Site Meter

Author: Frank Bowman


Activity (sort of) in federal sentencing

One reason I’ve been a pretty quiet guest blogger for the past 10 days or so has been the press of getting out an issue of the Federal Sentencing Reporter, which I co-edit with a cast of distinguished colleagues.

I describe the theme of the issue this way in my Editor’s Notes:

“For a year or two after the U.S. Supreme Court decided Booker v. United States in January 2005, there was great ferment among those with a stake in federal criminal sentencing over whether the jury-rigged advisory system invented by the Court should be replaced, and if so, with what. The widespread unpopularity of the former guidelines regime, the doctrinal uncertainty the created with its convoluted Sixth Amendment stylings, political division in Congress, and other factors led to general acceptance of the notion that the advisory system should be allowed at least a trial run. Concern about how the trial is working, at least among Republican members of the House of Representatives, has led to a revival of discussion about whether the post-Booker advisory guidelines should be modified or replaced.

“This issue of the Federal Sentencing Reporter is devoted to chronicling the recent revisitation of the “Booker-fix” debate. Although, as will be evident from the materials in this issue, there seems little prospect of any very significant action in the immediate future, the debate provides a revealing window on the operation of the advisory system seven years on.”

In the issue, I argue strongly for replacement of the current advisory system with a more rational structure. That article, titled “Nothing Is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System,” can be previewed at  I find myself somewhat uncomfortably allied with Congressman Sensenbrenner (R-Wis.) on the need for reform (though his version of what reform should look like would very likely be radically different than mine). But virtually everyone else appearing in the issue, including Congressman Bobby Scott (D-Va) (ranking member of the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security), Jim Felman on behalf of the ABA, Ray Moore on behalf of the Federal Defenders, and Professors Sara Beale and Michael Tonry, argues for maintenance of the status quo.  Watch your local newsstand for the issue in its full glory in June.


The Law Professor’s Role

I read this morning about Eugene Volokh’s engagement by Google to write what amounts to pre-litigation brief for the position that Google can be both a mere information intermediary for some purposes (allowing it to avoid liability for copyright infringement or libel) and a “publisher” with First Amendment protections (thus allowing it to privilege certain possible search results over others based, not on a neutral algorithm, but on considerations like Google’s own commercial interests).

I have no substantive dog in this fight because I know little of First Amendment law and less about the nuts and bolts of the way an internet search engine works. But Professor Volokh’s role does raise some questions with me. To what extent should we as professors sell our academic reputations to act as advocates? As the Times article notes, Eugene candidly avows that his paper is a work of advocacy in his capacity as lawyer and not a work of scholarship in his capacity as professor. And I sometimes represent clients in federal criminal matters or provide adversarial arguments to counsel on questions of federal sentencing law myself. So I don’t question the propriety of Eugene’s conduct here. But I have an ill-formed intuition that this sort of thing can be a problem.

One phenomenon that I see with increasing frequency, and that gives me pause, is the participation by academics in writing amicus briefs – and then rounding up signatures from other academics – in cases where the writer may previously have been consulted and paid by a party. The value, if any, of an amicus brief from legal academics is presumably that we provide disinterested expertise on which the court can rely with particular confidence. Moreover, in former times, it could reasonably have been assumed that an amicus brief from a professor was uncompensated labor untertaken out of concern for proper development of the law. But if our arguments are either directly paid for by a party, or follow chronologically a period in which the party paid for our advice, then the value of the amicus is diminished, as potentially is the value of all such briefs once judges begin to suspect that they are not really manifestations of disinterested scholarly opinion.

One obvious response to this concern would be a hard and fast rule that any prior connection between persons drafting or signing amici and any party must be disclosed. Certainly, at a minimum, this should be done. But even with disclosure, amici authored by academics paid by parties (or their supporters) seem to me a troubling phenomenon. At a minimum, such briefs seem to circumvent courts’ ordinary rules limiting briefs. Why, for example, should the government in a criminal case get only the briefs allowed by rule, while a well-to-do criminal defendant can get his own brief(s) PLUS more from academics on his payroll? Of course, so long as the academics disclose the connection, the courts can choose to police their own briefing limits.

