Archive for the ‘Law Practice’ Category
posted by UCLA Law Review
Volume 61, Discourse Discourse
|The View From Below: Public Interest Lawyering, Social Change, and Adjudication||Douglas NeJaime||182|
posted by Brian Sheppard
In my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.
Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements. At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.
My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer. By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.
In this second post, I’d like to offer some final observations on gatekeeping. I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population. Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements. To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read the rest of this post »
posted by Christine Chabot
Historically, skills training was not part of the education students received in law school. Things have changed, of course, and recently many have emphasized the need for practice-ready law grads. Incorporating skills training in substantive courses offers one promising option for improving students’ education. I’m prepping Sales (UCC Article 2) for the fall, and the course seems to lend itself well to a more skills-oriented approach. I plan to use problem-solving exercises and assignments which will not only teach students the law governing sales of goods, but will also enhance their statutory and contractual interpretation, drafting, and client-counseling skills. I have extensive experience litigating contractual disputes, so I know these skills are essential for commercial litigators. And they seem equally important to transactional lawyers.
July 31, 2013 at 11:23 am Tags: practice-ready law grads, Reforming legal education, skills training Posted in: Contract Law & Beyond, Law Practice, Law School, Law School (Teaching), Teaching, Uncategorized Print This Post 6 Comments
posted by Michael Simkovic
(Reposted from Brian Leiter’s Law School Reports)
BT Claim 2: Using more years of data would reduce the earnings premium
Response: Using more years of historical data is as likely to increase the earnings premium as to reduce it
We have doubts about the effect of more data, even if Professor Tamanaha does not.
Without seeing data that would enable us to calculate earnings premiums, we can’t know for sure if introducing more years of comparable data would increase our estimates of the earnings premium or reduce it.
The issue is not simply the state of the legal market or entry level legal hiring—we must also consider how our control group of bachelor’s degree holders (who appear to be similar to the law degree holders but for the law degree) were doing. To measure the value of a law degree, we must measure earnings premiums, not absolute earnings levels.
As a commenter on Tamanaha’s blog helpfully points out:
“I think you make far too much of the exclusion of the period from 1992-1995. Entry-level employment was similar to 1995-98 (as indicated by table 2 on page 9).
But this does not necessarily mean that the earnings premium was the same or lower. One cannot form conclusions about all JD holders based solely on entry-level employment numbers. As S&M’s data suggests, the earnings premium tends to be larger during recessions and their immediate aftermath and the U.S. economy only began an economic recovery in late 1992.
Lastly, even if you are right about the earnings premium from 1992-1995, what about 1987-91 when the legal economy appeared to be quite strong (as illustrated by the same chart referenced above)? Your suggestion to look at a twenty year period excludes this time frame even though it might offset the diminution in the earnings premium that would allegedly occur if S&M considered 1992-95.”
There is nothing magical about 1992. If good quality data were available, why not go back to the 1980s or beyond? Stephen Diamond and others make this point.
The 1980s are generally believed to be a boom time in the legal market. Assuming for the sake of the argument that law degree earnings premiums are pro-cyclical (we are not sure if they are), inclusion of more historical data going back past 1992 is just as likely to increase our earnings premium as to reduce it. Older data might suggest an upward trend in education earnings premiums, which could mean that our assumption of flat earnigns premiums may be too conservative. Leaving aside the data quality and continuity issues we discussed before (which led us to pick 1996 as our start year), there is no objective reason to stop in the early 1990s instead of going back further to the 1980s.
Our sample from 1996 to 2011 includes both good times and bad for law graduates and for the overall economy, and in every part of the cycle, law graduates appear to earn substantially more than similar individuals with only bachelor’s degrees.
This might be as good a place as any to affirm that we certainly did not pick 1996 for any nefarious purpose. Having worked with the SIPP before and being aware of the change in design, we chose 1996 purely because of the benefits we described here. Once again, should Professor Tamanaha or any other group wish to use the publicly available SIPP data to extend the series farther back, we’ll be interested to see the results.
July 29, 2013 at 11:38 am Tags: Economic Value of a Law Degree, economics, law and economics Posted in: Accounting, Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Philosophy of Social Science Print This Post No Comments
posted by Michael Simkovic
(Reposted from Brian Leiter’s Law School Reports)
BT Claim: We could have used more historical data without introducing continuity and other methodological problems
BT quote: “Although SIPP was redesigned in 1996, there are surveys for 1993 and 1992, which allow continuity . . .”
