PrawfsBlawg

Religiously Affiliated Law Schools conference: "Forming Lawyer-Stewards"

This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham.  The theme is "Forming Lawyer-Stewards:  The Special Role of Religiously Affiliated Law Schools."  Fordham's new president, Tania Tetlow, will be the keynote.

More information, including registration (there's CLE available!) is here:

 

Law faculty life

Two items on law teaching:

1) Orin Kerr posts a Twitter poll (with all the usual caveats) asking about school culture: Spend time at school; teach-and-go-home; somewhere in the middle. Only about 30 % of respondents answered, with teach-and-go-home narrowly edging middle and both doubling up spend time at school. I am a bit surprised that the teach-and-go folks were honest and did not choose middle to try to sound better. There likely is a gap--real or perceived--between what an individual faculty member would say about herself and what she says about the school's culture (the question asked). I think it is easy for an individual to make herself sound better than the general culture. Orin speculates that the move from presence began with the internet and never returned after COVID and that it varies in urban and non-urban schools.

2) As recruitment-and-hiring season nears, I saw a discussion somewhere about how soon after callbacks schools do or should notify those people who will not be hired. People believe schools have at least a courtesy obligation to notify rejected candidates relatively soon after the callback. I see the point, especially for people trying to figure out whether to accept an offer from another school or what their next steps will be. But it is worth noting that different universities, especially public, operate under different rules. Some universities have rules that a candidate is not rejected until the search closes and the search does not close until the job is filled. So while it might be courteous for schools to notify failed candidates soon after it is obvious they will not be hired, it is not always possible.

Recruiting activists

Tyler Austin Harper, a professor of environmental studies at Bates College, argues that colleges promoted themselves to activist students as places that encouraged and celebrated activism and protest, making recent university actions a greater betrayal. Orin Kerr offers thoughts, grounded in his prior view that university views about protest changed when the topic of protest shifted to non-consensus issues (as Orin puts it, when "one person's protest for justice is another person's collective attack on their identity").

Harper assumes any commitment to activism and protest includes the right to civil disobedience without consequence--including occupying and camping in campus buildings and public spaces. There is no difference in permissibility between Columbia students barricading themselves in a campus building (without food) and UT students milling on the quad shouting stuff. By promoting their histories of activism and selling themselves as places students could engage in activism and protest ("trad[ing] on the legacy," Harper says), schools gave students permission to engage in all forms of protest--lawful and unlawful, including occupying buildings--when they believe the cause worthy. And schools reneged on their commitment by stopping the occupations and expelling or sanctioning students for conduct that violates otherwise-neutral school regulations.

I think this has two problems. It effectively means universities ceded control of campus spaces if and when students want to occupy them. By offering students the opportunity protest and engage in activism as the carrot to get them to enroll, they offered preferred access of campus spaces for their expressive use. And if the universities did not surrender all control, they limited their ability to regain control when activist students took over--no cops, no academic consequences, you can have it back if you put us on the committee that decides university investments. Second, it continues to treat civil disobedience as creating a free-speech immunity from sanction for violating content-neutral conduct regulations, rather than either: 1) a drag on how quickly or forcefully universities should act (urging some "leeway") or 2) students willing to risk sanction to highlight an injustice and effect change.

A possible response to what I just said: By celebrating past civil disobedience, universities confess error for cracking down on those protests. They thus promised to do better, to not repeat past administrations' mistakes, and to allow occupations because--as 1968 showed--they change history. I like Orin's reply: Administrators assumed "students hold the protest, break a rule here or there for a bit, and then go back to the status quo," whereas recent events appear more aggressive, more interfering, and more permanent--and schools did not know how to react. I think this jibes with my idea above--universities give students leeway to break small rules for a short time to shout themselves out, unless the occupation never stops.

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.

 

 

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).  

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Higher Education and Institutional Pluralism

About a million years ago (well, 15, but still . . . ) I posted here at Prawfsblawg about then-AALS President John Garvey's theme-for-the-year of "institutional pluralism."  (See also here and here.) Confirming, I guess, my one-trick-pony status, here is a short essay, posted today at Law and Liberty about institutional diversity in higher education.  Here's just a bit:

Higher education in America, it is often observed, confronts serious challenges, even crises. True, many of the world’s leading research institutions are in the United States. And yet: Tuition-costs are soaring; the footprints and portfolios of human-resources, student-services, and other administrators are expanding; tenure-track faculty positions (especially in the humanities) are disappearing; reliance on (often exploited) adjuncts, graduate students, and short-term instructors is increasing; and regulatory burdens are growing. . . .

Arguments about diversity in higher education are, of course, both unavoidable and highly charged. Generally, these debates have to do with the use of race in the admissions practices of elite institutions or with the dramatically one-sided make-up of these institutions’ faculty, administration, and leadership. A crucial dimension of the diversity problem, however, is less noticed: In a nutshell, we should be concerned about not only intellectual diversity within institutions, but also meaningful diversity among institutions, that is, what John Garvey, the President Emeritus of the Catholic University of America, called “institutional pluralism.” . . . 

Our First Amendment institutions will do their important jobs less well, and fulfill their role less well, if they are all the same. The beautiful Gothic cathedrals, to avoid collapsing, employ a variety of strengths and supports; we all admire the windows, but recognize also that the flying buttresses and pointed arches do necessary work. Just as ecosystem is healthier, and an agricultural enterprise is more sustainable, if it is diverse and not a monoculture, so the landscape of higher education is better and healthier if it is characterized by institutional pluralism rather than sameness.

Our colleges and universities should not all look the same; they should (within reasonable bounds) have varying curricula and programs; they should develop different specialties and sub-fields; they should cultivate distinctive missions and aspirations; they may take on a range of characters; they should come in multiple shapes and sizes. Institutional pluralism means, among other things, that our colleges and universities may be public and private, big and small, research-focused or liberal-artsy. We can, and should, have land-grant institutions, historically Black institutions, single-sex institutions, and military institutions. Some can focus on music and the arts; others on engineering and technology. Some may be animated by religious traditions and aims, others by environmentalism or multiculturalism. An institution’s distinctive mission will shape its curriculum, its policies, its hiring, and its student body. And, these differences will, taken together, strengthen expressive freedom’s necessary infrastructure. . . .

Advice from an "Other Other Legal Academy" Tenure Committee Chair

Back in 2017, I found myself appointed to our Tenure Committee, the thirteen-person group that does the detailed work of tracking the teaching, scholarship, and service of pre-tenure professors on our now "unified" faculty (i.e., all "doctrinal," clinical, and legal practice skills professors).  The Tenure Committee makes recommendations to the full tenured faculty, which has the final faculty say on tenure decisions. I had to miss my first meeting because of a conference commitment and was horrified to find that, in my absence, the committee had elected me the chair.  That job ended this past June 30, when I went on phase-out, removing myself from the ranks of the tenured, and ending my eligibility to serve.

I was just going through some old computer files and found some bullet points that I must have written in 2018 as content for an internal program on pre-tenure scholarship we never formally conducted.  I'm sure I said all of these things informally to somebody at some point.  In the spirit of Jeremy Telman's views on scholarship in the "Other [non-elite] Legal Academy" and my response (to the effect that I never felt that level of distance from my perch in a law school ranked somewhere outside of the US News top 100), I offer them  in their almost unexpurgated original.  They are one person's view; your mileage (and that of equivalent committees or faculty members at your particular school) may vary:

1. Don’t get hung up on rankings when placing articles.  Yes, if you are on the faculty at a top 50 school, the placements may make a difference.  For everybody [else], except at the extremes, there are no significant pluses or minuses.  Yes, a placement in a T17 flagship will get you lots of points, and a T50 placement significant points, and a placement in a specialty journal in the unranked 4th tier will get some head scratching, but in between it doesn’t make a lot of difference.  The key thing is to be good and to be productive.  See histogram in the blog post.*  (I don’t like many of the heuristics, but the idea of placing articles in law reviews at schools ranked higher than your own doesn’t offend me.)
2. Aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
3. With the shorter pieces, take a shot at a peer reviewed journal.  It takes longer, but it really is a professional affirmation.  Steel yourself for evil reviewer #2, however, who hates your piece, your school, and you.  (Most peer reviewed journals have a word limit - usually 10,000.)
4. People react far more to the gestalt of your CV than to individual items.  Hence, a lengthy list of long and short pieces has a nice visceral impact to the point of “productive scholar.”
5. “Law and ....” is good.  So is borrowing from other disciplines of law.  But it is a two-edged sword.  If you are a tort specialist borrowing from Nietzsche, show the piece to somebody with Nietzsche chops and then put that person’s name in the starred footnote.  Disingenuousness is not your friend.
6. When you submit, you certainly can play the expedite game, but my personal view is that it’s moderately unethical to submit to law reviews for which you would not accept an offer if it were the only one you got.  
7. Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
8. Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.

* That is exactly what my notes say, and I've linked the PrawfsBlawg post from 2018 to which I was referring that included the histogram.

The Other "Other Legal Academy" - Scholarship

My friend Jeremy Telman (Oklahoma City University, left) has a series of three posts at ContractsProf Blog on his experience as a teacher and scholar in what he refers to as the "Other Legal Academy" or OLA.  His thesis is that there are at least two legal academies, one elite ("The Legal Academy") and one consisting of unranked law schools (the OLA) and they "meet fleetingly." (Full disclosure: Jeremy's post on scholarship has a picture without link to his edited volume Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence (Springer, 2016).  I contributed a chapter.)

The posts deal, respectively, with hiring, scholarship, and teaching.  They are provocative, overly modest about Jeremy's own accomplishments, and fodder for my own promised reflections toward the end of a career in what Jeremy might think of as part of the OLA.

This sentence triggered my initial and visceral response to his distinction between The Legal Academy and the OLA:

But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.

I asked Jeremy how many OCU faculty had moved laterally since 2007 (when I started teaching), because my experience at Suffolk was that a substantial number of my colleagues who got tenure at Suffolk moved on to schools up the food chain - for example, Jessica Silbey to Northeastern and then to Boston University, Hilary Allen to American, Frank Rudy Cooper and Leah Chan Grinvald to UNLV (the latter as dean).  His answer was very few.  I have had colleagues whose scholarly work I know is widely read and influential, including David Yamada on workplace issues (such as bullying), Michael Rustad on tort law, John Infranca on housing communities, Marc Rodwin on health care, and most recently, Sarah Burstein on design patent law.  (There are others as well.)  

Yet for reasons best explained by the US News ranking algorithm, Suffolk currently sits in the #122 bracket along with Albany, Mercer, Baltimore, and Dayton, just behind the #118 group (Chapman, Hofstra, Tulsa, West Virginia) and just ahead of the #127 group (Cleveland State and St. Thomas (MN)).  Indeed, the impact of that algorithm (LSAT scores and bar passage rates) combined with past decisions on class size have caused Suffolk to flirt with over the last ten years, but never succumb to, the unranked list at the bottom where you find OCU and others.

There's no question that it's different being at Suffolk is different than being at Harvard, Yale, Stanford, or even BU. Nevertheless, and despite my unusual path to a faculty and perhaps even to tenure, I never felt like I was on the outside of The Legal Academy looking in as a scholar.  Below the break, I'll reflect on that. (And perhaps touch on Jeremy's reactions to hiring and teaching in later posts.)

1.  In 2004, I was the general counsel of a chemical company in Indianapolis.  For reasons too lengthy and, perhaps, sensitive, I had time on my hands and contacted the then-dean at the IU-Indianapolis law school (now McKinney) about teaching a course on entrepreneurship and venture capital as an adjunct.  I was shocked to find him recruiting me as a potential director of the school's nascent center on entrepreneurship and technology.  Even then, I could see that being a center director but merely as an adjunct faculty member was a losing proposition.  I said, "I'd have to be on the faculty."  He said, "That would be almost impossible; you've never published any scholarly work."  I had no idea what that meant, having been a lawyer in the real world for 25 years at that point.  I went home, and looked into what legal scholarship was.  I consulted a couple of law school classmates who were on "elite" faculties.  I had an idea for an article arising out of one of our board members' concern about being named as the Audit Committee Financial Expert under Sarbanes-Oxley.  I called the dean.  "Okay, fine, if I need a publication, I will write and publish one." I started writing it on Memorial Day, 2004 and finished it by July 4, 2004.  

I cannot now recall if I used ExpressO.  I have a vague recollection either of making hard copies and mailing them, or emailing them separately, in a fit of self-delusion, to law reviews at Harvard, Yale, Stanford, Columbia, Michigan, and for some reason I don't now recall, Wayne State.  Within a week or two, an editor at Wayne State emailed me to say that it had accepted the piece, and I went bouncing up and down around the house like I had just won the U.S. Open.  

