However, there are transactional opportunities – at law firms (though these are hard to secure for 1Ls); in general counsel’s offices (same objection); in government; and, in particular, in tax and estate planning small practices.  I thought I’d open up [...]]]> A number of students have recently asked me about opportunities to work in transactional practice in the summer after their 1L year.   That kind of job search is challenging, as the typical kind of 1L practice revolves around planning for or resolving litigation (i.e., government agency litigation interns, judicial interns, public service interns).  Indeed, I imagine that a large plurality of law students who obtain a legal internship this summer (paid or not) will end up writing some kind of multi- or 50-state survey litigation memorandum.

However, there are transactional opportunities – at law firms (though these are hard to secure for 1Ls); in general counsel’s offices (same objection); in government; and, in particular, in tax and estate planning small practices.  I thought I’d open up a thread for folks to share ideas/experiences with transactional practice in the first summer.  If you had a great job, please tell us about it and what you did. If you’ve ideas for networking of job search, let’s make a public good of them.

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.

I’m struck by this fact.  Applications to law school are not going down much (or at all) notwithstanding the sharp increases in tuition and the decline of the job market.  Demand for legal education seems relatively inelastic. So I’d like the students who read the blog to answer this question–why did you decide to go to law school given the current [...]]]> There is an intense conversation going on about the cost of legal education as compared to its benefits. The New York Times is doing a series of articles, Paul Campos at Colorado is offering his views, and Brian Tamanaha is posting a lot on this topic over at Balkinization.  Almost all of this discussion, however, focuses on the law schools or on lenders of student debt.

I’m struck by this fact.  Applications to law school are not going down much (or at all) notwithstanding the sharp increases in tuition and the decline of the job market.  Demand for legal education seems relatively inelastic. So I’d like the students who read the blog to answer this question–why did you decide to go to law school given the current economic conditions?  The floor is open.

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 Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for [...]]]> At a Faculty Meeting years ago, our distingished new Dean, who’d been Dean elsewhere, President of a University, and CEO in the private sector, began by saying how people often ask him: “What’s the difference between the academic world and the corporate world?” 

The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for younger scholars, doing graduate work at elite institutions.  It usually gets better but it can be tough later too. 

There are many ways to cope. One is remembering to research and write for yourself, in the first instance, not to please or even influence others.  Of course, it can be rewarding to have those effects and, especially, to be cited favorably, but that usually comes in due course.

Keeping a sense of humor and some sobriety about also helps.  Whenever I hear about the lion cages of graduate study, or vexing insecurity during early years of untenured appointments, I share the foregoing memorable scene.

Sayeth Kaplan:

1,383 aspiring lawyers who took the October LSAT . . . [were] asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%. Only 8% of respondents consider a law school’s job placement statistics to be the most important factor. In a related question [...]]]> For those of you who had any doubts, our friends at Kaplan have just confirmed it:  Aspiring law students care more about law school rankings than anything else, including the prospects of getting a job, quality of program, or geography.

Sayeth Kaplan:

1,383 aspiring lawyers who took the October LSAT . . . [were] asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%. Only 8% of respondents consider a law school’s job placement statistics to be the most important factor. In a related question asking, “How important a factor is a law school’s ranking in determining where you will apply?” 86% say ranking is “very important” or “somewhat important” in their application decision-making.

Mystal at ATL expresses shock–shock!–that potential law students could be so naive. Surely, he fairly observes, they should care most about job prospects.

Yes, that would be true if they were rational.  Yet, we all know from the behavioral literature that we apply a heavy discount rate to long-distance prospects.  How much can I or  should I care today about what may happen 3 (or 4) years from today?

If you think about it from the perspective of any law school applicant today, the one concrete thing they can lock onto that has present value is the school’s ranking:  It is simple, quantified, and–perhaps most important–tauntable.  No one’s face burns with shame because their enemy (or friend)  got into a law school with a better job placement rate.  Jealously and envy–the daily diet of anxious first-years–are driven by much simpler signals:  Is mine bigger (higher) than yours?

This is not to defend the students who place so much faith in numbers that have repeatedly been shown to be incredibly stupid.  It just means that Kaplan’s survey (and I have not seen the instrument or data) makes intuitive sense.