Response: Using more historical data from SIPP would likely have introduced continuity and other methodological problems
SIPP does indeed go back farther than 1996. We chose that date because it was the beginning of an updated and revitalized SIPP that continues to this day. SIPP was substantially redesigned in 1996 to increase sample size and improve data quality. Combining different versions of SIPP could have introduced methodological problems. That doesn’t mean one could not do it in the future, but it might raise as many questions as it would answer.
Had we used earlier data, it could be difficult to know to what extent changes to our earnings premiums estimates were caused by changes in the real world, and to what extent they were artifacts caused by changes to the SIPP methodology.
Because SIPP has developed and improved over time, the more recent data is more reliable than older historical data. All else being equal, a larger sample size and more years of data are preferable. However, data quality issues suggest focusing on more recent data.
If older data were included, it probably would have been appropriate to weight more recent and higher quality data more heavily than older and lower quality data. We would likely also have had to make adjustments for differences that might have been caused by changes in survey methodology. Such adjustments would inevitably have been controversial.
Because the sample size increased dramatically after 1996, including a few years of pre 1996 data would not provide as much new data or have the potential to change our estimates by nearly as much as Professor Tamanaha believes. There are also gaps in SIPP data from the 1980s because of insufficient funding.
These issues and the 1996 changes are explained at length in the Survey of Income and Program Participation User’s Guide.
Changes to the new 1996 version of SIPP include:
Roughly doubling the sample size
This improves the precision of estimates and shrinks standard errors
Lengthening the panels from 3 years to 4 years
This reduces the severity of the regression to the median problem
Introducing computer assisted interviewing to improve data collection and reduce errors or the need to impute for missing data
Most government surveys topcode income data—that is, there is a maximum income that they will report. This is done to protect the privacy of high-income individuals who could more easily be identified from ostensibly confidential survey data if their incomes were revealed.
Because law graduates tend to have higher incomes than bachelor’s, topcoding introduces downward bias to earnings premiums estimates. Midstream changes to topcoding procedures can change this bias and create problems with respect to consistency and continuity.
Without going into more detail, the topcoding procedure that began in 1996 appears to be an improvement over the earlier topcoding procedure.
These are only a subset of the problems extending the SIPP data back past 1996 would have introduced. For us, the costs of backfilling data appear to outweigh the benefits. If other parties wish to pursue that course, we’ll be interested in what they find, just as we hope others were interested in our findings.
July 28, 2013 at 5:01 pm Tags: economic rec, Economic Value of a Law Degree, economics Posted in: Accounting, Blogging, Corporate Finance, Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Philosophy of Social Science, Sociology of Law Print This Post No Comments
posted by Michael Simkovic
(Cross posted from Brian Leiter’s Law School Reports)
Brian Tamanaha previously told Inside Higher Education that our research only looked at average earnings premiums and did not consider the low end of the distribution. Dylan Matthews at the Washington Post reported that Professor Tamanaha’s description of our research was “false”.
In his latest post, Professor Tamanaha combines interesting critiques with some not very interesting errors and claims that are not supported by data. Responding to his blog post is a little tricky as his ongoing edits rendered it something of a moving target. While we’re happy with improvements, a PDF of the version to which we are responding is available here just so we all know what page we’re on.
Some of Tamanaha’s new errors are surprising, because they come after an email exchange with him in which we addressed them. For example, Tamanaha’s description of our approach to ability sorting constitutes a gross misreading of our research. Tamanaha also references the wrong chart for earnings premium trends and misinterprets confidence intervals. And his description of our present value calculations is way off the mark.
Here are some quick bullet point responses, with details below in subsequent posts:
- Forecasting and Backfilling
- Using more historical data from SIPP would likely have introduced continuity and other methodological problems
- Using more years of data is as likely to increase the historical earnings premium as to reduce it
- If pre-1996 historical data finds lower earnings premiums, that may suggest a long term upward trend and could mean that our estimates of flat future earnings premiums are too conservative and the premium estimates should be higher
- The earnings premium in the future is just as likely to be higher as it is to be lower than it was in 1996-2011
- In the future, the earnings premium would have to be lower by **85 percent** for an investment in law school to destroy economic value at the median
- Data sufficiency
- 16 years of data is more than is used in similar studies to establish a baseline. This includes studies Tamanaha cited and praised in his book.
- Our data includes both peaks and troughs in the cycle. Across the cycle, law graduates earn substantially more than bachelor’s.
