Category: Law School

7

Why don’t law schools offer bar review courses?

I don’t know the answer. Since Bar/Bri uses law professors to teach classes and often uses law school classrooms, why don’t law schools just do this themselves?

There are some advantages to this idea. First, law schools might raise their bar passage rates (and rankings) if they put together a good bar review program. Second, schools could raise some revenue from these programs (especially if they are good). Third, some schools could tailor their program to the particulars of their state bar exam in a way that Bar/Bri can’t.

I suppose the reason this doesn’t happen (aside from neglect) is that it looks like a concession that the school did not do a good job of training its students for 3 years. But this is wrong. Teaching to a test is different from teaching.

0

Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.

19

Quote Approval

Our platonic media guardians worry about the increasingly common practice of giving sources “quote approval”.  At the NYT’s public editor explains,

“Some parts of the practice, I believe, do fall into a black-and-white realm. The idea that a reporter must send a written version of a quotation to a source or his press representation for approval or tweaking is the extreme version of the “quote approval” practice and it ought to be banned in a written rule.”

This is nonsense.  There’s a simple reason that most sources (including me) ask for quote approval: we don’t trust reporters to avoid making a hash out of our comments, pulling quotes selectively to fit a pre-existing narrative, and consequently turning the source into the reporter’s sock puppet.  It’s a no brainer that anyone who has to regularly deal with the press should try to get quote approval. You’ll succeed with some reporters – generally the better ones, in my experience. If you fail to get quote approval, you should remember to think three times before saying anything, including your name.

Why?  Well, most reporters who call me have a particular thing they’d like me to say.  Sometimes they’ve told me what that thing is: I can then proceed to either say it or not.  Other times they ask a ton of questions, but it’s quite obvious that it’s all just filler time until I can manage to produce the right words in response to the right stimuli. (Foolishly, when I began my career, I foolishly thought that these conversations were a preface to the real question that they were going to ask!)  Often reporters will pastiche quotes from different parts of the interview to create a comment which bears no relationship to what you think.  Basically: reporters aren’t writing the first draft of an objective narrative (“history”): they have already written that narrative, and your role is to be the footnotes locking it all down.  Don’t be a sucker.  Ensure that your name is attached to things you actually think.

5

Excerpts from My Upcoming Book, The Law Student’s Guide to Being on Call (Part I of II)

Chapter One: A Field Guide to the American Law Professor

Success while “on call” requires, as a threshold matter, an understanding of the different types of American law professors you may encounter in the field. . . .  There exist five principal species.  Each can be identified by the distinctive manner in which it calls on students, if at all.  The first three species fall within the Socratus genus; the last two occupy genera of their own . . .

The Alphabetical-Order Professor (Socratus Abcdelis): As its Latin name connotes, this species of law professor calls on students in alphabetical order.  (There also have been unconfirmed sightings of a subspecies of Socratus Abcdelis that calls on students in reverse alphabetical order.) Members of this species are relatively harmless, since their call order is simple to predict. Furthermore, once a member of this species has interacted with a student, it rarely initiates a repeat contact. WARNING: These creatures tend to grow dangerous when they encounter unprepared students. Also, if a member of this species forgets to bring its enrollment roster to class, it may mutate into the far more unpredictable Socratus Chaotis, discussed below.

The Panel Professor (Socratus Panelis): This species of professor prefers to divide its classes into several “panels,” of which only one will be on call at a given time. Like Socratus Abcdelis, there exist few reports of fatal injuries due to contacts with this species, since students can anticipate these encounters and prepare accordingly.  As with Socratus Abcdelis, the greatest danger associated with this species involves the efforts of other students to avoid them. Cases have been reported where seemingly “safe” students have been placed on call due to the sudden, unanticipated absences of several peers situated alphabetically ahead of them, or the entire remainder of a large on-call panel. For advice on how to handle an emergency situation of this type, see Chapter Eight, “Threading the Needle: Reconciling ‘Passing’ with Getting a Recommendation,” and Chapter Eleven, “How to Exit a Classroom Silently.”

The Random-Order Professor (Socratus Chaotis): Whereas Socratus Abcdelis and Socratus Panelis tend to seek out and cultivate orderly habitats, Socratus Chaotis thrives on the uncertainty created by a random calling scheme. The unpredictable behavior of this species forces students to choose among three unpalatable options: (1) full preparation for each and every class; (2) skipping all classes until the semester is at an end (a.k.a. “playing dead”); or (3) initiating preemptive contacts with Socratus Chaotis at instances of the student’s choosing, with the hope that the professor will tire of these encounters and move on to other students. Unfortunately, this last strategy fails to recognize that members of Socratus Chaotis often possess poor memories, and have been known to call on the same student at several different junctures across a semester, even as they seem to entirely forget about other students in a class.  This last point also represents this species’ saving grace; it is far more likely that a student will not be called on at all in a class taught by a Socratus Chaotis, than in a class taught by either a Socratus Abcdelis or a Socratus Panelis.

