Author Archive for alfred-yen
Choosing a law school, part 7
posted by Alfred Yen
In this post, I’m going to argue that prospective students should care whether a law school’s faculty publishes. Not everyone agrees, and we’ve all had professors who were great scholars but indifferent classroom teachers. I also freely concede that teaching ability does not necessarily go hand-in-hand with scholarly ability, so that a school’s best teachers need not be its best publishers. Nevertheless, I still think that faculty who publish have a better chance of offering outstanding classes than those who do not.
To illustrate, I’ll reveal a bit about two classes I have taught: copyright and evidence. I’ve published a reasonable amount about copyright, including a casebook published by West. By contrast, I’ve published nothing about evidence, with my background in that area coming from my work as a litigator.
Students have rated both of these classes well. In fact, I don’t think there’s any significant variation in the numbers. Yet, I firmly believe that I teach better a copyright than evidence class because the things I learn from research and publishing enable me to give copyright a deeper and more nuanced treatment. I know more about the overall structure of the area, respond better to student questions, and challenge students in more ways in copyright than in evidence.
Now granted, I don’t think this is something that students always pick up. My evidence class is pretty “black letter,” sticking to how lawyers need to work through evidentiary problems in courtrooms. This makes sense given how students will use evidence, and I think students feel that the course serves them well. Nevertheless, I am aware that I don’t blend in the “big theory” issues as well as I could because I don’t know them that well.
By contrast, I pack a lot into my copyright course. This sometimes frustrates students. Some only want “black letter” law (something that is very elusive in copyright at best). Some dislike what they consider theoretical digressions from what they need to know for practice. I could teach copyright to that lower common denominator, but I choose not to. And I like to think that my students come to appreciate that the complexity they encounter ultimately serves them well when they deal with that subject’s frustrating ambiguity in practice. In short, although I teach what I think is a good, competent evidence course, the academic “ceiling” in my copyright class is much higher.
To be clear, I am not saying that publishing is the only thing that prospective students should care about in evaluating a law school’s faculty. As I suggested in an earlier post, some law schools clearly value teaching and their professors are accessible to students in ways that can matter a great deal. Students should visit schools, talk to existing students, and see if classes are well-received. Such inquiry will probably identify a number of schools that appear to have good teaching. At this point, I think it makes sense for a prospective student to then compare publication records of the faculties to see how often they will learn from professors who are at the forefront of their fields.
March 30, 2010 at 9:16 am
Tags: academia, Law School
Posted in: Law School (Rankings), Law School (Teaching)
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Choosing a law school, part 6
posted by Alfred Yen
Every prospective student notices the physical facilities of a school when he or she visits. Wood paneling, marble floors, and grand foyers create impressions about whether a law school is well-funded and a “nice” place to study. I’d like to suggest a few other ways in which prospective students should evaluate a school’s facilities.
The most important space for students is the classroom. When you visit a school, look at some large and small classrooms and evaluate the sight lines and acoustics, preferably by sitting in on a live class. Do students sit in a pattern where they can see and hear each other? Can they hear the professor? You might be surprised at the number of classrooms where heating or air conditioning interferes with voices. This might not seem bad in the traditional lecture class you had in college, because professors can always wear a mike. But in law school, the Socratic method makes it important to hear what your classmates say. It’s impossible to follow along if you can’t. In addition to sight lines and acoustics, you might also look at the front of the room. Is there full audio-visual capability with a computer for the professor? Is there enough white or blackboard? Is the screen large enough for easy viewing by students?
Next, I would suggest looking at the individual and group work space available for students. Individual work space exists primarily in the library. There needs to be ample seating to support students during high demand periods like exams or major writing projects. Is there seating of the kind you prefer to work in? Long tables? Individual carrels? Big, padded chairs to sit in while reading? Is there ample Internet access, wired or wireless? You are going to spend a lot of time studying in law school. Unless you are sure that your apartment or house provides you with the space you need, you will likely spend a lot of time in these facilities.
Group work space exists in libraries and sometimes elsewhere throughout the school. How many small conference rooms are there that students can reserve? I personally wouldn’t be too happy with only a few. At certain times of the year such as moot court competitions, there is a lot of student collaboration going on, and demand for these spaces can get pretty heavy.
