district ct in characterizing this as an “outright ban” is a red herring.  It is, for all intents and purposes, a permanent ban on elective abortions otherwise squarely protected by Roe.  All the post-Roe caselaw on appropriate burdens doesn’t deal with restrictions that essentially run out the clock on the availability of elective abortions and therefore the exercise of constitutional rights;
  • Time-sensitivity cuts in both directions, which is why the case is so challenging.  Burden on the Texas health care system is a matter of fact.  Court comes close to taking judicial notice of the COVID-19-related burden or else just taking the Governor’s word for it. But, bottom line, no one can seriously doubt that Texas health care system faces extraordinary demands.  This question, not at all present in Jacobson or other cases, is how to evaluate these demands in light of constitutional rights.  The pregnant woman is not a threat to health & safety directly, but just indirectly in the (putative) burdens she places on health care system;
  • Important issue noted by the dissent is that the pregnant woman imposes burdens in any event because of prenatal care, etc. Presumably Texas has not suspended that!  So the question is what is the incremental burden.  This is a medical question, about which the court seems rather ill-equipped to assess;
  • Majority acknowledges check on police power for “extreme cases.”  Majority in In re Abbott defines these cases as relating to the health of the mother, not as related to exercise of constitutional rights.  Is this the right way to look at it?
  • Court:  “We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so.”  What does this mean???
  • The court waves away pretext argument. And perhaps properly so, given how difficult, if not impossible, it is to gather evidence on this point. However, in the real world in which we live, it is conspicuous that anti-Roe states are lining up to impose these restrictions.  That is the fundamental “law in action” point in all this;
  • Writ of mandamus is, indeed, an extraordinary writ.  But no thumb on the scale apparent in the court’s opinion against exercising this extraordinary discretion.  Do we have post-Jacobson caselaw that sheds light on what we ought to do with mandamus petitions?
  • Dissent emphasizes that health restrictions in Jacobson were public-health related.  But this misses the point of the majority.  Here, too, the case stated by the governor, and accepted by the majority, for the restrictions is health related.  Question is how to balance this with rights;
  • In a profound way, the strength of the dissent’s argument about the temporary nature of this ban depends upon a crystal ball.  How long will the crisis last?   I am aware of no constitutional law case that is so utterly dependent upon states of the world decoupled from either the efficacy of governmental choice or the magnitude and measure of the constitutional right.

Posted by Dan Rodriguez on April 7, 2020 at 06:50 PM in Daniel Rodriguez | Permalink | Comments (5)

Friday, January 03, 2020

Taking states seriously: new frontiers of public law

One of the most interesting and revelatory new connections I forged during my post-decanal sabbatical adventure was with Mr. James Tierney.  Teaching currently at the Harvard Law School, Jim is the former attorney general of Maine -- and not just any AG, but someone who has been described as "America's 51st attorney general."  Passionate, brilliant, and energetic, Jim is an evangelist for curricular attention to state public law.  He explains, rightly, that most of our students will become deeply engaged, in one way or another, with state and local legal institutions. These institutions (take the state judiciary as just one obvious example) function in the long shadow of state political institutions.  Lawyers permeate these institutions and the work of lawyers on behalf of clients, whether for private pecuniary interest or the public interest broadly defined, is deeply enmeshed into state legal and political structures. 

To the end of enriching student learning, both doctrinal and experiential, Jim and a number of other resolute colleagues have developed meaningful courses in this space. State constitutional law, which is experiencing a nice renaissance, and local government law are obvious examples.  Less obvious are traditional courses which would benefit from such exposure to the work of, inter alia, the state executive branch and also the network of relationships among state agencies, state courts, and general purpose local governments.  Students could (and perhaps should) be exposed to these issues in the first year private law core, including torts, contracts, and property.

Tierney, who has walked this walk at Columbia and Harvard Law Schools, among others, has also developed a web of resources for current state AGs.  The site, linked here, gives one a flavor of a rich bevy of programs and initiatives that assist state lawyer-leaders and also communicate, and not too subtly, the message that understanding the mechanisms of state government is increasingly important. 

