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Category: Law Student Discussions

10

The Numbers are REALLY In–Plus Two Modest Proposals

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:

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3

What Makes a Good Workshop Tick? Reflections and Questions on Procedure

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?

0

Fred Yen Continuing as Guest

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.

4

Does Law and Economics Destroy Law Students’ Sense of Justice?

Judge Posner, Whose Pen Launched a Thousand Econo-Careers

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?

8

How to drink on the job

400px-Cocktail1.jpg

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.

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23

Autoadmit Lititgation Update, a Continuing Series

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.”

7

Autoadmit Litigation Update

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.

1

Some More Thoughts on Autoadmit

anonymity2.jpgA few more thoughts on Friday’s developments in the Autoadmit lawsuit. (Yes, I do have better things to do, but those things all involve coding and STATA, and my mind wanders.)

  • There is Much More Here Than Ciolli: The changes from the original to the amended complaint extend quite beyond dropping Anthony Ciolli. Plaintiffs’ theory of harm seems to have shifted – from one grounded largely in loss of employment, to one grounded largely in a tort (IIED/false light/defamation). Claims about loss of employment are gone, replaced by much more detail about the attempts by Board posters to harass the Doe plaintiffs. The result is a more streamlined theory of relief, coupled with a viable damages claim. Moreover, the complaint ties the XO board to an aborted attempt to set up a googlepages account to host a “contest” ranking law student attractiveness. This would seem like a chink in defendants’ anonymity shield.
  • The Board Responds: Read this thread, or this one, or this one. (Or, try a search for “lawsuit” on the Xoxohth page.) Lurkers and posters alike are reacting to the allegations by distancing themselves from the Board: “it is too risky to be associated with some of this s**t, and i need to focus on my exams.” Some purported named defendants are debating whether to turn another in, and others are struck by the nastiness of the place, as if for the first time. Others turn to technical solutions, seeking to preserve their anonymity. But you can’t unbreak those eggs.
  • What to make of all this? Clearly, the case has taken a more serious turn. It looks like settlement is off the table, and plaintiffs intend to go forward and actually name individual posters. The defendants’ threats and statements are chilling (and it is, in my view, a weak defense that in the speech’s original context it was surrounded by like-sounding bits of shock humor). Any poster so named will, I think, be unemployable by reputable law firms and at serious risk of failing character and fitness evaluations by State Bar Examiners. (I have some doubts that the really vile posters are law students, but maybe that is just wishful thinking.)

More: Howard Wasserman at Prawfs on the Civ/Pro aspects of the case and Salon, on the possibility of tracking down trolls.

3

Former Penn Law Student Dropped from Autoadmit Lawsuit

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.]

14

What’s Going on With the AutoAdmit Lawsuit?

book16a.jpgWhat 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?