One other type of important student work space involves the facilities of any clinical programs. If the school has clinics where students actually represent clients, are there proper rooms where client meetings and interviews can be held, separate areas where students can do work and maintain case files? Clinics are expensive to run, and it is not uncommon for schools to trim those costs by providing clinic facilities that don’t fully support the clinics’ work. If you think a clinic will be a big part of your legal education, this could matter.
Finally, I suggest looking at the spaces where students can gather informally. Is there a good student lounge or other gathering place like a cafeteria? Are there seats in hallways where you can sit for conversations? Granted, these amenities may not seem terribly important, but their absence impairs the creation of a community where students get to know and support each other.
All of the things mentioned here seem pretty obvious, perhaps so obvious that one would think every law school would take care of them. It may well be the case that the schools you’re comparing will all have good physical facilities. But you might also be surprised at how often schools, even some of the top schools, have facilities that don’t fully support their educational ambitions.
March 24, 2010 at 7:30 am
Tags: academia, Law School
Posted in: Law School, Law School (Rankings)
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Choosing a law school, part 5
posted by Alfred Yen
I thought I would say a bit about faculty – the people who teach all those classes in the curriculum. Every law school will tell you that its faculty is excellent, and with justification. Law teaching jobs are sufficiently desirable that law schools generally have many, many qualified applicants for openings. Law schools today hire very well qualified people. Nevertheless, I would like to suggest one way in which prospective students can evaluate whether a particular faculty will provide a good educational experience.
Professors come in many types. For purposes of this post, however, we can get along with a distinction between permanent faculty and part-time (frequently called adjuncts) faculty. For permanent faculty, law teaching is their full-time job. Part-time faculty, as their name implies, generally have another job and devote a relatively small amount of their time to law teaching. They generally teach one class at a school, often in the early morning or evening, and they frequently do so from year to year.
A good school should have the vast majority of its courses, particularly first year courses and basic doctrinal upper year courses, taught by permanent faculty. This is not to say that part-time faculty can’t do a good job. Many are good, dedicated teachers. Nevertheless, full-time faculty are at the school, present for students in ways that would be impossible for part-time faculty. Those professors have more time to focus on teaching, and they bring cutting edge expertise based on their research to the classroom. There are, of course, areas in which part-time faculty can do a better job than permanent faculty. For example, skills courses or courses focused on specialized topics related to practice (e.g. business planning) benefit from the day to day practical experience of adjuncts.
Accreditors give significant importance to the principle that law students should be taught primarily by full-time faculty, and accreditors will give law schools trouble if the principle is violated. Surprisingly, however, law schools sometimes overuse part-time faculty. This happens because, at some schools, permanent faculty do not want to teach first year or other basic courses. Student enrollments in those classes are high, so teaching those classes takes more time than teaching smaller seminars that may be more closely related to a faculty member’s research. It’s obviously hard for schools to force tenured professors to teach classes they don’t want to teach. Indeed, faculty who don’t want to teach a class may not do a good job.
For prospective students, a law school that does not put its full-time faculty in basic classes raises a question that needs to be answered. Do the school and its faculty really give sufficient priority to teaching students? Every school will of course answer yes, but sometimes actions speak louder than words.
March 19, 2010 at 2:57 pm
Tags: academia, Law School
Posted in: Law School (Rankings), Law School (Teaching)
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Thoughts about choosing law school, part 4
posted by Alfred Yen
Law schools compete for students by touting the strength of their curriculum, and with every school claiming that it is strong in a particular area, it’s sometimes hard to get a handle on whether a particular school really would be better than another for a student interested in, for example, corporate law or environmental law. One possible way to assess this might be the raw number of courses in a particular area, and in a sense more can be preferred to less. That having been said, I’d encourage prospective students to look beyond raw numbers when evaluating claims of curricular excellence.