At the level of tactics, we ought to look for ways of connecting these professional opportunities with law school curricula, and even academic scholarship.  There is, of course, imaginative and sophisticated work in local government law, some of which connects to state public law themes rather directly. And state con law, as mentioned above, is an active scholarly field with good growth potential.  What Tierney's initiatives, propelled (as I can testify first-hand) by a remarkable lawyer with boundless energy, point to is a marriage between ambitious public law academics and their law school homes on one side of the aisle and seasoned AGs and other public officials who are committed to working within the domain of academic culture to fertilize this field of state public law.   


Posted by Dan Rodriguez on January 3, 2020 at 12:32 PM in Daniel Rodriguez | Permalink | Comments (0)

Thursday, January 02, 2020

2020: The Year of Regulatory Reform in Legal Services? (And how the law professiorate might help)

The last eighteen months or so has brought an enormously interesting, and potentially quite impactful, stew of proposed regulatory reforms in the legal services delivery space to the fore.  Efforts in Arizona, California, and Utah have been especially notable, and other states are wading it as well.  The ABA Center for Innovation, whose council I have the privilege of chairing, has proposed a resolution that applauds this process of experimentation, focusing on what it represents for potentially enhancing access to justice, and calls for a greater collection and analysis of evidence of these reforms' impacts.  (Text of the resolution and report here). Moreover, the Institute for the Advancement of the American Legal System (IAALS) has embarked on an ambitious project entitled "Unlocking Legal Regulation," the gist of which is a comprehensive look at the state of legal regulation.

For those new to these developments, here are some valuable resources:

Arizona (full task force report here; news reports here and here).

California (the report by Prof. Bill Henderson of Indiana-Bloomington which started the ball rolling.  summary of recommendations, with relevant links here; news report here)

Utah (full report from working group; news reports here and here). 

Chicago, Illinois (announcement of the task force).

Some general commentary on these developments by Jayne Reardon in Illinois, Andrew Arruda of California, a member of the Cal task force, and Zachariah DeMeola of IAALS.  Also, the Innovation Center has a website detailing the current regulatory landscape.


As with any spate of experiments, there will be advances and setbacks.  The legal profession is a profoundly conservative one, and there are myriad headwinds -- some borne of protectionist impulses and strategies, and others of skepticism more well meaning (and thus credible) in its contours -- facing these reform efforts.  Utah is perhaps the furthest along this road, with Arizona coming quickly behind. The California efforts, potentially the most significant, given the state's size, have faced great opposition by lawyers within this state, and it remains to be seen whether some of the tremendous work of the state bar task force will bear fruit in the coming months.  So, in all, 2020 is shaping up to be a most interesting year with regard to fundamental change in how lawyers and legal services are regulated.

Law professors have not typically been at the vanguard of these movements. (With important exceptions, to be sure).  Yet, these reforms are of an enormous potential significance to our graduates, our current students, and therefore to our law schools.  How can we engage in these efforts beyond watching patiently as matters unfold?  A few thoughts:

  • Consider programs and projects which seek to connect the dots between the present structure of legal services regulation and access to justice considerations.  Reform evangelists tout the connection between ambitious changes and enhancing A2J; skeptics insist that these connections are tenuous.  Surely the matter is a complicated one; and, to be sure, we won't truly know these impacts until and insofar as we can develop some natural experiments in the U.S. context and therefore measure impact over time.  Law professors, especially those with expertise in these substantive topics and, as well, good empirical chops, will be in a great position to speak and do scholarship on these issues.  Some of this is already happening. (Check out this program at Arizona, just for example);


  • Where law profs have confidence in the value of certain reform proposals -- for example, permitting non-JD holding professionals to provide certain legal services or permitting alternative business structures for law firms in order to raise new sources of capital --, advocate in various fora for the implementation of these reforms.  This could be especially valuable in those states which are currently focused on these reforms and where law profs at state law schools are called upon for their input.  I know, for example, that the deans of the law schools in Utah and Arizona (along with key colleagues have been especially valuable interlocutors in these discussions;


  • Build bridges between law schools and their alumni so as to collect good data about lawyer performance and the current state of legal services delivery. Sure, there are omnibus groups, such as IAALS, the ABA Innovation Center, the American Bar Foundation and the like who can and should lead these data collection efforts.  However, law schools can be especially useful to this reform process by sharpening the focus on law school-specific cohorts, surveyed with care and evaluated over time, in order to illuminate the challenges and achievements of these lawyers and how the structure of legal services regulation has impacted their advocacy and counseling work.

