Site Meter

Category: Law School

US News Rankings 01
0

The Fundamental Problem with the US News School Rankings

Last week, all the law schools in America were holding their collective breaths for the latest pronouncement by US News about how their school ranked. For law schools, as well as other graduate schools as well as universities, the US News rankings play an enormously influential role. The rankings affect the number and quality of applicants. Employers use the rankings too, and the rankings thus affect job opportunities. The careers of law school deans can rise and fall on the rankings too. Key decisions about legal education are made based on the potential affect on ranking, as are admissions decisions and financial aid decisions.

In the law school world, grumbling about the US News rankings never ceases. The rankings use a formula that takes into account a host of factors that are often not very relevant, that can easily be misreported, skewed, or gamed, and that ultimately say little of value about the quality or reputation of a school. Each year, I read fervent outcries to US News to improve their formula. These cries are deftly answered with a response that is typically a variant of the following: “We’ll look into this. We are always looking to improve our ranking formula.” Not much changes, though. The formula is tweaked a little bit, but the changes are never dramatic.

And yet each year, we keep grumbling, keep hoping that someday Godot will arrive and US News will create a truly rigorous ranking.

We should stop hoping.

It isn’t going to happen. This is because there is a fundamental problem at the heart of the US News rankings — doing a rigorous and more accurate ranking is at odds with the economic interest of US News, which is to make money by selling its rankings to eager buyers each year and getting people to visit their site.

Read More

2

How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

0

Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

2

The 80/20 Principle

ParetoPareto originated the so-called 80/20 principle in the early 1900s after observing that 80% of the wealth in Italy was owned by 20% of the population.  For a century, innumerable observers have found that the 80/20 pattern, also dubbed the “vital few/trivial many rule,” recurs across many distributions.

Businesses tend to generate 80% of sales from 20% of their products and 80% of their profits from 20% of their customers.  Managers can use the tool to think about operations and allocating resources.  In book publishing, eighty percent of promotional resources are dedicated to twenty percent of the list.

The principle applies among law firms, where twenty percent of clients contribute eighty percent of billings. Firms can use the insight to improve in many ways. For example, it can help partners decide which clients to nurture or fire  or how paralegals should allocate their time.

The concept can be refined for any number of time management tasks, as popularized by Richard Koch’s 1998 book, and in The Four Hour Work Week by Tim Ferris (some notable tips from which Jeff Yates collected a few years ago at The Faculty Lounge).

The concept is not a precise measure nor a universal constant. For example, in America today, 20 percent of the population owns something more like 95% of the wealth. And the insight does not yield to prescriptive policy manuals. It is instead a way of thinking about resource allocation that can improve one’s effectiveness.

I wonder, among law professors, in what ways does the 80/20 rule manifest?  Here are some alluring candidates:

Eighty percent of law professors were trained at twenty percent of the nation’s law schools.

Do eighty percent of a prawf’s citations come from twenty percent of their articles?

Are eighty percent of your downloads on SSRN from twenty percent of your posted pieces?

Are twenty percent of law professors responsible for eighty percent of legal academic blogging, as Eric Goldman once forecast?

Do eighty percent of valuable classroom contributions come from only twenty percent of your students?

What other questions might this apply to for law professors? And what are the implications?

For one, being aware of the phenomenon can help define the activities that matter the most and allocate scarce productive resources on those.  Reflect upon what is special about the twenty percent of your scholarship yielding the vast majority of its influence.   Is it subject matter, methodology, orientation, clarity?  If twenty students in your 100-person classroom pull most of the weight, what should you do about that? Is it necessary to draw the rest in or capitalize on the phenomenon in some other way?

pedantic446
1

Sally can’t argue that (on law school exams)

PrintAt most law schools, first year students get back their fall semester grades this week.  This can be a difficult time for students who – often for the first time – are on the bottom half of steep curves.  If you are in that situation, I thought I’d offer one tip that might help you diagnosis a correctable problem with exam-taking technique.  When you get back your exam, and before you look at the model answer, I’d urge you to scan your exam for the following phrases:

  • could argue that; or
  • might argue that; or
  • has an argument…

Every time you see this phrase, highlight it in red ink.  It’s almost certainly leading you down a dark path.