A school that offers, for example, 24 intellectual property courses surely offers far more courses than an individual student could ever take. That doesn’t mean that the large number of offerings is valueless. Rather, a student should think carefully about how many courses one can profitably devote to concentration in a particular area versus the general education that forms the foundation for the successful practice of law. For example, a student may want to specialize in intellectual property, but she should also make room in her curriculum for corporations, commercial law, antitrust, employment law, and other areas that arise when considering IP issues. Additionally, I think it’s important for students to take a class or two devoted to perspectives on law like jurisprudence, law and economics, or legal history. They greatly enrich a legal education. When one adds these classes to requirements such as professional responsibility and courses people take because the subjects appear on the bar, there aren’t that many open slots for specialization. At some point, adding classes is nice, but perhaps overkill.
A student should also evaluate whether the courses offered by a school permit effective progression from basic study to advanced possibilities. Each field has basic courses that serve as entry points of study. In the corporate law area, that would probably be a course like corporations or business associations. More advanced doctrinally oriented courses might include corporate finance, securities regulation, and mergers and acquisitions. Beyond that, students might branch out in a couple of different directions. One would be toward increasingly advanced theoretical or policy study, perhaps in a seminar with a large research project. For example, a school might offer a seminar on theories of corporate governance or applications of the efficient capital markets hypothesis. The other would be towards practical application of knowledge and skills training. These classes would include classroom skills courses like drafting or trial practice, live client clinics where students actually practice under the supervision of faculty, and externship placements in law firms, companies, or government offices.
Obviously, the course content of a particular curriculum is not the only thing that determines its quality. A lot depends on who does the teaching, a subject I will address in another post. But for now, students can probably identify schools that will serve their needs by considering not only the number of offerings in an area of interest, but also the structuring of the curriculum to provide opportunities for intellectual depth and development of skill.
March 17, 2010 at 8:45 am
Tags: academia, Law School
Posted in: Law School (Rankings), Law School (Teaching)
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Thoughts about choosing a law school, pt. 3
posted by Alfred Yen
Legal writing programs get staffed in 3 meaningfully different ways. One model relies primarily on part-time instructors (generally adjunct teachers or graduate student fellows) supervised by a director of the program who is sometimes, but not always, a full-time specialist in legal writing. A second model uses a director (sometimes, but not always, a full-time specialist) who works with faculty teaching doctrinal courses like torts or contracts to integrate writing exercises into those doctrinal courses. A third model uses full-time faculty who specialize in teaching legal writing. Each has its pros and cons.
Model 1 is inexpensive for a school to operate. Adjunct faculty don’t get paid very much, so this saves faculty positions for people who will teach other subjects. Devoting slots this way arguably benefits students in a couple of different ways. It might mean lower student-faculty ratios in upper level classes or a wider variety of courses from which to choose. And, it could mean more faculty publishing and advancing the school’s scholarly reputation. (Note: This second point may be hotly contested depending on one’s perspective. Conventional wisdom holds that tenure-track faculty who teach outside of legal writing publish more than legal writing faculty. This is partly because many legal writing faculty hold non-tenure track positions for which publication is not a requirement. This may be changing as legal writing faculty have begun to hold tenure-track positions and publishing more.) All of this comes at a cost, however. Full-time faculty who specialize in legal writing develop considerable teaching expertise. Perhaps more than any other type of law school faculty, full-time legal writing teachers think and write about how to train lawyers. With all due respect to those who teach legal writing as adjuncts or fellows, I think that full-time legal writing faculty will, on the whole, teach better classes than part-time faculty. An adjunct has another job that is his primary income. He understandably pays more attention to that than his students. And, adjuncts frequently teach for only a few years. Just when they’re starting to figure things out, they move on.
Model 2 has intriguing possibilities for excellence that may not always be realized. When full-time faculty teach writing as part of a doctrinally focused course, the integration could lead to a deeper understanding of legal problems and how to write about them. Class discussion can explicitly tie big substantive questions to challenges in writing memos or briefs. If this works, it probably creates an excellent legal writing class. Unfortunately, the faculty I know who have taught in these programs report that the promise is not always realized because faculty who teach doctrinal classes do not, as a whole, make legal writing a priority. They prefer to concentrate on their substantive law specialties and their scholarship. Only an unusually dedicated non-legal writing specialist professor will spend the time necessary to become a top-flight legal writing teacher. Some undoubtedly do it, but others I’ve spoken to find the obligation to teach writing a burdensome distraction from teaching and writing about subjects they prefer.