There are undoubtedly more bullet points to add here.  My main message is that there is great ferment in the area of legal services reform.  Our colleagues who work on legal ethics/professional responsibility are especially knowledgeable in this space.  But expanding the legal academy's focus outward from there, drawing in colleagues in areas such as administrative law, corporate law, law & technology, empirical legal studies, and state constitutional law (among other areas) would help enhance understanding.  And a fruitful byproduct would be to show how law professors can add value to practice-related debates by their scholarship, their teaching, and their convening skills.


Posted by Dan Rodriguez on January 2, 2020 at 01:56 PM in Daniel Rodriguez | Permalink | Comments (10)

Tuesday, December 31, 2019

Karen Daniel, RIP

The sudden, tragic death of our Northwestern colleague, Karen Daniel, has hit hard not only our law school community, but the wide community of individuals and organizations devoted to criminal justice work, especially in the area of the wrongfully accused. Karen's professional life was focused like a laser on impactful litigation and advocacy. Brought to Northwestern several years ago by Larry Marshall, one of the founders of the Center on Wrongful Convictions, Karen established an important practice in this space, working with talented lawyer-teachers and mentoring many  students.  As dean, I appointed Karen and Jane Raley co-directors of the CWC.  (This was a no-brainer decision, I hasten to add, but one of which I remain proud).  Jane passed away on Christmas Day five years ago; Karen soldiered on; and the CWC continued its heroic work.  Because law school politics are what they are, some colleagues always looked with some skepticism at the CWC's large role in the curricular ecosystem of our law school, wondering whether the project had become in some way outsized.  But, reflecting back on this recent difficult period, I feel liberated enough to say that this perception misses a larger point, and that is that the CWC's contributions, and Karen's, ought not be measured simply by the number of students in the courses and the per-student costs of the program.  Rather, the CWC (by which I mean also to include the programs focused on youth and on women specifically) s a jewel in the crown of our Bluhm Legal Clinic and Northwestern's law school because of what it did and also what it represented -- as a foundational project of justice seeking in a profoundly unjust world.

I will always remember Karen Daniel as a key, and truly irreplaceable, piece of that mighty, and hopefully enduring, foundation.

I will also remember a plane ride I took with Karen several years ago, after I had appointed her to the CWC co-directorship.  In the bureaucratic miasma of a large, complex law school, I more often than not neglected to get to know in a broad and deep way many of my colleagues.  As dean, I took some neglectful shortcuts, figuring that the public bios and encomia from colleagues enabled me to learn enough to make faculty-related decisions.  This made the opportunity to connect more with colleagues all the more meaningful. By happenstance, Karen and I found ourselves sitting next to each other in a trip returning (if I recall correctly) from a AALS meeting in Washington DC or New York.  In that trip together, I discussed with Karen her professional journey and her work in our Clinic.  Talking about teaching and advocacy, Karen constantly returned to the humans involved -- the clients, the exonerated individuals, their families, their challenges, their meaningful lives. Her passion was always close to the surface; and I was moved by her words and the life force in this modest lawyer-teacher.  Others at our law school knew Karen better and for longer; but it was a privilege to have this window into the incredible work of one of my remarkable colleagues.

Words will of course fail at communicating the measure of this tragedy. So much left to accomplish, as a teacher, an advocate, and a friend. But I know well that Karen Daniel's legacy of service and accomplishment within and outside of our community is forever secured and, as I believe deep down she would want to say, our redoubled commitment in our law school, the legal academy, and the criminal justice community to the profoundly important work of CWC and other impactful organizations, is the true legacy of this life very well lived.

Posted by Dan Rodriguez on December 31, 2019 at 12:01 PM in Daniel Rodriguez | Permalink | Comments (7)

Wednesday, August 07, 2019

Legal innovation website -- a valuable new resource

The ABA Center for Innovation (whose council I chair) has collected information here about regulatory innovations in legal services delivery.  This includes, but is not limited, to lawyer regulation and various reforms to the Model Rules.  The picture painted is of a large amount of business as usual, with some tantalizing examples of forward-looking reform efforts.

Among other contributions, this legal innovation survey should be of value to legal scholars looking closely at issues of access to justice and the delivery of legal services in the contemporary U.S.  Much more careful research in this space is required and the data provided here is one important step in facilitating such research.

