I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part [...]]]> I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.

I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.

If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.

I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.

Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.

But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.

By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet.  If [...]]]> Zephyr Teachout, a law professor at Fordham, predicts in Slate today that the Internet will tear apart education much the same way it has affected newspapers.  In the future, says Professor Teachout, most classes will be offered online, students will pay by the class, a few big star teachers will get all the money, and the rest of us will be glorified TAs.  “Within a generation, college will be a mostly virtual experience for the average student,” Professor Teachout says, and degrees will come from education “aggregators” rather than traditional colleges.

Professor Teachout may be one of the big stars in the new order (well, her webpage at Fordham does say that she is “an immensely talented and creative scholar”) but I’m not buying her theory just yet.  If universities just sold educations, there’d be more to it.  As Professor Teachout observes, universities incur big expenses that may prove unnecessary in the digital age.  If we ran universities on a business basis, employed technology to the fullest degree, and got rid of a few bits of archaic nonsense such as tenure and scholarly research, I’m sure we could deliver education much more cheaply.

But universities also sell their students something else:  the reputational value of the degree.  An Internet “aggregator” of education services can’t duplicate that easily.  Part of the reputational value of a degree comes from just those aspects of a university that the Internet would shed:  having faculty who are research stars, not letting just anyone take classes, etc.  Face it: if you were making hiring decisions, would your first choice be someone who graduated from a virtual school?

I think the reputational value of the degree is a big part of what universities sell, and I don’t think the Internet is going to erode that so quickly as Professor Teachout seems to believe.  And that’s before we get to other things that real colleges offer, such as enjoyment, friendships, networking, and other things that come from actually being in the same place as your classmates.

Well, it’s always dangerous to say that the Internet won’t accomplish something.  And in fairness, Professor Teachout does say that the more elite, “brand name” universities will be less affected by the developments she foresees than smaller, less known institutions.  And that makes sense:  the less reputational value your degree has, the more you really are selling education.  But I don’t think my job is going to be outsourced to the Internet just yet.

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the [...]]]>

Chilean sea bass

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the idea of simply giving the course a sexier name. The resulting “Knights, Castles, and Dragons’’ nearly tripled enrollment.

Resler then replaced his class on “The Songs of Walter von der Vogelweide,’’ a great German lyric poet, with “Passion, Politics, and Poetry in the Middle Ages.’’ Again, enrollment swelled.

“I suppose the moral of the story is that we live in an age where everything has to be marketed in order to find a willing audience,’’ Resler mused.

Maybe it’s time to rename law school classes:

Torts –> Crashes and Accidents

Criminal Law –> Murder Most Foul and Other Dastardly Crimes

Trusts & Estates –> Dead Hands: Power After Death

Corporate Law –> Gold and Parachutes

Property –> The Story of a Whale and a Fox

Hat tip: Inside Higher Ed

As the Journal explained:

So what don’t the politicians like?  Apparently, it’s merely the profits.  [One advisor to Governor Jon Corzine] told the Newark Star Ledger that the schools should reduce their earnings by offering more student aid.  [An Ohio Board of Regent] told state legislators that “it is simply untenable for . . . [...]]]> For-profit colleges such as Devry and Kaplan are coming under increased scrutiny by federal and state governments.  According to The Wall Street Journal, the Department of Education is considering changes that might result in students at for-profit colleges having less access to federal aid.  Meanwhile, Ohio’s governor and state legislature have agreed to eliminate the scholarships of 22,500 students attending for-profit colleges.  Next year New Jersey will reduce the aid of students at these colleges by almost 40 percent. 

As the Journal explained:

So what don’t the politicians like?  Apparently, it’s merely the profits.  [One advisor to Governor Jon Corzine] told the Newark Star Ledger that the schools should reduce their earnings by offering more student aid.  [An Ohio Board of Regent] told state legislators that “it is simply untenable for . . . a publicly or privately held company, seeking the maxium return for their owners [to] set tuition in a manner that is designed to maximize the public dollars that they receive and then expect taxpayers to pay the bill.”

