Exam Characters

So far in my two short years as a professor, I have tended to use the common practice of drawing on figures from pop culture for the names and basic features of the characters in issue-spotting exam questions. For example, I've asked questions about a student named Harry Potter at a college called Hogwarts, a fellow named Cosmo who runs a company called Kramerica, and a Hollywood agent named Ari who manages a movie star named Vince.

The other day, one of my civil procedure students asked very politely if I would be willing to identify for the students, in advance, any pop culture characters featured in the upcoming exam. I thought about it and then said no, mostly because I was afraid that some of her classmates would then run out and watch Seinfeld reruns or whatever rather than studying the Erie doctrine. I also thought such an announcement would greatly overemphasize the importance of this fictional backdrop, which should be trivial. The facts are all right there in the question, and they often depart entirely from the book or TV show that inspired them. (Of course, it goes without saying that an exam question must not assume any knowledge of the source material.)

But the student's request got me thinking about whether using pop culture sources for exam questions is a good idea. On balance, I still think it is at least harmless and probably useful. True, students who happen to be familiar with the characters may have a slightly easier time keeping the fact pattern straight, and maybe that is slightly unfair. But it is such a miniscule advantage. And unavoidably there is lots of luck in exams -- if a question happens to resemble one you studied, that is a much bigger advantage than knowing about Harry Potter. Meanwhile, a well-chosen set of characters probably helps the bulk of students to digest the facts, and it definitely helps me keep the fact pattern straight as I carefully read 100 answers. Besides, it can provide a little comfort and perhaps a smile to at least some students during the stress of an exam. Those who are oblivious to the cultural references can just ignore them.

There are other ways to write fact patterns, of course. Bar exams seem to draw on lists of obscure first names, almost like the roster of hurricane names. One of my colleagues puts her acquaintances into exams, and every year one particular friend dies a gruesome death. I will never forget a first-year professor of mine who populated his exam with multisyllabic figures from Greek tragedies, whose names all sounded alike to me (and many began with the same letters too!).

Law professors and students: what do you think?

Posted by William McGeveran at 10:43 PM | Comments (33) | TrackBack

A Tortured Dialogue on John Yoo's Tenure

Everyone else has taken a whack at the Yoo-tenure-pinata. I felt left out, so here goes, in irritating dialogue form.

Pro-Yoo: What Leiter said.

Anti-Yoo: But would those arguments stand had Yoo actually participated in state-sanctioned torture?

PY: Probably, so long as he held his belief in the legality of the conduct in "good faith."

AY: This seems like an extraordinary barrier to firing. And isn’t it pretty obvious that tenure is a cross-subsidy, protecting the job security of non-mobile professors at the expense of those who are productive scholars? Not to mention a spur to vice. Forget pot. Why do Spitzer and most public school teachers lose their jobs for soliciting prostitutes, when professors can (apparently) do so at will?

PY: Slippery adjudicative slopes.

AY: I hate those guys.

PY: What about the pro-knowledge, pro-civic, pro-dissent, aspects of academic freedom?

AY: Show me data supporting the view that tenure promotes civic engagement & ideas, and I’d be more comforted. I bet that in a world where tenure wasn't mandated by the Bar, we'd have better scholarship, fewer bad teachers, and we'd be under significantly more pressure to respond to well-founded student dissatisfaction about their job prospects. Tenure enables complacency, not risk-taking. Claims about the pro-social aspects of academic freedom seem romanticized, at best, given research showing that tenure doesn't significantly affect the research output of successful scholars. Basically, good scholars don’t need tenure to take risks and innovate. Bad scholars are helped to see the path toward the deeper, deader, part of the woods.

PY: You are conflating tenure and academic freedom. One might fairly believe that academic freedom is important without thinking much of tenure as a way of preserving it. And what about selection bias? Maybe tenure's insurance effect encourages risk-averse people who might otherwise be lured into other professions? It promotes the warehousing of bigger, albeit more nervous, brains in the academy.

AY: To what end?

PY: How can you be so obtuse?

AY: What did you call me?

PY: Obtuse! It’s obvious: knowledge production.