Shout-out to the Open Society Foundation which supported this project financially.

Posted by Dan Rodriguez on August 7, 2019 at 12:10 PM in Daniel Rodriguez | Permalink | Comments (1)

Saturday, August 03, 2019

Administrator bias and legal frameworks

I have posted a draft of an article entitled Bias in Regulatory Administration.  Comments welcome.

The larger questions of which this article is a part are not at all new:  How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking?  Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state?  Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context.  Discussions of algorithmic bias is all the rage, and rightfully so.  My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law.  That, in any event, is the more global question of which this paper is a small part.

Posted by Dan Rodriguez on August 3, 2019 at 01:40 PM in Article Spotlight, Daniel Rodriguez | Permalink | Comments (3)

Friday, March 02, 2018

The Futures of Legal Education: A Virtual Symposium

ith the blessing of the Prawfsblawg lead editors, I am pleased to present an interactive symposium on the wide lens topic of “the futures of legal education.”  Reflection upon this issue is always welcome, and underway daily in various forms and fashion. The impetus for this particular discussion is an interesting series of posts at the new year by Prof. Michael Madison of the University of Pittsburgh. Here are the posts: Part I, Part II, Part III, Part IV, Part V.

You will see that this Madisonian (!) missive is principally a call for engagement among myriad stakeholders on the critical issues of “what must be done?!”  This symposium for Prawfsblawg engages one key stakeholder group, law professors.  A number of professional colleagues from a diverse range of schools and backgrounds have kindly agreed to take part in this symposium.  They are:

Robert Ahdieh (Emory)

Luke Bierman (Elon)

Douglas Blaze (Tennessee)

Megan Carpenter (New Hampshire)

Dan Hunter (Swinburne, Australia)

Harold Krent (Chicago-Kent)

Scott Norberg (Florida International)

Jerry Organ (St. Thomas)

Hari Osofsky (Penn St.)

Deborah Merritt (Ohio St.)

Michele Pistone (Villanova)

Frank Pasquale (Maryland)

Eduardo Penalver (Cornell)

Gordon Smith (BYU)

Kellye Testy (Law School Admissions Council; U. Washington)

Mark Tushnet (Harvard)

Michael Waterstone (Loyola, L.A.)

Mike has provided a short paragraph to help in framing the symposium.  I include it here in verbatim:

Symposia can be both provocative and useful, but talk can be cheap. What follows the talk?  I have been frustrated for years by the dis-connected and siloed character of future-oriented conversations among both academic lawyers and legal professionals.  Like many of us, I see lots of silos:  elite silos and non-elite silos; student-centric silos and practice-centric silos; bar-related silos; legal tech silos; US silos; access to justice silos, “it’s the economy, stupid” and scholarly silos; incrementalist silos, etc.  I am simultaneously a little crazy (perhaps) and speculative (to be sure) in my optimism that there is a constituency out there for larger-scale, longer-term, deeply-rooted, integrative thinking and acting.  My posts in late December were the products of several years’ worth of conversation and reflection.  I think of them as calls to action. Thanks in advance to all who will post here and elsewhere and who will, I hope, carry our shared ideas forward in yet-to-be-determined ways.

 Please be on the lookout for symposium posts as they appear this month.  While the comment feed will remain closed for this symposium, readers who have a particular reaction which they would like to share as a comment, please send to me directly and I will post them as I think appropriate.

Yours truly,

Dan Rodriguez (Northwestern)

Posted by Dan Rodriguez on March 2, 2018 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, December 20, 2017

Northwestern Law -- Deanship

This is a great opportunity to lead an extraordinary law school at a propitious time.  

I say this unequivocally from the vantage point of someone who has had the privilege of serving in this role for now six years.  The job announcement fills in much of the detail and, of course, has a nice pitch.  It bears a close look.  I would add this:  Our law school has been steadily building a reputation for serious innovation in education in a dynamic world, one in which our graduates will need skills to enable them to prosper at the intersection of law, business, & technology.  To that end, we have been collaborating actively with our renowned business school, Kellogg, our Engineering and Medical Schools and various other parts of our major research university.  Moreover, we have established key partnerships with innovators and entrepreneurs in the law-tech space (ROSS intelligence, for example, and also the ABA Center on Innovation).  Law is changing rapidly, and legal education is changing along with it.  Northwestern is forging a path toward innovation within the ambitions of elite legal education and multidisciplinary instruction.  Exciting to be a part of this; and I am truly excited about the next era under able new leadership.