One of those law school classmates (Douglas Baird) said to me, "You need to post it on SSRN."  I replied, "What is SSRN?"  I posted it.  Later, Avery Katz (who had summer clerked at my law firm in Detroit and knew my wife from when they were kids) sent me a note to the effect that Larry Solum had posted the article on his "influential blog." To which I believe I responded, "who is Larry Solum and what is a blog?" (NB: while there are portions of that piece I still like, I cringe every time I look at it or think about its puerile naïveté, notwithstanding the fact that it has been downloaded more than 1,000 times on SSRN, no doubt as a result of its truly bizarre and suggestively interdisciplinary title.)

At some point, one of the faculty members at IU-Indianapolis sent me a video file of a talk Ron Krotoszynski (now at Alabama) gave on how to play the law review placement game. The upshot of all this was my reaction to the process: "Damn, this is fun."  So, over the next six months or so, I wrote and placed two more pieces, one in the DePaul Law Review and one in the Temple Law Review.  (Those two pieces involved an email exchange I initiated with Richard Posner, who, to my complete shock, graciously responded, but that story will have to wait for another post.)

My point is that, while my initial forays weren't the elites, they weren't chopped liver either, and I felt like I had entered the mainstream of legal scholarship, whatever it was, even before I had a full time academic position.  

2.   A theme of Jeremy's post is his despair over the quality and the fate of his own scholarship: "very few people care about what I write as a scholar...." "I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned...." "I do regret that I don't think I will ever know if my scholarship is any good...."  First, I think his despair about being unread is unwarranted.  I speak from experience when I say that, if you decide to spend a lot of time writing about the work of Hans Kelsen, you are already speaking to a relatively limited audience.  Nevertheless, I went to his SSRN page expecting to see a mere dribble of downloads.  Instead I found thirty-four papers, twenty of which had in excess of 100 downloads, twelve in excess of 200, four in excess of 300, and one just about to reach 500.  [I have a question in at SSRN about the percentage of posted papers that achieve those benchmarks, so I won't guess, but I know I would be happy with that kind of reception for my own work!]

But, second, is it any good?  That is such an interesting and complex question, particularly in academia, because the criteria are not solely objective.  Another well-known blogger is currently posting the h-index of law professors.  The h-index measures a professor's productivity (at least on Google Scholar) as well as the citation impact - your h-index is the highest number h of your papers that have been cited h times.  As of right now, Cass Sunstein (there's a shocker) leads the pack with 172.  Understand what that means.  He has written 172 pieces that have been cited at least 172 times.   My h-index is 12.  I believe the highest h-index at Suffolk is Michael Rustad's 34.  Marc Rodwin's is 29. David Yamada's is 18.  John Infranca's is also 12 (and he's been at it not nearly as long as I) and Sarah Burstein's is 8, but they are both youngsters.  Google also uses something called the i10 index, which is simply the number of your pieces that have been cited ten times.  Cass Sunstein's is 692.  For that, there are simply no words.  My i10 index is 19, which I've justified with the notion that I've been writing academic articles since 2004, making it eighteen years, that I consider one significant piece a year to be on par for a productive law professor, and thus I have at least one ten-citation piece for every year I've been doing this.  That's my story and I'm sticking to it.

But, of course, we all know that you can write good stuff without having astronomical h-index numbers.  The subject matter makes a big difference.  And you can be widely cited as an example of getting something totally wrong!  

The far more fascinating subject (to me, at least) is the subjective assessment of scholarly legal work as "good," particularly in light of disciplinary boundaries.  Before I was a law professor, I was the chief legal officer for a couple big organizations, which meant that, in making my own decisions in hard cases, I often had to rely on the judgments of experts in fields I knew little about, and whose views either conflicted or were inconsistent with each other.  I have written about that.  Louis Menand and Michele Lamont have each written about the benefits and costs of disciplinary boundaries in academia.  Menand described interdisciplinary anxiety as being "about the formalism and methodological fetishism of the disciplines and about the danger of sliding into an aimless subjectivism or eclecticism." Lamont studied how judgments got made for interdisciplinary grant approvals, concluding that there is no canon for judging interdisciplinary work, and it "struggles with the concurrent polarities of “expert and generalist criteria (what one respondent [in Lamont’s study] defines as ‘virtuosity and significance’).” Indeed, Lamont wrote: "given the emergent quality of the standards of evaluation for interdisciplinary genres, panelists readily fall back on existing disciplinary standards to determine what should and should not be funded."

Which brings me back to my experience.  In his post on hiring in The Other Legal Academy, Jeremy quotes Orin Kerr: "To have a realistic chance, a candidate usually needs either a VAP/fellowship or a PhD. — and everyone knows it."  (Jeremy's point is that may be true for Orin's Legal Academy, but not for Jeremy's.) Credentials are simply easier heuristics for expertise and what is good.  Historically, law professors, even those doing "law and ..." have been autodidacts with JDs, the prime example being Cass Sunstein himself, whose degrees (and their dates) look a lot like mine!  (Obviously, that is where the comparison rightly ends; see above h- and i10 indices.)  What I found from 2004 to 2007, while I was considering that odd late-career jump to academia, was that the world of legal academic split into two categories, one in which my lack of credential was the basis for ignoring me (or at least not returning emails), and a larger one that invited me into the conversations about which I was interested.  That has been no different at Suffolk.

3.  In 2007, we moved to Cambridge and were fortunate enough to buy a house next door to, and connected by a gate with, a wonderful family one of whom was and is a pretty renowned Harvard evolutionary biologist.  We have spent many a Saturday or Sunday late afternoon, going through the gate and sharing a bottle of good or not-so-good wine, comparing notes about research, peer-review and getting published, teaching, faculty dynamics, and our shared interest in ultimate questions (telos being a particular interest of mine, and telos or "purpose" being a fascinating aspect of adaptation).  Honestly, despite the gap in the relevant prestige of our institutions (and our respective careers), the worlds seem remarkably similar.

4.  In short (and this has been anything but), I think Jeremy has overstated the case by focusing on law schools at the extremes of the rankings.  I don't know whether Orin is right about the required credentials to be hired in today's market - it looks to me that the market favors applicants for the first time in years - but I suspect there is still a substantial job market where  you still have a good chance of being hired as a JD-autodidact.  A wise mentor back in 2005 or so told me that I was going to have a hard time getting hired because I wrote to please (or teach) myself rather than inserting myself into existing and ongoing debates.  That was simply a realistic assessment of credentialism back then and it's probably still true.

I agree with Jeremy completely about this: if you can get it, it's a great job, paying significantly more than entry level positions in most other disciplines. More importantly, as the explosion of journals has demonstrated over the last twenty-five or thirty years, unlike philosophy or history professors, the overwhelming majority of our students have no interest whatsoever in following in our academic footsteps, and unwittingly subsidize our ability to write about whatever we damn please and usually publish it somewhere.  Carpe diem.

ICYMI: Teaching Tips for New Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned by violating it.  What the advice boils down to, I think, is that students desperately need you to be predictable. It is comforting to them when they know roughly what to expect each day. I thought of this advice a lot as dean, too. The Dean's "mood" affects the whole institution, and it is important to remain predictably but not Pollyanna-ishly optimistic no matter what comes along. As an aside, I think this is important as a parent, too. My motto: We'll deal!

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 28 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than two decades ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean." Also, you don't know what's really going on with the student. Often, it's not about you or your class at all, and seemingly rude behaviors can be a sign of a student who is in serious distress, especially if the behaviors begin suddenly.

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong, and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another. 

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. Videos can be sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) 30 years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture. It can also be used as a background with the main points (no more than 3-4) you're going to cover.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. This is probably the most important piece of advice on this list. You're not trying to convince the students you're smart; you're trying to convince the students they're smart. This happens to be good advice for leaders, too!

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit when you're new. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students.  I don't wear a suit every single day, but I believe in signaling I take the endeavor seriously by dressing professionally.

20. If you are teaching 1Ls, talk to students about how to learn. You might think they know, but not all of them do. Talk about what hard work looks like. One of my favorite books about learning is "Make It Stick," which is recommended reading for all teachers and learners.

21.    Talk to students about mental health at the beginning of class and throughout and especially right before exams. Make it okay for them to seek help if they need it.

22.   One of my greatest joys as an experienced teacher is seeing my former students reach the pinnacles of their careers. Think about the fact that the students in front of you will someday be extraordinary lawyers, judges, and leaders. You may think you will change the world as a scholar, and maybe you will. But you can definitely change the world by helping one student at a time find what they were meant to do with their one short and precious life and giving them the knowledge, skills, and courage to pursue it. 

23.  Try to learn names. I've been bad at doing this while teaching as a dean. Now that I'm a full-time prof again, I'm looking forward to redoubling my efforts on this front. 

24. Tell students why they should come to office hours. Tell them that they can seek general advice from you if they need it. About two years ago, a student taught me how important this is for first-generation students. I wish I'd known it sooner. 

Finally, if you're new and you'd like to talk about any of the subjects I teach (mostly Torts, Media Law, Advanced Torts, First Amendment Law, Constitutional Law), I'd be happy to share any materials I have.

A Fair and Inclusive Alternative to the Sisk Academic Impact Rankings

The following guest post is by Matthew Sag (Loyola-Chicago). This post is a short version of this new essay.

The Sisk Rankings of the academic impact of law school faculties have been around for a while now. Gregory Sisk and his team release these rankings of the top 67 or so schools every three years. And so every three years I find myself wondering: “Really? Can it be true that all these schools have higher academic impact scores than Loyola Chicago, DePaul, and Houston Law?”

The short answer is: no, it’s not remotely true. There are quite a few schools that Sisk leaves out who would outrank those he includes on almost any conceivable method of aggregating citation counts.

How do I know this?

When Sisk and his coauthors released their new rankings last month I spent some time digging around in the citation data available on HeinOnline. As I explain more fully in this essay, I used the data provided by HeinOnline to construct a rankings table that includes every ABA accredited law school.

My rankings are based on the median of doctrinal faculty—this is the obvious place to start if we are trying to understand the central tendency of a group with a skewed distribution. Sisk uses a slightly odd formula of twice the value of the mean plus the median, but not much turns on this. Even if we adopt Sisk's formula and apply it to the HeinOnline data, schools like Penn State, Loyola Chicago, DePaul, Houston Law, and Michigan State still outrank several of the faculties Sisk counts in the top 67. In the essay I have just posted to SSRN, I provide a complete ranking of schools from 1-193 calculated six different ways: median, mean, median+mean, mean*2+median, total, and rank_total+rank_median. I think median makes the most sense, but readers should feel free to rationalize whichever measure ranks their school higher. The point is that my claim that the Sisk rankings are unfair does not depend on the minutia of calculation. No matter how you crunch the numbers, several schools that Sisk and his team ignore outperform the ones he chooses to rank.

How significant are these distortions?

I have constructed a couple of figures to illustrate the differences between the Sisk rankings and my more inclusive approach. The first figure illustrates the difference between Sisk rankings and a simple five-year median citation ranking for schools that are underrated by Sisk. I have assigned each school disregarded by Sisk and implied Sisk rank of 68 for this purpose. (This figure also includes schools that rank the same either way.) The second figure is the same, except that it shows which schools are overrated by Sisk.

Who should be left out?

The Sisk rankings exclude the majority of ABA accredited law schools, including several that outperform many of those ranked by Sisk, and also every law school based at a Historically Black College or University (HBCU). This exclusionary approach to ranking schools is unfair and unnecessary. It is unfair because it falsely implies that certain disfavored or overlooked schools are inferior to those deemed worth ranking. Moreover, even the exclusion of schools that don’t outrank Sisk’s preferred schools once the playing field has been leveled is also unfair. It suggests that the overlooked schools are not even in the same league as those that are ranked, rather than being separated by matters of degree.

This unfairness is unnecessary. I know the HeinOnline data is not perfect, but I suspect it is at least as good as the data Sisk and his team extract from Westlaw. The means and medians I calculated using the HeinOnline data correlate with Sisk’s results at about .95, at least for the 67 schools we both ranked.

When I run the Chicago Marathon in a couple of weeks, I will be running the same race as two-time Olympic medalist Galen Rupp and America’s second fastest female marathon runner ever, Sara Hall. I don’t expect to finish anywhere near these remarkable athletes, but I do expect that my time will be recorded. No doubt, there are runners who believe that they will finish faster than me, but we don’t start the race presuming that some people’s times are worth recording and others are not. We all run, we all count. There is no reason why law school rankings should be any less fair or inclusive.

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.

