We had a job candidate come through at some point this Fall who generally is interested in the field of commercial law.  That person mentioned in passing that although they were more than willing to teach the traditional secured transactions course, in their opinion it wasn’t well structured.  Why? Not, as the navel-gazer might imagine, because the field of commercial law is supposedly intellectually dead.  Rather because the traditional secured transaction course is too narrowly conceived — it usually is limited in coverage to personal property security interests under Article 9.  But many security interests that matter to lawyers aren’t held on movable property.  Since secured [...]]]> I’ve never taught Secured Transactions, so I’ll start by saying that the following is purely speculative and subject to correction.

We had a job candidate come through at some point this Fall who generally is interested in the field of commercial law.  That person mentioned in passing that although they were more than willing to teach the traditional secured transactions course, in their opinion it wasn’t well structured.  Why? Not, as the navel-gazer might imagine, because the field of commercial law is supposedly intellectually dead.  Rather because the traditional secured transaction course is too narrowly conceived — it usually is limited in coverage to personal property security interests under Article 9.  But many security interests that matter to lawyers aren’t held on movable property.  Since secured is ordinarily the foundational course for the commercial curriculum, students are left starting on too narrow a footing in understanding bankruptcy and bank regulation.  It’s even worse than having a corporations course that excludes LLCs.  Because of its technicality, ST is traditionally so difficult to teach that many students are turned off to the idea of commercial law practice at all.

Again, I don’t know much about this area of law.  I never took ST in law school, I haven’t taught it, and (worse) I haven’t even read a ST syllabus at my current institution.  But it struck me as an interesting thought, at least worth airing.  It’s related to concerns I have about the general corporate curriculum — is “corporations” really a subject that ought to be taught in a single course, or is it really a merger of too many (or too few) legal principles that have glommed together over time.  It’s also related to concerns that one might have about continuing to use the increasingly outdated, purportedly uniform, UCC to teach when States’ adopted versions are moving ever-further-away from that ideal.

Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this [...]]]>

In law school teaching, as in dance competitions, it's important to know when to spin on a dime.

Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”¹ sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.

It’s a good teaching case.  But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.²  But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

I have had this discussion with a handful of students over the last seven years, though always after the first semester and usually after a pretty lengthy exploration of  their goals, resources and capabilities. But, to be honest, I am never sure if the talk is a good idea, let alone morally compelled.  Putting aside Bar passage – and at Temple, I have that luxury as almost every student passes on their first try – I know that I have very little information early in a student’s career that will meaningfully predict if they can earn a living as a lawyer.  I will know something after the first semester about if they’ll get a job at a large law firm. But that’s a narrow slice of jobs for all law school graduates outside of all but 10-15 schools (or, more precisely 5-10% of law school graduates).  What I don’t know about students is their motivation; their people skills; their social connections; their ability to bounce back.  In short, I know almost nothing about their human capital.  And nothing in my training or teaching has made me particularly good at making snap judgments about that really hard to measure set of attributes. In fact, I know that I tend to overvalue a certain set of skills – intellectual, verbal, etc. – and discount social ones.  This problem of mis-prediction is particularly acute early in the first semester. Many confused students turn it around.  Some don’t.  I have never been able to predict which will be which.3

So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades.  (True, if success means money earned.)  I tell them that I felt confused in my first semester.  (True, and it’s also true that Contracts was my least favorite, and least understood, class.)  I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace.  (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.)  I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.  In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.

Should I feel bad that I encourage people who may not succeed?  Should I start every conversation with a Vokesian disclaimer that is brutally frank about their current level of skill?  I just don’t see it.  That’s not, I think, what an educational institution is supposed to be about.  We’re selling the possibility of self-improvement, and economic and social momentum.  People need to believe in that possibility if they are to realize it: optimism actually makes people better, more competent, and more satisfied with their lives.  There’s a corrosive cynicism in the “scamblogs” which would, I think, turn that idea on its head.⁴  We owe our students more.

Notes:

1.  Is she a 51 year old widow?  Or was she 51 years a widow?  It’s not just Cardozo who can write lyrical sentences that are hard to parse.

2.  That something is expensive doesn’t mean it’s a bad idea.  But I fear that too often reformers in legal education (and elsewhere, of course) don’t think clearly or well about trade-offs.  Making law school more expensive would be good for current incumbent lawyers.  It would be bad for prospective lawyers and current clients.   I’d prefer that law schools be regulated less, and for them to compete on price, disclosure, internal governance, and educational program.  For those that say “why don’t they do so now,” the answer is “because the ABA doesn’t let them.”

3. Not knowing whether someone is going to succeed as a lawyer isn’t the same as not knowing how they are doing as a student, or the claim – obviously silly – that we can’t evaluate relative merit at some kinds of lawyer-relevant tasks.  Law school sorts students by grades, and I’m committed to making grades pretty good reflections of how well students exercise legal judgment.  The point is merely this: we ought to be humble in our predictions of how well our students will do once let loose in the world.  We provide a knowledge base. The Bar Exam licenses.  Neither guarantees success, happiness or wisdom.  Even lawyers with fantastic legal judgment might not rake in cash.