AY: The empirics of that argument are dubious. And regardless of the general academic freedom arguments on the table, doesn't it seem like the case for Yoo's tenure is based, to a surprising degree, on his state of mind & long-track record of consistent positions in law review articles? Can his entitlement to continued job security really turn on whether he believed his own (wrongheaded) analysis?

PY: First, the overwhelming majority of the people attacking Yoo have no substantive expertise in the subject matter, and are taking others' word for the conclusion that the analysis was shoddy, incompetent, or otherwise unprofessional. As Orin Kerr pointed out, it at least smells like lawyering. Second, it seems like this good-faith argument isn't all that strong anyway. Maybe he, like many in the academy, advances normative arguments because he gets utility from the intellectual game, when the grounds for those arguments may be as yet undeveloped. (Think, for instance, of the recent exchanges about the empirics of capital punishment). Intent is irrelevant. A better defense of Yoo's job security is simply that tenure is a legal status, born of contract, and he hasn't breached its terms. The university has no higher duty to society that would require it to breach its obligations to Yoo to give him the benefit of a process and a pre-set standard.

AY: So your basic position is that John Yoo gets to keep tenure because a contract is a contract is a contract?

PY: Contracts uber alles!

AY: So if the Berkeley faculty were really appalled at Yoo's behavior, the way to send a message would be to vote to de-tenure themselves and then separately bargain for job protection and salary? That way there would be no breach, assuming that the faculty retains the power, by majority vote, to change the conditions of its tenure system.

PY: That's a low blow. He's a "hardworking and responsible member of [the] community" who flew too near the flame of power. They'd rather let the marketplace of ideas decide whose view of the world is appropriate.

AY: Even though it was the school's reputational glow that enabled Yoo to have influence over policy in the first place? Do you think that had Yoo been a professor at a fourth-tier law school he would have been able to successfully outflank the State Department?

PY: No. But the idea of a faculty detenuring itself to express its views on policy is beyond fancy: it's goofy.

AY: But if that's the case, and no one seriously thinks that John Yoo is in any danger of losing his tenure, then why is everyone talking about this?

PY: Symbolism and veiled partisan identification.

AY: Does that kind of cynicism actually help you make friends?

PY: Not yet. But what's your explanation?

AY: Be more charitable! Lots of people believe that by defending academic freedom they increase society's ability to tolerate unpalatable opinions. That's at least plausible. Academic freedom might not require tenure, but it is the world we live in. Besides, aren't you up for tenure soon too?

PY: Er, yes. I take it all back. John Yoo should keep his tenure because without tenure, dissent would be stifled; the marketplace of ideas left as barren as a Wal-Mart rice shelf;and the jackboot of fascism firmly lodged in the vulnerable neck of our youth. Thank you John Yoo, you are the canary in our little coal mine.

(Image Source: Wikicommons, Woodcut image of water torture, J. Damhoudere.)

Posted by Dave Hoffman at 10:38 AM | Comments (1) | TrackBack

A Recommendation Rationing Problem

From a well-placed source, I've heard that some federal judges discount clerkship recommendation letters written by professors who are supporting more than three to four students in a given clerkship cycle. If this practice were widely followed (and I'm curious to know if it is) it poses a pretty serious problem for me. I've fielded the requests of well more than five students for clerkship letters this spring. Through advising, writing seminars, research assistance, and otherwise, I know all of these students well enough to write positive letters. For this season, then, I'm committed to writing letters to anyone who asks me. I think this is the generally the right policy assuming that it doesn't hurt the students, who shouldn't be penalized that my recommendation-writing time has started to look like an overgrazed commons.

I dislike the idea of rationing recommendations, because I can't, at least on first glance, come up with a good way to choose who to support and who not to support when they come in the door. The easy proxy - the students I know best - don't work all that well when I'm not initiating the recommendation transaction. Most students who approach me do so because they've some kind of connection, besides having gotten a good grade in one of my classes, and I've never been in the unhappy position of having said yes to a student who I think couldn't be a good clerk. Other methods (first-come; best-grades; etc.) are unpalatable.