Model 3 uses only full-time faculty who dedicate themselves to teaching legal writing. The obvious benefit is the development of expertise I mentioned earlier. Not every law professor will agree with this, but I think that top-flight legal writing teachers bring great value to their students. Those who don’t agree may say that any of us (meaning non-legal writing law professors) could step right in and do just as good of a job, but I’m not sure it’s as simple as that. A good legal writing course combines the reading and analysis of cases with instruction on how to write about the law. It isn’t obvious that “just any” professor would immediately do a good job of it. If experience matters in teaching torts, it probably matters in teaching legal writing too. So why don’t all law schools employ a full-time staff of legal writing teachers? Well, it’s expensive. Full-time legal writing teachers occupy faculty slots that could be used for teachers in other areas. A school may not think that legal writing is sufficiently important to warrant the expenditure.
From the standpoint of a prospective law student, it’s worth deciding how important legal writing will be to you. You will have to candidly assess your writing ability, how easily you will adapt to legal conventions, and your willingness to experience stress if you’re behind fellow summer associates/new lawyers who have had more training. To be clear, I’m not saying that legal writing should be your primary method for choosing a law school. But, if schools are fairly close in other ways, the legal writing program is one important and frequently overlooked way to identify the right school for you.
March 10, 2010 at 3:16 pm
Tags: academia, Law School
Posted in: Law School, Law School (Rankings), Law School (Teaching), Teaching
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Thoughts about choosing a law school, part 2
posted by Alfred Yen
Let me use this post to suggest one way in which prospective students can begin comparing academic programs. All law schools require their first year students to take a heavily prescribed curriculum. Few, if any electives exist, and indeed the required courses are practically the same at most schools. By contrast, second and third year students usually have great freedom to choose their courses.
The similarity between law school curriculums may give students the impression that there is little to distinguish the program of a particular school. However, there is one area – legal writing – where schools differ a great deal.
When I went to law school, I mistakenly thought that legal writing was the least important course I would take. And indeed, that is exactly how my alma mater, Harvard, treated it. The course was taught by second and third year students, giving it the feel of an afterthought to the “real” courses taught by full-time faculty. We didn’t pay much attention to it, and my education suffered for it. After my first year of law school, I arrived as a summer associate thinking I’d be well-prepared, only to find that I knew very little about how to conduct effective legal research or write memos. If not for the advice of a kind fellow summer associate educated at a supposedly “lesser” school, I might have failed in my first legal job.
Legal writing is important well beyond the summer associate experience. People may think of lawyers as oralists, but cases are really won and lost on briefs. When I practiced in California, judges issued tentative rulings based on briefs, and wouldn’t even hear argument from the “winning” side unless the “losing” side could convince the judge otherwise in a very few minutes. And of course, transactional lawyers must document deals clearly.
Despite the importance of legal writing, most law schools do not promote the details of their legal writing programs as heavily as other things. I can think of a few reasons. First, legal writing was not traditionally important to elite law schools, and one could argue that it still isn’t. Second, legal writing is not generally considered an academic discipline like torts or civil procedure. Third, legal writing comes across as un-sexy. Accomplished students of the sort who get into law school don’t feel good being told that their writing skills need improvement. It’s far more exciting to tell them that a school will make them experts in international human rights.
All of these things conspire to hide the importance of legal writing to students. Nevertheless, I’d suggest that it’s very much worthwhile for prospective students to compare legal writing programs at various schools and think about what kind of program best suits them. In my next post, I will describe 3 general types of legal writing programs, their pros and cons, and some of the reasons that schools adopt them.
March 8, 2010 at 5:14 pm
Tags: academia, Law School
Posted in: Law School (Rankings)
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Thoughts about choosing a law school, part 1
posted by Alfred Yen
So let me start with just a few thoughts about U.S. News and how much weight it should be given. In my opinion, U.S. News gives a rough indication about how prestigious a school is. Every prospective law student wants to know what a school will do for his resume, and U.S. News helps answer that question. The top of the list – perhaps 5 to 8 schools – are sufficiently prestigious that simply going there will do a lot for the student in question in terms of career opportunities. Beyond that, however, things get more dicey. The schools that follow surely carry prestige, but employers will no longer pay attention “just because” a particular applicant went to the school. The individual’s ability matters more. That’s not to say that a school’s reputation becomes irrelevant. It remains relevant, but in my opinion a prospective lawyer needs to think about what school will make him a capable lawyer.