Why is this phrase pernicious?  Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court.  Though sometimes professors truly want to see a kitchen sink answer listing every possible claim, most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them.  The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to put that judgment on the page.  ”Argue that” blinds you to your own failure to exercise your situation sense.

The great thing about this tic is that it’s a useful, concrete, red flag for conclusory exam writing, which typically distinguishes average exams from great ones.  If you are working on your computer, you can simply use the find function before handing in the exam to make sure that you haven’t fallen into the trap.  Other tics, like “obviously,” “clearly,” and “certainly,” are similar but aren’t as prevalent on law school exam answers. Eliminating “could argue that” also helps to omit needless words: instead of introducing issues before disposing of them, you can simply fold the analysis into the introductory sentence. Thus: “While the May 1 letter has some of the markings of an offer (it identifies price & amount), it fails to state the timing of delivery and most courts will follow Nebraska Seed in denying formation.”

Now, you could argue that this is all needlessly pedantic mutterings over style points, when the real skills that ought to separate good from bad exams concern doctrine.  But, if you did make that argument, you’d be wrong. Being conclusory – that is, assuming the conclusion in question and failing to analyze why the answer follows from the facts – is the key sin on most issue-spotter exams.  You can learn to be less conclusory over time by training yourself to see it in your writing.  And, if you got bad news this week, spotting conclusory writing before it’s graded will go a long way toward better news in May.

2

Flat-Rate Law School Tuition?

Articles in Slate and  the Times make a convincing psychological and economic argument against discounting tuition, especially outside of super-elite institutions. The data suggest that schools ought to offer fixed, lower, rates which all students pay equally.  If widely adopted, no-haggle tuition pricing would be both revenue neutral and significantly more transparent than the current system. So why don’t law schools follow the model? Off the top of my head:

  1. Student scholarships are donor-magnets; and
  2. The Prisoner’s Dilemma.

Donor preferences would be a tough nut to crack.  In a world of increasingly stretched resources, schools are going to be loath to abandon a tried-and-true way of activating their alumni networks. Except for at those super-elite schools, pitches in support of faculty (scholarly) resources or curricular offerings are often tough sells.  I suppose that donors could be channeled into other kinds of student support, but there’s nothing quite as compelling as helping individuals access legal education.

The second problem is also a doozy.  Look at what happened to J.C. Penny.  However, it’s not as if every day low pricing is impossible.  For instance, if the federal government were to condition aid on granular tuition transparency, I think we’d see uniform pricing rather quickly. To see why, imagine a world where all students’ real costs were knowable. There’d be immediately and power leveling pressure from the student body.  The easiest solution would be to eliminate discounts but charge a lower real rate. However, I’ve not seen proposals on the table to change accreditation in this direction, and the current system is clearly hostile to a no-discount tuition strategy. Thus, we’re going to continue to live in a world where every student coming in the door pays something different.

 

3

Hacker Legal Education

In my Jotwell review of Coding Freedom, I commented that “Coleman’s portrait of how hackers become full-fledged members of Debian is eerily like legal education.”

[T]he hackers who are trained in it go through a prescribed course of study in legal texts, practice applying legal rules to new facts, learn about legal drafting, interpretation, and compliance, and cultivate an ethical and public-spirited professional identity. There is even a written examination at the end.

This is legal learning without law school. Coleman’s hackers are domain-specific experts in the body of law that bears on their work. It should be a warning sign that a group of smart and motivated lay professionals took a hard look at the law, realized that it mattered intensely to them, and responded not by consulting lawyers or going to law school but by building their own parallel legal education system. That choice is an indictment of the services lawyers provide and of the relevance of the learning law schools offer. A group of amateurs teaching each other did what we weren’t.