This debate reminds of Dan Pallotta’s Uncharitable: How Restraints on NonProfits Undermine Their Potential, which was published in 2008.  Pallotta argues that deeply-rooted notions of charitableness constrain risk-taking, capital investment, advertising, and employee compensation within the non-profit sector and thereby make non-profits far less effective than they otherwise would be.  Pallotta argues that the fundamental question should be how much good or value the entity creates, not whether the vehicle creating the good earns a profit or otherwise serves individual self-interest.   Running throughout Uncharitable is a case study of  Pallotta TeamWorks, which organized events that netted enormous amounts for AIDS and breast cancer research, but which ultimately folded in part because the charitable organizations with which it contracted did not want to be associated with a for-profit venture.  While Uncharitable sometimes reads like a defense of Pallotta’s failed business, its central argument is convincing and the book has received many favorable reviews.

Taking a page from Pallotta’s book, the debate about colleges like Devry and Kaplan should not focus on profits but instead on the relative good these colleges create.  The Journal article suggests that for-profit colleges fare well on many fronts, including curriculums that are particularly well-suited for the information economy and graduation rates that are higher than those at non-profit competitors.  There may be reason to criticize for-profit colleges, but such criticism should be based on the relative value of the education they provide, not on the mere existence of profits.

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart [...]]]> So here’s a question for people thinking about the nature of law schools and the nature of scholarship (and with thanks to Mike Madison for picking up on my invitation to blog more about his research deanship).

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart of the center question.  Are there one or more key ideals that all centers in law schools should be able to live up to, or to contribute to the school?  And, if so, is it something other than:  “It’s a marketing device to attract faculty/students.”  (Not that there’s anything wrong with that – I’m asking the question out of legitimate interest.)

We’ve been talking about this recently at my school and the question is of particular interest here because we have a number of different centers that were set up under vastly different conditions for vastly different purposes.  Some are research focused and obtain grant funding.  At least one has a private endowment.  Some take advantage of collections of faculty who specialize in particular subject areas.  Presumably none of them are cost-neutral for the school, although none of them drain big bucks out of the budget either.

There are always political questions within faculty about centers and the role of faculty who happen to operate as center directors (I plead guilty to the charge of being a center director).  “Why does s/he get [a lighter teaching load/a director's stipend/a dedicated administrative support person/_______]?”  Pick one or fill in the blank.

But politics aside, what do centers ideally contribute/potentially detract from a school?

Some possibilities…

- increased research synergies?

- impact on student admissions (ie strong students in specialist areas who might not be attracted to a particular school otherwise)?

- impact on faculty recruitment (but this could be positive or negative as it may attract faculty who write and teach in the area(s) of the center(s), but dissuade those who can’t see that they would fit in to a center; also hiring decisions internally could be impacted by a perceived need to “staff the centers”)

- impact on law school identity (again, pros and cons to this one – do you want to be known as a specialist school or a generalist school, and why)?

- ability for a school to attain a high ranking in a U.S. news specialty even if the school overall isn’t particularly highly ranked?

- focus for pulling together research grant or other funding (either by themselves or in concert with other institutions or other departments of the university)

- can be instrumental in pulling together specialty curriculums (again, this can be done without centers and this may add or detract from a school depending on its overall philosophy of the curriculum)

Anything else?  Are centers good or bad overall or is it institution-specific?  Are they mainly for marketing purposes or do the roots run deeper?

The Journal article states that “[r]estricted gifts can account for as much as three-quarters of a university’s endowment.” It is true that specific universities or colleges might have an endowment in which three-quarters of the funds are restricted. But data from the National Association of College and University Business Officers shows that 45 percent of endowment funds at private [...]]]> Yesterday’s Wall Street Journal reported on how Trinity College is facing scrutiny from the Connecticut Attorney General over its plan to use part of a $9 million endowment from the late Shelby Cullom Davis to fund scholarships for international students. Both Davis’s daughter and the professor who holds the Davis chair believe that Trinity’s plan violates the restrictions that Davis placed on his gift.

The Journal article states that “[r]estricted gifts can account for as much as three-quarters of a university’s endowment.” It is true that specific universities or colleges might have an endowment in which three-quarters of the funds are restricted. But data from the National Association of College and University Business Officers shows that 45 percent of endowment funds at private institutions are unrestricted. Furthermore, universities can exert considerable influence over whether gifts are restricted and the precise terms of the gift.

Universities spend lots of time and money cultivating donors and helping shape their giving preferences. This is one of the functions of so-called “named gift opportunities.” The cultivated gifts often pay for expenditures the institution would have made even without a gift, thereby allowing the university to redirect funds to current expenses or into the endowment itself. Research has also shown that corporations, foundations and alumni each favor different sorts of projects. This means that a university can help determine the sorts of gifts it is likely to receive through careful allocation of its development staff.