So, two questions for you: (1) do you ration recommendations; and (2) how?

Posted by Dave Hoffman at 10:34 PM | Comments (2) | TrackBack

Two Cheers for Indentured Servitude!

Yesterday, Mike asked the following question about legal education and the profession:

As I read these, they take as premise the proposition not merely that law schools should change how they teach because practice-based teaching is more effective, but that law schools need to fill a training gap created by the growing unwillingness of many law firms to train new lawyers themselves.

Why should that latter proposition be the case? It is reasonable to argue that clients should not be forced to bear the cost of training new lawyers. But why should the profession not expect law firm partners to shoulder that cost ­ rather than passing some or all of it back to law schools?

I think that part of the answer lies in the nature of the employment contract. Pushing the cost of training back on law schools is slighlty misleading. We are really talking about pushing the costs back onto students. One reason that law firms may be reticent about lavishing resources on the training of young lawyers is that they have few guarantees that they can recapture the upside of the training that they lavish. There are few ways of stopping young lawyers from taking the training and leaving for greener pastures, giving firms (and associates) an incentive to free-ride on the training provided.

Here, I think that it is useful to contrast the legal profession to the armed forces. The military spends an enormous amount of money training its recruits. On the other hand, the Army has much stronger remedies against employees who try to walk out on their employment contracts. Go AWOL and the MPs can track you down and throw you in the stockade. On the other hand, the system produces some superb training. For example, my understanding is that the airline industry is largely dependent on former military pilots to fly its jets. The reason is that to achieve the levels of proficiency that the airlines (and the FAA) demand a pilot must have an enormous number of flying hours, and as a practical matter it is nearly impossible for a student pilot to bear these costs individually. In other words, it is the remedial structure of the military contract that provides the intensive on-the-job training necessary to produce superbly trained pilots.

Perhaps we need something similar for lawyers. Apprenticeship indentures anyone?

[crossposted at madisonian.net.]

Posted by Nate Oman at 09:33 AM | Comments (15) | TrackBack

A List of Law Teaching Fellowships

Over at TaxProf blog, Paul Caron has posted his annual list of law teaching fellowships, with links to the websites.

Posted by Daniel J. Solove at 11:07 AM | Comments (0) | TrackBack

Short courses?

Greetings from (mostly sunny) Champaign-Urbana, where I'm spending the week, teaching a short course on Federalism and the Making of American Corporate Law at the University of Illinois. Under the law school's short-course program, the brainchild of Ralph Brubaker, my former colleague at Emory and now Associate Dean here at Illinois, anywhere from five to ten professors, judges, and attorneys come to campus each term, to teach a week-long, one-credit course.

I'm told the students generally love the short courses. My own data - consisting of the (fairly high, I think) enrollment of 27 students in the class, and good participation in the first class (yesterday) - would seem to confirm as much. For the visitors, meanwhile, it can be an occasion to try something new, or at least different, and to spend time with academic colleagues they might otherwise only see in passing, in the hallways at AALS. For Illinois, finally, it's an opportunity to spread good impressions and good will among legal academics, on the bench, and with the bar. (As Charles Tabb - who's serving as Interim Dean - put it, it's a great way "to make new friends.")

At Emory, we have "accelerated courses," but of a different sort. Visitors, most commonly hailing from overseas, come for four to seven weeks to teach a class or two. Again, students like it, etc. Obviously, though, the longer format engages a completely different set of potential visitors.

Do other schools do anything similar to Illinois? If not, it's something I suspect might be well-worth considering.