Which leads to me to offer two modest (and probably unoriginal) proposals:

1.  Perhaps the  LSAT itself should include some behavioral assessment portion that mirrors the Kaplan survey.  After you’re done solving logic puzzles such as whether Aunt Jean wore a blond wig to dinner based on Wisconsin’s BCS ranking, you should be asked what sorts of things matter to you in a law school.   As the Kaplan survey shows, the answers give insight not only into market preferences (for better or worse) but, imho, the judgment of test takers: Demerits for poor judgment if you answered as most of these students apparently did.  Even if you couldn’t quantify and rank the responses (and, really, how could you?), it would tell schools something about the kind of students they’re getting.

We know that behavioral testing of all sorts is important in a variety of fields.  Having taught at least one student who went postal (not my fault, I was assured), I think law schools would do well to have some insight into the psychological fitness of their students. To my knowledge, that’s not something the analytic grind of the LSAT measures.

2.  Why isn’t there competition among ratings?  We know that in a world of J.D. Powers, Kiplingers, Consumer Reports–to say nothing of at least three credit rating agencies–it is certainly possible to come up with multiple, credible ways to evaluate any given product. I know that valiant (and not-so-valiant) efforts have been made to compete with USNWR, but so far nothing seems to have stuck.  Why hasn’t some media powerhouse come up with its own system?  It’s clearly been lucrative for U.S. News–I suspect it is the only thing keeping the brand alive.

But perhaps I answered my own question, above:  No one really wants more than one ranking  precisely because of the clear signal sent by a single, if flawed, metric.

Still, if they’re smart enough to become lawyers, you’d think they’d be smart enough to assess more than one set of measures.  Isn’t that what judging is all about?

Each of the workshops have a different rhythm, format, and purpose. Our school is large enough that [...]]]> I’ve been thinking a lot this week about workshops. I regularly participate in three. One I co-run with Einer Elhauge on Health Law, Bioethics and Biotechnology as a class that students can enroll in which also attracts a number of faculty and fellows from Harvard Law School, other faculties, and the greater Boston area. I also regularly attend and sometimes present at our general faculty workshop, which also occasionally involves presentations from scholars outside of the law school. Finally, the Harvard Juniors get together about once every two to three weeks to workshop one of our papers in a small and informal group.

Each of the workshops have a different rhythm, format, and purpose. Our school is large enough that we can sustain both the general workshop and more specialized ones. Lately, though, I have been thinking about how workshop formats facilitate some kinds of discussions or developments but not others.  If, as I constantly tell my students in Civ Pro, procedure often shapes substance, why should that be any less true when it comes to workshops?  So I’ve started asking around to hear how others run their workshops and here are some variations I have heard of:

The first dimension is the presence/form of a “presentation”.

- Let the presenter present the paper for the usual 15 minutes.

- Let the present present for only 5 minutes.

- No presentation at all, right into the Q & A.

- Have another individual present the paper instead of the presenter.

- Have both the presenter but also a separate commentator.

A second dimension goes to how questions are handled including questions of how to manage a queue.

- Have “protected” time for presentation versus allow questions immediately.

- Have a strict queue that people get on in sequence by raising hands and the moderator writing their names down.

- Have a queue but allow follow-ups from the questioner or others on that line outside the queue.

- Take raised hands each time without a queue.

A third dimension goes to attempts to mold the type of questions.

- Require anyone who asks a question to also suggest something they liked about the paper.

- Have the presenter spell out precisely what they want feedback on in advance.

Finally, for workshops that mix students and faculty, there are further questions about whether to keep separate queues for the two groups, begin with faculty, begin with students, etc.

I’d be curious to hear about the results from experiments with workshop format along these and other dimensions. Did the quality or type of interaction change significantly?  Are there best practices we should be thinking about?

In March, Fred contributed an amazingly insightful, thoughtful, reflective, and useful series of seven posts called Thoughts on Choosing a Law School.   The 7-part series broke down as follows: (1) limited utility of popular rankings; (2) curriculum;  (3) faculty staffing of instruction; (4) subject matter distinction; (5) faculty strength; (6) physical facilities; and (7) faculty publishing record.