Race, Racism, & Business Law Courses

The past several months have caused many of us to reflect on how we can better incorporate issues of race and racism into our courses.  I wanted to highlight two new links regarding race, racism, and business law courses.  First, Carliss Chatman, Cathy Hwang, and Ben Edwards put together a statement on race/racism in business law that they are inviting all law professors to sign. The statement states in full:

“We are law professors, and many of us write and teach about business law.

We think race and racism are important to the study of business law, just as they are important to the study of any area of law. From slavery and redlining to lack of opportunity in the workplace and limited access to capital, race and racism have always been part of business and business law.

To our colleagues and our students: we welcome the opportunity to engage in these discussions and commit to thinking hard about how to incorporate them into our research and our teaching.”

They will share and update a list of signatories on the Business Law Prof Blog here, and you do not need to teach business law to sign it.  I personally think these issues are incredibly important, and I welcomed the opportunity to sign the statement – thanks to Carliss, Cathy, and Ben for putting it together!

Second, there was a recent discussion on the AALS Business Associations listserv in which many professors shared resources related to race, racism, and business law.  I put the resources into a shared document that anyone can access, and I will continue to update it.  If you have any additions to this document, please send them my way at [email protected]. 

Like many other areas of law, I think the business law community has real work to do in this area.  I look forward to continued dialogue and action on these issues. 

Will My Law School Perish?

Higher education is facing an economically challenging time due to lost revenues brought upon by the COVID-19 pandemic. And as we saw with the closure of Concordia Law School this summer, law schools are no exception. NYU advertising professor Scott Galloway has crunched the numbers for “the immunities and comorbidities of 436 universities included in US News and World Report’s Top National College Rankings.” And he predicts about 20% of these institutions entered the pandemic on such shaky ground that COVID-19 will be the death blow to them. In short, one in five of these universities or colleges will perish.

To calculate this, he looked at a series of variables to create the following scores:

• Credential score (US News ranking, undergrad admit rate, average monthly Google search volume)
• Experience score (student life grade and score)
• Education score (various return on investment measures)
• Average undergrad tuition & fees score
• Value-to-cost ratio
• Vulnerability score (endowment per full time student and percentage of international students)

From these he created two main measures: Value and Vulnerability. And based on whether one was high or low on these measures, he created four quadrants of schools: Thrive, Survive, Struggle, or Perish. Thus, a university with low value and high vulnerability falls into the perish quadrant, whereas a university with high value and low vulnerability falls in the thrive quadrant. The data can be found here.

I took these institutional assessments and matched them up with the U.S. News Law School Rankings (see below). Based on Professor Galloway’s predictions, 18 law schools will perish in the near future (because their university will perish). That is 1 school in the top 50, 5 in the 51-100, 5 in the 101-147, and 7 in the unranked law schools. I have listed them below in order of ranking:

27 Fordham 53 Cardozo (Yeshiva) 62 Seton Hall 70 Loyola (Chicago) 83 Chicago-Kent 93 Drexel 102 Hofstra 111 Chapman 118 DePaul 136 Pace 141 Willamette 148-194 Campbell 148-194 Elon 148-194 New England 148-194 Nova Southeastern 148-194 Detroit Mercy 148-194 Massachusetts-Dartmouth 148-194 Pacific

Another 28 schools are predicted to struggle:

50	Baylor
93	Lewis & Clark
105	Drake
111	Catholic
111	Tulsa
118	U. St. Thomas (MN)
122	Quinnipiac
122	Maine
122	Montana
126	Loyola-New Orleans
126	Mercer
129	Belmont
129	Seattle
141	Dayton

Now, before too much panic sets in, Professor Galloway doesn’t think this is all set in stone. Things can be done to save these universities.

What is more, as the old saying goes, all models are wrong, some are useful. Just how wrong is his model? From anecdotal evidence, quite wrong at times it would seem. Take my institution, for example. Chapman is designated to perish under Prof. Galloway’s calculations. Yet Chapman is doing quite well right now--so well, that not only has it not had to lay off faculty, it hasn’t even had to cut their pay. Hardly the stuff of an institution that is about to perish. Chapman isn't even struggling, so it seems it would be better to put it in at least the Survive, if not the Thrive category. That shows how far off Galloway's model is, at least in that once instance. And there are a host of questions regarding whether these are the correct measures to include in the model, whether they have been given the right weight, and whether anything important is missing? So these predictions must be taken with a gallon of salt. Further, just because a university perishes doesn't necessarily mean that its law school will.

Still, there is no doubt the pandemic may thin the herd, so to speak, of American law schools. Just how much thinning, and which schools, remains to be seen.

US News Ranking	Law School	Galloway Categorization
1	Yale	Thrive
2	Stanford	Thrive
3	Harvard	Thrive
4	Columbia	Survive
4	Chicago	Survive
6	NYU	Survive
7	U. Penn.	Thrive
8	Virginia	Thrive
9	Northwestern	Thrive
9	UC-Berkeley	Survive
9	Michigan	Thrive
12	Duke	Thrive
13	Cornell	Thrive
14	Georgetown	Survive
15	UCLA	Survive
16	UT-Austin	Thrive
17	Wash. U.	Thrive
18	USC	Survive
18	Vanderbilt	Survive
20	Boston University	Survive
21	Minnesota	Survive
22	Notre Dame	Thrive
23	George Washington	Survive
24	Arizona State	Survive
24	Emory	Survive
24	Florida	Survive
27	Fordham	Perish
27	UC-Irvine	Survive
27	Iowa	Survive
27	North Carolina	Thrive
31	Boston College	Thrive
31	Alabama	Survive
31	Georiga	Thrive
31	Illinois	Survive
31	Washington & Lee	Thrive
31	William & Mary	Survive
37	BYU	Thrive
38	Indiana	Survive
38	Ohio State	Survive
38	UC-Davis	Survive
38	Wisconsin	Survive
42	George Mason	Survive
42	U. Washington	Survive
42	Wake Forest	Survive
45	Utah	Survive
46	Colorado	Survive
47	Pepperdine	Survive
47	Arizona	Survive
47	Maryland	Survive
50	Baylor	Struggle
50	Florida State	Survive
50	Connecticut	Survive
53	Cardozo (Yeshiva)	Perish
54	Tulane	Thrive
54	Richmond	Thrive
56	Southern Methodist	Thrive
56	Temple	Survive
56	Houston	Survive
59	UC-Hastings	n/a
60	Penn State-University Park	Survive
60	Texas A&M	Thrive
62	Loyola Marymount	Survive
62	Penn State-Carlisle	n/a
62	Seton Hall	Perish
62	UNLV	n/a
62	Villanova	Thrive
67	Northeastern	Survive
67	Miami	Survive
67	Missouri (Columbia)	Thrive
70	Loyola (Chicago)	Perish
70	Kansas	Thrive
70	Kentucky	Thrive
70	Tennessee	n/a
74	St. Johns	n/a
74	Denver	Survive
76	American	Thrive
76	Case Western	Survive
76	Georgia State	Survive
76	Rutgers	Survive
76	Nebraska	Survive
76	Oklahoma	Survive
76	Pittsburgh	Thrive
83	Brooklyn	n/a
83	Chicago-Kent	Perish
83	Cincinnati	Thrive
83	San Diego	Thrive
83	Wayne State	Thrive
88	New Hampshire	Thrive
88	Oregon	Survive
90	Florida International	Survive
90	St. Louis	Thrive
90	Arkansas-Fayetteville	Thrive
93	Drexel	Perish
93	Lewis & Clark	Struggle
93	Michigan State	Survive
96	LSU-Baton Rouge	Thrive
96	Hawaii	Survive
96	South Carolina	Thrive
99	Buffalo-SUNY	Survive
99	Louisville	Thrive
99	New Mexico	Survive
102	Cleveland State	n/a
102	Hofstra	Perish
102	Marquette	Thrive
105	Drake	Struggle
105	Stetson	n/a
107	CUNY	Survive
107	Howard	Thrive
107	Santa Clara	Survive
107	Washburn	n/a
111	Chapman	Perish
111	Syracuse	Survive
111	Texas Tech	Survive
111	Catholic	Struggle
111	Mississippi	Thrive
111	Tulsa	Struggle
111	West Virginia	Survive
118	Albany	Survive
118	DePaul	Perish
118	Gonzaga	Survive
118	U. St. Thomas (MN)	Struggle
122	Indiana-Indianapolis	Thrive
122	Quinnipiac	Struggle
122	Maine	Struggle
122	Montana	Struggle
126	Loyola-New Orleans	Struggle
126	Mercer	Struggle
126	Baltimore	n/a
129	Belmont	Struggle
129	Duquesne	Thrive
129	New York Law School	n/a
129	Seattle	Struggle
133	Creighton	Thrive
133	Missouri-Kansas City	Survive
133	Wyoming	Thrive
136	Pace	Perish
136	Suffolk	n/a
136	Idaho	Thrive
136	Toledo	n/a
140	Illinois-Chicago	Survive
141	Mitchell Hamline	n/a
141	Akron	n/a
141	Dayton	Struggle
141	Memphis	Survive
141	South Dakota	Thrive
141	Vermont	Thrive
141	Willamette	Perish
148-194	Appalachian	n/a
148-194	Atlanta's John Marshall	n/a
148-194	Ave Maria	n/a
148-194	Barry	n/a
148-194	California Western	n/a
148-194	Campbell	Perish
148-194	Capital	n/a
148-194	Charleston	n/a
148-194	Elon	Perish
148-194	Faulkner	n/a
148-194	Florida A&M	n/a
148-194	Florida Coastal	n/a
148-194	Golden Gate	n/a
148-194	Liberty	n/a
148-194	Lincoln Memorial	Struggle
148-194	Mississippi College	n/a
148-194	New England	Perish
148-194	North Carolina Central	n/a
148-194	Northern Kentucky	n/a
148-194	Nova Southeastern	Perish
148-194	Ohio Northern	n/a
148-194	Oklahoma City	Struggle
148-194	Regent	Struggle
148-194	Roger Williams	n/a
148-194	Samford	Struggle
148-194	Southern Illinois	Struggle
148-194	Southern University	n/a
148-194	South Texas	n/a
148-194	Southwestern	Struggle
148-194	St. Mary's	n/a
148-194	St. Thomas (FL)	n/a
148-194	Texas Southern	n/a
148-194	Touro College	n/a
148-194	Arkansas-Little Rock	n/a
148-194	Detroit Mercy	Perish
148-194	Massachusetts-Dartmouth	Perish
148-194	North Dakota	Survive
148-194	San Francisco	Survive
148-194	University of DC	n/a
148-194	Pacific	Perish
148-194	Western Michigan	Survive
148-194	Western New England	Struggle
148-194	Western State	n/a
148-194	Widener-Delaware	Struggle
148-194	Widener-Pennsylvania	Struggle
148-194	Inter-American	n/a
148-194	Pontifical Catholic	n/a
148-194	North Texas-Dallas	Survive
148-194	Puerto Rico	n/a

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. 

 

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

Before Law Schools

It is an important time to think about teaching law. After attending a recent teaching workshop, I noticed that (for whatever reason) I had focused on my experiences teaching doctrinal courses. My primary courses on administrative law and sales/contracts cover essential subjects. These classes span the public-private divide and incorporate my background in telecommunications litigation, as well as my scholarly interest in interpretive questions raised by regulatory statutes and contracts.

But doctrinal classes are only part of the teaching I do at Loyola. I also run a fantastic student fellowship program through Loyola’s Institute for Consumer Antitrust Studies. In addition to substantive courses on competition policy and consumer protection, our fellowship program facilitates other types of learning. We introduce our fellows to practicing lawyers through mentoring programs and monthly lunches, and fellows also engage in legal writing projects with opportunities for multiple rounds of faculty comments and revisions. These opportunities to connect with practitioners and develop writing skills are also integral to law students’ education.

My initial focus on doctrinal classes tracks a historical distinction between formal legal education and reading the law. Lawyers in the United States did not always enter the profession primarily by attending law school. Reading the law (à la Kim Kardashian) was once the norm. Aspiring lawyers who read the law in the 18^th-19^th centuries apprenticed in law offices, where they gained valuable exposure to professional traditions and practicing attorneys. Although this system did not do a good job of teaching broader legal principles and sometimes left apprentices alone while their teachers tended to clients, it was how most lawyers were trained. Even many Supreme Court Justices never attended law school. I explored this phenomenon in Schooling the Supreme Court — an empirical analysis of a period when Justices’ educational backgrounds were far more diverse than they are today. (I am indebted to Mike Zimmer for the title of this article, and fear I will never publish another article with a title that I like as well.)

Today law schools offer doctrinal courses, training in legal writing and other critical skills, and experiential learning. Some historical methods of teaching law, such as rambling lectures delivered by a professor sipping whiskey at the long-defunct Litchfield Law School, have gone by the wayside in today’s engaged learning environment. Law schools have also become more attuned to producing practice-ready lawyers.