4.  Nothing in the above discussion at all approves lying about data.  Or increasing tuition above inflation yearly.  Or teaching the same thing as we did last year simply because …well…because we did it.  Or being a nitwit, a bore, an ideologue, a lazybones, or a sociopath, unable to see the pain of students who can’t find jobs.  I’m against being bad at your job, and I think that being good at your job means realizing that we are teaching people to be lawyers, and our students rightly expect that we set them up to succeed.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s [...]]]> David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language [...]]]>

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

“One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds.  Another thing that has annoyed them is that everything I’m saying is either old hat and already perfectly well understood, or obviously false. The former category includes assertions regarding the rampant dishonesty of placement statistics, the disastrous job market for graduates, the skyrocketing cost of legal education, and the enormous debt load for our students those costs engender, as well as the apparently unsustainable nature of the current business model under which many schools are operating.”

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education” exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

Compare Greenfield and Campos with Paul Horwitz’s most recent posts. Paul demonstrates lots of modesty and attention to alternative views, and he describes the genuine difficulties we encounter when we think about a really hard problem. He does so without minimizing the pain that law students without jobs feel (i.e., the “feminine” virtue of empathy), or neglecting historical context.  Even if you disagree with him, I think his writing is more persuasive for nonpartisans than Campos’s accusations of a scam, or than the anonymous commentators that appeared on Prof. Horwitz’s post.  Well, you tell me.  Do these comments persuade you that their authors much of anything?  That they’d be wise counselors worth hiring when legal judgment is called for?

• “And this is why professors are the problem, they will lie, cheat and steal to keep their gravy train going. “
• “Yes, law schools have conquered the social divide, by taking middle and lower middle class students and turning them into impoverished citizens by way of a fortune in student loan debt.”

Perhaps the posters realize this — they are writing simply to express outrage and to rally the troops (like Scalia in Plata).  But I think others don’t understand how they sound to those that disagree with them: they sincerely believe that the best way to persuade is to make an argument a second time.  LOUDER.  WITH MORE @#$ TALKING ABOUT FRAUD!!  If that’s the case, I think that law school is at fault.  We ought to have spent more time talking about psychology, sociology, and rhetoric — helping students to understand how to frame arguments in ways that unfriendly listeners will find persuasive.  We ought to have emphasized the (at least!) instrumental importance of acting like a professional.  And, of course, we ought to’ve spent less time with casebooks and opinions, which simply provide more examples of bad, overmuscular, writing, and bad, overaggressive, lawyering.

What is to be done?  On the  merits, it is crucial to look past this recession. Even when the economy recovers, changes in the legal employment market will make it difficult for certain graduates of certain law schools to recoup their tuition.  Not all law schools.  And not all law graduates.  (Here, the fact that law schools usually serve local legal markets, which are really diverse in outlook, is insufficiently appreciated).  What should affected law schools do?  Let’s consider a few commonly argued paths, ignoring for the purposes of the argument collective action problems and the reality that law schools are controlled by central universities:

• Admit fewer law students.  The purported advantage is well-expressed by the AALS back in 1938: higher rents for existing lawyers.  But the tradeoff is equally obvious: the price for legal services goes up.  Or to put it differently, commentators ought to admit that improving the job market for law school graduates probably results in a tax on the public consuming their services, especially those near poverty.  Where’s the distributional equity in that exchange?
• Make school shorter, and move back to an apprenticeship model.  (Notably, this proposal one runs smack into our ABA overlords.)  This may reduce the price for law school in the near term, but how will lawyers select apprentices?  Might they find students who look/act like them?  To the extent that we think that the current bar isn’t as diverse (economically, especially, but also in terms of gender/race) as we’d like it to be, how will giving lawyers even more power to gatekeep improve matters?  Moreover, is there any evidence that the apprentice system produced better lawyering?
• What if schools admit the same number of students but reduced real (post scholarship) tuition.  To do so, commentators suggest that professors should take a pay cut, or that they should teach more and write less (that is, we ought to hire fewer tenured law professors).  Here, again, we run up against the innovation-choking ABA regime, and the problem of monitoring and motivating unhappy professionals that has so bedeviled law firms.  But even if that path is blocked, schools have options.  They could demand more in gifts from their alumni.  A terrific solution – though this means that the current bar subsidizes new entrants, which isn’t totally attactive.  Or, schools can admit only richer students.  Another distributional mess.  Or, schools can battle with central administrations to take a smaller tax, meaning that (essentially) money is being transferred from university undergrads to law students.  Who has the better of that equitable claim?
• A preferred solution for many commentators is based on a combination of faith in free markets plus transparency.  For some of the reasons Ribstein lays out, I think this the returns on transparency will be disappointing, though the solution isn’t worthless and is certainly politically expedient.   That said, transparency of the kind that commentators want will produce real and opportunity costs, and that has to come from tuition.  So, law schools will tax current students to subsidize the decisions of future students. Better information may, mildly, change matriculation decisions. But continued use by irate commentators of USNews Tier designations (and professors too!) doesn’t particular comfort me that better data will matter to anyone.  People love stupid proxies!  Tier 2 profs rule!
• And What about the inevitable restructing the legal employment market?   Well, of course it isn’t likely that the end result will be more of the kinds of secure jobs that students used to have.*  Will unemployed students feel better if they walk into a bad market with their eyes open? I tend to think not: they will still feel cheated, just in the way that Americans generally feel betrayed by their institutions and the lost promise of the American dream.