The Occasional-Question Professor (Semisocratus Spontaneosis): This species of professor does not fit neatly into either the Socratus genus discussed above, or the Verbosis genus related below. Members of Semisocratus Spontaneosis gravitate toward pure lecturing (the defining characteristic of Verbosis Oxfordis), but, in rare instances, also initiate contact with students. Typically, this interaction takes the form of spontaneous, open-ended questions that invite the careful evaluation of a complex hypothesis that the specimen has painstakingly laid out over the preceding half-hour. While these questions appear daunting, recently, scientists have developed a number of potential responses capable of application to virtually any such inquiry. Among them, “I agree with what you said earlier,” and “I agree with what you wrote on this topic” show special promise for even the most unprepared student.

The Lecturing Professor (Verbosis Oxfordis): Members of this genus fall outside of the scope of this Guide. For those of you who nevertheless wish to contribute to lectures given by this species of professor, we suggest that you check out our companion volumes, The Law Student’s Guide To Brownnosing and The Law Student’s Guide To Unpopularity.

Next: Excerpts from Chapter Four, “Stalling.”

1

Old Harvard Law School Course Catalogs (1835-1869; 1878-2006)

Harvard Law School has posted online its Course Catalogs for the academic years (or, as the older catalogs put it, “academical years”) 1835-1836 to 1868-69, and 1878-79 to 2005-06.

These bulletins are quite interesting.  The 1835-36 catalog, for example, relates facts such as the law school’s tuition at the time, $100 per annum (Yup, that’s right. $100. Law students: don’t depress yourself by entering this figure into an inflation calculator like this one. Seriously. Don’t do it.), the names and hometowns of its students, and the books that students would be expected to read in each course.  The 1842-43 bulletin advertises that law students can attend all of the University’s public lectures, including the well-regarded chemistry, mineralogy, and geology lectures given by Professor (and, later, convicted [but possibly innocent] murderer) John White Webster.

By reviewing the catalogs, one also can compare the courses that have been offered at the institution at different junctures. Reprinted, without comment (but with a little selective bolding to indicate some new additions to the curriculum), are the course offerings at 25-year (more or less) intervals between 1850-51 and 1950-51:

1850-1851: Agency; Corporations; Equity Jurisprudence; Blackstone; Evidence; Insurance; Law of Real Property; Roman Civil Law; Pleading; Wills and Administration; Equity Pleading; Kent’s Commentaries; Contracts; Arbitration; Bailments; Domestic Relations; Practice; Bills and Notes; Shipping and Admiralty; Criminal Law; Constitutional Law and Jurisprudence of the United States; Equity Jurisprudence Evidence and Practice; Sales; Partnership; Conflict of Laws.

1878-79: Real Property; Contracts; Torts; Criminal Law and Criminal Procedure; Civil Procedure at Common Law; Evidence; Property; Trusts, Mortgages, and other Titles in Equity; Sales of Personal Property; Bills of Exchange and Promissory Notes; Jurisdiction and Procedure in Equity; Corporations and Partnership; Constitutional Law and Conflict of Laws; Agency and Carriers; Jurisprudence; Wills and Administration.

1900-01: Contracts; Criminal Law and Procedure; Property; Torts; Civil Procedure at Common Law; Agency; Bills of Exchange and Promissory Notes; Carriers; Contracts and Quasi-Contracts; Evidence; Insurance; Jurisdiction and Procedure in Equity; Property (second year); Sales of Personal Property; Trusts; Admiralty; Bankruptcy; Damages; Law of Persons; Conflict of Laws; Constitutional Law; Corporations; International Law as Administered by the Courts; Jurisdiction and Procedure in Equity; Partnership; Property (third year); Surety and Mortgage; Comparative Jurisprudence; Civil Law of Spain and the Spanish Colonies; Civil Procedure under the New York Code; Administrative LawCourses offered, but not taught in 1900-01: The Interpretation of Statutes; Roman Law; Massachusetts Practice; Patent Law.

1925-26: Civil Procedure at Common Law; Contracts; Criminal Law; Property; Torts; Agency; Bills of Exchange and Promissory Notes; Contracts and Quasi Contracts; Equity; Evidence; Insurance – Marine, Fire, and Life; Persons and Domestic Relations; Property; Sales of Personal Property; Trusts; Conflict of Laws; Constitutional Law; Corporations; Equity; International Law as Administered by the Courts; Partnership; Patent Law; Property (second year); Public Utilities; Suretyship and Mortgage; Taxation; Admiralty; Bankruptcy; Contracts and Combinations in Restraint of Trade; Jurisdiction and Procedure of the Federal Courts; Labor Law; Municipal Corporations; Administrative Law; Constitutional Law – Seminar in Problems in Constitutional Law;  Evidence – Seminar in Problems in Evidence; History of English Law; International Law Problems; Jurisprudence: Theory of Law and Legislation, the Province of the Written and Unwritten Law, Problems of Law Reform in America; Persons and Domestic Relations; Roman Law, and the Principles of the Civil Law and Modern Codes as Developments thereof – an introduction to Comparative Law; Conflict of Laws: Advanced Course; Modern Developments in Procedural Law; Law of Mining and Water Rights. Courses offered, but not taught in 1925-26: Massachusetts Practice, Brief Making and Preparation of Cases; The Practice of Law.