These were formally directed to students considering which law school’s admissions offer to accept; and they also mean a great deal to we suppliers of legal education.   We’re grateful for these contributions.  And we’re delighted Fred will be back to contribute more wisdom, on these [...]]]> We are delighted that our esteemed guest blogger, Professor Alfred Yen (Boston College), with us this past month (and before), will stay another one.  (You can see my post introducing Fred, my former colleague, here.)

In March, Fred contributed an amazingly insightful, thoughtful, reflective, and useful series of seven posts called Thoughts on Choosing a Law School.   The 7-part series broke down as follows: (1) limited utility of popular rankings; (2) curriculum;  (3) faculty staffing of instruction; (4) subject matter distinction; (5) faculty strength; (6) physical facilities; and (7) faculty publishing record.

These were formally directed to students considering which law school’s admissions offer to accept; and they also mean a great deal to we suppliers of legal education.   We’re grateful for these contributions.  And we’re delighted Fred will be back to contribute more wisdom, on these and the many other subjects within his capacious expertise.

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded [...]]]>

Richard Posner. Founder. Latter-Day Apostate?

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?

The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency.  By contrast, students taught by humanists were more generous and also  likely to see fairness as a matter of equity.

These are important results for those interested in legal education.

• First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them.  I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism.  It’s also surprising that Yalies are so impressionable!  I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
• Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine.  As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments.  We should do more work like this!
• Third, and most personally, this makes me nervous.  I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case.  I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions.  But maybe I’m also indoctrinating the students to grab more of the pie for themselves.  Nuts.

*The method they used to code economic preferences was, to be frank, a little mystifying.  They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set.  Why not simply ask the professors themselves how much they emphasized economic rhetoric in class?  Or the students?

This is a conversation I have every year, at least once, with students. It happens individually; in groups; at events. It’s a topic that can be very important for law students (and attorneys and professors, too!). I feel a little silly giving the talk — I’m really not much of a drinker myself, and hardly an expert on the topic. But I do know what I’ve observed. And so I tell my students, this:

When you go to work for a law firm, you will be invited to events that involve drinking. These events can provide good networking opportunities; they can help your career; and they can be a chance to relax and have fun. However, any time work [...]]]>

This is a conversation I have every year, at least once, with students. It happens individually; in groups; at events. It’s a topic that can be very important for law students (and attorneys and professors, too!). I feel a little silly giving the talk — I’m really not much of a drinker myself, and hardly an expert on the topic. But I do know what I’ve observed. And so I tell my students, this:

When you go to work for a law firm, you will be invited to events that involve drinking. These events can provide good networking opportunities; they can help your career; and they can be a chance to relax and have fun. However, any time work and alcohol mix, you need to be extremely cautious.

DO NOT think that the fact that it’s a party (or after-work drinks) limits your consequences. Remember, these people are not your family, and they’re not your friends. This is your employer and your co-workers. Just because it is a party — or after-work drinks — does not mean you can let your guard down. Stupid stuff that you do while drunk, in the presence of co-workers, will become part of your (unofficial) permanent record. It absolutely can affect your career.

DO NOT assume that just because other folks are drinking heavily, it’s fine for you to do the same. Other attorneys may be drinking a lot. Let them. You are a law student or a junior associate. The other attorneys may be immune from harm — they may have longstanding ties with firm partners, they may have good client relations, or otherwise be able to get away with drinking too much at the party. Or, they may be on their way out of the firm anyway, and not give a damn.

DO know your limit. Know your limit, and stay well shy of that limit.

And remember that a firm party is NOT the time to start experimenting. And it will be very tempting. You’re on a law student budget all year, with no time or money to go out. Suddenly, you’re at the firm party and it’s an open bar, with all sorts of top-shelf liquors.

Don’t do it. You’ll survive the firm party, you’ll get a paycheck, and then you can buy as much Patron or whatever else as you want. DO NOT make up for lost time at the summer associate party. The hiring partner is watching you. It’s not worth it, no matter how nice the open bar looks. The ultimate goal, remember, is to get (and keep) a job.

Another danger with experimenting at a firm event is that liquors affect different people differently. I have a friend who does fine with beer or wine, but who cannot drink tequila. DO NOT branch out to unfamiliar drinks. Stick to something you know you can handle. A firm party is a very bad time to discover your particular Achilles heel.