And because this is a law professors blog, I should add that we have a terrific faculty, filled with extraordinary teachers and scholars, with special leadership in the area of empirical law studies.  And we have one of the largest, comprehensive, and renowned clinical programs in the nation.

So, within the next month roughly, the powers that be (not including me, to be sure!) will be collecting and vetting nominations.  I urge you to consider nominating exemplary legal educators and also considering this opportunity yourself.  I would be pleased to chat privately with folks about this opportunity. Just drop me a note). 


Posted by Dan Rodriguez on December 20, 2017 at 12:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Saturday, December 09, 2017

tis' the season for podcast listening

So please allow me to plug mine:  Planet Lex series on Legal Talk Network.  Sixteen episodes, and counting, on topics ranging from Trump & rule of law, frontiers of law & technology, legal fiction (with Scott Turow), cybersecurity, public corruption, cannabis regulation, and other topics.

Link here

Posted by Dan Rodriguez on December 9, 2017 at 10:38 AM in Daniel Rodriguez | Permalink | Comments (0)

Friday, August 11, 2017

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT.  Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students. 

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools.  Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality.  Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession.  Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school.  Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.


Posted by Dan Rodriguez on August 11, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

Friday, June 23, 2017

The exodus of high-band LSAT students

This is an extraordinary graph.

It describes the big decline in applicants in the high band of LSAT scores.  Of course, these are the students who would be admitted to top law schools and/or strong performing law schools with significant merit scholarships.  In short, the most sought after students are saying "no thanks" to law school.  

This is one of the two big, and often neglected, stories in contemporary law student enrollment & recruitment.  (The other is the spiraling discount rate resulting from the increasing arms race among reasonably well-resourced law schools for a smaller pool of students).

The AALS has embarked on an ambitious "before the JD" study to explore how college students and graduates are thinking about law school and the prospects for success (on many relevant measures) in the profession.  Presumably other investigations, some empirical, some more speculative, are underway.  Without claiming that the high band exodus is more important to consider than other phenomena at work in applicant and enrollment patterns, it is an interesting question nonetheless.  How do students who would, ceteris paribus, come to law school with less debt and/or more professional choice still move away from law school toward other options, educationally, professionally, or otherwise?  It his a story about obstinate law schools? About the success of greater transparency or, if you want to see it this way, anti-law school invective?  Or about the state of the legal profession?  

These are questions which obviously loom large for those leading and working in law schools.  Yet they are also relevant if and insofar as one believes that a robust legal profession and a continuing commitment to the rule of law and access to justice depends upon very accomplished college graduates seriously considering legal education.  Even if one is highly critical of students choosing law school, we should better understand why students do or do not make this choice.  Plenty of folks have a dog in this fight and so we need not feign pure objectivity.  But we can agree that data and empirical analysis is warranted and timely so ask to illuminate these important issues.

Posted by Dan Rodriguez on June 23, 2017 at 10:05 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

Tuesday, June 20, 2017

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations.  The caution has stemmed, broadly speaking, from two concerns:   First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative.  The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning.  It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization.  Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.  

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases.  We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence.  True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history.  Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end.  We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination.  But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics?  Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

We will be watching closely for sure! 



Posted by Dan Rodriguez on June 20, 2017 at 11:22 AM in 2018 End of Term, Constitutional thoughts, Daniel Rodriguez | Permalink | Comments (8)

Monday, June 19, 2017

ABA accreditation regs: proposed adjunct rule rollback

The Council on Legal Education has out for public comment a significant proposed change to its regulation on the amount of teaching non-full-time faculty a law school can do.  Under current rules, there is a significant cap -- no more than one-third of all student contact hours (credits) -- on teaching by adjuncts.  This rule has been a longstanding thorn in the side of law schools which might otherwise increase the number of lawyers, judges, and other qualified professionals teaching their law students.