My research suggests the importance of formal legal education. Historically, Justices who shared the benefit of formal legal education voted independently of the ideologies of their appointing presidents. Votes of Justices without this background were significantly predicted by ideologies of their appointing presidents. Thus, presidents lost political influence when they appointed Justices who had attended law school. Although my statistical analysis provides too blunt a measure to explain exactly why this was the case, the correlation between formal legal education and apolitical voting was significant. It suggests the value of learning about the law as a discipline with the potential to transcend the outcomes of presidential elections.  

My historical research also provides reason to think that the value of legal education extends beyond doctrine and skills taught in the classroom. Law schools currently operate as gatekeepers and control who has the opportunity to enter the legal profession. When entry into the legal profession turned on apprenticeships, these opportunities were most readily available to white men from affluent families. Today’s system of higher and legal education has expanded opportunities for women and minorities, although it still seems to favor privilege and lack optimal diversity. Law schools have made some significant strides in diversity. This year, the editors in chief of law journals at the top 16 U.S. law schools are women. Greater diversity in the legal profession and its leadership is another aspiration that the legal academy is uniquely situated to promote.

Interdisciplinarity in the Early Years

Hi folks. As I mentioned in my introduction, I’m a legal anthropologist at Alabama Law, and I work in the areas of labor & employment law (especially the gig economy) and comparative law (especially India). In this first post I want to address a concern that I’ve heard voiced by a handful of peers. I’ll limit my comments to my own experiences, but I’m interested in hearing best practices for both junior folks in this situation and for the law schools that hire them.

Even though I felt well-prepared for the market it took time for me to fully understand that I would indeed be employed as a professor after my fellowship* ended. Once it sank in, I started worrying that I would lose my interdisciplinary identity or one of my substantive areas of interest in the course of doing what early-career law faculty are mostly expected to do: publish a lot of high-ranking, mainline law review articles. (I still hold out hope that the worrying decreases post-tenure.) I value mainline law review articles—I’m working on a couple right now—but I also value fieldwork (which takes time), anthropological analysis, and my India work, with the latter two being largely oriented toward law-and-society type venues. If all I focused on during the next 4–5 years were projects that fit easily within the format and timeline of law review publishing much of what I bring to the table would fade away. For both personal and professional reasons, I do not want that to happen.

Fortunately, though it’s too early to make definitive predictions, it seems unlikely that this “atrophy” worry will come to pass for reasons of institutional support, complete happenstance, and of course my own desire to avoid the problem. After the break, I’ll give a couple reasons for my cautious optimism, both of which relate to my identity as a legal anthropologist.

Institutionally, our Dean has made it possible for me to use my pre-tenure leave to conduct fieldwork (rather than write), to use that leave earlier than normal, and to switch semesters for the leave when grant cycle snafus required me to do so. Likewise, our university-level grants committee awarded me a seed grant to pursue some preliminary research for a new set of projects in India—field research is cheap, but not quite free—so I was able to spend almost 6 weeks in Delhi at the end of this academic year. This kind of scouting trip is essential to developing competitive applications for major grants, but it also happened to give me ideas for the two law review articles that I’ll be working on in the immediate future.

Conversely, happenstance and my own interest in maintaining ties to other legal anthropologists have made it possible for me to expand a small experiment in scholarly community-building into what will become a formal event with publication outcomes. During my last fellowship year, I was thinking really hard about the intersection of law and anthropology in preparation for the market: what kinds of projects to pursue, what timelines to juggle, and even how to adjust my writing style while retaining some sort of voice that was recognizably my own. It just so happened that many really excellent junior legal anthropologists were thinking about these things at the same time. I started what I’ve been calling a “traveling roundtable” of young scholars who are seriously committed to thinking with both anthropology and law; the roundtables have been trying to arrive at some clarity—consensus is too strong a word—as to how this can and should be done. In other words, we’re asking both why anthropologists should care about law and why law folk should care about anthropology.

So far, we’ve held roundtables at the 2019 Law & Society Association meeting and the 2018 American Anthropological Association meeting. But—since there are only so many times you can hold a conference roundtable on the same topic—I’m now organizing a one-day symposium that will bring most of the roundtable participants to Alabama Law. We’ll workshop essays addressing the roundtable questions and, in keeping with the commitment to “speaking to both sides,” I’m planning for the essays to be published in two special issues (one law review and one peer review law & social science journal).  

It’s definitely been scary to do some of these things so early—special issues, continued fieldwork, event organizing—because doing so does not replicate the “play it safe” approach that many faculty candidates are understandably advised to take when they go on the market and that would be natural to follow as a junior prawf. As a candidate I also received some form of that advice and, to the best of my ability, I took it. As a first year prawf, I’ve tried to mitigate the risk of pursuing more unusual projects by also working on law review articles and other publications at the same time, although of course it remains to be seen whether this approach will work out. Nevertheless, once I started making the transition from candidate to prawf I felt strongly that ignoring any of my research interests or methods for too long would be both unwise and nearly irreversible.

But this is just one approach. Assuming that many interdisciplinary legal scholars want to remain interdisciplinary, and that it's not entirely feasible to put interdisciplinarity on "pause" for the years leading up to tenure, how should they—and their law schools—approach the issue?

 

*Shout out to the Penn Sharswood program, which was both structured wonderfully and introduced me to several people who have become much-valued friends and mentors.

The Compliment Sandwich

Law professors spend a lot of time assessing the work of others and giving feedback on that work.  We give feedback as part of scholarship workshops, as part of hiring and tenure reviews, and as part our interactions with students, just to name a few situations.  Some law professors are really incredible at giving feedback.  Others less so.  Perhaps because of the wide variation in styles and effectiveness, I’ve had a number of conversations with other law professors on the most successful ways to give feedback on another’s work.

One model—a model that I prefer—is what a friend of mine calls “the compliment sandwich.”  The basic idea is to situate your criticism between an opening compliment and a closing compliment.  Sometimes the compliment is nothing more than a quick aside before and after lengthy criticisms—a compliment about having chosen an important topic to begin, for example, and a compliment about how you think the paper adds to the field to end.  The “bread” in that compliment sandwich is very thin—“almost more like a cracker or a pita, than real bread,” my friend joked.  Other times the criticism is negligible next to the compliment—kind of like a finger sandwich:  mostly bread with just a tiny bit of filler.  But you get the basic idea—like a sandwich, criticism is easier to consume and digest if it is wrapped up in something that is both neat and agreeable.

I have been thinking a lot about the compliment sandwich recently because I’ve heard a few people speak negatively about those who are too quick to compliment others.  There are, for example, a handful of law schools and law professors who seem to eschew any positive comments at workshops as a point of pride.  Instead, the feedback delivered is uniformly critical, and the tone of the criticism can be extremely negative.  The decision to be only critical in feedback seems intentional—they seem to eschew compliments and focus only on the problems with a person’s work because that is what “serious” people do.

Most recently, I had an exchange with a lawyer named Scott Greenfield on Twitter about a similar topic.  I was defending the idea that people ought to take more time to praise people’s decisions—especially the decisions of those who ordinarily make decisions of which we disapprove.  One example that I gave was President Trump.  I think that Trump has made some laudable decisions to grant executive clemency.  He has also made a number of other horrible decisions with which I strongly disagree.  But I think it is important for me to express approval of the clemency decisions.

Greenfield disagrees.  He wrote—first on Twitter and then on his blog--about the drawbacks that he sees with “promiscuous praise.”  Of course, to use a pejorative word like “promiscuous” indicates that disapproves of whatever is being described.  But Scott helpfully elaborated to say that:

[T]here are many who praise too often. They praise anyone because the outcome is agreeable. They praise their friends to show support. They praise the banal. Sometimes they praise the dumb, even the flagrantly wrong, if it serves a goal they prefer.

Offering encouragement by way of praise has become a ubiquitous tool, particularly in academia, I still have flashbacks about being “instructed” when teaching cross-examination to law students that all criticism of their work had to be prefaced by praise. What if they did nothing praiseworthy? Come up with something. Make it up. But under no circumstances could there be criticism without praise preceding it.

This was taken for granted as the preferred pedagogical means to get students to accept the criticism. Without praise, they would feel they were being attacked. With praise, they were encouraged. But this had two side-effects, that it cheapened praise to the point of meaninglessness, as it was given constantly, often effusively, for the most trivial things. “It was wonderful how you didn’t drool when you began cross!” Except the words, “When you stood up to cross, your demeanor was very professional. Well done!”

As I read Scott’s argument I saw that he was criticizing the compliment sandwich.  And so I want to defend the practice.  Because I like the compliment sandwich.  For one thing, it is polite.  And call me old fashioned, but I like being polite.  And I especially like it when other people are polite to me.

Another reason that I like the compliment sandwich is because I think that people are more apt to listen if you begin and end what you are saying on a positive note.  This is separate from just being polite.  It is about beginning and ending about what is good about the project, rather than what needs to be changed.  Now Scott thinks that there are costs associated with this point of view.  As he explains using the example of what he saw at law schools when instructing students on cross examination:

The praise was, for the most part, empty and cheap. It was unilluminating. But it had two negative side effects. First, it bred students who were praise-dependent, who needed validation, even if they realized it was empty. Second, anything that wasn’t praise was seen as an attack. It became difficult, if not impossible, to explain to some students why their compound, open-ended question wasn’t good, because what they heard was “you’re stupid and a failure.”

I don’t know if Scott is correct that too much praise can lead people to (a) need more validation, or (b) be incapable of accepting criticism.  Those seem like empirical questions.  But I wonder whether his concern is really about the quality and the substance of the compliments, rather than practice of including compliments as a precursor to criticism.  Because it is true that a “thin” compliment in the compliment sandwich doesn’t add much in the way of substance.  Instead it seems like a pro forma gesture more than anything else.  But maybe the approach should be to ensure that the compliment serves a substantive purpose, rather than to scrap the idea of the sandwich all together.

Which reminds me of a conversation that I had with another friend about giving feedback on work.  She insists that it is just as important to tell people what they are doing well as what they aren’t doing well.  Especially on early drafts, when people are trying to decide what direction to take their project in, it is important for them to know what seems to be working and why.  Since she and I had that conversation several years ago, I’ve tried to follow that advice.  Personally, I’d like to do a better job focusing on why certain things work well.  Just as I also try to, when giving criticism, offer some thoughts on how to correct what I see as the problems.  Those types of comments—why something works, why it doesn’t work, and how to improve—are much harder than simply pointing out flaws.  Saying that something is bad is much, much easier than trying to explain what might make it good.

Spending at least some time talking about what makes a project good could also help to avoid giving comments that are really about what paper you would have written, rather than comments designed to help the person write a better version of their project.  I think a lot of us fall into this trap when giving feedback:  We often think about what we would have writtenor what we think is interesting.  But those sorts of comments are sometimes far less helpful.  And I think this concern applies not only to professors writing articles, but also to other situations, such as giving students feedback on a trial skill:  There are lots of different ways for lawyers to be successful in the courtroom.  Taking the time to compliment a student on what he or she did well will help the person giving feedback focus on the particular courtroom style that the student seems most comfortable with.  Then the person can give criticisms designed to help the student master that particular style, rather than the style that the person commenting happen to like best.

There is one last reason that I’m going to continue to try and focus more on praise than on criticism:  Criticism is just too easy.  Especially for law professors and lawyers—critical thinking is one of our major skills.  It is basically our job to listen to what someone says and try to identify reasons why that person is wrong.  And I think that skill has some unfortunate side effects.  I think that it is hard to turn that part of our brains off, which makes us kind of unpleasant to be around.  We love to tell people why they are wrong, inconsistent, illogical, etc.  And I think it may also cause some of us—or at least me—to take a much more negative approach in life. 

So I’m sticking with the compliment sandwich.  I’m going to focus on making the compliments less perfunctory and more meaningful.  And I’m going to try and look more closely for the positive things that people say and do.  If, for no other reason, the past couple of years have shown me that there is really no bottom when it comes to the awful things that people are willing to do and say in this world.  The bad will always be right in front of me—so I may as well seek out the good.

 

"Two Weeks In": thoughts for first-year students

For about 15 (!) years now, I've imposed on the students in my first-year classes (Constitutional Law and Criminal Law) a version of the meandering and sprawling e-mail that's pasted below the jump.  It's meant to be an evolving reflection on legal education and formation, and the legal enterprise more generally, for (again) people who are still pretty near the starting gate.  I'd welcome (off-line or in the comments) any thoughts or suggestions for improvement!