DRINK SLOWLY. Really, it’s not that hard, just sit and nurse your gin-and-tonic for an hour, as you make small talk. DO NOT start competing with anyone. DO NOT start doing shots. DO NOT get involved in any sort of drinking games. Seriously, this is real life, not sophomore year. Just get your drink, and slowly sip it, and nod in conversation. And for Heaven’s sakes, eat something. Nibble on some hors d’oeuvres. This will make it slightly less likely that you’ll end up doing something stupid.

Remember, this is the era of Facebook. And it’s also the era of Above the Law. Anything stupid that you do won’t just be the punchline of jokes around the office for the next several months or years; it will also be on the internet. If you have too many margaritas and end up jumping into the fountain, it will be on Above the Law the next day. (Yes, it will be slightly sanitized to “a male associate at a Los Angeles firm” — but your classmates, friends, many possible future employers, will all know that it’s you.)

Use good judgment. You be the level-headed one; let the other guys be the stupid ones. (Above the Law’s Summer Associate tag gives numerous illustrations of this principle.)

And, a special (somewhat lengthy) note for women:

I hate to possibly sound sexist, but I think it’s important to be frank about this: Women can be uniquely vulnerable in drinking situations. If you’re a woman, some male attorneys will probably try to get you drunk in order to hook up with you. (Obviously, this can happen outside of the male-female context, but from my observation it happens overwhelmingly in the context of male attorneys plying females with alcohol.) Not that all hook-ups are unwelcome — you decide that. But it’s very problematic if someone who you don’t want to hook up with uses alcohol to obtain some kind of pseudo-consent.

These kinds of hook-ups can be physically unsafe. They can have humiliating emotional fallout. And to top it all off, they can have gendered effects on your career — despite decades of feminism, it can still be a “good girls don’t” world at many firms, where women will be judged more harshly than men for the same actions. Even worse, your drinking may be used to (wrongly) blame you for any abuse, or to excuse your abusers.

In warning about this possibility, I do NOT mean to endorse these double standards. And I do NOT mean to say that women who drink invite abuse, or any other such nonsense. The fault for abuse rests with the perpetrator. Sex without real consent is rape, and alcohol doesn’t change that. If you’re a victim of sexual abuse, you have certain responses available, including civil or criminal law. But it’s best to avoid the problem altogether. Remember that there’s trouble out there, and that you should have all your wits about you to avoid it. Hopefully, you already figured this kind of thing out earlier (such as in college), and have an idea of how to take care of yourself.

Even female associates who stay relatively sober also need to be wary of drunk senior associates and partners at these events. In other words, even if you do see this as a professional event, others might not, so be careful to avoid uncomfortable situations (e.g. find a female “buddy” and stick with her all night or keep an eye on each other to minimize the risk of finding yourself alone with a drunk senior male colleague, avoid sharing a cab ride home solo with same).

I hate to say that women need to be more careful than men– it’s not really fair, and it’s yet another inequality for women who already face an uneven playing field. It’s especially unfair since women are often de-facto excluded from many other firm networking opportunities (like golf), so female associates may feel they have to go out for drinks, in order to network effectively. But women do need to realize that there are likely to be at least some predatory attorneys at any large firm — there shouldn’t be, but there will be — and that those attorneys tend to focus on women. And on the flip side, male attorneys: Get it through your heads that no means no, and that sex (or any hooking up) without consent is a crime. Using alcohol to “get around” a lack of consent is morally wrong and is illegal (though deeply underprosecuted); it can get you fired or sued or both. And saying “I just had too much to drink” is not an excuse.

–

Well, I hope this wasn’t too depressing of a discussion. I don’t want to give the impression that all law-firm drinking is terrible. I know lots of attorneys and law students who drink responsibly. For many young attorneys, going out for drinks is a very effective way to network. Firm events can be very good networking opportunities, too. And these can also be a way to relax and have fun. They certainly have their upsides. But they’re not without risks. And that’s why you should always remember, law student, to be extra careful any time that you drink with colleagues.