Their success is an opportunity as well as a challenge. The inner sanctums of the law, it turns out, are more accessible to the laity than sometimes assumed. One response to the legal services crisis would be to give more people the legal knowledge and tools to solve some of their own legal problems. The client who can’t afford a lawyer’s services can still usually afford her own. More legal training for non-lawyers might or might not make a dent in law schools’ budget gaps. But it is almost certainly the right thing to do, even if it reduces the demand for lawyers’ services among the public. There is no good reason why law schools can only impart legal knowledge to by way of lawyers and not directly.

Hacker education, however, also shows why lawyers and the traditional missions of law schools are not going away. Law is a blend of logic and argument, a baseball game that depends on persuading the umpire to change the rules mid-pitch. Hacker legal education, with its roots in programming, is strong on formal precision and textual exegesis. But it is notably light on legal realism: coping with the open texture of the law and sorting persuasive from ineffective arguments. The legal system is not a supercomputer that can be caught in a paradox. The professional formation of lawyers is absent in hacker education, because theirs is a different profession.

Legal academics also play a striking role in hacker legal education. Richard Stallman was of course the driving personality behind free software. But Columbia’s Eben Moglen had an absolutely crucial role in crafting amending the closest thing the free software movement has to a constitution: the GNU GPL. And Coleman documents the role that Larry Lessig‘s consciousness-raising activism played in politicizing hackers about copyright policy. They, and other professors who have helped the free software community engage with the law, like Pamela Samuelson, in turn, drew heavily on the legal scholarly tradition even as they translated it into more practical terms. The freedom to focus on self-chosen projects of long-term importance to society is a right and responsibility of the legal academic. Even if not all of us have used it as effectively as these three, it remains our job to try.

0

UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell

 

Volume 60, Issue 6 (September 2013)
Articles

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752

 

 

Volume 61, Discourse

Discourse

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164

Accelerated Learning in an Era of Decelerated Earning

There are two basic responses to an economy as depressed as ours. In a neoclassical paradigm, the central problem is that certain people have become too expensive.  They demand too much in wages, education, and health care.  Coddled by food stamps and subsidies, they refuse to take low-paying jobs. Wealthy owners and managers are the ultimate arbiters of value.  They can recognize valuable labor and will pay for it. If significant numbers of people remain unemployed, it’s because they have assigned too high a value to their own abilities.

The neoclassicals also have a theory of adjustment and positive change.  Once low-productivity workers realize the sobering truth of their own diminished value, the market for labor will clear.  Moreover, reduced wages won’t render them starved or homeless. For the neoclassicals, the decline of purchasing power of, say, the bottom 99% of the economy has a salutary, deflationary effect on the price of staples.  If the poor can’t afford bread, its price will decline.  Knock out the tax break for employer sponsored insurance, and health costs have nowhere to go but down.

Another school sees the commanding position of the wealthy as a problem to be solved, rather than the grounding framework of economic life.  In this, more Keynesian, paradigm, government ought to redistribute some income from rentiers at the top of the economy to those who presently cannot afford food, education, health care, and housing. The Keynesian recognizes the stickiness of certain prices, and how disruptive (indeed, deadly) the situation can become if, say, income falls much faster than food prices. Read More

1

Temple Law Hiring Announcement

On behalf of this year’s committee, I pass along the following:

Temple University James E. Beasley School of Law invites applications from both entry-level and lateral candidates for full-time, tenure-track faculty positions to commence in the Fall Semester 2014.  We welcome applications from candidates with a wide variety of interests.  Although areas of need are subject to change, priority areas are likely to include health law, business and commercial law, civil procedure, intellectual property, law and technology, trust and estates, torts, and employment law/employment discrimination.

Lateral candidates should contact Professor Gregory Mandel, Lateral Faculty Appointments Subcommittee (gmandel@temple.edu).  Entry level candidates should contact Professor Donald Harris, Faculty Appointments Subcommittee (donald.harris@temple.edu).  Temple University is committed to a policy of equal opportunity for all in every aspect of its operations.  The University has pledged not to discriminate on the basis of an individual’s age, color, disability, marital status, national or ethnic origin, race, religion, sex (including pregnancy), sexual orientation, gender identity, genetic information or veteran status.