- Tamanaha’s errors and misreading
- We control for ability sorting and selection using extensive controls for socio-economic, academic, and demographic characteristics
- This substantially reduces our earnings premium estimates
- Any lingering ability sorting and selection is likely offset by response bias in SIPP, topcoding, and other problems that cut in the opposite direction
- Tamanaha references the wrong chart for earnings premium trends and misinterprets confidence intervals
- Tamanaha is confused about present value, opportunity cost, and discounting
- Our in-school earnings are based on data, but, in any event, “correcting” to zero would not meaningfully change our conclusions
- Tamanaha’s best line
- “Let me also confirm that [Simkovic & McIntyre’s] study is far more sophisticated than my admittedly crude efforts.”
July 26, 2013 at 1:26 pm Tags: Economic Value of a Law Degree, economics Posted in: Blogging, Corporate Finance, Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Philosophy of Social Science Print This Post No Comments
posted by Michael Simkovic
Here is the overview.
Here is the first part.
July 24, 2013 at 8:52 am Tags: Economic Value of a Law Degree, economics Posted in: Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Law Talk Print This Post No Comments
posted by Michael Simkovic
“[Paul] Campos argues that low-earning lawyers may be less likely to participate in SIPP in the first place because of the stigma involved in admitting that, even anonymously.”
By email, Jerry Organ asks related questions about the representativeness of our sample.
“SIPP” is the United States Census Bureau’s Survey of Income and Program Participation, and is one of the primary data sources used in The Economic Value of a Law Degree. Campos worries about stigma and non-response. Thankfully SIPP is specifically designed to deal with these problems and to include impoverished and stigmatized members of the population, including those who receive government aid.
The Census Bureau explains SIPP’s purpose as follows:
”To collect source and amount of income, labor force information, program participation and eligibility data, and general demographic characteristics to measure the effectiveness of existing federal, state, and local programs; to estimate future costs and coverage for government programs, such as food stamps; and to provide improved statistics on the distribution of income and measures of economic well-being in the country.”
The Census Bureau elaborates on the use of SIPP to analyze participation in Food Stamps and other anti-poverty programs here.
Census explains in greater detail how SIPP handles issues related to response bias, non-response bias, and weighting here. SIPP oversamples in poor neighborhoods, imputes when necessary, and adjust the sample weights to approach a nationally representative sample.
It is about a good a survey as one is likely to find conducted by people who care a great deal about nonresponse and accurate estimates.
Additionally, to the extent that any lingering nonresponse bias may cause those with low earnings to be less inclined to participate, this bias will affect both law graduates and bachelor’s degree holders. What we measure in the Economic Value of a Law Degree is the earnings premium, or difference in earnings that is attributable to the law degree. The biases should wash out, or more likely, bias down our estimates of the law degree earnings premium, because bachelors are far more likely than law graduates to live in poverty.
Indeed studies that have compared earnings reported in SIPP to earnings from administrative data (tax and social security administration data) find that SIPP data underestimates earnings premiums because more highly educated and higher income individuals tend to underreport earnings, while less educated and lower income individuals tend to over report. We make no attempt to correct for this downward bias in our earnings premium estimates to offset any lingering selection on unobservables.
Individual response bias issues also won’t affect federal student loan default data, which is administrative data from the Department of Education. As noted in the article and in previous blog posts, former law students default on their student loans much less frequently than former students of bachelor’s degree or other graduate degree programs.
posted by Ryan Calo
Today, an observation about the legal market (and a plug for a friend’s start up). Len Gray is a former Latham & Watkins associate who, prior to law school, worked as a headhunter in Atlanta. Even so, Len was turned off by legal headhunters, whom he regarded as too aggressive and often insensitive to finding the right fit. Read the rest of this post »
posted by Deven Desai
Anyone interested in where legal practice may beheaded should check out ReInvent Law Silicon Valley 2013 on March 8 at teh Computer History Museum in Mountain View, CA (disclosure I am a speaker). The conference is devoted to law, technology, innovation, and entrepreneurship in the legal services industry. Dan Katz gave and excellent talk at the mid-year AALS conference. He talked about how automated system, machine learning, and more are defeating outsourcing and changing the face of legal practice. I nodded as what he said mapped to what I learned while I was at Google. In 2008 I started writing about problems with the structure of legal education. Those issues are now with us in full force. I think Dan and this project get to issues within the legal industry that may make the what about firm jobs question obsolete (which it may already be for a host of reasons) but present opportunities going forward.
Here is how he sums up the idea:
At all price points, the legal services market is rapidly changing and this disruption represents peril & possibility. This meeting is about the possibility … about the game changers who are already building the future of this industry. This is a 1 day event featuring 40 speakers in a high energy format with specific emphasis on technology, innovation and entrepreneurship. It will inspire you to consider all of the possibilities.