Curiously, in [...]]]> In May, I blogged about a motion to quash a subpoena seeking information about an anonymous poster’s identity in the Autoadmit litigation. Although it briefly looked like Judge Droney might throw out the case on SMJ grounds, last week he denied the motion to quash, and let the lawsuit proceed (while denying defendant’s petition to continue to proceed anonymously). The decision makes all of the expected moves. I do think it odd that posters’ expectation of privacy could be vitiated by AT&T’s Internet Services Privacy Policy (which states that they will comply with discovery requests). This argument would suggest that there is never an expectation of privacy online – a result that I imagine Solove would find somewhat objectionable.

Curiously, in a motion filed Friday to extend the time to file their amended complaint to August 7, plaintiffs state that they “recently learned that the subscriber disclosed by AT&T is not John Doe 21 (“AK47″) but likely knows his identity.” In light the admissions in AK47′s pro se motion to quash, I’m left a little confused as to what is going on in the litigation. Also of interest, plaintiffs state that they are “close to identifying five additional pseudonymous defendants in the case. Specifically, Plaintiffs are in the process of scheduling a deposition with one pseudonymous defendant . . . Plaintiffs have discovered the identities of three additional pseudonymous defendants, and are very close to deciding whether to name these individuals as defendants.”

My guess is that KVN must be using this case as a “training exercise” for its younger attorneys. Otherwise, I can’t see why they would be going to the wasteful lengths they have thus far.

While you are over at Mark’s blog, be sure to download the letter [...]]]> Keker & Van Nest has responded to ““AK47′s” motion to quash the subpoena seeking information about his identity. Looks like we’ll soon be seeing some exposure of the Autoadmit posters. As Mark Randazza puts it:

I must say that it was a whole lot of overkill. The same thing could have been accomplished in a one-line opposition “the issue is moot.” Apparently, AT&T has already outed AK47. Accordingly, the 29 page opposition is a bit puzzling.

My guess is that KVN must be using this case as a “training exercise” for its younger attorneys. Otherwise, I can’t see why they would be going to the wasteful lengths they have thus far.

While you are over at Mark’s blog, be sure to download the letter allegedly sent by this defendant to the plaintiffs.

[Update 1: Ciolli issues a statement.]

[Update 2: Skimmed the complaint. It is much more damning than the original. Keker did a nice job reshaping the factual allegations to focus on the worst conduct. It also looks like they are staffing up, which means they must think they have a way to find actual defendants.]

[Update 3: Brian Leiter offers interesting commentary here. The WSJ Law Blog reports here.]

[Update 4: Just came across this Harvard Law Record article from earlier in the week, purporting to report on the traffic patterns of HLS students reading and [...]]]> Here’s the amended complaint, filed yesterday. Details to follow later in the day, if I get a chance. Here’s why I think this happened.

[Update 1: Ciolli issues a statement.]

[Update 2: Skimmed the complaint. It is much more damning than the original. Keker did a nice job reshaping the factual allegations to focus on the worst conduct. It also looks like they are staffing up, which means they must think they have a way to find actual defendants.]

[Update 3: Brian Leiter offers interesting commentary here. The WSJ Law Blog reports here.]

[Update 4: Just came across this Harvard Law Record article from earlier in the week, purporting to report on the traffic patterns of HLS students reading and posting on Autoadmit. The Record wasn't exactly a groundbreaking publication when I was at HLS, but maybe times have changed.]

I have contacted several sources to try to figure out what is going on. As best as I can ascertain, Mark Lemley and David [...]]]> What the heck is going on in the Autoadmit lawsuit? Last week, Judge Christopher Droney granted plaintiffs’ third extension of time to serve their complaint, giving them an extra thirty days to effect service. He explained that the plaintiffs are investigating some “recently revealed” information concerning one of the parties. To date, none of the defendants has been served, and the defendants (including the headliner, Anthony Ciolli, Penn Law ’07) have of course not moved against the complaint. It’s been over four months since the case was filed, and the litigation is stuck at go.

I have contacted several sources to try to figure out what is going on. As best as I can ascertain, Mark Lemley and David Rosen have been negotiating with non-party Jarret Cohen over the summer, seeking a settlement that would:

• delete past and prospective threads on Autoadmit about the plaintiffs;
• de-index the plaintiffs from Google and other search engines;
• require Autoadmit to log IP addresses;
• require Autoadmit to create a term of service agreement and a complaint response system.