To make this clear, look at the numerical scores assigned by U.S. News to various schools. In last year’s ranking, Yale was #1 with a score of 100. Harvard was #2 with 95. Duke, Northwestern, and Virginia shared #10 with 80. Now let’s take a look further down the line. Three more schools shared #20 with scores of 66. Five schools shared #30 with a 62. In short, the difference between numbers 20 and 30 was one point LESS than the difference between numbers 1 and 2, and 16 points less than the difference between numbers 1 and 10. That means, according to U.S. News, there’s not much difference between a school ranked 20 and one ranked 30.
Despite this, I suspect that many aspiring lawyers place unwarranted weight on the relative rankings of schools outside the top few. U.S. News (and maybe others) need to have a “top 20” or “top 50” to make rankings interesting. A law student, however, needs to find the school that will best educate her, and I am hoping that the posts I intend to write will help students identify schools that will help them flourish.
March 4, 2010 at 8:34 am
Tags: academia, Law School
Posted in: Law School
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Hello (again)
posted by Alfred Yen
I want to thank Larry Cunningham for his generous and kind introduction. I greatly enjoyed my guest appearance here a couple of years ago, and I look forward to contributing my thoughts again.
The opportunity to blog here fortuitously coincides with a topic that has been in the back of my mind lately. It’s spring, and thousands of applicants are now getting the news that they’ve been admitted to a range of schools. How should they choose? Over the last decade or so, rankings like U.S. News and World Report’s have become increasingly important in making those decisions. How heavily should a would-be lawyer rely on these rankings in making her choice of where to attend? And are there other things she should examine if rankings don’t tell the whole story?
Over the next few weeks, I intend to post some thoughts about these questions. Like most law professors, I’m curious to see how my schools (I teach at Boston College and went to Harvard) get ranked. But beyond that idle curiosity, I’ve thought a bit (and just a bit) about evaluating the quality of a school because I’ve had the privilege of serving on American Bar Association teams that visit schools and prepare reports for purposes of accreditation. These visits typically last 3 days and offer team members a real “look under the hood” of what is happening at a particular school. I’ve also had the opportunity to get to know a couple of other schools through visiting or other methods that offered more than a casual glance at their programs. In some cases, I’ve come away convinced that schools deserve their rankings (whether high or low). But in others, I’ve come away with the impression that a school is actually a lot better or worse than its U.S. News ranking suggests. I am not going to discuss the specifics of those impressions, but I will try to share the general things I’ve learned in hopes that it will help those choosing law schools.
March 4, 2010 at 8:01 am
Tags: academia, Law School
Posted in: Law School (Rankings)
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Greetings!
posted by Alfred Yen
I wanted to say a quick hello and thank Dan and everyone here for the invitation to blog for a few weeks. I hope to write something about my main research interests, which are privacy and free speech, but also some other legal topics that I don’t write about as much. And I will probably say a little about two (largely) non-legal things I think about way more than I should — proper football and food. I’m in the crunch of getting an article out to the law reviews this week, so it may be a few days before I start blogging in earnest, but I’m really looking forward to experimenting with blogging over the next month.
August 20, 2007 at 12:06 am
Posted in: Administrative Announcements
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Thanks to All
posted by Alfred Yen
Folks, my visit here is up, so I am taking a moment to thank Dan and the others for giving me the opportunity to enjoy this forum. Thanks also to the blog’s readers for their thoughtful comments on my posts.
April 16, 2007 at 12:05 pm
Posted in: Uncategorized
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Student Legal Services at NC State and RIAA File-Swapping
posted by Alfred Yen
According to an editorial at TechnicianOnline, the website for the NC State student paper, Student Legal Service at NC State is representing students in actions by the RIAA over file swapping. It is the first I’ve heard of a university providing free legal services to students against the recording industry in these suits, although I can’t claim to have followed these cases systematically. In the end, this representation will probably not change the outcome of these cases dramatically, but it may discourage plaintiffs from overreaching against legally unsophisticated defendants.