Dear all,

We're two weeks into the new semester.  For what they're worth, here are a few reflections of mine, both about these first two weeks and about what's ahead.  You've probably heard a lot of this, from me or from others, before. Usually, I impose these thoughts -- which change every year! -- on first-semester students and, obviously, you all are more experienced than that.  Still, I thought it might be helpful to you to have a sense of how (for what it's worth) I think about what we're doing.

My view, as you've probably guessed, is that legal education is not primarily about memorizing rules, and “being a lawyer” involves more than being paid to apply clear “black letter” doctrines to clear facts.  As I see it, there is not always a clear “right answer”:  Life in the law is far more complicated -- and far more interesting -- than this, in several ways.

As I've mentioned a few times in class, we lawyers are, in many ways, story-tellers.  We investigate the facts, select our witnesses, find our evidence, ask our questions, and make our arguments.  We are, of course, both honest and creative. We try to convince the courts, and our opponents, about “the law” that applies to the case – i.e., the rules by which our “story” will be judged. We make arguments.  We draw analogies to some cases and we distinguish others.  After all, it is not always clear what the law is or what the law means.  And, we try convince our audience that “the law”, applied to “the facts”, yields the result for which we are advocating.  And, of course, we do all this mindful of the fact that we have an obligation to the truth. 

None of these three aspects of the drama of practicing law has anything to do with memorizing “black letter” rules or case-names.

You are all students at a good law school.  What does that mean?  Some think that law students are, essentially, consumers, and that “the law” is a neatly packaged product that law schools and teachers hand over, in small chunks, in exchange for huge tuition payments.  Some think that law school is a three-year bar review course, the purpose of which consists entirely in preparing one to take and pass the dreaded bar exam.   Still others might think that law-school classes can be neatly divided into “law,” which one needs to know, and “policy” and “theory,” which the professors care about but is really irrelevant.

As you might imagine, I believe these views are mistaken.  The truth is, we don’t really have a “product” for you to consume.  Instead, what we've been doing this year is inviting you into a profession and into a way of thinking about the problem of ordering the life of the community (which is the problem that law is supposed to solve).  And the study and teaching of law does not consist of me handing over, and you memorizing, briefly retaining, and then regurgitating on an exam, a set of rules called “the law.”  Legal education – if done right – is not about memorizing facts, data, and rules; it is not only about “technique.”  It is about learning to think, write, and reason – critically, carefully, and creatively.

In my view, if we are doing our jobs right, my colleagues and I are teaching and encouraging you to write clearly and persuasively; to craft sound arguments by drawing analogies and making distinctions; to abstract general principles from specific situations, to analyze complicated scenarios, and to apply the appropriate principles to the given facts and circumstances; to appreciate, when presented with a problem, which facts matter, and which facts do not; to recognize the moral dilemmas that so often arise in law (and in life), to have the strength of character to do the right thing, and to encourage others to do likewise; to think critically about legal rules and practices, and to evaluate them in light of the transcendent demands of justice and human dignity; to communicate to others, to your friends and families, to your clients, and to your communities the value and importance of the rule of law (in other words, part of what you are learning here is how to be a law teacher); and, perhaps most important, we want to encourage you to regard “being a lawyer” as “more than a job,” but a vocation.

Well, now you might be thinking, “this sounds fine, but is it practical?”  For starters, in law, theory and practice are always connected, and cannot be separated.  The practice of law is the application of theory and principles.  For example, the various “punishment theory” readings might seem abstract and theoretical; in fact, they explore ideas and arguments that play an essential role in shaping the “black letter” law.  In addition – I cannot emphasize this enough – you’ll find that when you practice law, your stock in trade will not be your memorized storehouse of legal formulas.  You’ll forget most of them pretty quickly after you graduate, if not before.

 Our stock in trade as lawyers is judgment, persuasiveness, reason, and wit.  No one is ever going to come to your office and say, “Mr. Smith, can you tell me the Rule Against Perpetuities?”  Instead, they are going to come to you with complicated problems and they will want your counsel and advice.  The solutions to these problems will rarely be clear; in fact, the problems themselves will rarely be clear.  This is why law is fun.  It is fun, challenging, and creative to identify and solve problems.  That’s what we do.

I think that an important aspect of legal education is learning to deal with uncertainty.  It's learning to deal with the fact that, sometimes, my colleagues and I won’t give you “the answer” to your question and will instead work through the competing arguments with you.   This under-determinacy can be frustrating.  But, there’s no escaping it.  If we make the law and its applications “black and white”, then we are lying to you.  To be clear:  I’m not saying that “there is no truth” or that “right and wrong are all subjective and relative.”  I’m simply saying that, in the law, there are often good arguments on both sides of a question.

I think that all this is true not only for Criminal Law, but also for your other courses, last semester and now.  In a way, the label on the book or the title of the class doesn’t matter all that much.  In all of these classes, you are learning pretty much the same thing:  How to think and write like a lawyer.  Think of it this way:  Every law-school subject has three “levels.”:  The subject’s particular rules and doctrines; the history and public-policy justifications for those rules and doctrines; and the meaning of life.  To be a good lawyer -- to deserve the name -- you have to think about law on all three levels.  In my view, no lawyer worthy of the name can be ignorant about where the principles she applies come from, or indifferent about whether they can be justified.

Finally, a favor to ask:  please do your best during your time here to build an intellectual culture here that is consistent with all this.  Allow yourself, and encourage each other, to be intrigued by and curious about the law.  Care and argue about the law.  Not every law student thinks this way, but a Notre Dame lawyer should.

Sincerely,

RG

Life After Tenure

Several years ago, I attended a panel at SEALS about life after tenure.  I went to the panel because I was almost tenured myself, and I realized that I hadn’t given much thought to how I would conduct my professional life once I’d cleared the hurdle of tenure.  I forget the precise name of the panel and the people who were speaking.  But the panel nonetheless stands out in my memory for two reasons:  First, there was a very big audience for this panel.  And second, I walked out of that room thinking that no one had a particularly good answer to the question “what should you do once you get tenure.”

To be clear, people on the panel and in the audience all had different answers for the question—both about what professors should do, and what they personally had done.  Some people at the panel talked about taking on more administrative responsibility, like serving as associate dean and trying to become a dean somewhere.  One person recommended learning a new language.  Some others recommended that professors “slow down.”

In recent weeks, I’ve found myself thinking about that panel again.  One reason I’ve been thinking about this topic is that I’ve been invited to speak at a conference on March 30^th called “Tenure! Now What?” (There are a lot of fancy people speaking at the conference, and so I feel pressure to say something thoughtful.) 

Another reason that I’ve been thinking about this is more personal:  Someone recently asked me where I wanted my career to be in 5 years.  I didn’t have a response other than to say I haven’t thought about my life in those terms since I got tenure.  The question made me think about the fact that I probably only 20 or 25 years left in the academy.  And so I’ve started to take stock and think about what I want to accomplish in those years.

In any event, I am still looking for answers about what people ought to do once they get tenure.  After all, I need to sound smart at the conference.  That led me to pose the question on Twitter.  Some of the answers were very good --- I recommend that you read the replies to the tweet here. In particular, I recommend Barry Friedman’s standalone thread on the topic, and Orin Kerr's tweets about how asking the question about what to do after tenure raises serious questions about what we are doing before tenure.  Please feel free to add your own thoughts in the comments to this post.  And if you are interested in attending the conference, registration is still open.

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

A Personal Law Review Article Submission Narrative

Before the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t.  And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class.  I’m not in a position to assess the methodology or limitations of that study.  But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools.  According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument.  The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money.  So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15?  Or 35?  Or 42?

I’ll admit that I feel somewhat defensive about this topic.  But I want to be very clear about *why* I feel defensive.  I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich.  (And there is a best-selling book out there right now that seems to say it is.)  And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume.  The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school.  And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind  of crappy.  As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money.  They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree.  And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article.  The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class.  And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success.  I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves.  For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know.  And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have.  There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky.  And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring.  There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30.  But it’s not entirely clear why it is easier.  If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed.  But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem.  Is it because Harvard and Yale have better networks for their grads?  Is it because they do a better job teaching their students about academic writing?  Or is it some form of discrimination?  It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made.  In fact, I think it can.  And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion.  We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about.  But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class.  It simply isn’t true.  And it prevents us from having a better discussion about the issue.

A Guide for the Perplexed - Law Professor Careers Edition

With sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On.  I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.  

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made.  (Disclaimer:  what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.)  So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

• Why are you writing?  Presumably it's because you like doing it and see it as a way of making a difference in the world.  But from a career advancement standpoint, you do it for one of three reasons:  to get hired, to get tenure, or to move laterally.  What I'm about to say is based on intuitions about data because the data is not readily available.  The first and the last of those career objectives are difficult; the middle one, at all but a handful of institutions, is relatively easy.  My suspicion is that the lateral market is far less important as a factor in career advancement than it might otherwise seem - again the availability heuristic at work.  The AALS reports that there are over 10,000 full-time tenured or tenure-track law professors (makes sense - about 200 schools at an average of 50 faculty members).  Maybe there are 100 lateral moves a year?  A very well-known senior law professor/scholar told me years ago not to expect to move laterally - this person had spent 17 years at a lower top 100 school before making a series of significant jumps up the food chain.  My intuition (which I could test if I didn't think it was undue navel-gazing) is that the farther you go down the rankings, the higher the percentage of faculty that have spent their entire career at the school.
• CVs provide a gestalt.  My own experience is that I take it in as a whole and don't react to any particular item unless there is something truly exceptional about it.  For my money, the angst and mental energy I see reflected on this blog with respect to article placement is barely worth the effort.  The names of law reviews in which you've published are visceral heuristics that, in my experience, matter only when one is flipping through hundreds of FAR submissions.  Even then, it matters only to an extent and not at the level of granularity that people seem to think makes a difference.  Per the lumping of peer reputation scores I've highlighted before, if you've published in the elites it would cause me to notice, and it would probably cause me to notice if you published nowhere but specialty journals in the unranked USNWR category of law schools, but little else matters viscerally.  I don't keep a US News or Washington & Lee ranking in my head, and couldn't tell you where Tulane ranks in relation to Colorado to Temple.  And even noticing isn't the same thing as making an informed judgment that involves the subject matter of the writing, the apparent sophistication of the work (if one can tell from the title), or its originality, even if I make the judgment quickly.
• Once you get past the visceral, here's what I think really happens.  As Paul Caron wrote in an article over ten years ago, legal scholarship has an exceedingly long tail.  Paul relied on research done by Tom Smith at San Diego.  The top half percent of articles get 18% of all citations, the top 5.2% get 50% of all citations, and the tail gets truncated quickly as 40% of all articles never get cited.  I'm assuming that there is a relationship between citation and articles even getting read.  The times you can be sure some or all of your work will be read is when you've made it through the callbacks and are into the final several people being considered for the spot, when you are being reviewed for promotion or tenure, and if and when you were ever in the final stages of the lateral process.  Generally speaking, people doing that reading aren't idiots, and know exactly how the system works.  If the piece sucks, but somehow you managed to get it through the editorial board at take-your-pick top 50 flagship, very few people who know the area in which you are writing are going to think to themselves, "Hmm, this person missed the really important work on this subject and skated over the hardest responses to the argument, but my gosh it was placed in the Big Ten Other Than Michigan Law Review, so it must be good."
• While being perceived as a competent scholar is a but-for in the hiring, tenuring, and lateraling milieus, the make-or-break consideration is being perceived as a productive scholar.  If there is anything I find meaningful in visceral impressions, again it is the gestalt of a CV with a healthy list of publications the dates of which show consistency, all appropriately adjusted for the length of one's career.
• In creating the gestalt, aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this, as are the "essay" sections of traditional law reviews.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
• With the shorter pieces, take a shot at a peer reviewed journal.  I really like the courage it shows. (Most peer reviewed journals have a word limit - usually no more than 10,000.).  It takes longer to place them, but it really is a professional affirmation.  And since it's likely that they don't count as "tenure pieces" under many schools' tenure standards, the wait doesn't matter so much.  Steel yourself, however, for what academics in other disciplines experience:  evil reviewer #2 who hates your piece, your school, and you, "revise and resubmit," and Chicago Manual of Style footnotes. 
• My thoughts on the substance of what gets written and the relationship of that substance to career advancement - issues of cross-disciplinarity, normativity, conformity, etc. - are at pages 71-80 of Retire and Teach: Six Years On, and I won't repeat them here.
• Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
• Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.
• Finally, a pet peeve. When you submit, you certainly can play the expedite game, but my personal view is that it’s inappropriate to submit to law reviews for which you would not accept an offer if it were the only one you got.  If somebody at my school were to tell me they were doing that, I would probably raise my eyebrows and look askance.