In short: the problem is really very hard, and the sooner that we acknowledge that there isn’t a solution that’ll satisfy all the important stakeholders the better. And by important stakeholders, I mean lawyers, current students, and prospective students. The satisfaction of professors is essentially irrelevant.  But, believe me, we’re screwed too.  But that’s a problem for a different post.

Now, put aside these merits, and focus on communication about the problem.  Let’s say you wanted to talk about this set of problems, and you were aware that your worldviews were shaping your understanding of law schools – your views toward egalitarianism, for instance, were making you distrustful of market solutions, or your penchant toward individualism made you believe that transparency was the whole of the solution.  How can you best come to understand the views of those who don’t think like you, and, best of all, to persuade them?

Social psychologists have thought about this problem. Here are some resources.  To summarize: Stuart Smiley beats macho rhetoric, hands down.

**p.s.:  Christine Hurt, one of my favorite people, really has a bunch of zingers in that linked post.  Here’s the best part:

“Finally, I have the best job in the world.  But not for the reasons ALP thinks it’s the best job.  Yes, it is a job where no one can see you shirk and even if they did, they couldn’t fire you.  Whatever.  Being a mom is just like that, and I’m the best mom in the world.  Law teaching is the best job because I get paid to do what I love.  That’s the big secret.  I love the law, and I love learning about it and telling students about it.  I love writing about it.  Does it bother me that other people (not at my institution) are lucky enough to have this job and don’t take advantage of it and give it 100%?  A little …  If you don’t love law teaching, then you may be a scammer.  However, I think most appointments committees can smell these scammers a mile away.”

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – [...]]]>

This guy has seen the same debate so many times it broke his back

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – just look at the continuing number of lemmings pounding at the gate!”, or “of course our scholarship is consequential, let’s count the citations”; or, “no one ever promised that a JD was a job guarantee!”; or, “what’s their BATLS?” [The last is a truly obscure negotiation joke if there ever was one.]

For reporters, it feels like the scene in the Wire when they are talking about what to cover in the coming year. Sure, you could talk about complexity and globalization and economic markets and the changing nature of legal practice.  Or you might talk about the relationship between ABA regulation, thoughtless paternalism, and resulting distributional inequalities in education.  But that’s a set of sprawling stories – lacking an obvious villain to muckrake.  Rather, then, the news blames the dickensian aspect of law schools.  Reporters write articles that stir the pot, but aren’t recognizable to insiders, making them less likely to actually motivate change.

Last, not least, the practicing lawyers often articulate resentment toward ivory tower academics who ignore the realities of “trench lawyering”. (This happens even when the “academics” in question are actually practicing lawyers.)  Basically: impractical law professors versus practical lawyers.

Why does this “debate” feel so tired?  I have a partial hypothesis: because we ignore history. I had a great research assistant, Alex Radus, collect quotes about the ferment about legal education in the 1930s-1940s.  (Which is highlighted in Prosser’s famous 1948 speech to Temple’s law faculty, Lighthouse No Good.“)  After the jump, you’ll see some fantastic quotes from that era and before, which remind us that “what has been will be again / what has been done will be done again /there is nothing new under the sun.”

Starting pretty early, Blackstone wrote in his Commentaries that there are

“some who warmly recommend dropping all liberal education as of no use to students in the law; and placing them, in its stead, at the desk of some skilled attorney in order to initiate them early in all the depths of practice and render them more dextrous in the mechanical part of the business . . . . If practice be the whole he is taught, practice must be the whole he will ever know; if he be uninstructed in the elements and principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him . . . “

By contrast (and leading the charge) there was Jerome Frank [Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932)]

“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession  …

[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”

What is to be done?  Harold D. Lasswell & Myres S. McDougal summarized the possibilities: [Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]

“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”

Shucks, adapting law school was all they talked about!  [Roscoe B. Turner, Changing Objectives in Legal Education, 40 Yale L. J. 576, 576 (1931)]

“It may be said without much question that there is more activity in the law school world today than there has been at any time within the last generation or two. Things are in a state of flux—the culmination of a long period of suggestion and counter-suggestion with little change. The addition of new courses to the curriculum, the general re-arrangement of existing courses to admit various types of non-legal materials, new approaches in legal thought, new ideas concerning teaching methods, the advent of fact research, and a dawning awareness of the existence of other social sciences than law, all testify to a rapidly changing world.”

But maybe there was no problem at all. [Sidney Post, Continuing Education of the Bar, 59 Harv. L. Rev. 694, 695 (1946]

“The law schools need offer no apologies for not preparing men for immediate practice … They have their own job, and should concentrate on doing it better. Academic instruction by professional teachers is the best method yet found for imparting certain kinds of knowledge.“

Or maybe there was: [Elliott E. Cheatham, Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947)]

“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”

Finally, of course in the 1930s the job situation for graduates was pretty grim.  [Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938)]

 “At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . . Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court.  . . .  Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.

The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “

The Texas Bar put it starkly, and blamed law schools for pumping out graduates [Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).]:

 “We your committee on Legal Education beg leave to submit the following report:

We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…

Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …

There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.

“Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming. ”

You gotta love those Texas lawyers!