Posted by Robert Ahdieh at 07:00 AM | Comments (3) | TrackBack

Fascinating Site with Great Lectures

Mark Schultz and others have been kind enough to indulge me with tips about giving a talk. Mark not surprisingly noted that Mike Madison offers great advice on the topic via links. From Mike's links (at the bottom of his page on student writing guidelines) I went to PresentationZen (a cool name in general and with some good material as well). That site led me to the TED Web site ("TED stands for Technology, Entertainment, Design") and a talk by Bill Strickland. TED provides a quick bio here. In an even shorter nod that merits more, think of a man who started from the poor parts of Pittsburgh and won the MacArthur grant. As the site sums "While moonlighting as an airline pilot, Strickland founded Manchester Bidwell, a world-class institute in his native Pittsburgh devoted to vocational instruction in partnership with big business- and, almost incidentally, home to a Grammy winning record label and a world class jazz performance series." The institute, well I can't do that justice. But luckily the TED web site has a lecture by Mr. Strickland. It is a great talk, with great vision, and happens to have the great Herbie Hancock providing the music for the speech. So take the 35 minutes (or at least start it if you rolled your eyes and see whether you aren't drawn in) and enjoy.

Posted by Deven Desai at 01:31 AM | Comments (0) | TrackBack

A Bad Student Evaluations Hall of Fame

Eugene Volokh has a good post up about whether students have a privacy interest in evaluations they give to professors at the end of the semester. It is a response to the University of Georgia's disciplining of a student who wrote ""[Professor X] is a complete asshole. I hope he chokes on a dick, gets AIDS and dies. To hell with all gay teachers who are terrible with their jobs and try to fail students!" in response to the prompt "What aspects of the course could use improvement or change?"

Now the first-amendment and privacy law implications of disciplining the student are outside of my area of expertise. [Given that disclaimer, unlike Eugene I think a reasonable person reading the comment would think it was an implicit threat of physical harm.] But the post does prompt me to put up a project I've been thinking about for a while: a hall of fame for bad student evaluations. The idea is for you folks (commentators!) to give examples of the most ridiculous, funny, and insightful negative evaluations you've gotten in courses you've taught. Why? Because student evaluations are a form of creative writing. If we're going to notice and reward exam questions and answers, why not this, the only other form of creative writing from law students we read?

Anonymous submissions will be encouraged - indeed, I'll likely be policing the comments in case students take the opportunity to continue vendettas against professors who they disliked. Ignore and avoid passing along the personally nasty, uninteresting, comments - like the Georgia student - and just use the ones that demonstrate that someone thought about the problems of the class as they saw them.

Posted by Dave Hoffman at 03:20 PM | Comments (15) | TrackBack

More Reflections on Legal Education

Brian Tamanaha has just posted another interesting post in the discussion about legal education. He writes:

Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.

This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.

Brian blames a lot of the problem on the ABA, which has imposed a one-size-fits-all model on the academy. I agree with Brian that this is unfortunate. But from Brian's earlier posts and from some of the discussion in the blogosphere, there are some claims being made that I think are questionable or wrong. Brian doesn't make many of the claims below -- they are often made by people who are interpreting or building off his posts -- so I'm not ascribing them to Brian. But they are swirling about in this debate, and I think they ought to be addressed.

Claim #1. The turn in academia toward a greater focus on the academic study of law and toward more scholarship results in students being less well prepared for practice than they were before this more academic turn in the academy.

Are students today less well-prepared for practice than 50 years ago? Were law schools 50+ years ago producing better lawyers? Did they have better bar-passage rates? I wonder whether the practice of law has suffered because of this change in the academy.

Claim #2. The turn toward interdisciplinary scholarship and to scholarship more in general is one of the primary reasons for the greater cost of going to law school.

Is this really a primary reason for the tuition increase? Has the tuition of law schools increased more than the tuition generally for higher education? My sense is that the cost for higher education has increased across the board, and so I wonder whether the increase is due to other factors beyond the change in the nature of legal education.

Claim #3. The best way to prepare students for the practice of law is to teach them practice skills such as drafting, negotiating, arguing, etc.

I think that it is certainly important to teach students basic lawyering skills. But in reading discussions about the issue, I often hear a common refrain that teaching students jurisprudence, legal history, and other interdisciplinary subjects is not really that essential -- it's a nice frosting on one's legal education, but nothing more than a sweet tasty coating.

But I believe that there is a real value teaching students to think about the broader issues in the legal system, about the larger moral questions, about the tension between the rule of law and justice, about the policy implications of laws, about the sociological and economic effects of regulation, and so on. I believe that this makes students into better, more capable practitioners. Many, however, remain skeptical of this claim.