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining:  "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty:  I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline.  I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time.  As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.'  I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression:  "Dear Professor:  Thank you for submitting your article to the Very Highly Ranked Flagship Law Review.  Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion.  We wish you the best of luck in your placement of the article.  We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger:  "Ungrateful little shits."

Acceptance:  American Samoa Journal of Bible Studies and Blockchain Technology.

[I promise more serious advice in a future post.]

Submission Angsting and the Availability Heuristic

I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years.  I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school.  I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75.  Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top.  I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind.  Hence, we bias our judgments based on available information.

Having said that, here goes.  One of the most available pieces of information is the linear ranking in US News.  It's really available.  It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles.  What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8.  You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly.  It's pretty clear that whatever peer assessment means, the top 17 are in their own world.  As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40.  That effect is even more dramatic in the 50-100 range.  The point is that the rankings are linear, but the actual data sits on a curve.  So the differences between linear rankings mean different things at different levels.  (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125.  Yes, the data are meaningful when you jump from 105 to 18 or vice versa.  But not when you "sank" from 50 to 62.

Okay, that's it.  Back to our regularly scheduled blogging.

UPDATE:  I'm going to close the comments here.  If this merits any discussion, it probably ought to occur at the angsting post.  

Liz Magill, Stanford Law Dean, to Become UVA Provost

Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia.  She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).  

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

Law School Classroom Techniques: Myth- or Reality-Based?

My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Ode to Law School

I loved law school.  It was the most fantastic, rewarding, engaging, and challenging of experiences.  My group of friends in law school included a medical student.  As graduation approached, my med school friend and I went to lunch, where she declared that I was the only one of the bunch who really, genuinely loved the law.  While I’m not sure if that is an accurate assessment, it is certainly true that I love the law. 

I have, however, been frustrated lately, because I have spent weeks trying to rewrite the introduction to a paper.  A paper I started working on two years ago.  I’m actually still excited about the paper and its potential, but this is way too long to be tinkering with an introduction.  So long that I’ve started to wonder whether I should drag the file to the recycle bin, declare it a lost cause, and move on to different half-written project.

But today, my frustration left.  Today, there has been a line of iCLEO students sitting outside my colleague’s door to discuss their exams, and it reminded me of what it felt like to be an idealistic, incoming law student.  It also reminded me that in a few weeks what is currently a sleepy, quiet building will be bustling with activity and excitement.  A whole new group of students will be here and at least some of them will end up loving the law as much as I do.  Just the thought makes me smile.

So as I contemplate the fact that I’m almost a month in to my seventh year in this particular office, on what is a truly beautiful camps, I am going to try really hard to channel my joy of law school.  And finish this darn introduction.

How to make a better law review

Law reviews are doing more than ever these days. They don't simply solicit articles for publication and host an annual symposium. They have social media accounts, podcasts, online supplements, exclusive submission windows, and more.

But with more than ever, I wonder if somethings journals aren't simply doing something because they feel they ought to be doing something. So, what does a good law review do these days? Following up on some good thoughts at The Faculty Lounge a couple of years ago, I offer my own here. A good law review should think about a few things--and perhaps even do some of them. (I should add that I'm not an advisor to any journal but have served in that role in the past.)

But full disclosure to set expectations: I'll avoid the biggies, like "revamp the submission cycle"....

1. A good law review starts with a good website. It means it has regularly updated content and decent navigation. It means it has a good RSS feed that pipes out content. If a law review website is poor, social media cannot cure it. If your website is primarily stock photos, or a sub-page of your law school's site... it's probably not interesting anyone.

And the failure to update content? Even worse. You've exerted such terrific time, effort, and resources to select, edit, and publish this content. Why, then, in the last mile--really, the last few yards--fail to put it out there for everyone to read it?

I'm sure some readers scoff, "I thought RSS was dead?" Not for power users--that is, the people who are the most likely to find and share your content. Which group of users do you anticipate is most likely to share your work: the casual observer who stumbles on your page one day, or the person who sees the resent articles pop up in her Feedly feed in almost real time? (James Grimmelmann's comments at The Faculty Lounge capture this quite well.) I've worked to aggregate some RSS feeds of journals, but you can see some don't have one, and I've only just begun.

2. Promote articles, not journal issues. I know that law review staffers are obsessed with the issues in their volume. When an issue comes out in print, it's a really big deal. It's understandable to get excited about it! But think about how promotion in social media compares when promoting issues, not articles.

To pick one account's tweets consider the information communicated with a tweet like this:

The Board of Editors is pleased to present Issue 1 of the 2016 Volume of the Illinois Law Review: https://t.co/3ulNw54Bjc

— Illinois Law Review (@UIllLRev) February 3, 2016

This tweet is just fine. But... what's in the issue? That's what people care about! It might be that some people will engage with this tweet. But on its face, it's not immediately clear who published what, or why someone would care--except if you were really intent on viewing a new (generic) issue of the law review. Consider instead:

Should daily fantasy sports be considered gambling or games of skill? @MarcEdelman explores this divisive question: https://t.co/atQkVwBL8n

— Illinois Law Review (@UIllLRev) February 11, 2016

Notice what's included and not included. First, it includes a description of the piece, not the title. Titles of articles can be fine, but sometimes they are insufficiently descriptive, or too bulky for the medium. Second, the author is tagged! That's important, because, let's face it, my vanity on social media is the driving force for creating and promoting content (alas). But it also alerts your authors that you're out their promoting their work--and that it's available on their good, up-to-date website. If you can tag the author's institution (particularly if that author lacks a social media account), all the better.

3. Timing matters. I'm fairly consistently surprised to see my RSS feed update at 12:30 am ET on a Sunday, or tweets pushed out at 10 pm on a Friday. There are optimal times to release and promote content--usually peak business hours during weekdays. Pausing a few hours or days to update the website, or using a timed Twitter platform, can help maximize the opportunity to share content.

4. Consider whether and why other content exists. I've listened to many podcasts put out by journals. I've seen online supplements born, renamed, languish, reborn, reformatted, and languish again. There are law review blogs, or Twitter symposia, or live streaming symposia. In short, journals are doing lots of things we might loosely tag as "innovation."

But, why? To what end? Often, this other content feels like innovating for innovation's sake. It's sometimes tacked on, as if it isn't integrated with the rest of the stuff the journal is doing. Before launching into one of these labor-intensive endeavors, it might be worth considering what these other items of content are supposed to be doing. That I can't answer--it's an existential question that may vary from journal to journal. But, it can probably also help with the next piece....

5. A faculty advisor must help continuity and vision. Law reviews are student-run, and I think that's a good thing. (I won't wade into the debates here and elsewhere months ago about peer-reviewed v. student-edited; I'll leave my comments at this!) But often, new projects like podcasts, more novel content like online supplements, or even more longstanding elements like using the Twitter account and updating the website--often, these things can get lost in the transition from one editorial board to another. The vision might be lost, because the vision didn't reside in the journal but with one 3L who's moved on. The content might suffer because information simply isn't transferred from one board to another.

I'm sure faculty advisors have wildly different relationships with their journals. But from an institutional perspective of the law school, the law review can be one of the most valuable and visible assets of the school. It's also one of the greatest ways the school contributes to the scholarly enterprise and looks to create new knowledge. While I strongly endorse student-run journals, faculty guidance and leadership can help make sure that these journals are doing their very best work.

Many journals do many of these things quite well. But maybe there are a few things here that could help some journals improve.

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Typically, "disruption" is the idea of a new player dramatically changing how an existing enterprise operates: Netflix to home movies and cable, Uber to taxis, and so on.

Law schools are understandably clamoring for outlets to earn revenue. The dramatic spike in innovative non-JD degree offerings from law schools is a testament to that. (The value proposition of these degrees remains deeply underexamined.) Some of these are online degrees.

But the JD has remained a largely brick-and-mortar, in-person experience. Schools have done some things to innovate in this area, including broadening externship opportunities and field placements. They have even recently permitted students to receive academic credit for paid externships.

The recent innovation has been led by schools like Syracuse proposing a mostly-online JD, and Mitchell|Hamline (or its predecessor) has offered one for some time.

But existing schools would be building on infrastructure that is decidedly not optimized for online legal education. And they risk demonstrating how their costly existing model is--perhaps undermining their own JD programs in the process. That is, if students are attracted to a significant component of the JD online, what happens to the much more expensive in-person JD experience?

The online JD has significant cost advantages for schools (that, presumably, will offer the program at the same price as in-person courses). Once an asynchronous course in contracts or torts is recorded, it rarely has to be updated or altered. And once the course is "built," it becomes fairly easy to teach repeatedly.

To the extent there are such asynchronous course offers or lecture-based presentations, what's the purpose of that "old-fashioned" law school experience--showing up, sitting in classes, costly enterprises?

Of course, I think there's value in the Socratic method (requiring interactive Q&A), and occasionally small group discussions, and other live and interactive components. Online JDs would eschew all these elements--or, at least, convert them into online experiences when offered in synchronous courses.

It might be that some schools will survive by converting their models into online ones, with dramatically lower overhead and greater ability to scale. That is, as they vie for enrollment, online components might be a way of attracting a new cohort of students.

This isn't to say that online JDs are good or bad. It's simply to indicate they're different--in particular, cheaper for law schools to operate in the long run. And if they're cheaper, what might that do to legal education?

One is the price might drop for legal education, but that seems highly unlikely--recall, schools are built on the brick-and-mortar experience, and they're not winding down those high-priced operations anytime soon.

It might "normalize," in a way, the online JD experience, to the extent that matters to prospective law students. And that might pressure many other law schools to follow suit.

It might also incentive new law schools--built on a lower cost, lower tuition model--to pop up and perhaps undercut existing law schools. That is, law schools might disrupt themselves by creating partly online JDs, making them perfectly ordinary for prospective students, and incentivizing new schools to undercut them in price in the future.

Then again, we might see the signaling function of attending a brick-and-mortar institutions, or at least the institutions that have been around for a long time. Perhaps we'll see a strata of separation between those with the luxury of a costly in-person JD degree (with all the benefits of three years in a social setting physically with other students), and perhaps the future legal services market might reflect that.

It's worth emphasizing perhaps I'm overreading this. It's only a partially-online JD component; it requires school buy-in; it may be that for students externing or studying abroad or moving to a city to work and complete classes in their final year, that these online JD elements are simply convenient devices for schools. And online degree-seekers are recruited mostly locally, anyway; spend a few minutes reading SEC filings with online education companies to see why they develop relationships with so many geographically different universities.

I've offered enough (rampant) speculation about the potential future impact of online components of a JD. But all that is to say that the future impact of online JDs, even as components of a mostly in-person experience, turns mostly on what law schools do with them. If they supplement existing programs, it may have a very modest impact; if they seek to replace existing programs and attract new cohorts of students, they might dramatically alter the landscape of legal education in the next 30 years.

 

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Current admissions standards require admission of applicants "who appear capable of satisfactorily completing its program of legal education and being admitted to the bar" (Standard 501(b)), which "may" include considering admissions test scores (Interpretation 501-2). Beyond that is a separate requirement for a "valid and reliable admission test" (Standard 503). If a school uses something other than the LSAT, the school "shall demonstrate that such other test is a valid and reliable test" (Interpretation 503-1).

My eyes sometimes glaze over reading string cites to ABA standards, so I'll break in here. These rules simply put schools in the position of having to demonstrate that it's okay to use another test, like the GRE. Inertia, then, has been a major reason why schools mostly stuck with the LSAT. They always could've done something else, but it would require some work.

When the University of Arizona took the lead considering the GRE a few years ago, it had to carry a new burden to prove compliance. But given the sharp decline in applicants and LSAT test-takers over the last decade (improving this year), it seemed like a sensible move. Here was a pool of test-takers more than twice as large as the LSAT pool. Capturing a small percentage of them would be a tremendous advantage. Other schools soon followed suit.

But the burden to "demonstrate" that the test is "valid and reliable" has caused some concern. To start, the ABA hasn't offered much in the way of explaining what the evidence would look like. Schools could offer their best evidence from students who took both the LSAT & GRE, but others were worried whether that might be enough. ETS, which administers the GRE, came out with its own study to show that the test was as reliable, but then others wondered whether that would be enough.

It's worth pausing to note that there are already exemptions from the LSAT requirement. While schools under Standard 503 must require each applicant take a test, there's no rule as to how much weight that test score should receive (Interpretation 503-2). If you are a law school at a university admitting a student from your undergraduate program or another graduate program, you can admit that student without an LSAT score as long as the student scored in the 85th percentile of the ACT/SAT/GRE/GMAT, or was in the top 10% of the class, or had a 3.5 undergraduate GPA (Interpretation 503-3).