Each year, I introduce the course by starting with the central policies of liquidity and certainty as pillars of all payments systems.  Students [...]]]> So as I noted a few days ago, one of my annual rites of passage is returning to the University of Missouri each summer to teach Modern Payment Systems.  (Its always interesting to hear different people recall what the course was called when they were in law school — commercial paper, negotiable instruments, Commercial Payments, but I digress). This year, I decided to do something I have not ventured to do — teach the class through an article that I am writing on the role of payment intermediaries in consumer transactions.  (As an aside, I believe the material came across far more dynamic).

Each year, I introduce the course by starting with the central policies of liquidity and certainty as pillars of all payments systems.  Students that have had an economics background know certainty as the legal cornerstone to efficiency — but fewer students understand what liquidity is beyond the pale of converting something to cash; they don’t for example understand that liquidity can mean enabling something with cash-like qualities.  To explain liquidity (one of the central promises of negotiability) I turned the class into a mini-bazaar.  As a condition of staying in the class they must barter something to me in exchange for a cup full of M&M’s.  By exchanging goods, I tell them, we have established economic worth and created new wealth — I know my cup of M&M’s is worth a highlighter, bookmark, Lexis Flash Drive, or Starbucks card as the case may be. But, our economy has a problem — there is no certainty in the transaction.   A cup of M&M’s might be worth a highlighter to one, a flash drive or Starbucks Card to the next person.   The economy is far too personal to be effective as a predictive wealth creation tool.

So I suggest we create some established value — perhaps using M&M’s since everyone has some by now, there are several different types (colors) and people have differing amounts.  After we vote about which colors should have the most value (blue for some reason always wins and brown never wins — we still apparently value beauty over quantity since this year I made sure that every cup had more browns than blues — at least when evaluating has no real consequences), we decide that for convenience sake it would be better to have a central depository to hold our M&M’s and can issue statements of value.  After some prompting, we decide to forgo having to exchange the statements of value for M&M’s, and instead simply exchange the statements as having value in and of themselves — cut out the step of going to our M&M bank to collect our goods for later exchange.

So now, I ask the students in groups to consider the big question we have been building towards — if we are going to say that the paper is just as good as the things the paper represents, what kind of rules should be enforced to ensure that the paper (a) keeps its value; and (b) is accepted in the most places possible?  From this year’s class, here are some of their responses:

• Establish some guidelines in which people can know the paper is legitimate
• Have the government back the paper used in transactions
• Enhance the value of the paper exchanged for goods over paper that is merely cashed in
• Create co-ops of merchants that promise to the bank that they will  accept the paper regardless of who uses it for exchange
• Insulate the market against forgeries by adopting standards of acceptance

These responses (amongst others offered) showed the intuitive reasoning that students can offer.   For example, students deduced that paper would only maintain is value if it were easily discerned as legitimate — either through formalizing the medium or through an outside body guaranteeing their performance.  Similarly, the students recognized that the paper could have value that varied according to the risk of the transaction — a principle idea behind discounting notes.  Finally, the students recognized the impact that networks have in payments — an idea that I will flush out more later.

In my next post I will talk about the constructs of liquidity and certainty — namely longevity, efficiency, and confidence.

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, [...]]]> As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business. 

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United. 

The  letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication. 

Dear Sirs:

This is the last call on the matter of the runway layout at the new airport.

Thursday, February 3rd, 1944, at my office, City Hall, at 2:30 pm o’clock, come prepared to make any suggestions or forever hold your peace. I have heard some grousing about the present layout which I know is not justified. If you have any cockeyed ideas on tangent runways that have not yet been tried out, keep them for some other time.

I am willing to hear constructive criticism and to receive helpful suggestions.  I cannot compete against white tablecloths and soft pencils. Everyone who gets two drinks under his belt is now designing runway layouts on restaurant tables.

We will have a map here, our consulting engineer will be here, and I expect to have the matter finally, completely and definitely settled.

You may bring anyone you desire from your engineering, technical and piloting staff. Lawyers cannot contribute anything. This is not a legal matter.

Very truly yours,

F.M. La Guardia

No wonder the Mayor’s name graces New York’s most efficient airport.

Jean M. Twenge, Generation Me Why Today’s Young Americans Are More Confident, Assertive, Entitled – and More Miserable Than Ever Before (Free Press 2006).

As any good lawyer knows, successful communication depends on knowing your audience.  Are today’s law students really more demanding than ever, or are professors becoming part of the old get-off-my-lawn mind set?  Are we sending law firms self-absorbed graduates who refuse to sacrifice a social life for a career, or are law firms hiring graduates who are simply more confident in vocalizing the need for a work-life balance?  Many of the answers to these types of questions may be found by understanding the character of our students. Jean Twenge’s [...]]]> Jean M. Twenge & W. Keith Campbell, The Narcissism Epidemic (Free Press 2010).

Jean M. Twenge, Generation Me Why Today’s Young Americans Are More Confident, Assertive, Entitled – and More Miserable Than Ever Before (Free Press 2006).

As any good lawyer knows, successful communication depends on knowing your audience.  Are today’s law students really more demanding than ever, or are professors becoming part of the old get-off-my-lawn mind set?  Are we sending law firms self-absorbed graduates who refuse to sacrifice a social life for a career, or are law firms hiring graduates who are simply more confident in vocalizing the need for a work-life balance?  Many of the answers to these types of questions may be found by understanding the character of our students. Jean Twenge’s book, Generation Me (Free Press 2006) and the follow-up book with co-author W. Keith Campbell, The Narcissism Epidemic (Free Press 2010) examine the dominate age group of our students – twentysomethings.  While the books are not about the character of law students per se, Generation Me is specifically about the character of those who make up a majority of our classrooms.  As a disclaimer, I note that I too am(barely) a member of the group Twenge researches and names “GenMe.”  As a member, reading Generation Me did more than educate me on my students’ influences and attitudes.  It also revealed much about the forces that were likely influences on my personal and professional decisions.