This is not to suggest that all donors are malleable. Some have very definite ideas. Mr. Davis, for example, said no when Trinity asked whether it could use the endowment as it thought appropriate “as conditions evolved and opportunities arose.” But simply focusing on the amount of restricted funds overstates the extent to which donors tie the hands of universities.

The upshot is that individuals who are deciding where to go to law school should pay very close attention to the amount of debt associated with each of their options. Moreover, as these individuals assess their likely total debt, they should be pessimistic about their future earning potential. The average first year [...]]]> Here’s a recommendation that appeared in a recent New York Times article about the burden of student loans. According to Mark Kantrowitz, publisher of FastWeb.com and FinAid.org, “Do not borrow more than your expected starting salary for your entire undergraduate education.” I don’t know the rule of thumb for graduate students, but I imagine it’s something similar. (If anyone does know the recommendation, please comment and pass it along.)

The upshot is that individuals who are deciding where to go to law school should pay very close attention to the amount of debt associated with each of their options. Moreover, as these individuals assess their likely total debt, they should be pessimistic about their future earning potential. The average first year salaries reported by law schools are a snapshot of what graduates were earning before the current crisis, not what graduates are earning now. And many experts are predicting that the current crisis will change the law firm model in ways that may profoundly affect compensation.

Put differently, if you are entering a 1L class in the Fall of 2009, graduation is only 37 months away. How much debt do you think you can manage just three years from now?

Something has got to give. Yesterday’s Times reported that some colleges are experimenting with three-year programs that enable students to save a year’s tuition. I’ve often thought that the number of freshmen who “go away to college” [...]]]> On Tuesday President Obama announced that by 2020 the United States will have the highest proportion of college graduates in the world. This admirable goal will be difficult to deliver. The National Center for Public Policy and Higher Education recently reported that college tuition and fees rose 439 percent between 1982 – 2007, while median family income rose only 147 percent. The Center’s president commented, “If we go on this way for another 25 years, we won’t have an affordable system of higher education.”

Something has got to give. Yesterday’s Times reported that some colleges are experimenting with three-year programs that enable students to save a year’s tuition. I’ve often thought that the number of freshmen who “go away to college” will shrink dramatically in coming years, because students will be forced to stay closer to home to avoid room and board fees. But something more dramatic will be required to really address the problem of runaway costs.

On-line or distance learning, which reduces labor costs and pretty much eliminates the need for a physical plant, is one way to tackle the problem. I’ve always had a hard time even contemplating on-line learning. But I’m beginning to suspect that this is a failure of imagination on my part.

On the lawprof listserve, Professor Bill Slomanson recently posted about a Massachusetts court that used its equitable powers to waive the rule that an applicant seeking bar admission through the bar exam must have graduated from an ABA-accredited la w school. The applicant who benefitted from this equitable waiver was a graduate of Concord, a wholly on-line law school authorized by the state of California to grant JDs.

Here’s what the court said about the education the applicant had received:

The record contains quite specific information about the required and elective courses that Mitchell took as a law student at Concord-the course subjects, an overview of topics covered, and the legal texts and authors that were used-as well as a description of the extensive online research resources that were available to him. Our review of these materials indicates that Mitchell’s core course of study, and legal research resources, were substantively very similar to the core content offered by ABA-approved law schools. Mitchell v. Board of Bar Examiners, 897 N.E.2d 7, 11 (2008).

The court also noted that the applicant had passed the California Bar, had a scaled score on the multistate professional responsibility examination that was well above what was required by the board, and that:

Mitchell, who has represented himself throughout this case, filed briefs and gave an oral argument in this court that were of commendable quality, providing us with a concrete and positive illustration of his skills in legal analysis, legal writing, and advocacy.

The court was careful to note that it was providing a waiver only for this particular applicant and that it would not make any sweeping changes to its admission standards until the ABA had comprehensively reviewed on-line law schools. But its decision nonetheless suggests that distance education deserves a closer look from skeptics like myself.

Against the real likelihood of financial doom for so many people, it feels almost unseemly to consider a donation to a college or university. Surely there must be a food bank or job retraining program that is more deserving.

If past experience is any guide, don’t expect the food banks and job retraining programs to win out. One persistent trend in philanthropy is that groups providing social services tend to receive a smaller slice of the charitable dollar than both educational and arts organizations. Perhaps this year the needy are so salient that [...]]]> A recent New York Times article by Ron Lieber asked whether alumni will give to colleges and universities this year, particularly if the institutions have mega-endowments. As Lieber put it:

Against the real likelihood of financial doom for so many people, it feels almost unseemly to consider a donation to a college or university. Surely there must be a food bank or job retraining program that is more deserving.