Furthermore, the LSAT is less effective than it once was. LSAC reports the highest score, which is less reliable than the average score of repeaters (UPDATE: it's worth emphasizing that schools also still receive the average of all scores and each score from each test; the ABA and USNWR permit using the highest score instead of the average, too); it now also permits unlimited retakes. LSAT is still a much better tool than, say, undergraduate GPA, and it offers (some) pretty good predictive value.

But the recommendation approved this week from the Council that may become final soon would abolish Standard 503 and all its interpretations. Instead, there'd just be 501: demonstrate that you have sound practices. It would also add an interpretation, newly renumbered at Interpretation 501-3: "Failure to include a valid and reliable admission test as a part of the admissions process creates a rebuttable presumption that a law school is not in compliance with Standard 501."

It's not terribly different from the previous rule, except that instead of "shall demonstrate," it's simply that schools have a presumption to rebut--no need to demonstrate a valid and reliable admission test. Demonstrating compliance by showing, say, low attrition rates and high bar passage rates may well be enough. Or, showing that your alternative test is valid and reliable would mean there's no presumption to rebut. (It's worth noting this also abolishes those other rules about taking from your own undergraduate institution--it's all in the same holistic bucket.)

I doubt this will suddenly be a race to the bottom--the bar pass rates and recent enforcement from the ABA should prevent much of that. So, the experimentation can truly begin. That I emphatically support. But will they?

I think many schools will be reluctant to do too much too drastically (but, I think, a few brave ones will!). Inertia matters. Rebutting a presumption matters. And risk-averse schools may become nervous about big changes to their admissions programs, only to see attrition one year later or bar passage rates three years later worsen and having to undo policies.

But beyond all this, USNWR will likely (unfortunately) drive a lot of decision-making. USNWR already converts GRE scores into their percentile equivalents for reporting LSAT medians. I'm not familiar with any evidence that this practice is warranted--I don't know if a 75th percentile score on the GRE is the same, worse, or better, than the 75th percentile on the LSAT. But, to the extent schools are driven by USWNR, they are likely to keep GRE scores, on percentile terms, roughly correlated with LSAT.

It also means that how USNWR in the future decides to handle bodies of students without any test score will be the true test of experimentation. Of course, if brave schools choose to do what they think is best for their students, USNWR be damned... but that's the stuff of rampant speculation.

The best employment outcomes for law students

Law schools disclose somewhat granular employment statistics to the American Bar Association as a result of increased and improved transparency efforts in the last decade. Over at my blog, I've looked at region-specific figures, the overall market, and industry-specific outcomes. (In short, things are looking up this year!)

But after churning through these figures for several years, I realize that we (the writ-large legal academy) make a number of assumptions about these outcomes. These assumptions are heavily influenced by what USNWR does, what "scam bloggers" and "transparency" advocates endorse (ed.: guilty of scare-quoting...), and even by the very ABA forms themselves. When I aggregate the data, I expressly qualify that I'm making some assumptions based on what USNWR does, as it's one of the more generally-accepted practices: give "full weight" to jobs that are full-time, long-term, and are bar passage-required or J.D.-advantage; give some less weight to school-funded positions in those categories; and heavily discount (and others would outright ignore) all other outcomes.

There are raging debates about each of these categories as we try to figure out whether students have "good" or the "best" employment outcomes. Are J.D.-advantage jobs really equivalent to bar passage-required jobs? (Answer: it depends, but certainly not perfectly equivalent.) Should full-time school-funded jobs be discounted? (Answer: maybe the status of these positions has changed over the last few years, and we could use more information.)

But the one nagging question is one that's unanswerable from these debate (which, in my view, have huge amounts of uncertainty!). Instead, I think the most salient question to address the question of whether law students are graduating with the best employment outcomes. And that's a question that looks like this: "Are you satisfied with your employment outcome?"

There are huge problems with this question. Students can have dramatically unrealistic expectations. We know from survey data that a lot of entry-level attorneys are often already looking for their next job, some of them because they viewed the first job as a stepping stone, but others assuredly because of disappointment. Region, salary, debt loans, class rank--lots of things can factor into satisfaction.

Still, shouldn't we be asking this question of our graduates? If a student want to work part time, or has a dream professional (non-J.D.-advantage), or is happily enrolled in a PhD program, we'd like to know that. And if a student is in a 3-person law firm with the credentials that suggest the student has been "underplaced," we'd like to know that, too.

Perhaps schools are already internally asking these questions. Perhaps the huge problems are insurmountable, and it'd just be one more data point that only creates more questions rather than illuminates anything of too much value. Nevertheless, given that many of our other assumption of "good" or "best" employment outcomes seem to assume graduate satisfaction, perhaps there are better--if not outright direct--ways of determining that.

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal.  It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship.  Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process.  Some of these criticisms were entirely fair.  Anthony Kreis, for example, made a strong case for blind review of all law review article submissions.  But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.  And to say that those ideas ought to be turned into books ignores real differences between books and law review articles.  For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments.  That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers.  For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles.  Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers.  Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

That isn’t to say that some law review articles couldn’t benefit from some editing that condensed their length.  And I am quite glad that we no longer live in a world in which 90 and 100 page articles are the norm.  But that is a far cry from saying that the 50-65 page article genre ought to be abandoned in favor of a significantly shorter one.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public.  Eric Segall made this point quite forcefully at the conference when he said that the essays that he has written for mainstream media outlets have had more impact than his law review articles.  Because of the difference in impact, he argued that law schools ought to change their promotion and tenure standards in order to create more incentives for law professors to write shorter pieces aimed at general audiences.

I strongly disagree.  There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.

More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article.  Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue.  To be sure, we can distill our expertise into op eds or commentary.  But if we write essays or op eds that do not significantly draw on that expertise, then we are no different than a pundit.  This country already has a lot of very good legal pundits.  What law professors can add to the public discussion is our expertise.  We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.

There are plenty of other criticisms of law review articles.  And I may someday write a defense (at least a half-hearted one) about the law review submission/acceptance process.  But for now I’ll simply close by saying that we ought not lose sight of the real strengths of law review articles in our haste to criticize the genre.

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

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

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

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

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

1. The first draft of everything is shit. -Ernest Hemingway
2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy

3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

Law Professors on Twitter

Like many law professors, I am on Twitter. And like many law professors, I often question whether being on Twitter is a particularly good idea.  Among other things, I enjoy Twitter because it allows me to read the tweets of other law professors and to engage with law professors about their tweets and mine.  But while reading those tweets and having that engagement can be quite enjoyable, it can also be quite the opposite.

In the past few months I have had several conversations with other law professors in which they expressed surprise and disappointment in how other professors have used the Twitter platform.  There are a variety of complaints—some professors use the platform to tweet intemperately about political views, some use it for over-the-top self-promotion, some use it to express legal views far outside of their areas of expertise. One common complaint I have heard—and one that I share—is that law professors use the platform to engage in increasingly confrontational and rude ways with one another.  Professors should always be willing to engage with those who don’t agree with them. And we should always expect our opinions to be challenged.  But Twitter appears to have made the tone of those disagreements much coarser and their occurrence more frequent.

I don’t know how to fix the many problems that Twitter causes in legal discourse. But I’ve drafted a short essay on the topic—which can be found here—and I’d be very grateful for feedback on how to improve the essay.  In the meantime, let’s try to be kinder to each other in 2018.

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). 

 

Debt Limits, Tuition Discounting, and Legal Education

Almost six years ago, I participated in an online symposium on the future of legal education at the Legal Ethics Forum. At the time, I examined the possibility of government-instituted caps on lending for graduate education, a proposal earlier put forward by Brian Tamanaha.

A lot has changed in those six years, but the proposed PROSPER Act now recommends a cap of $150,000 for graduate education. On the whole, I think that loan limits are a good idea, though a $150,000 cap would have a significant impact on law school finance. For example, the USNEWS ranking of law schools by average debt shows that the average law-school debt at 23 law schools is already more than $150,000. High-debt schools are found at all levels of the prestige hierarchy, including Thomas Jefferson (with an average law-school debt of $182,411) and Columbia (average debt $159,769). With a hard lending cap from the federal government, I would expect that private lenders would be willing to fill the gap at schools like Columbia. I don't believe they would so at schools like Thomas Jefferson. Private lender SoFi, for example, will refinance some law-school loans, but it also ranks schools by an estimated return on investment, and recommends that students "steer clear of the law school programs on our list with a 0.6 or lower salary-to-debt ratio." It is unlikely that SoFi or other private lenders would willingly provide financing for such programs. It certainly would not do so at the same rates offered by the federal government.

Even schools that have an average law-school debt load lower than $150,000 are still likely to have a significant number of students who take out much more than $150,000. It is true that law-school discount rates are relatively high. A recent report from NACUBO  and AccessLex found that the discount rate "for all JD students rose slightly from 47 percent in Fall 2015 to 48 percent in Fall 2016," and "[o]ver the same time, the average student tuition discount rate for 1Ls across participating institutions fell from 58 percent to 50 percent." However, those discount rates do not reach everyone: only "[a]bout two-thirds of all JD students and three-quarters of 1Ls received institutional grant aid."

Who are the one-third of JD students not receiving discounted tuition? A study from the Law School Survey of Student Engagement, titled “Law School Scholarship Policies: Engines of Inequity,” found that economically disadvantaged and minority students bear a disproportionately high share of those costs, often subsidizing "merit" scholarships awarded to students from wealthier backgrounds. 

Although I believe that lending caps can help reduce the harm from inequitable discounting, the PROSPER Act as a whole is troubling and not good for education. It would eliminate Public Service Loan Forgiveness, which would harm graduates' ability to take low-paying jobs in the nonprofit sector, and it would abolish gainful employment metrics and the 90/10 rule for for-profit institutions of higher education,  allowing greater federal subsidies for for-profit education (changes that, taken together, would move federal funds away from subsidizing graduates who go work for cash-strapped public defender offices in order to increase funding that primarily benefits shareholders of for-profit institutions). I believe a much better position, as I argued six years ago, is to instead expand the gainful-employment rule to cover both the for-profit and non-profit sector, and to prioritize federal funding for the schools who successfully place their graduates in employment related to their graduate education.

Whether the PROSPER Act passes or not, however, it's clear that funding for higher education is going to be on the table going forward. It's long past time for schools to have a hard look at the ethics of tuition discounting.

You're Invited! AALS 2018 in America's Finest City

The 2018 AALS Annual Meeting is just around the corner. And it's happening here in San Diego. So I naturally should bring my hosting skills. I plan to post about top things to do in San Diego [here's something not to do: do not bring your winter coats even though the conference is Jan 3-6]. Whether you are coming with a family or on your own there is something here for everybody. Do you love beaches or cities? upscale or hole in the wall eateries? the desert or the mountains?  Here in San Diego, why choose? everything is close by. Below is a picture I snapped of one of my regular running trails (can you spot my running buddy?). Along with fellow prawfs I hope to also plan our traditional MarkelFest one of the conference evenings. 

I also want to share a few of the exciting events that I am taking part in and would absolutely love to have everyone attend. First -- You gotta come celebrate with me! On Friday Jan 5, 5:30-7 USD Law is holding a reception celebration for my book (and I will talk about it a bit) You Don't Own Me and everyone is invited. My colleague Roy Brooks also has a new book out about racial justice and will speak as well. We have a beautiful campus and it's close to Old Town if you feel like having fresh made tacos and margaritas afterwards.

Second event, in which I become evil: The IP Evil Twin Debate is an annual debate, serious in substance but lighthearted in tone, we all wait for (a highlight - we get to write up (a parody of) our evil twin's bio). Last year it was Mark Lemley v. his evil twin Rebecca Tushnet debating patent law and at the 2016 event Pamela Samuelson took on her evil twin Randy Picker on copyright. This year Michael Risch is pure evil while I stand for everything that's good in a debate about trade secrecy. Christopher Cotropia is our fierce moderator. It's at Thomas Jefferson Law School Friday 430 to 530 (and then we can go together to my campus for the book event) -  It will be fun! 

Third event, a timely serious panel moderated by Ed Rubin (Vanderbilt) with Robert Post (Yale), Will Forbath (Univ. of Texas), Jide Nzelibe (Northwestern), and myself speaking about the role of the scholar in the larger society, both in general and in response to Trump's election.  This will include questions about scholarly agendas and standards of objectivity as well as our normative obligations to our students and our ability to be neutral in highly political climates. Jan 3 at 1:30.

*** Update Will Forbath won't be making it to San Diego; Erwin Chemrinsky (Berkeley) has joined the panel instead.

Fourth event, not to neglect my employment law side -- I am part of the Employment and Labor law's section panel on The American Workplace in the Trump Era, Jan 5, 1:30. Hot-button issues - enforceability of class action waivers in arbitration agreements, discrimination on the basis of sexual orientation, joint employment doctrine, public employee speech, whistleblowing, NDAs and confidential settlements and more. 