1950-1951: Agency; Civil Procedure; Contracts; Criminal Law; Property I, Torts, Accounting, Administrative Law, Commercial Law, Constitutional Law, Corporations I, Property II, Trusts, American Legal History, Comparative Law – The Civil Law System, Comparison of Soviet and American Law, Jurisprudence, Legislation, World Organization, Admiralty, Conflict of Laws, Corporations II-A, Corporations II-B, Creditors’ Rights A, Creditors’ Rights B, Domestic Relations A, Domestic Relations B, Equitable Remedies, Evidence, Federal Jurisdiction, Government Regulation of Business, Insurance, International Law, Labor Law A, Labor Law B, Municipal Corporations, Restitution, Suretyship, Taxation, Unfair Competition, Administrative Law Seminar, Administrative Law Seminar: Fact Finding; American Legal History Seminar; Antitrust Seminar; Comparative Law: The French, Western German or Swiss Legal System; Comparative Public Law; Conflict of Laws Seminar; Constitutional Litigation; Corporation Finance; Criminology and Administration of Criminal Justice; Government Contracts; Insurance Seminar; International Law Problems; Labor Law-Joint Seminar; Labor Law Seminar; Legal Problems of World Trade; Legislation Seminar; Problems in the Public Control of Atomic Energy; Problems of Contemporary Jurisprudence; Property III, Public Issue of Securities; Public Utilities; Taxation: Corporate Reorganizations and Distributions; Taxation: Special Tax Problems; Taxation: State and Local. Offered, but not for credit: Law and Medicine.

One of these days, if I ever try to prepare a family-tree flowchart that depicts the origins of the “modern” fields of law, I’ll probably perform a deeper dive into these bulletins. But that’s enough for now.

 

3

The Legitimacy Crisis in Federal Law Clerk Hiring

This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.  (Applications were delivered Tuesday to those Judges who are still “on plan“, and interviewing calls are supposed to go out Friday.) Unfortunately, the plan has entirely fallen apart, as wealthy law schools now are more than willing to package applications in the spring and summer.  This unravelling, long-predicted in some quarters, has two pernicious consequences – apart from encouraging judges to take applicants earlier in their law school careers, and consequently increasing the importance of first-year grades.

  1. A re-emphasis on the importance of private and expensive networks of information about what judges are up to. When judges hire at different dates, it becomes crucially important to have sources inside the courthouse who know the scoop – former clerks, for example. This will tend to make it harder for applicants from poorer and less established law schools to break into the clerkship market.  (Indirectly, this becomes yet another subsidy for wealthy schools.)
  2. Because some judges don’t particularly enjoy the competitive scrum, the death of the plan will accelerate the trend to hire either permanent clerks or clerks from practice. This is,variously:
    • Bad for current law students;
    • Good for associates in practice who want to make a move;
    • Good for researchers who will be able to collect more expansive data about law clerk influence;
    • Bad for those who fear that law clerks already have too much influence – the more experienced the clerk, the more likely that his or her views are influencing the judge’s decision;
    • Bad for the budget, as more experienced clerks are more expensive.  (Federal judges clearly don’t directly bear the costs of hiring more expensive clerks.)

The class, race, and gender effects insular hiring networks are well-known in general.  Basically: when it’s all-but-impossible to figure out how to get a job, only people who don’t need the job get it.

11

Median LSATs

David Bernstein has an excellent post up over on Volokh about the law school admissions process and the Supreme Court’s consideration of racial preferences in the upcoming Fisher case.

The notion that law schools evaluate applicants holistically (as the Court said in Grutter) is highly dubious.  Most schools, because of the US News rankings, care primarily about median LSAT scores.  This is true because (as I’ve posted about before), the US News Rankings don’t give you any credit for being diverse.  The opposite is true–you get penalized.  Now are there a few schools (read Yale and Harvard) that do look at things holistically because they get applicants with ridiculously high scores?  Sure.  And are there individual applications that are reviewed holistically?  Sure, if they are at or close to the median LSAT.  But that is a fraction of schools and a fraction of applicants.

Basically, the US News Rankings are more powerful than the Supreme Court in dictating how law schools operate.

2

Welcome Contracts Students!