Generation Me is a thoroughly researched book, full of statistical information that tells us what we already know about our students and so much more.  It gives insight into the beliefs, biases, and behavior of its subjects and is therefore worth reading for anyone who deals with members of GenMe.  One of the observations Twenge highlights is that informality in school and the workplace is the new norm.  This finding is backed by studies and illustrated through anecdotes – like the Northwestern University women’s lacrosse team wearing flip-flops to the White House (p. 17-18).  This is not to say that you have to allow baseball caps in your classroom, but it does give a reference point to professors who encounter students who are surprised when baseball caps are not allowed.  Many more findings provide relevant context for our student population.  Cheating in school is on the rise (p. 27), as is the use of shocking language (p. 40), and grade inflation (p. 62).  In decline is the use of titles, calling a boss “Linda,” for instance, rather than “Mrs. Smith” (p. 29) and the belief that there is one right way to do things (p. 26).  This last finding may explain why there is resistance when teaching students to “think like a lawyer.”

Generation Me makes wide brush strokes about its members but backs its findings with research.  Much of the book’s allure comes from these detailed statistical findings.  It does not provide a light cultural observation – there is no “kids these days” aspect to it.  Rather, Generation Me outlines specific data that walks the reader through thirty years of cultural changes and how those changes affected people who grew up in this timeframe.  Particularly enlightening to educators is Twenge’s demonstration of the affect of the self-esteem curriculum (p. 53).  Self-esteem, once an “obscure academic term,” has not produced its desired outcome.  Teaching self-esteem, the theory went, would increase student performance.  Actually teaching self-esteem, however, has not produced increased ability, only increased self-esteem.  Data collected from students born in the 1980s shows a sharp uptick in self-esteem.  The average kid in the 90s, smack in the middle of GenMe, had higher self esteem than 73% of kids in 1979 (p. 53).  This increase in self-esteem is attributed to self-esteem curriculum and cultural messages that tell students they are, regardless of their actions, lovable, great, and important (pp.53-60).  The message was inundated into the culture in the 90s and as a result, we have young adults who were raised to find value in themselves rather than in what they provide.  The statistics show that these students tend to find value in their performance simply because they provided it and not because the performance itself has intrinsic worth (pp. 62-65).  GenMe received a message that feeling good about yourself is more important than good performance (pp. 56-57).

The finding that blind encouragement of self-esteem is harmful to students is supported throughout the book with data and comparisons.  One comparison comes from a cross cultural study which found that Asian students have lower self-esteem than Americans but when Asian students learn they scored poorly on a task, they desire to continue working on that task until their score improves.  American students preferred to give up that task and move to another one – one that inevitably may preserve their self-esteem but will not improve their skill (pp. 67-68).  This result mirrors the author’s findings that GenMe members tend to please themselves first and if a task is too difficult to be pleasing, it can be ignored.

The studies referenced in the book reveal that this unconditional validation is consistent throughout the country.  No preschooler is safe from the I AM SPECIAL bulletin board and much of the book’s message is that if our educational systems continue that message through college, that preschooler is more likely to be a college student with self-confidence that significantly outpaces ability.  Educational coping to increased self-esteem without increased performance, according to Twenge, produces not only grade inflation but also students who many educators say cannot take criticism (pp. 64-65).  The book’s big reveal about self-esteem, however, is what many law school professors already know:  high self-esteem does not produce high grades.  Hard work produces high grades.  To educators, this finding should shed light onto the fact that it is more beneficial for our students to know that they need perseverance to succeed.  An emphasis on students’ ability to actually accomplish, rather than to try to accomplish, is most beneficial to students.  The data reveals that it is the self-control required for hard work, not self-esteem, which is the greatest indicator of success (pp. 65-67).  Encouraging students to embrace the self-control necessary to succeed is of greater worth than encouraging students regardless.

Generation Me also delves into the downside of the focus on self and notes that with an ever increasing emphasis on the individual, we now have a student population that has an increased rate of depression, anxiety and loneliness (pp. 105-107).  Older members of GenMe, graduating law students included, are now being faced with the reality of a rough job market.  These students are currently trying to reconcile the message they have always heard – you can have it all – with the reality of a tight job market.  Because I received my JD the last time no one was hiring, discussing career options with my current students can easily take on a been-there-done-that tone.  Having this discussion understanding the context of my students’ disappointments, frustrations, and expectations lets me avoid that tone and facilitates a more productive conversation.

In Twenge’s final chapter, Applying Our Knowledge, she walks the reader through different scenarios for people dealing with GenMe.  Because GenMe was raised on extensive praise, they work even harder if they are praised and appreciated (p. 217).  This observation is helpful to educators as it enables us to better understand the powerful and positive impact praise has on our students.  The act of acknowledging a student’s thorough analysis or thanking a student for the correct answer will go much farther than we may realize in motivating like behavior from much of our audience.