April 15, 2007 at 4:57 pm
Posted in: Intellectual Property, Technology
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Ticket Scalping Crackdown in Boston
posted by Alfred Yen
The Boston Globe has been running a series of stories about renewed interest in enforcing the Massachusett’s anti-scalping laws. One story reported that 6 people were arrested outside Fenway on opening day, and ticket scalpers themselves were apparently scarce because they knew that the police would be looking for them.
This story has gotten me thinking about the real effect of ticket scalping laws. A judge in one of the scalping cases wrote, “Our Legislature has recognized the disenfranchisement of the public from attendance at public events as a result of inflated ticket prices since 1924.” Presumably, the enforcement of ticket scalping laws keeps the price of tickets down, thereby enabling the general public (as opposed to a wealthier subset) to buy tickets.
I keep thinking that this isn’t going to work quite as advertised. If ticket prices for sold-out games get capped at face value, in theory ticket scalpers won’t operate because they can’t earn a profit on tickets they manage to get. However, there are problems. First, ticket scalping laws aren’t enforced very well. Second, and the thing I’m quite curious about thinking through, it seems to me that prohibiting the monetary resale of tickets encourages their effective scalping by a form of barter that still favors the wealthy.
If tickets are scarce (the only situation in which scalping is interesting), the rational promoter of an event will raise ticket prices fairly high. That alone begins to price “ordinary” people out of the event. If tickets remain scarce in the face of high prices (certainly the case with respect to Red Sox tickets – the highest in the country), those with the financial or other means to acquire tickets gain assets that are effectively traded for something other than direct cash payment. For example, law firms buy tickets and take their best clients to the games. There’s nothing wrong with this, of course. I’m simply observing that the tickets get allocated on the basis of bringing business to the law firm. If the law firm had sold its tickets for cash, that would be illegal. But giving the tickets to a good client is as good as selling them because it inclines the recipient of the largesse to continue bringing very profitable business to the firm. Indeed, the firm has good reason to use its wealth and connections to get lots of good seats because the scarcity of tickets makes giving them to clients particularly valuable. They are, in effect, “scalping” the tickets by giving them as gifts to their best clients, who pay by bringing business to the firm.
With all this in mind, I’m curious whether anti-scalping laws actually wind up restricting tickets to a smaller segment of the population than would get them in the absence of those laws. If there were an open market for ticket resale, the price of secondary market tickets would be high. However, they’d go to anyone who had the money to pay the price. By contrast, if anti-scalping laws exist, tickets still go for a high price (namely doing good business with ticket holders), but they go only to those with social or business relations with ticket holders.
There are, of course, effective ways to make sure tickets don’t get resold. The Red Sox have opened up a section of the park to same day sales in which the purchaser of the ticket must enter the park immediately after purchase. But it may be that truly effective methods of stopping resale aren’t worth the fuss or commercially not viable.
Anyway….just a few random thoughts on a Thursday afternoon.
April 12, 2007 at 4:51 pm
Posted in: Criminal Law, Culture
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Pet Food Lawsuit Update
posted by Alfred Yen
Law.com has an article about lawsuits filed against Menu Foods with respect to tainted pet food. According to the article, the suits argue that pets have “intrinsic value” beyond their cost, potentially raising the damages stakes. The article also reports that some plaintiffs are claiming that Menu Foods knew that the food could kill pets before the recall.
April 10, 2007 at 7:21 am
Posted in: Current Events, Tort Law
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Laptops in the Classroom
posted by Alfred Yen
In a Washington Post column, Georgetown Law Professor David Cole writes about his decision to ban laptops from his classroom. Many of the arguments are familiar. Students take notes on laptops instead of engaging the class discussion. They surf the internet or message friends. They distract others from the class. Professor Cole also adds one new twist. He apparently surveyed his students, and they have come to like the laptop-free environment.