In return, plaintiffs would dismiss Ciolli, and (I take it) proceed against the pseudonymous defendants alone. But this settlement, which would seem to come close to giving plaintiffs all that they were seeking in the case apart from revealing the pseudonymous posters’ names, has stalled. Why?

Here are a few theories. First, perhaps Cohen (or his attorney) is concerned that if he agrees to these terms, it would create an avenue for a later claim for liability that Section 230 would otherwise have immunized, i.e., he will have created a monitoring and responsibility system where none previously existed. Second, plaintiffs’ leverage is insecure. I’ve heard rumors that plaintiffs have acknowledged that they originally named Ciolli on the mistaken belief that he had written some of the libelous posts. But if Ciolli didn’t write any of the unlawful posts, his liability is at best obscure. (Volokh agrees.) This puts plaintiffs in a bit of a bind. If they drop Ciolli now, they lose their best leverage against the board, and the opportunity to really change how it works and create a precedent for other like gossip sites. If they serve Ciolli, I think he’d have a strong motion to dismiss (accompanied by a nonfrivolous sanctions motion). All this would seem to reduce the incentive for Cohen to settle today. But the service clock is ticking – how many extensions of time will Judge Droney grant? (His chambers rules state that he’ll extend deadlines until the result materially affects his scheduling order.) Third, what about the pseudonymous defendants? Nothing I’ve heard makes exposing the defamatory posters – the most culpable wrongdoers – more likely. (Leiter’s hopes otherwise, but if XO didn’t track IP addresses before, I don’t know how likely it is that plaintiffs will be able to find them after the fact. It is small, and cold, comfort to think about such law students sweating it over the long summer if they ultimately will remain in the shadows.)

All of this suggests why lawsuits are such a bad fit for the reputational harms that sparked this mess. You can’t sue the “real” wrongdoer; the host is basically immunized; and defendants you can find are (at best) tangentially involved. This makes sense: people willing to put their names in public are likely to be more careful and less culpable. On the other hand, the lawsuit itself seems to have had significant chilling effects on the Autoadmit board, as several posters have “retired.” Whether this is a good thing or not probably depends on your perspective.

Solove, do you have a better way?

As I’ve written before, I think the Board provides a unique view into some law students’ (and young associates’) view of the profession, which may be “frank and heterodox”, transgressive, or just plain ugly and foolish. I’ve wondered why students spend so much time on an activity that is (now clearly) likely “to lead to professional embarrassment if publicized.” Maybe, after Edwards’ action gets disseminated, they won’t.

Does the distribution [...]]]> The WSJ’s Law Blog reports that Edwards Angell Palmer & Dodge has rescinded its job offer to Anthony Ciolli, the Penn 3L who was until recently the Chief Education Officer at Xoxohth. The correspondence reported by the Journal makes clear that the Firm’s decision flowed pretty directly from the Washington Post’s article about the Board.

As I’ve written before, I think the Board provides a unique view into some law students’ (and young associates’) view of the profession, which may be “frank and heterodox”, transgressive, or just plain ugly and foolish. I’ve wondered why students spend so much time on an activity that is (now clearly) likely “to lead to professional embarrassment if publicized.” Maybe, after Edwards’ action gets disseminated, they won’t.

Does the distribution of justice here seem fair? (Both respect to Ciolli and to the anonymous other commentators, who are not sanctioned)? What effect will this kind of action have on anonymous speech by law students, including anonymous blogging? I’ll leave the comments open. But I’ll be moderating them, so be civil.

[Update: There's an interesting discussion thread on this topic at XO.]

[Update 2: Also check out this very long post at Feiminste: "When it comes to internet-land, we all make choices. I’ve made a similar choice similar to Anthony’s — to co-run a website, and to do so under my full, real name. I’ve done that knowing that there will most certainly be consequences to that decision."; and this post at Overlawyered: "[I]if you ever wanted to know how damning it is in the modern legal community to be associated with a controversial website accused of misogyny, you now have an answer: it’s worse than being accused of killing someone.”