This regulatory rollback is an idea whose time has come.  The rollback would be a meaningful improvement in legal education.  This is so in three ways:

First, this revision is another step in what has been a salutary, and frankly rather unexpected, shift in focus on the part of the Council from input measures to a focus on outcomes.  The empirical basis for the idea that student learning is improved by a heavy-handed cap on the number of courses taught by part-time teachers is thin -- indeed, I am not aware of any law school-specific study that tests the claim that full-time residential faculty are superior to adjuncts upon criteria that matter to student learning and professional training.  By looking at outcomes (as does the other proposal before the Council this round, that dealing with bar passage), the ABA is looking at the right question -- what is the connection between teaching staff and educational outcomes?  To be sure, a career as a full-time residential faculty on the tenure track has given me confidence (perhaps, candidly, a bias) that students benefit from close quarters mentoring by legal educators who have made a professional investment in learning and improving our craft.  Moreover, I would expect that many, if not most, law schools would continue after this revision to staff their faculty with residential faculty (whether or not on the tenure-track) in order to create a learning community and to engage in serious legal scholarship with individuals who have the skills, inclination, incentives, and time to do exactly that.  However, law schools who look to the bench and bar to provide valuable courses, especially but not limited to experiential learning/skills-based education should be given that latitude. This is what a growing number of students say they want; this is what the profession is demanding.

Second, the issue of law school cost looms large.  Creating the space in which law schools can make economically sensible choices by allocating teaching credits to adjuncts whose professional circumstances allow them to teach for very little is a move in the direction of reducing the fixed costs of law schools and thereby passing the benefit onto students.  Notice that this rollback does not implicate the separate and difficult question of whether and to what extent law schools should hive off tenure-line faculty, replacing them with full-time residential faculty who come cheaper.  The capacious definition of full time residential faculty in 403 makes this issue orthogonal to the question of adjunct teaching; in other words, you can satisfy the existing 403 with tenure-track or non-tenure-track faculty.  But what an expansion of the adjunct curricular space does is to give law schools room to make an economic decision which is significant and potentially beneficial to students whose financial predicament is severe.  Once again, the shift from inputs to outputs portends a meaningful shift in the direction of law school efficiency.  Whether and to what extent this efficiency is purchased at the price of sound pedagogy is ultimately a question for the marketplace, that is, for the law schools who consider carefully this tradeoff.  

Finally, there are good reasons to believe that removing the mechanical shackles on adjunct teaching will encourage innovation.  In a world in which traditional lawyering bumps up against the dynamic shift toward more synergistic, de-siloid professional training, and in which lawyers will need and want to work at the intersection of law, business, and technology, it could make sense for an innovative law school to decide that professionals deeply embedded in this brave new world might have much to offer for their law students.  We should note the fine print in the 403 rollback:  The foundational first-year courses remain subject to the rule that full-time faculty provide the bulk of the instruction, this acknowledging (sensibly, in my view) that the curricular core should be taught by faculty members who are immersed in the serious study of law as a coherent discipline and will invest themselves in students' foundational learning.  What relaxing the adjunct rule does is to create potentially exciting opportunities for law schools to benefit in the second and (especially) the third year.  New courses in, say, law & technology, business planning, entrepreneurship, law firm organization, applied legal ethics, judicial decisionamking, etc.,  would likely profit from an experienced cadre of practicing lawyers, judges, and even folks outside the law altogether.  At the very least, wouldn't we want to see this as a natural experiment?

The ABA Council has heeded the call toward more innovation and, likewise, for revisiting command-and-control regulation.  This call should be applauded, here in the context of 403's adjunct rule rollback.

Posted by Dan Rodriguez on June 19, 2017 at 10:18 AM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (25)

Tuesday, June 06, 2017

Master of Science in Law

On the Faculty Lounge is a report of a new Master of Science of Law initiative at the University of Maryland.  Pleased to see this.  At Northwestern Pritzker School of Law, we are beginning the fourth year of our MSL program for STEM professionals.  There have been various news items on this unique program during its short life span. Check out this podcast for a good overview.  Here is the MSL 360 blog.  And here is a Chronicle of Higher Education article which puts this and related initiatives into a broader context.

At fall enrollment, we will have had over 200 students in this program, on a full-time and part-time platform.  The students come from a variety of professional and educational backgrounds -- bench scientists, technology managers, post-docs in various fields, including biotech, engineering, nanotechnology, etc., and pre-med students.  Many are international.  They are racially and ethnically diverse, more so than our JD class. Graduates of this program have gone into terrificly interesting careers, in law firms, high-tech companies, big corporations (including interesting jobs in the sharing economy), health care organizations, consulting firms, etc.  A handful have pursued additional education, in Medical School, Business School, and Law School.