If past experience is any guide, don’t expect the food banks and job retraining programs to win out. One persistent trend in philanthropy is that groups providing social services tend to receive a smaller slice of the charitable dollar than both educational and arts organizations. Perhaps this year the needy are so salient that these patterns will shift a bit, but old giving habits die hard.

Lieber writes that for him, debt is the most persuasive reason for continuing to give to his alma mater; his education was made possible by generous scholarship support. Almost every college student has this sort of debt, because at most places not even full tuition covers the total cost of an education. Most alums are at least vaguely aware of this and, for some, it may provide an adequate reason to give.

But I wonder how long the notion of a deferred debt will continue to have practical or rhetorical force. With tuition rising at a rate that outpaces inflation and students and their families feeling increasingly strapped, tomorrow’s alums may conclude that even if tuition didn’t cover the cost of their education, it should have. The gap between what higher education costs and what students actually pay may soon be seen as more symbolic of the runaway costs of higher education than of an institution’s generosity towards its students.

Teachers may find a multiple-choice format optimal for many reasons, including psychometric evaluation, the nature of substantive material to test (e.g., statutory versus common law), or simple time budgeting to grade exams (e.g., a professor teaching both Contracts and Corporations in a single term to large enrollments simply cannot grade 200+ written exams within deadline).

One way to offer multiple-choice exams while meeting that student concern is to give students a limited option to address perceived ambiguities. This can be done [...]]]> Law professors may struggle to determine optimal exam format, especially between essays and multiple-choice questions or a combination. Student appetite varies. But many students prefer essay exams. They may express concern that multiple choice questions limit ability to identify and explain ambiguities.

Teachers may find a multiple-choice format optimal for many reasons, including psychometric evaluation, the nature of substantive material to test (e.g., statutory versus common law), or simple time budgeting to grade exams (e.g., a professor teaching both Contracts and Corporations in a single term to large enrollments simply cannot grade 200+ written exams within deadline).

One way to offer multiple-choice exams while meeting that student concern is to give students a limited option to address perceived ambiguities. This can be done for a limited number of questions on a separate attachment to the multiple choice exam. I’ve done this for years, using an approach passed on to me by Bernie Black years ago when he was at Columbia and I taught a course there.

The mechanism is easiest to explain by excerpting below the related instruction that appears on the general instructions page to my exam; it is followed by the form of explanations page I attach to the exam booklet. I always circulate the instruction and sample form of explanations page in the weeks before the end of the term and explain the method in the beginning of the term when summarizing the course evaluation method.

From Instruction Page

6. While there is no obligation to do so, you may, if you think a question is ambiguous, explain why on the “explanations page” at the end of this exam. Then make whatever assumptions you need to resolve the ambiguity and answer the question. If there is a real ambiguity, your assumptions are reasonable, and your analysis is correct given your assumptions, you will receive credit even if your answer is not the one sought. But don’t look too hard for alternative explanations of what a question is asking for, or you may perceive ambiguity that isn’t really there. You can also lose credit if, though you selected the correct answer, your explanation convinces me that you did so for the wrong reasons. You can exercise this option to provide explanations for up to [_____] questions. [NB: I usually make this about 10-15% of the questions.]

From Explanations Form Pages

OPTIONAL: Explanation of Ambiguous Questions (Maximum of _______)

For each Question No. you believe is ambiguous, please write down:

(1) The answer you select (“Student Answer”)

(2) The answer you think I intended or may have intended (“Sought Answer”)

(3) The ambiguity and the assumptions you made in your selection

[Do not exceed space limits indicated by the lines below and please write neatly]

Question No. _______

Student Answer _______

Sought Answer _______

Explanation:

Endowment growth also depends on new gifts, so educational institutions can compensate for decreased yield with aggressive fund-raising. But yesterday’s New York Times contains evidence that gifts are already drying up, as the “financial straits of big boosters hit athletic departments.” I won’t lose any sleep over a university’s inability to “remake its facilities into a Shangri-La for . [...]]]> Last week I wrote about how the ongoing financial crisis makes it unlikely that Congress will impose mandatory spending requirements on universities and colleges, at least for now. As a political matter, the passage of mandatory spending requirements depends in part on how tuition has increased even as endowments have ballooned. This year, however, endowments are not going to earn impressive returns.