But even if the courts don’t get up in arms, I worry that the proliferation of this practice devalues the institution of amicus briefs and risks devaluing legal academic opinion. If we are just another set of guns for hire, why should courts listen to us more than any other lawyer?

A second set of questions arises for professors like Eugene who have attained a high public profile through a combination of intellectual excellence and deft use of internet platforms. If one blogs as an academic and public intellectual and then publicizes the work one does as an advocate through the same internet platforms, is that kosher? Or does it, despite whatever disclaimers may be offered, somehow undesirably commingle the role of academic and advocate?

I candidly don’t know the answers to these questions. I’d be pleased to hear others’ thoughts.

Frank Bowman


More on legal education

One of the commenters on my opening salvo on legal education raises a point I thought might come up – essentially the much ballyhooed assertion that clients are no longer willing to pay for the training of young associates. The implication being that because clients are less willing to pay for hours billed by ignorant or inefficient legal rookies then law schools must necessarily adjust curricula to provide training no longer available through law firms. Although I’m in favor of doing more to prepare practice-ready graduates, I’m not at all sure the “clients won’t pay for training” story really flies as a rationale for doing it.

First, I don’t think clients were ever consciously “paying for new associate training.” What may have been true is that, in flusher times, big firm clients more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates. The result was that big firm clients “paid for” associate training in the sense that the associates were learning on the job and their firms were able to earn big profits from their time while they did so. Now, it appears that big firm clients are more sensitive to overstaffing and are unwilling to pay high hourly rates for inefficient or low-value-added associate labor. The result cannot be that big firms aren’t training their new associates. That would be suicidal. The associates have to be trained or they will be unable to produce the high-quality work for which clients ARE willing to pay and on which the firm’s reputation and long-term survival depends. Rather, to the extent a client rebellion against expensive associate billing is underway, the real effect will be to reduce the number of associates hired because they are no longer automatic profit centers. Which is pretty consistent with what we see in the marketplace.

Now, reduced big firm associate hiring is bad for our graduates because there are fewer job opportunities and bad for law schools in the sense that, as the market for lawyers shrinks, so too does the market for law training. BUT it is not at all clear that this market perturbation can be remedied, or even much affected, by alterations in law school curriculum. We can and should make our graduates more practice-ready, but no conceivable modification of law school curriculum would provide the highly specialized subject matter and skills training necessary to transform a Big Law rookie into a midlevel associate worth her $400/hour. That sort of refined training will always be performed on the job. The very best law schools can do would be to provide a better foundation that might speed the developmental process by 6 mos or a year.

Second, most of the talk about changed client willingness to “pay for” associate training is Big Law talk. In the less rarified regions where most students from non-top-20 law schools find jobs, clients have never been willing to “pay for” young lawyer training in any sense. So firms bill young associate time at low rates or bill for fewer hours than the new lawyers spend in order to avoid alienating clients. Nonetheless, such employers – like those in Big Law – know that they have to train their new lawyers if they are to become assets. And they do – some better than others – as an investment in future improved productivity and economic return. I don’t think there is anything new about this. The change, if any, in current circumstances is the overall decline in legal business with a concomitant lower demand for investment in new associates to grow practices.

Still, law schools may be able to help our students and their prospective employers (large and small) by shortening the interval during which they are unproductive assets of the firm. More practice-ready graduates can develop faster into lawyers worth their hourly rates. This in turn shortens the payout period on a firm’s investment in a new associate and raises its rate of return. All of which should, in theory,increase lawyer hiring (or at least give a competitive advantage to graduates of schools who produce practice-ready diplomates).

Does this make sense?


An opening musing on legal education

Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes.  Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
      a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
     b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
     c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
     d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ‘em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:

  • Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
  • Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others. 
  • Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with.  If professors come to the academy without such familiarity, they should find ways to gain it.  This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.

In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…

Frank Bowman