In that Silicon Valley way, it will be a blitz of 40 speakers covering LegalTechStartUp, Lawyer Regulation, Business of Law, Quantitative Legal Prediction, Design, 3D Printing, Driverless Cars, Legal Education, Legal Information Engineering, New Business Models, Lean Lawyering, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.
Tickets are Free but registration is required.
Please feel free to sign up today.
posted by Bruce Boyden
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read the rest of this post »
posted by Heidi Li Feldman
“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)
Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.
In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.
West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.
Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.
“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.
Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.
To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.
October 21, 2012 at 6:15 pm Tags: Heidi Li Feldman, jurisprudence, law and meaning, legal theory, Normative Jurisprudence, Robin West, Symposium (Normative Jurisprudence) Posted in: Jurisprudence, Law Practice, Legal Theory, Symposium (Normative Jurisprudence) Print This Post No Comments
posted by Deven Desai
One of the people I follow on Google+ posted the TED Talk by Margaret Heffernan. Her desire for better training on how to challenge authority is laudable, but I think misses that corporate and other institutional cultures often squash and punish those who speak out. Her basic point is strong: seeking out those who will challenge your views and avoiding echo chambers is the best way to ensure your ideas are solid. Dr. Heffernan tells about a researcher who managed to stand up to established medical practice and change it. She tells of a colleague who managed to voice concern at his biotech company who was worried about a new product but afraid to challenge the status quo. When he did, he found that others shared his belief. He was a hero whistleblower of sorts. The later example is quite rare. Just think of Enron and the host of other debacles. I agree that it takes courage to challenge, but a corporate culture that does not punish free thinkers is important too. As the literature on scenario planning shows, sustaining a group that is permitted to think about and challenge company goals is quite difficult. And that is for a group designed to advance corporate profits. Finding room those who would, out of loyalty to a company, ask questions about plans is a deeper problem. The current focus on teamwork, loyalty, execution, speed, and results no matter what the consequences, means that lip service to openness, out of the box thinking, and pick any other management cliche you want, rule so much that it is no surprise that 85% of managers fear speaking up as Dr. Heffernan notes. So I praise the idea, but think in addition to training people to challenge, we need to build a culture of questioning.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:
The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.
Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.
The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.
None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.
Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.
July 12, 2012 at 10:30 am Tags: habeas petitions, ineffectiveness of counsel, Law Practice Posted in: Capital Punishment, Civil Rights, Criminal Procedure, Law Practice, Law Rev (Stanford) Print This Post No Comments
posted by Gerard Magliocca
I just finished a biography of Charles C. Burlingham, who was a remarkable lawyer and civic activist in New York during the first half of the twentieth century. Although the book wasn’t well-written (and I can’t find a good picture of him to post here), I was eager to read about Burlingham. He keeps popping up in my research, even though he held public office only briefly on the New York City Board of Education. Here are some of his accomplishments:
1. He defended White Star against the admiralty suits that followed the sinking of the Titanic.
2. He was influential in getting Learned Hand appointed to the Federal District Court in New York.
3. He almost single-handedly convinced local politicians to nominate Benjamin Cardozo for his first judgeship.
4. He corresponded regularly with Felix Frankfurter and Franklin D. Roosevelt about all sorts of issues.
5. He was one of Fiorello LaGuardia’s closest (albeit informal) advisors when LaGuardia was the Mayor.
6. He lived to 101. (Seems remarkable to me.)
I find his story interesting, in part, because there are so few great practicioner-statesmen left. Lloyd Cutler was probably the last one, though perhaps I’m overlooking someone.
UPDATE: Here’s a great anecdote. When Burlingham was 100, he went to an awards dinner and sat with Learned Hand, Felix Frankfurter, and Earl Warren. A young lawyer drove him home and asked “Did you have a good time?” Burlingham replied: ”Yes, but I had hoped to meet some new people.”
posted by Dave Hoffman
David S. Lee, of LSE, is engaged in an interesting piece of research and asked me to post about it. After taking the survey linked below (about 10 minutes) I agreed, and I think the underlying project worthwhile. His description follows:
As David notes, “the survey itself is taken anonymously and can be completed fairly quickly.” Here is the link.
posted by Dave Hoffman
From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died. Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death. He will be missed.
(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)
posted by Frank Bowman
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…
posted by Dave Hoffman
Building off that my last post, and engaging in the very temptation to look at school specific outcomes that I earlier resisted, here are a series of top-10 lists for various law school employment outcomes. Each list is calculated by dividing the relevant category for each school by the total graduates of that school in 2011. (I think that dividing the category by employed graduates is likely to be misleading.) I eliminated schools with incomplete data.