Endowment growth also depends on new gifts, so educational institutions can compensate for decreased yield with aggressive fund-raising. But yesterday’s New York Times contains evidence that gifts are already drying up, as the “financial straits of big boosters hit athletic departments.” I won’t lose any sleep over a university’s inability to “remake its facilities into a Shangri-La for . . . sports, complete with an indoor practice center and new facilities for baseball, equestrian, soccer, tennis, and track and field.” But this is an initial sign of the fund-raising difficulties that universities will face in the upcoming months. With lower (negative?) returns and decreased giving, endowment growth will be down, perhaps dramatically so. This makes the case for mandatory spending requirements all the more difficult.

Of course, it is also true that the financial downturn and the tightening of credit markets will increase the burden of paying for a college education. Therefore Congressional calls to increase voluntary spending are likely to continue, particularly for the nation’s wealthiest colleges and universities.

Student: Prof. Turtle, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Turtle: I’ve never even made it all the way through [...]]]> The other day, one of my students wandered into my office with a sticky question. I took the liberty of putting his question to some of my colleagues. The depiction below sets forth the question and reasonably represents the conversations that ensued. I’ve changed the names to protect the innocent and the guilty. Professors Turtle and Owl represent a composite of several of my colleagues at my law school and beyond.

Student: Prof. Turtle, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Turtle: I’ve never even made it all the way through my syllabus in a semester. I don’t have time to address such issues. Ask Prof. Owl.

Student: Prof. Owl, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Owl: Let’s find out… What do you mean by justice? Whose idea of ethics counts? Do you mean to say that the students are just now noticing this? (accompanied by laughter). Wait a minute – why are you asking me? Are my students complaining? (accompanied by slight paranoia).

Why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

The world may never know.

I suspect that recent economic events have made the possibility of mandatory spending requirements a non-starter, at least for now. [...]]]> Accuse me of fiddling while Rome burns, but I’ve been thinking about what the current financial situation means for university endowments. Over the summer I blogged about how endowments are coming under increasing scrutiny from the Senate Finance Committee. The latest round was a panel discussion in early September that was sponsored by Senator Charles Grassley (Iowa Republican) and Representative Peter Welch (Vermont Democrat). Some of the discussion focused on the possibility of enacting mandatory spending requirements, such that institutions would be required to spend five (or more) percent of their endowment assets each year. (You can watch the discussion here.)

I suspect that recent economic events have made the possibility of mandatory spending requirements a non-starter, at least for now. Universities have long argued that they need the flexibility to save more during good times, so that they will have necessary resources on hand during bad times. The current financial crisis has given this argument a saliency that it lacked just six weeks ago. Moreover, it’s not difficult to shock the public conscience when universities sit on multi-billion endowments that grow by more than 20 % in a single year. But the politics will be a bit trickier if university endowment sheets bear any resemblance to my last TIAA-CREF statement.

If the financial crisis discourages Congress from considering mandatory spending requirements, this is one small spot of silver among the dark clouds. Even in a world of mandatory spending, universities are likely to try to maintain the size of their endowments. To do so, usually the endowment yield must at least equal the annual institutional budget increase and the required payout amount. Higher education has been increasing at a rate of roughly 6 percent each year, so the typical university might aim for a yield of 11 percent (to cover the 5 % annual payout and the budget increase). This would likely push universities with conservative endowment management policies toward strategies that offer the possibility of higher returns. These same strategies are likely to have higher risk and greater yield variability.

Professor Mark Schneider of Grinnell College has begun to study endowment patterns at universities and colleges. His very preliminary results demonstrate that high-yield endowments are also more variable. For example, NYU, Cornell, Grinnell and MIT had endowment yields over 10 years of 8.8 %, 10.3 %, 12.4 % and 15.1 %, respectively. Grinnell and MIT had the two highest one-year yields (38 % and 55.6 %), but also the two largest one-year losses (-12.2 % and -10 %). NYU, which had the smallest return over the ten-year period, did not have a single year of negative returns. (Professor Schneider discussed his research in remarks that were submitted after the Congressional panel discussion.)