Paul Horwitz in his comment to the Maryland post inquires rightly into the purpose of these programs, adding a bit of skepticism, which is fair, given the emerging multiple mission of law schools in the difficult environment.  I will say on behalf of our program, this:

We view our MSL as grounded in a vision of professional work in which the traditional silos among law, business, and technology are eroding, and in which T-shaped professionals can and do work constructively with multidisciplinary skills.  Our MSL courses (and there nearly 50) are open only to students in this program; so we are not using excess capacity in law courses for these students.  The faculty for this program includes full-time law faculty, teachers from other departments at Northwestern, including Kellogg, our school of engineering, and elsewhere, and expert adjunct faculty.  There is ample student services and career services support.  

What is remarkable about this program for the Law School generally is that these MSL students are well integrated into the life and community of the student body.  JD students benefit from the presence of these STEM trained students; and the MSL students benefit from working with and around JD students.  They participate in journals, student organizations, and myriad intra and extra curricular activities.  We have experimented with a few courses, including an Innovation Lab, which brings MSL students together with JD and LLM students.  This facilitates the kind of collaboration which they will find in their working lives.

The future of legal education? I won't hazard such a bold prediction.  But I am confident in predicting that you will see more programs like ours -- the first of its kind, but far from the last. Other programs will fashion initiatives that are unique and appropriate to their mission and strategies.  This new model of multidisciplinary professional education is built on sound educational and professional strategies.  It is feasible, financially viable, and responsive to the marketplace.  Isn't that what we want and expect out of legal education in this new world?  Whether and to what extent one or another law school looks to an MSL simply to raise revenue -- as Paul hints in his post -- is a fair question to investigate.  But I can say about our program that its principal purpose is to deliver education to a cohort of STEM trained students who are entering a world in which law, business, and technology intersects and interfaces. I suspect Maryland's program, and others in the planning stages, have a quite similar orientation and mission.   


Posted by Dan Rodriguez on June 6, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools, Science | Permalink | Comments (61)

Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!


University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers


 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • Artificial intelligence
  • Assisted reproduction
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Epigenetics
  • Genomics: Human and Non-Human
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Smart contracting and automated analysis of legal texts
  • Stem cell research
  • Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at [email protected]

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Dan Rodriguez on May 1, 2017 at 05:48 PM in Daniel Rodriguez, Information and Technology, Symposium | Permalink | Comments (0)

Tuesday, April 25, 2017

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing.  Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer.  So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines.  Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch.  Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups.  I, too, worry about that.  On a professional level.  On a personal level.  From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action.  But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands.  Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one.  And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction.  And we should both note it and applaud it.  For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity.  This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity.  I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance.  Both law schools maintain that this broadening criteria for admission will help with access.  Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large.  The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.  

But not to meander to far from the point:  The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development.  I joined a letter  from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support.  That is not inconsistent with the position in favor of more accountability.  And, indeed, the revised standard on the table is to me clearly better than the status quo.

 The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability.  Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Posted by Dan Rodriguez on April 25, 2017 at 01:42 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (13)

Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role.  I am not an alumnus, nor am I affiliated in any way with the university.  Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment?  Whittier's sudden closing is obviously a tough thing for current students and faculty.  Perhaps the decision will be unraveled in the face of public pressure or via littigation.  Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle.  Perhaps bloggers should neither aid nor abet these efforts.

The hubris of the unknowing. 


Posted by Dan Rodriguez on April 23, 2017 at 03:06 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (51)

Wednesday, April 19, 2017

In honor of national haiku poetry day

Problems to be solved                 

New legal education

Windows not boxes


Law's creeping mission

Turning lawyers inside out

Changing the frameworks


ABA evolves

Must meet our changing landscape

Modern modes prevail


Knowledge so diverse

Integrating disciplines

Law as just one part


Injustice matters

Demanding change in our time

Teaching law for real


Scholars in situ

Researchers ever searching

New wisdom at hand





Posted by Dan Rodriguez on April 19, 2017 at 11:26 AM in Daniel Rodriguez | Permalink | Comments (11)