Most Likely To Graduate and Lose Your Soul in a Super-Large (500+) Large Firm
- Cornell (60%)
- Columbia (59%)
- Chicago (52%)
- Penn (50%)
- Harvard (49%)
- NYU (48%)
- Stanford (44%)
- Berkeley (41%)
- Northwestern (40%)
- UVA (38%)
Most Likely to Graduate and Lose Your Soul in a Solo Practice
- Texas Southern (18%)
- Charlotte (11%)
- Faulkner (10%)
- St. Mary’s (11%)
- Williamette (11%)
- South Texas (11%)
- Florida A&M (10%)
- John Marshall (10%)
- Cooley (9% – but an astonishing 62 graduates!)
- Southern (9%)
Most Depressed Students, or Most Savvy Data Collectors [Highest Percent of Students Reporting They No Longer Are Seeking Employment]
- Santa Clara (18%)
- Chapman (15%)
- Texas Southern (12%)
- Williamette (12%)
- Colorado (10%)
- Pace (9%)
- Idaho (9%
- Widener-Harrisburg (8%)
- McGeorge (8%)
- Roger Williams (8%) Read the rest of this post »
posted by Dave Hoffman
The ABA’s just-released consolidated dataset on law school employment outcomes presents nice opportunities for data analysis. Unlike Bernie Burk, I’m not particularly interested in the relationship between bridge positions and USNWR rank: that seemed overdetermined to me. (Bernie is also, unfortunately, using a noisy measure for resources. Why not simply use the ABA-data on expenditures per student to predict bridge positions? Here’s a hypothesis: the correlation will be much higher than USNWR rank.) In any event, I imagine that everyone will be using these data to look at school-specific outcomes. Let’s do something different.
Much more interesting are columns BK-BQ, which detail where (geographically) students are placed. What can we learn?
Almost all American Law Schools are Basically Homers. The ABA asks schools to identify the state where the highest number of their graduates are employed on graduation. By my hasty count, there are eight schools in the country where that first state is not the state where the school sits. Duke (graduates go to D.C. or NYC); Harvard (graduates to go D.C. or N.Y.C.); Michigan (graduates go to N.Y.C. and California), UVA (graduates go to D.C. or N.Y.C.); Western New-England (graduates go to CT); Widener-Delaware (graduates go to Pennsylvania); Penn (graduates go to N.Y.C.); and Yale (graduates go to N.Y.C. or D.C.). That is, deciding where to go to law school goes a long way to picking the State where you will live after graduation. What schools (apart from those just listed) produce the least number of graduates employed at home? Vermont, Appalachian, Notre Dame, Vandy, Ave Maria, New Hampshire, Washington University, and Cooley. Note how this list mixes schools with very bad job outcomes (i.e., a small percent of their class is employed in the home state because a small percent of the class is employed) and those with very good outcomes (i.e., a small percent of their class is employed in the home state because many are employed elsewhere).
Which States Are the Most Popular Runner-Ups? Schools are also asked to identify the second and third most common destinations for their students. New York, D.C., California, Illinois and New Jersey top the runner-up list. New Jersey and D.C. are impressive, as they are the second choice as almost as many students as they are the first choice of others. Or to put it differently: D.C. and New Jersey receive disproportionately more law students than other states, as a percentage of the national employment market. The third-runner-up market is similar, though Virginia and Massachusetts make an appearance in the list. (As does Alaska, which is the primary and secondary destination category of exactly zero American law schools, but the tertiary destination of two.)
Which States Are the Most “Oversupplied” With Law Graduates? Given these data, I assume that for most law students, job seeking begins at home. That enables me to ask: which states have the worst environments for incoming lawyers. I estimate this answer by dividing total graduates per state by total jobs in each state (itself a product of adding together the first, second and third “choices” that law schools provide). I know that there are problems with this calculation, even assuming audited data. For example:
- It ignores missing data on location, and schools where there a large number of graduates going to the “fourth” largest state destination;
- It assumes that schools have correctly coded location data;
- It assigns schools like Yale to a State (CT) where they do not in fact send the majority of their graduates.
We know that this missing and skewed data makes a difference. Schools reported that ~37K of ~43.5K, or 86%, of law students were employed in some capacity in this dataset. But my location-based analysis finds state-specific jobs for only ~29K law students, or 66%. This isn’t malfeasance by schools, and it isn’t evidence of conspiracy. Schools are required to report employment status for all graduates, but employment location for only the top three states. (Tracking students in this way is, after all, expensive.) Nonetheless, we can learn something interesting from these data in aggregate. Below the jump, I’m going to discuss the distribution of these geographically identified jobs.