Category: Law School


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?


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.


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.



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.


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)

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


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


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 (  Entry level candidates should contact Professor Donald Harris, Faculty Appointments Subcommittee (  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.


Questions for the ABA Task Force on the Future of Legal Education

The ABA Task Force working paper has many interesting ideas in it.* But it also has several points of weakness, glossing over critical perspectives and insufficiently supporting important factual claims. We can hope that a footnoted final draft will take care of the latter issue. But the lack of acknowledgment of critical perspectives is a deeper problem, and one I hope participants at this Saturday’s meeting will raise. Questions could include:

1) When clients refuse to pay for the work of recent law school graduates, do they say, “We’re not paying for first or second year attorneys,” or “We’re not paying for attorneys without the following ‘practice ready’ skill set”?

If it’s the former, isn’t the problem more one of bargaining power than one of inadequate education? If it’s the latter, shouldn’t the ABA solicit some critical mass of major clients to articulate the skills that need to be trained, and to pledge to pay those who possess them?

2) Why are (certain types of) law jobs in decline?

The Task Force strongly believes that there are “structural changes” in legal employment. The “structural vs. cyclical” dispute over the causes of unemployment is deeply ideological. A conservative economist may characterize the great recession as a “great vacation” of people unwilling to work (or learn new skills). Paul Krugman and Mike Konczal challenge the structural story generally, and Mike Simkovic & Frank McIntyre give us some reason to doubt it in the case of attorneys. They believe that the “data does not support” the view that “law continues to be depressed while the rest of the labor market has recovered.” Many other types of professionals are also faring worse than they have in the past. For every “death of biglaw” story, there’s a skeptic who’s heard it all before.

I have no doubt that certain types of law jobs are in decline. But this raises a deeper question: why is this happening? Let’s think outside the BigLaw box, and consider, say, elder abuse attorneys. Stipulate, for purposes of this discussion, that there has been some decline in the number of attorneys specialized in the regulation of assisted living and nursing home facilities (and tort lawsuits for neglect and abuse). Why might that occur?
Read More


ABA Task Force on Legal Education: Down with Status

aba status merceGood news for law professors now submitting articles seeking offers from high-status journals: the importance of status in American law schools is over-rated and is about to be reduced. At least that is the urging of an American Bar Association Task Force Working Paper released last Friday addressing contemporary challenges in U.S. legal education.

Obsession with status is a culprit in the woes of today’s American law schools and faculty, the Working Paper finds.  It charges law professors with pitching in to redress prevailing woes by working to reduce the role of status as a measure of personal and institutional success.  The group’s only other specific recommendation for law faculty is to become informed about the topics the 34-page Working Paper chronicles so we might help out as needed by our schoools. 

Much of the rest of the Working Paper is admirable, however, making the two specific recommendations to law faculty not only patently absurd but strange in context.   After all, the Working Paper urges reform of ABA/AALS and state regulations with a view toward increasing the variety of law schools. It calls for serious changes in the way legal education is funded, though it admits that the complex system of education finance in the U.S. is deeply and broadly problematic and well beyond the influence of a single professional task force.

The Task Force urges US News to stop counting expenditure levels as a positive factor in its rankings.  It stresses problems arising from a cost-based rather than market-based method of setting tuition. It notes a lack of business mind-sets among many in legal education.  It questions the prevailing structure of professorial tenure; degree of scholarship orientation; professors having institutional leadership roles; and, yes, faculty culture that makes status an important measure of individual and institutional success.

But amid all that, law professors have just two tasks: becoming informed and demoting status.  So there must be some hidden meaning to this idea of status as a culprit and the prescription for prawfs to reduce the importance of status as a measure of success.  I am not sure what it is. The Working Paper does not explain or illustrate the concept of status or how to reduce its importance.

I’ll to try to be concrete about what it might mean.   Given the other problems the Task Force sees with today’s law faculty culture (tenure, scholarship and leadership roles), I guess they are suggesting that faculty stop making it important whether: Read More


Gatekeeping and the Economic Value of a Law Degree (Part 2)

LincolnIn my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.

Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements.  At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.

My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer.  By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.

In this second post, I’d like to offer some final observations on gatekeeping.  I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population.  Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements.  To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read More