As new 1Ls begin to immerse themselves in the wonderful world of law, we welcomed them here on this blog recently with an overview of the first-year curriculum that has been in place for ages. It concluded with a particular reference to the course on Contracts, about which I’ve recently published a new book connecting its classic cases and doctrines to contemporary contract disputes in popular culture and covered in the media.

From that book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, the following continues to provide a gateway into that field by introducing two legends whose venerable work on the subject continues to define the boundaries of recognized debate on most of the issues. The legends are Samuel Williston and Arthur Corbin.

In 1920, Williston, a Harvard professor, published a monumental treatise on the entire law of contracts, and updated it until his death in 1963. In 1950, Arthur Corbin, a professor at Yale, promulgated an equally magisterial and comprehensive treatise, based on earlier writings throughout his career.

These works—still kept up-to-date by successor editors—influenced generations of lawyers and judges addressing contract disputes. Williston’s philosophy dovetailed with that of the eminent jurist, Oliver Wendell Holmes, Jr., and Corbin’s resonated with that of the esteemed judge, Benjamin N. Cardozo.

Williston epitomized a formalist approach to law and reflected what some call the “classical” school of contract. It looks to whether parties in a transaction were giving and getting something, emphasizing a concept called “consideration” as the signal of an enforceable contract. This school of thought held unenforceable not only promises to make gifts or attend dinner but promises merely inducing another party to take some action.

In this view, the remedy for breach of a bargain is to pay the injured party money to put them in the same economic position they would have enjoyed had the other performed. This classical conception of contract law dominated well into the twentieth century, and remains a force today.

Corbin took a realist approach to law and offered a more pragmatic conception of contract. Though agreeing with Williston on many points, Corbin recognized, as courts increasingly did in the twentieth century, a wider range of circumstances that create contractual obligations. Williston’s bargain model of consideration remained, but loosened so that even some promises to make gifts could be enforced, so long as there was an identifiable return, like naming a college endowment. It recognized reliance on a promise as a basis of contractual liability, in a novel doctrine commonly called “promissory estoppel.”

Compensation for disappointed expectations remains the primary measure of remedy. But recognizing promissory estoppel gave equal dignity to measuring remedies by out-of-pocket costs incurred relying on a promise.

These twentieth century developments that Corbin captured, and helped to shape, reflected broader social developments as well, moving law’s orientation from a formalist to a realist conception. For example, classical contract’s relative strictness, limiting the scope of contractual obligation, was accompanied by an equivalent strictness of enforcement: if a contract was hard to get into, it was also hard to get out of. People could be bound to contracts that were made based on mutually mistaken assumptions or even where performance became impossible.

But as the ambit of contractual obligation expanded, so did grounds for excusing it, like mutual mistake about the terms of a trade, or impossibility of performance, such as a power outage in a rented banquet hall. Similarly, classical contract law venerated written records, limiting the scope of obligation to what was plainly meant within a document’s four corners. Corbin and his realist descendants were more willing to consider evidence supplementing these written expressions. Read More

8

What Should Law Schools Maximize, and Who Decides?

Bill Henderson, concluding an informative post on the bubble in higher education debt, writes:

“The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing.  The financing has to incentivize educational productivity — i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation.  No more $100,000 checks from the federal government for sorting students by standardized test scores.  Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level.  How many of my fellow law professors grasp the depth of our problems?  Not enough.”

As often with Bill’s work, there is much to chew over.  In particular, I’m curious as to how Bill would operationalize the phrase “better skills and learnings as measured by marketplace earnings and innovation.” That sentence might be read to mean that we should loan money to schools that produce graduates who earn the most money and/or those whose graduates “innovate” the most. (Or maybe it is marginal returns against the graduate’s pre-enrollment baseline?)  Though teaching a graduate how to innovate and enabling them to make more money are both excellent goals, they strike me as an oddly narrow set of maximands for a professional school, let alone a university.  And it’s not obvious to me that they correlate well with social welfare.  (LLSV, after all, suggest that legal culture and the rule of law have important economic growth consequences: returns to individuals lawyers aren’t on the LLSV variable list!)

Read More

4

Law Schools and the Bar

The ongoing discussion over the expense of legal education and the high levels of debt that many students have is, I think, missing part of the problem.  While the interests of practicing lawyers and law schools are aligned in many respects, in this case they are not.

Here’s what I mean.  Expensive law schools mean that there will be fewer lawyers (all other things being equal).  Is this something that existing lawyers should worry about?  It’s probably something that they should celebrate–they will have less competition.  Law schools and law students, on the other hand, are hurt by reduced enrollment and fewer opportunities.

Resolving this conflict is hard because the ABA controls the standards that law schools must meet.  No accredited school can just change it’s J.D. program to two years or adopt many of the innovations that are being suggested in legal education without the approval of the ABA and the various state bars.  Why should we expect that this approval will be given?