So what’s the problem with high-risk, high-yield investments, particularly for universities and colleges with endowments that are large enough to withstand the years with negative returns? One persistent criticism of university spending is that some of it actually increases the cost of higher education, because it fuels an arms race for the best facilities and student amenities. (Think of it as keeping up with the Grinnells. Less wealthy institutions believe that they have to make similar expenditures on their physical plants and campuses in order to compete for students.) The naming opportunities that attract large donors often are seen as contributing to the arms race, and the same may be true of the sort of “one-time” spending that a university is likely to undertake after a high-yield year. Although proponents of mandatory spending see it as a means of reducing tuition, a five percent rule may have the opposite effect.

Congress made private foundations subject to a five percent rule to help ensure that they actually served the public good. But no-one seriously doubts that universities and colleges serve the public good. Rather, the question is whether they could do a better job of using their endowments to reduce the cost of higher education and to foster research. Simple one-size-fit-all payout rates are unlikely to provide a satisfactory solution to this complex question.

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I [...]]]> As luck would have it, I stumbled into a laptop-free section this semester. What started as a decision of one of my section colleagues to stamp out the scourge of laptops in his class had a domino effect. A second colleague signed up and, suddenly, we all were members of the Laptopless Society.

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I like it with a teaching passion once deflected

By the tops of student heads bent over their PCs.

I like it with a like that I formerly rejected

When looking out over a laptop sea, — I like my shiny

Happy, laptopless students! – and, unless otherwise directed,

I shall but like it better even after course evaluations skewer me.

How is it that so many of us (maybe I should just [...]]]> I’ve been thinking a lot about teaching lately. Specifically, I’ve been wondering about my effectiveness in the classroom. After my 9:00 AM class, my 1L students line up at the podium to ask me questions – obviously a consequence of my uncanny ability to convey information in an unclear and unconcise manner. My upper-level students, however, make a beeline for the door as soon as I quit my yammering. So, either I morph into a paragon of teaching clarity in the hour that I have between these classes or my upper-level students prioritize lunch over knowledge. Or maybe they know that a trip to the podium would be futile.

How is it that so many of us (maybe I should just speak for myself) become teachers without any training on how to teach? Is teaching truly so unimportant that we’ll let most anyone (e.g., me) in the classroom? If it is unimportant, then why do we pass out teaching evaluations to our students? And why is it a factor in the promotion and tenure process?

Maybe the better question is “how can I improve?” I know that there are annual teaching conferences and panels on teaching methods at the January AALS. But do law schools offer training and mentoring on teaching to their faculty members? I’m curious to know what folks are doing at their schools. Continuing to exhort my class to “Love the One You’re With” when they grumble about my (or anyone else’s) teaching may be entertaining, but it doesn’t address their concerns.

We have a responsibility to educate our students about being responsible citizens,” said Elizabeth A. Higgins, Washington’s director of community standards and student conduct, whose office has ‘educated’ 19 students since the extended code of conduct took effect in January.

The scope of these codes can be quite broad, as the article reports that the University [...]]]> In a world of increased occasions for forms of social control, the university is extending its reach. In an AP story today we learn that universities are broadening the scope of their campus behavior codes to apply to student conduct off campus, in an effort to cultivate humanity, to borrow from Martha Nussbaum. One purpose is to make students better citizens within the community. From the article:

We have a responsibility to educate our students about being responsible citizens,” said Elizabeth A. Higgins, Washington’s director of community standards and student conduct, whose office has ‘educated’ 19 students since the extended code of conduct took effect in January.

The scope of these codes can be quite broad, as the article reports that the University of Colorado code “regulates any conduct that ”affects the health, safety or security of any member of the university community or the mission of the university.” The article further reports that Seattle University “has put its students on notice that cyber-patrolling will continue this year.”

Universities have a unique institutional role with regard to their students, and the impact of student conduct on surrounding communities can be significant (with both positive and negative externalities). Extending the scope of behavior monitoring to off-campus sites and to the internet does, however, reduce the realm of personal privacy and provides another occasion in which institutional control over behavior applies beyond the institution’s own parameters. Even if the purpose of this sort of cultivated humanity is to produce good citizens, it is unclear to me that more extensive monitoring is the way to achieve that goal. Without spaces to develop a sense of serendipitous self-determination, cultivating humanity may be more like growing corn – we get more homogenization and a good food supply, but we may also get more corn than we bargained for. Besides providing another occasion when one can mention Foucault’s work on forms of social control, it may be that universities are merely catching up with other institutions such as private companies who expect certain kinds of behavior from off-duty employees. Is it likely that law schools will increase the monitoring of their students off-campus or on-line any time soon as well?