I have never favored banning laptops, even though I have colleagues who think we should remove the Internet (or at least have it turned off) inside classrooms. I prefer to let students make their own choices about how they learn best (one administrator has suggested to me that there are possible student accommodation issues for certain learning disabilities). If they want to tune out, it’s their prerogative, and I haven’t noticed class discussions being any different than they were pre-laptop. That having been said, Professor Cole’s evidence that his students like the laptop-free class is interesting and food for thought.
April 9, 2007 at 7:14 am
Posted in: Law School, Law School (Teaching), Technology
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Academic Detachment and Consulting Work
posted by Alfred Yen
Today’s Boston Globe reports a story involving a lawsuit filed by eSapience, “a media and research entity that shapes the debate on issues that intersect law, economics, and policy,” against one of its former clients. eSapience is claiming unpaid consulting fees for a project to rehabilitate the public image of Maurice Greenberg, an insurance executive pursued at one point by Eliot Spitzer for alleged improprieties connected with Greenberg’s work at AIG insurance.
The interesting twist is that eSapience appears to have employed prominent academics, including U. Chicago Law Professor Richard Epstein, to write articles favorable to Greenberg. The Globe reports that “Their mission was ‘to change the public conversation about Maurice Greenberg ,’ according to a confidential plan summary. This was to be accomplished, in part, by organizing invitation-only events where ‘influencers’ would hear Greenberg weigh in on insurance issues and by penning papers, editorials, books, and other content aimed at putting the executive in a favorable light, the summary said.”
Assuming for the sake of argument that the Globe story is true, did these professors cross some line of academic impropriety? It’s certainly common for law professors to take on consulting projects or testify as expert witnesses knowing that they will advocate a certain position. However, if they took on certain “scholarly” projects knowing that their point of view was predetermined, that sounds a bit fishy. Granted, the opinions they ended up taking may have been the ones they’d have taken independently. However, it seems much more proper if academics fully disclose any financial interest they have in the positions they take.
p.s. Here are links to another Globe story and a PR Week story about the same matter.
April 5, 2007 at 8:55 am
Posted in: Law Practice, Law School, Legal Ethics
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Politics and Alumni at Dartmouth
posted by Alfred Yen
Today’s Boston Globe carried an interesting story about an upcoming board of trustees election at Dartmouth College. According to the story, the upcoming election has become a heated battle over direction of the university. On one side is the alumni council, which nominates candidates for open seats on the board. On the other is a group of alumni dissatisfied with the university’s direction, a group that is apparently willing to spend tens of thousands of dollars to nominate and elect their own candidates to the board.
This year’s independent candidate, Professor Stephen Smith of U. Virginia Law School, says he is running to support smaller classes and stronger athletic teams. One of his opponents, San Diego Padres executive Sandy Alderson (an attorney himself as well as a former Marine sergeant), claims that Smith is the hand-picked candidate of “a well-funded, disciplined political organization” with a conservative political agenda. Alderson claims that he was interviewed by two other independent trustees with conservative ties who concluded that they couldn’t support him. Smith, for his part, asks “”What is conservative about class size or athletics?” while acknowledging that alumni donations have funded the $60,000 he has spent on mailings for his campaign.
The story closes with a quote from Peter Robinson, one of the independently elected Dartmouth trustees. Addressing all colleges and universities, he says, “”The alumni are coming. But they won’t sack your institutions, just reconnect them with American life.”
April 3, 2007 at 11:27 am
Posted in: Education, Law School
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More thoughts about Turnitin
posted by Alfred Yen
Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.
At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.
It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.
Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.
As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”
As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.
Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.
March 30, 2007 at 11:13 pm
Posted in: Intellectual Property, Law School (Teaching)
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Studying a Law School
posted by Alfred Yen
Here are some suggestions for studying a law school you may be thinking of attending. A lot of this information can be gleaned from the school’s website, and you can use the time you have on campus to get your questions answered.
First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent graduates as part-time instructors, to teaching fellows on three year terms, to full-time faculty. In my opinion, writing programs taught by full-time, permanent faculty are likely to be most effective because those teachers gain experience that can be lavished on you. Teachers who are themselves students, or whose time at the school is limited, cannot do likewise.