Generation Me also includes culturally interesting observations about GenMe, generally about marriage, parenthood and social issues.  While these do not necessarily translate into classroom relevance, understanding how culture affected GenMe and how GenMe now affects culture may assist a baffled professor in understanding why anyone would think answering a cell phone in class is acceptable behavior.

A reoccurring theme in Generation Me is narcissism, which Twenge then devotes an entire book to in The Narcissism Epidemic (Twenge, Campbell, Free Press 2010).  The Narcissism Epidemic, unlike Generation Me, is more anecdotal than research based.  It is therefore, an interesting but less educational read.  In general, The Narcissism Epidemic identifies narcissism characteristics and their increase, discusses its detrimental influence on both the narcissist and society and debunks myths, including that narcissists are insecure and have low self-esteem (p. 24).  According to the authors, it turns out that “deep down inside narcissists think they’re awesome.” (p. 27).  Also unlike Generation Me, The Narcissism Epidemic, provides a piece at the end of each chapter offering a treatment for the epidemic.  Unfortunately, many of the treatments are unobtainable (any ideas on how to decrease the level of celebrity and media narcissism?).  The suggested treatments, while thought provoking, provide more guidance to readers for their personal, rather than professional, lives.

According to the authors, it is important to understand the narcissism epidemic because its long term consequences are destructive to society.  For professors, the information and guidance given in Generation Me may be more easily applicable to a classroom setting and the information provided in The Narcissism Epidemic more, ironically, academic.

______________________________________________________________________

Heather Garretson is an associate professor at Thomas M. Cooley Law School.  She clerked for Judge Stephan of the Nebraska State Supreme Court then Judge Fenner in the Western District of Missouri.  She was a litigator in Kansas City, MO in both private practice and as a Special Assistant United States Attorney.

“We study grading outcomes associated with professors in an elite university in the United States who were identified using voter registration records from the county where the university is located as either Republicans or Democrats. The evidence suggests that student grades are linked to the political orientation of professors: relative to their Democratic colleagues, Republican professors are associated with a less egalitarian distribution of grades and with lower grades awarded to Black students relative to Whites.”

This kind of observational dataset is subject to many different methodological attacks – including, crucially, claims of self-selection and therefore reverse causation.  (For a sample of other concerns, check out this generally good [...]]]> Partisan Grading, a new paper by Talia Bar and Asaf Zussman, reports a striking empirical finding:

“We study grading outcomes associated with professors in an elite university in the United States who were identified using voter registration records from the county where the university is located as either Republicans or Democrats. The evidence suggests that student grades are linked to the political orientation of professors: relative to their Democratic colleagues, Republican professors are associated with a less egalitarian distribution of grades and with lower grades awarded to Black students relative to Whites.”

This kind of observational dataset is subject to many different methodological attacks – including, crucially, claims of self-selection and therefore reverse causation.  (For a sample of other concerns, check out this generally good VC comment thread.)  But let’s assume that there’s some “truth” there: what’s the mechanism?

I doubt very much that partisanship is the right story, since party affiliation is (even now) a blanket masking many ideological views. Rather, partisanship overlaps with other values that do correlate well with preferences for the distribution of social goods like grades — the cultural world-views that Mary Douglas famously described.  It isn’t surprising that professors’ general world-views influence their perceptions of what kind of “curve” is appropriate – and, therefore, how grades ought to be distributed. This leads to to some different communication strategies for those of you who might be working on grading reform.  (I once was on such a committee. Never, never again. But it did produce some blogging.) At a structural level, if grade distribution is more ideologically based than it first appears, a stable system will probably have to be more permissive of deviation than I might otherwise have expected.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and [...]]]> Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.

When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:

1. Do you support the proposed ban on circumcision of males under the age of 18?

2. Why? What’s your reasoning in one or two sentences?

This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.

Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.

The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.

The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.

I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.

Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.

In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of [...]]]> You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

At the end of the day, I was able to put together the materials for a course called Corporate Fraud & Litigation. I have taught the course twice now, and I really love it. But the preparation continues. I still develop new graded exercises every year out of fear that last year’s students will pass on their answers to this year’s students. The end result is that I spend significantly more time preparing for this course than for my other two courses combined.  I am currently contemplating a complete overhaul of my course, but I have to admit that the massive work involved gives me pause.

I wonder whether the reality of having to prepare these materials—and then prepare many of the exercises anew every year—is holding back the development of these courses.  At some level, of course, this preparation is part of our job, and given how great the job is, we have no basis to complain. As someone who is obsessed with curricular issues, however, I have to think it is tough to roll out a new curricular model when preparing a class under the new model takes far longer than preparing to teach a traditional doctrinal course. If I went purely by my own self-interest, there is little doubt that I would opt to teach another doctrinal course rather than a practicum course. In fact, I might even opt to teach two doctrinal courses rather than a single practicum course!

The lack of materials for practicum courses also impacts what courses adjuncts teach. Many adjuncts are really well-suited to teach hands-on courses where students work through simulated cases or transactions. Adjuncts could also teach ethics courses grounded in specific doctrinal areas (corporate law ethics, family law ethics, etc.) that are taught using a problem-based approach. But it is hard to recruit good lawyers to teach these courses when they would have to spend significant amounts of time creating the materials and exercises from scratch.