(A caution while indulging. It seems that the increased attention paid to the Board, and associated cascades of rumor, is exacerbating its ugly side. Odd. Doesn’t sunlight usually cleanse?)

h/t: Belle Lettre

First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent [...]]]> Here are some suggestions for studying a law school you may be thinking of attending. A lot of this information can be gleaned from the school’s website, and you can use the time you have on campus to get your questions answered.

First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent graduates as part-time instructors, to teaching fellows on three year terms, to full-time faculty. In my opinion, writing programs taught by full-time, permanent faculty are likely to be most effective because those teachers gain experience that can be lavished on you. Teachers who are themselves students, or whose time at the school is limited, cannot do likewise.

Beyond the first year, look for the richness of program in areas that interest you. Don’t necessarily assume a school’s offerings in an area are superior because they have a specialized “program.” Look under the hood. Does the school have full-time faculty teaching the courses that matter to you, particularly the core courses in your area? Are they experts in the field? There’s nothing wrong with seeing some adjunct (i.e. part-time) faculty in a program. Very often they’re experienced lawyers with a lot to offer. But, if there are too many, there won’t be anyone around for you to talk to when you need it most because the adjuncts will be at their regular jobs. Take some time to study the skills program as well. Clinics or externships offer great exposure to the profession and practical experience that can serve you well.

Second, take a look at the strength of the student services program. Every school has a Dean for Students, career counseling, financial aid, and placement offices. However, not every school puts enough resources behind them. How many people are available to speak with you if you want advice? How many job listings does the placement office have, and in how broad a range of jobs? Is there specialized counseling for public interest or government employment? Are there vibrant student organizations you’d like to join?

Third, get a sense of the library because you’re going to do a lot of research and studying for 3 years. You may be tempted to think all libraries are the same, but they’re not. Collection size matters. If you’re doing research and can’t get a book, you’re stymied while you wait for it to come in on interlibrary loan. Reference staff also matters. They’ll help you find things, and they’ll also be helping you learn to conduct research. Finally, when you visit, go into the library and see if you’d enjoy studying there. Is it quiet, comfortable, and well-lit? Believe me, some libraries will make you want to stay and read, and others will drive you to Starbucks.

Fourth, study the physical facility. Go to a classroom and check out the sight lines, particularly from the back of the room with people sitting in front of you. You might be surprised how many large classrooms make it very hard to see the professor when the room is full. If you can attend a class, make sure you can hear the professor and the students. Are there places for students to gather and talk? Space for student organizations? Take a look too at information technology. Is the library/campus wireless, and are there adequate terminals and printers for your use? Is there power for laptops in the classrooms? Is there audio-visual capacity in classrooms so instructors can use the latest technology? If you’ll be driving to and from school, is there enough parking?

Fifth, try to meet some students and faculty. You’ll spend three years talking to them, so get a sense of whether you’ll enjoy them and learn from them.

And last, but not least, get a feel for the place. Every school has a unique atmosphere. It’s a bit like hunting for an apartment. Ask yourself if it feels right.

This afternoon I was informed about an incident of cyber harassment that took place on Friday by someone purporting to be a member of this community. [A poster wrote and circulated defamatory comments about a Yale Law Student to the YLS community.] Like Jarret, I condemn this incident, and we’re both ashamed and embarrassed that anyone in this community would engage in this kind of [...]]]> Anthony Ciolli, a Penn law student, founder of Autoadmit/Xoxohth, and recent correspondent with Dan Markel, has resigned from the Board. His announcement:

This isn’t the sort of post I was expecting to make until after graduation, nor is it a post I am particularly happy to write given the circumstances. But unfortunately, it’s something that simply must be done.

This afternoon I was informed about an incident of cyber harassment that took place on Friday by someone purporting to be a member of this community. [A poster wrote and circulated defamatory comments about a Yale Law Student to the YLS community.] Like Jarret, I condemn this incident, and we’re both ashamed and embarrassed that anyone in this community would engage in this kind of behavior. This incident crossed a line for me that simply should not have been crossed, and I cannot remain emotionally attached to a community where these sorts of actions are condoned.

Thus, I feel I have no choice but to resign as Chief Education Director. I will continue to work on other sites with Jarret, and temporarily assist Jarret while he manages my exit, but after what happened this Friday I simply cannot remain involved with AutoAdmit anymore, at least not in its current incarnation.

With regret,

Anthony