Beyond the first year, look for the richness of program in areas that interest you. Don’t necessarily assume a school’s offerings in an area are superior because they have a specialized “program.” Look under the hood. Does the school have full-time faculty teaching the courses that matter to you, particularly the core courses in your area? Are they experts in the field? There’s nothing wrong with seeing some adjunct (i.e. part-time) faculty in a program. Very often they’re experienced lawyers with a lot to offer. But, if there are too many, there won’t be anyone around for you to talk to when you need it most because the adjuncts will be at their regular jobs. Take some time to study the skills program as well. Clinics or externships offer great exposure to the profession and practical experience that can serve you well.
Second, take a look at the strength of the student services program. Every school has a Dean for Students, career counseling, financial aid, and placement offices. However, not every school puts enough resources behind them. How many people are available to speak with you if you want advice? How many job listings does the placement office have, and in how broad a range of jobs? Is there specialized counseling for public interest or government employment? Are there vibrant student organizations you’d like to join?
Third, get a sense of the library because you’re going to do a lot of research and studying for 3 years. You may be tempted to think all libraries are the same, but they’re not. Collection size matters. If you’re doing research and can’t get a book, you’re stymied while you wait for it to come in on interlibrary loan. Reference staff also matters. They’ll help you find things, and they’ll also be helping you learn to conduct research. Finally, when you visit, go into the library and see if you’d enjoy studying there. Is it quiet, comfortable, and well-lit? Believe me, some libraries will make you want to stay and read, and others will drive you to Starbucks.
Fourth, study the physical facility. Go to a classroom and check out the sight lines, particularly from the back of the room with people sitting in front of you. You might be surprised how many large classrooms make it very hard to see the professor when the room is full. If you can attend a class, make sure you can hear the professor and the students. Are there places for students to gather and talk? Space for student organizations? Take a look too at information technology. Is the library/campus wireless, and are there adequate terminals and printers for your use? Is there power for laptops in the classrooms? Is there audio-visual capacity in classrooms so instructors can use the latest technology? If you’ll be driving to and from school, is there enough parking?
Fifth, try to meet some students and faculty. You’ll spend three years talking to them, so get a sense of whether you’ll enjoy them and learn from them.
And last, but not least, get a feel for the place. Every school has a unique atmosphere. It’s a bit like hunting for an apartment. Ask yourself if it feels right.
March 29, 2007 at 1:52 pm
Posted in: Law School (Rankings), Law School (Teaching), Law Student Discussions
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Students sue Turnitin
posted by Alfred Yen
I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.
While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.
March 29, 2007 at 1:19 pm
Posted in: Education, Intellectual Property
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Law School Quality – a comment for potential law students
posted by Alfred Yen
US News came out with its law school rankings today (the magazine is on newsstands now). Ironically, I found out about it while serving on the ABA site evaluation team for another law school. The juxtaposition of learning about a school through a 3 day visit vs. through US News made me realize anew how problematic US News is.
US News serves two purposes. Applicants use it to help decide which law school to attend, and law school faculty/administrators use it to size up their competition in a rather unseemly show of academic vanity. I’d like to address the former.
If you are an aspiring lawyer and want to know the quality of the schools you’re considering, you really must visit the schools in question. Having just done it for 3 days, there is no substitute for talking to people at a school, meeting students, and studying the components of a law school’s program. US News has not done it for you. Numbers don’t tell you what you really need to know about a school.
Can those numbers tell you who teaches the classes that interest you most? Can they tell you whether the legal writing program is rigorous and staffed by experienced professors? Can they tell you whether the school uses adjunct professors who don’t keep office hours, or full-time faculty that are present in their offices? Can they tell you what kind of clinics, externships, or other skills courses are available? Can they tell you whether the school provides good student services?
I’ve now served on site accreditation teams for two schools that I knew something about before going to the campus. Both times I came away with a much richer and more nuanced understanding of the schools’ strengths and weaknesses.
Yes, reputation matters in choosing an education, and US News is in the business of manufacturing and selling it. But, in the end, people succeed in their careers on the basis of their ability. Please take the time to get the information you need to choose the school that will help you maximize your ability.
p.s. I intend to post in the next day or two with suggestions about how to check a school out when you visit.
March 28, 2007 at 9:18 pm
Posted in: Law School (Rankings)
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