 Other than that my dance card is completely empty - I look forward to seeing everyone!

 

 

My Student Guide to Judicial Clerkships

Around this time of the semester I meet with a lot of students who are interested in post-graduation judicial clerkships. UK Law does quite well at placing our students in federal clerkships, so I am happy that there is a buzz among our students about this career path. 

Because my individual meetings with students tend to be quite similar, in that they often have very similar questions, I prepared a guide for them to read before they come to meet with me. It answers some of the most frequent questions I receive. Because I bet that others could also benefit from this guide, I am reproducing it below.

A few caveats: first, some of the advice is specific to Kentucky. Second, these are just my views, so as the kids say, YMMV. Third, I frequently update this guide, so what is below is simply the current version.

With that said, feel free to share with those who may be interested.

Professor Douglas’s Handy-Dandy Guide to Federal Judicial Clerkships

            I am so glad you are considering applying for a federal judicial clerkship! Post-graduation clerkships are amazing jobs. They offer an inside look at judicial decision making, which will help your career no matter what you decide to do. You’ll work side-by-side with a judge who will serve as your guide and mentor. Your writing will improve dramatically. Some people say that a clerkship was the best job they ever had. All in all, if you have the opportunity for a judicial clerkship, then you should go for it!

            Many students ask to meet with me to discuss clerking. I am more than happy to meet, but I ask you read this guide first, as it will likely answer many of your questions. This guide should not serve as a substitute for a meeting; I definitely want to meet with you! But it will hopefully answer some of your initial questions so that we can focus on your specific situation when we meet.

What follows is simply my advice, based on my own clerkship experience and several years of advising students. Others may have different views, and I encourage you to talk to other professors and the Career Development Office for their perspective.

1. Why should I clerk?

            See above. Clerking is an incredible experience. I use what I learned during my clerkship (for a 5th Circuit judge in Texas) almost every day. And I talk to my judge at least once a month. By clerking you become part of a “clerk family” (notice how I wrote “my judge”). Your co-clerks will become lifelong friends. Clerking can help no matter your ultimate career goals. It will open doors. It will improve your writing. It gives you an instant credibility boost in the eyes of employers. And it will stick with you for your entire career. Notice how every time someone is nominated to the Supreme Court, the media mentions where the person clerked. From a long-range perspective, clerking is an excellent way to begin your career. I have never talked to someone who regretted clerking before starting at a law firm, public interest organization, or other legal employer.

2. What should I do if I already have an offer at a law firm or other organization?

            Speak with them about your desire to clerk. Most law firms highly value the experience and will hold your spot, at least for a year or two. If you explain your long-term dedication to the firm, they will not think poorly of you for at least exploring the opportunity to clerk. And some firms (though typically not the ones in Kentucky) will even pay a clerkship bonus.

            In addition, more opportunities are likely to arise because you have a clerkship on your resume. A clerkship, then, can improve your future employment prospects.

            That said, the salary of a judicial clerk is nowhere near as high as that of an associate at a law firm, and financial issues are important to consider. Just remember that there’s a long-term payoff, in terms of your overall career, to foregoing the law firm salary for a year if you are able to do so.

3. Where should I clerk?

            My advice is to apply as broad geographically as you are willing to go for a year or two. If you don’t apply, then there’s a zero percent chance of landing the position (that’s just math!). When I went through the process I applied to about 200 judges all across the country. I really wanted a federal appellate clerkship, so I took a list of all federal appellate judges and deleted those in places where I could not see myself ever moving, even for a year or two. I then added some district court judges in certain geographic locations.

            I would start by thinking about where you have a geographic connection. Did you go to school in another state? Does your best friend live in Wyoming? Do you have a long-lost cousin in South Carolina? Any of these geographic connections can give you a leg up when you are applying. Of course, if you want to stay in Kentucky, then by all means focus on the Kentucky judges. But don’t discount going out of state for a year or two, especially if you can create a geographic connection to the area.

            Another question you may have is what level of judge to target. Generally speaking, federal circuit court clerkships are harder to obtain than federal district court clerkships, which are slightly harder than magistrate and bankruptcy court clerkships. All offer great experiences. Circuit court clerkships tend to be a little more isolated, where you will spend most of your time in chambers, but you can sometimes travel to cool cities for oral argument. These clerkships allow you to dive deeply into tough legal issues. District court and magistrate clerkships tend to have more interaction with lawyers and more time in court, and you’ll learn all about managing a docket. Any of these clerkships will provide tons of interaction with your judge. Come chat with me if you want to discuss this more.

4. When should I apply?

            Many (but not all) Kentucky federal judges want to see at least three semesters’ worth of grades, which means they will start taking applications after the first semester of your second year. But many out-of-state judges hire even earlier! The best time to begin thinking about clerkships is during the first semester of your second year. You may want to send out some applications in October or November if judges you are targeting are open, while you can send the bulk of the applications after your 2L first semester grades are in.

            Look on Oscar to see which judges are accepting applications now. It’s also ok to call the chambers of a particular judge to see when that judge will start reviewing applications. You’ll most likely speak with the judicial assistant, who is used to receiving these calls.

            It is fine to apply early and then update your application with new information, such as grades, a new writing sample, etc. It is best to have your materials into the chambers as soon as the judge plans to consider applications.

            By the way, state court clerkships are also really great positions. State judges tend to hire later in the process, however, so it is generally ok to apply to federal judges first, and if it does not work out, you can then use your same materials (after updating them) to apply to state court judges.

5. What should go in my application?

• A cover letter (letter of transmittal)
• Resume (one page, unless there are extraordinary circumstances for why you should go onto a second page)
• Grade sheet (unofficial transcript)
• Writing sample (your best possible writing)
• 3 letters of recommendation

6. What do you mean by “letter of transmittal”?

            Your cover letter should generally do nothing beyond introducing yourself and saying that your application materials are attached. This is not the place to make a case for yourself, explain that you are a strong writer, etc. Almost everyone applying has those same attributes. Ask me sometime to tell you about the ridiculous “Campbell’s Soup” cover letter I once saw. You don’t want to have that letter!

            The one exception here is that your cover letter should explain any geographic connection (or other connection) you may have with that judge. Essentially, you can use 1-3 sentences to explain why specifically you are applying to that judge. If you don’t have a particular reason for targeting that judge, then you do not need to add anything else.

7. What should I use as a writing sample?

            Your writing sample should be your absolute best writing. What it is is far less important that how good it is. Many judges prefer a student Note, so if that’s ready, you can use it. But you may want to send some applications before it is done. That’s fine. You can use your appellate brief from 1L year, something you wrote over the summer (if your employer gives you permission), etc. The key here is that the writing sample should be flawless – especially on the first few pages and the last page (often judges won’t read beyond that). In terms of length, 10-15 pages is about right, so if your writing sample is longer it is ok to provide an excerpt with a cover letter explaining what it is and saying that the full version is available upon request.

8. Who should write my letters of recommendation?

            You need at least three letters of recommendation. At least two should be from law professors who had you in class. The third also can be from a law professor (and in most cases that is best), but it is ok to ask someone else if that person is going to write you a glowing letter.

            Generally, you want someone who will write at least two pages about how great of a student you are and how you will be an amazing law clerk. Think about who knows you well, both inside and outside of the classroom. A letter that discusses various aspects of your performance, while also diving into strong personal attributes, is much better than a letter that simply says “this person was in my class and did really well.”

            I ask students who want me to write them a letter to prepare a 1-2 page memo telling me about them: Why did you go to law school? Why do you want to clerk? What are your ultimate career goals? What are your interests? What are some meaningful interactions we have had?

            Professor Chris Walker at Ohio State tweeted some advice for students seeking letters of recommendation. I wholeheartedly agree with his thoughts, which I reproduce in full here:

(1) When reaching out, please include resume, transcript, and talking points.

(2) Talking points should tell me what you want me to cover substantively and bonus points if in a format I could cut and paste into letter.

(3) Talking points are even better if they situate my letter within the context of any other letters, personal statement, etc.

(4) Talking points should include as much detail of our substantive interactions as possible, as that detail really makes the letter.

(5) Don’t assume I'll remember the highlights of our interactions. Remind me. Even when I do remember, your framing is often much better.

(6) Make very clear the deadline, and don’t hesitate to remind me as the date approaches.

(7) Also, if possible, give me the email and phone number of the Judge/partner/etc., so that it makes it easier for me to put in a good word.

(8) Once app submitted, keep your whole team posted on any developments.

(9) If you get an interview or make it to next round, email me again and include email/phone of employer to make it easy to reach out.

(10) Send thank you note once application is submitted. It means a lot for us old fashioned folks, esp hard copy under door makes my day.

(11) Finally, add your references to your holiday card list and let them know of any big life events or achievements over the years. I still let my college and grad school mentors know of life events, and they keep helping me advance in my career. /end

9. Should I use Oscar or send paper applications?

            Oscar makes it really easy to submit applications to many judges at once. But is also allows judges, on their end, to filter out applications so they see only applicants from certain schools, of a certain GPA, etc. My advice, then, is to send paper applications if the judge accepts both Oscar and paper applications. That way you know that someone in the chambers will actually look at your application.

            That said, paper applications take time and money. You have to compile all of your materials, stuff envelopes, and mail them out. You can assume that you’ll need to spend $2-3 per application, and that can add up! You’ll therefore need to use your judgment on which ones to submit via mail and when to use Oscar.

            As for your recommendations, your professors will receive an email notice for Oscar applications, and we can take care of it from there. You should send us a spreadsheet with judges and addresses for any paper applications. If the letters are ready in time, we can seal them in envelopes and give them to you to put into the packet to mail out. But don’t wait for recommendations if the rest of your application is ready to go; we can send them separately.

10. What’s next?

            You first task should be to identify who you want to ask for letters of recommendation and contact those people. That’s the only part of the application that you cannot control yourself. It’s ok to give your professors a deadline for the recommendation letter, so long as it is reasonable (a few weeks is about right).

            Your second task should be to decide what you will use as a writing sample and to clean it up to make it as perfect as possible.

            Your third task is to start creating a judge list.

            By this point you’ll be well on your way to applying for clerkships!

            Please come see me if this guide did not answer your question, if you have additional questions, or if you just want to chat about the process.

            Then, please let me know once you’ve applied to judges. And once you receive interview requests, come see me and we can chat about the interview process.

            Good luck!

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.

 

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

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.

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.

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

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.   

 

The Half-Sized Law School and the Cost in New Prawfs

Two years ago I asked the question: should we have fewer law schools or fewer students per school?  I think there are normative arguments for either approach: more schools means more geographic diversity but fewer economies of scale.  The legal academy has clearly chosen the "more schools" approach.  As Derek Muller documents in "The Incredible Shrinking Law School,"  law school graduating classes dropped from an average of 206 graduates in 2013 to 161 last year.  These numbers back up the myriad of anecdotal pieces about shrinking class sizes that have, frankly, lost their newsworthiness.  Meanwhile, despite some initial claims that as many as one-third of law schools would close, we've seen almost the other end of the spectrum.  Two schools have merged, one school has shut down, and one other is likely in the process of shutting down.  More may be on the way, but thus far fewer students per school has clearly won out.

One ramification of this approach has been the loss of jobs for new law profs.  As documented in Sarah Lawsky's annual census, the numbers went from annual hiring in the 150s to a low of 70 new hires in 2015.  This, too, is old news.  But I think the connection between the "fewer students" and the "fewer entry-level hires" has not necessarily been made.  Yes -- under either approach, there would be fewer law profs.  But when schools close, law professors of all ages lose their jobs.  When schools shrink, the first jobs to go are the hires that haven't yet happened.

I've blogged before about law school sustainability, and I think legal academia needs to recognize this big drop in hiring as a sustainability problem.  There has been some attention paid to the bubble of hires made in the 1970s and the effect of those hires on law schools now.  But there has been comparatively little attention paid to the folks like me who populate this blog's masthead and were hired between 2000 and 2010.  We too are something of a bubble.  And we are a longer-term problem, if only because we are earlier in our careers.

So, what should be done?  Should there be stronger post-tenure review to push out those "bubble" hires who are taking the place of a new and more productive hire?  That seems extremely unlikely to me.  Similarly, it seems more likely that schools will continue to shrink rather than close.  But there is unquestionably a "decade of hiring" effect within legal academia, and the academy should be thinking of ways to deal with this generational disparity.  Otherwise, we are depriving our students and our field of contributions from the next wave of academic innovators.

UPDATE: Rick Bales made the same point here.

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.