As a corporate law professor, I am struck by the untapped market out there. In almost every curricular area, professors who want to teach practical skills have to reinvent the wheel. Many textbooks include some practice questions and exercises, but few books are based entirely around the practicum model. There are a few exceptions, including the new Business Planning book by Therese Maynard and Dana Warren and the Environmental Law Practice book by Jerry Anderson and Dennis Hirsch, but these books are few and far between. I would love to see the major casebook publishers devote more attention to this market niche. Ideally, I would even love to see the author/publisher offer new graded exercises every year, perhaps through a password-protected website. No matter how they are put together, however, it seems that there should be a market for practicum-style materials in a wide variety of curricular areas.

In the absence of a market solution, I am going black market. If anyone is interested in my course materials, just let me know. I am happy to share them. If you have developed materials for a similar course in another area and you are willing to share them, let me know. I am happy to serve as a clearinghouse for professors who want to chart a new path in other curricular areas.

But here’s a problem, and I wondered if you folks had experience with it and have come up with good solutions.  Some students – I learned – prefer to be referred to by gender neutral pronouns, like zhe and hir.  But there doesn’t seem to be [...]]]> Some colleagues recently gave an interesting presentation about transgender students in the law school environment.  A baseline they advanced seemed sound: address people using the name and pronoun that corresponds to their gender identity. That means if someone identifies as a man though the school records that person as a woman, you ought to address that (trans)man as a male.  Failing to do so is hurtful – and adds unnecessarily to the stress of law school.  And, really, why not?

But here’s a problem, and I wondered if you folks had experience with it and have come up with good solutions.  Some students – I learned – prefer to be referred to by gender neutral pronouns, like zhe and hir.  But there doesn’t seem to be an analogue for the honorifics Mr. and Ms., meaning the formal socratic teacher is quickly forced to make a choice.  So let’s say you didn’t want to insult transgender students on the first day of class, and you walk in prepared to call on folks more-or-less-randomly.   I have considered circulating a class list before beginning to teach. I’ve also thought about just using last names — “Dave Hoffman, are you here?  Good.  Hoffman, please state the facts of Jacobs and Young.”  That approach, though, seems a bit aggressive & impolite.  What would/do you do?

I want to start with a topic that combines both of my passions. Over the last four years, I have taught many students who develop an interest in corporate law after spending their undergraduate years studying philosophy, political science, or other non-business subjects. These students all worry that they do not have the business knowledge to succeed as corporate lawyers. It is easy to tell them that they will learn on the job, and certainly that is true to some extent, but I wonder if law schools [...]]]> Thanks to Dave and the other folks at Concurring Opinions for inviting me to blog this month. I plan to write about two topics close to my heart: corporate law and the law school curriculum.

I want to start with a topic that combines both of my passions. Over the last four years, I have taught many students who develop an interest in corporate law after spending their undergraduate years studying philosophy, political science, or other non-business subjects. These students all worry that they do not have the business knowledge to succeed as corporate lawyers. It is easy to tell them that they will learn on the job, and certainly that is true to some extent, but I wonder if law schools should be doing more to introduce students to basic business and finance concepts.

I have often struggled with how to teach my students these concepts. On one hand, our job is to teach law. Teaching students about venture capital funding or accounting rules is arguably beyond this purview, at least unless a case deals directly with these concepts. On the other hand, I want to prepare my students to be lawyers, a task that requires teaching more than just the black letter law. I would hate to send my students out into the world with a strong understanding of Revlon and Unocal, but with no understanding of the business issues underlying basic M&A transactions.

The conventional approaches to teaching these skills have always seemed unsatisfying to me. Many professors require their students to read the Wall Street Journal every day. I think it is great to get future corporate lawyers into the habit of reading the business press, but I am also not sure that it really teaches them basic business skills. They may learn which hedge funds are making the most money (good information for client development, I suppose), but they still may not understand exactly what hedge funds do.

Other professors try to cover business basics in their traditional law courses. While discussing a case about venture capitalists, you can explain the concept of stage financing. In a case about accounting misstatements, you can discuss revenue recognition and reserve policies. But I am already hard-pressed to cover all of the relevant legal rules in my courses, and there is no way students leave my Corporations class with anything more than a scattershot sense of a few business concepts.

Finally, many schools offer students the opportunity to get a joint JD/MBA. I am not sure, however, that these programs target the business skills that law students most need to know. Full-semester courses on marketing and organizational management may be overkill for most law students.

I wonder about a simpler solution. What if law schools offered business courses geared directly to law students? In many ways, of course, law schools already do this. Most law schools offer corporate finance and accounting, two courses where students may not read a single case or statute, focusing instead on core business concepts. Yet for the political science major who hopes to be a transactional lawyer, these courses leave out crucial information about how the business world works. A course titled something like Introduction to Business Concepts could target this information directly. It could start by introducing the main players and then teach students about different facets of the business world. It could give students a concrete sense of what investment bankers, credit managers, and angel investors do and how different divisions operate in a typical business. It could also include guest speakers from various businesses to give students a real-life perspective on how businesses operate.

Does your school offer such a course? If so, how is it working?

This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings:

 •More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from [...]]]> Jeff Sovern of St. John’s University School of Law recently conducted a research study that observed student laptop use in 60 sessions of various law school courses.  Although the study contains some methodological limitations (which Professor Sovern fully acknowledges), it is another window into how laptops affect classroom dynamics.  The full article can be found here and Professor Sovern’s abstract is reproduced below:

This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings:

 •More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops.

•Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class.

 •For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level.

 •With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention.

• The format used to convey information – lecture, calling on students, or class discussion – seemed to make little difference to the level of attention.

 •Student attentiveness to the facts of cases is comparable to their overall attention levels.

The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.

Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great [...]]]> As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

Section A’s brief excursion through the evolution of the course book for Contracts is a sober reminder of the plodding pace of change in American legal education. It prepares readers to appreciate trade-offs, opportunities, and risks associated with migration from print to digital books. These are elaborated in three ensuing Sections, all animated by the historical perspective and illuminating trade-offs, opportunities, and risks, though each stressing a different one of those three implications of the migration from print to digital law books.

Section B stresses trade-offs, especially concerning course books’ purposes and scope; Section C stresses opportunities the digital format offers, highlighting the appeal of digital methods to produce supplements, maintain a work’s currency, and facilitate skills training; and Section D discusses matters of presentation that creators of print and digital materials alike must address to promote usefulness – and calls for vigilance against associated risks. Section E synthesizes, concluding that digital course books are important and valuable, but not revolutionary.

Noted are contributions from the following, among others: from the old days: Samuel Williston, Arthur Corbin, Lon Fuller, Grant Gilmore; in more recent times: Allan Farnsworth, Charles Knapp, Karl Klare, Ian Macneil, Stewart Macaulay, Lenora Ledwon, Amy Kastely, Deborah Waire Post, Nancy Ota, Douglas Leslie, Robert Summers, Robert Hillman, Randy Barnett; and on law books and legal education generally: Paul Caron, Michael Kelly, Matthew Bodie, Bruce Kimball, Kellye Testy, Edward Rubin, and Steven Bradford.

The story struck a nerve, not only with the affected community, but with the [...]]]> Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.  Just google your name and see what you learn about yourself.  One of my students did and found, along with the usual links to law school and other websites like Facebook, a statement he made while running for an office in the Christian Legal Society posted on a website unknown to him.  Without paying he found his name, home town and state, and a list of his immediate family members.  Googling his phone number the first link that popped up was a map that located where he lived.  The next link was to spokeo.com “a people search engine that organizes vast quantities of white-pages listings, social information, and other people-related data from a large variety of public sources.”  According to Spokeo, its “mission is to help people find and connect with others, more easily than ever.” This site provided, without charge, the initials of all his family members, his approximate age and that of his parents and sister.  It revealed the family’s home address, approximate home value and length of residence.  Then my student saw a Google picture of his house and himself walking to his car with his backpack, presumably leaving to go to school.  He was stunned.

Much of this information reaches the internet through social networking catching us, and our students, off guard.  Some of us have Facebook accounts and followers on twitter, while others, concerned about privacy, think we can avoid internet scrutiny altogether, but alas we cannot.  While Facebook is more of a “socializing” network, LinkedIn calls itself a “professional network” designed to promote professional contacts.  It too has a “friend” feature and I have received email requests from students and law faculty I vaguely know to join their LindedIn network.  I’ve declined. Just how “social” should we be in our professional capacity as law professors, students and lawyers?    This question plagues all of us in the legal arena, even judges.

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court, in addressing several issues about a judge’s use of a social networking site, wrote that these sites generally serve two purposes.  First and foremost they are places “to post pictures, comments, and other material that visitors to the site can view.”  But increasingly networking sites are places “to identify a member’s ‘friends’….[,] a person who requests to be identified as the member’s ‘friend’”. The Committee concluded that “a judge may [not] add lawyers who may appear before the judge as ‘friends’ on a social networking site, [or] permit such lawyers to add the judge as their ‘friend.’”

Should we develop similar networking standards for professors and their students?  I plan to explore this question in my torts class this fall.  So I am constructing a series of problems that involve social media to keep them engaged in thinking about tort law.  This also is an opportunity to get them thinking about how their use of social media may raise ethical and professional issues starting as early as law school.  Wish me luck.

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have [...]]]> Jim and Cassandra write:

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have been successful.”

I meant to cabin my argument to law school clinics.  And I do understand that there may be very rare cases where collecting outcomes will hurt clients (such as deportation).  But what about a clinic that focuses on “systemic change.” Let’s assume that subsidizing such a clinic would be a good thing for a law school to do (or, put it another way, we think it is a good idea for current law students to incur more debt so that society gets the benefit of the clinics’ social agitation).  Obviously, randomization of client outcomes would be a terrible fit for measuring the success of such a clinic.  It would be precisely the kind of lamppost/data problem that Brian Leiter thinks characterizes much empirical work.

But that doesn’t mean that randomization couldn’t be useful in measuring other kinds of clinic outcomes.  What about randomization in the allocation of law student “employees” to the clinic as a way to measure student satisfaction in the “learning outcomes“? Or randomization of intake and utilizing different client contact techniques as a way of measuring client satisfaction with their representation (or feelings about the legitimacy of the system?)  One thing that the commentators in this symposium have tried to emphasize is that winning & losing aren’t the only outputs of the market for indigent legal services.  Controlled study of the actors in the system needn’t be constrained in the way that Jim and Cassandra’s reply to my modest proposal to mandate randomization suggest.