Yet, there's another reason why teaching students these things has value. Maybe our task as legal educators isn't simply about producing technically-competent lawyers. Being a lawyer brings a lot of power; our students will enter the elite realm of society. Unlike many people, they'll have an incredible set of tools to change society and affect people's lives. Should we simply train them how to be more effective hired guns? Or maybe we're right to try to spur them to ponder the broader issues of the legal system, to understand its history, to think about whether certain laws are good or bad. I think that legal education should be more than merely a lawyer factory. We're not just training people in skills, but we're preparing them to enter a profession, one that plays a profound role in our society. And there is value to having those that work in that profession (at all levels -- from lawyers, to judges, to policymakers) spend some time thinking about the effects of the law on society.

Should this be shrugged off as theoretical fluff that is only of use to academic-types who sit as armchair commentators about the law? Or should it be something that all lawyers confront and think about before they embark on their careers? I believe that there is value in thinking about the meta questions -- the critical awareness of what one is doing, the system one is working in, and its larger social effects-- even if doing so doesn't help one win a case or draft a document or complete a deal.

Posted by Daniel J. Solove at 12:55 AM | Comments (14) | TrackBack

Constraint vs. Efficacy in the Study of State Action

In their broadest strokes, my scholarly interests revolve around questions of regulatory design - inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term "regulatory cues," as well as cross-jurisdictional regulatory interactions I term "intersystemic governance."

In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.

My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.

My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman's The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):

Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage--the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.

Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies' freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.

Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project - its basic motivation - is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman's opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.

If this is correct, then the substantive counterpoint to the traditional conception of administrative law that Freeman outlines in her opening paragraphs is not merely an acknowledgement of the private role in public governance, but rather (1) a descriptive project of analyzing and understanding the true nature of the modern administrative state, and (2) a normative project of evaluating (and perhaps even enhancing) the efficacy of state action.

The first piece is fairly straightforward. We need to devote more of our energies to understanding the functional nature of the modern administrative state. Beyond questions of legitimacy and accountability, an understanding of modern administration requires attention to questions of how present-day regulatory agencies actually operate. Absent attention to such questions, we can reasonably predict - if not already observe - a significant disconnect between scholarly analysis of the administrative state, and the realities of its day-to-day operation.

I am particularly interested, however, in the second question, of the efficacy of state action. Whatever value the descriptive project of understanding the modern administrative state may have, it is this normative project, of its efficacy, that strikes me as the most weighty counterpoint to the traditional emphasis of constitutional and administrative law on constraint. Without disputing the importance of our close attention to the constraint of state action, legal scholars' distinct strengths in the study of institutions would arguably seem to warrant equal attention to studying and enhancing the efficacy of state action.

I think of my own work as broadly directed to this lacuna in our scholarly empahsis. But what has recently brought the issue of our relative inattention to the efficacy of state action to mind, have been a succession of recent references to questions of efficacy, in the work and comments of others:

(1) First, at a recent workshop, Deborah Pearlstein - previously Director of the Law and Security Program at Human Rights First, and now a colleague at Princeton's Program in Law and Public Affairs - reviewed a soon-to-be-completed article, in which she draws on organization theory to evaluate White House demands for the consolidation of emergency decisionmaking power in the executive branch. Is such concentration, she asks, actually more efficacious than the relevant alternatives? And, in any case, what weight should constitutional analysis give to claims that effective decisionmaking requires (or does not require) such concentration?

(2) At a Temple University workshop on Ruling the World: Constitutionalism, International Law and Global Governance, organized by Jeff Dunoff and Joel Trachtman, meanwhile, comments by Joanne Scott (from what I would characterize as an administrative law vantage) and by Vicki Jackson (from a constitutional law perspective) again raised this question of efficacy. Constitutional law, Vicki emphasized, is not only about limiting power. It must attend to the efficacy of governance as well.

(3) Finally, in his "ticket" to the most recently held, annual Constitutional Law Schmooze, on executive power, David Golove echoed this point. We must, he suggested, "appreciate how law is an essential component in a larger system of political decision-making, a primary purpose of which is to enhance, not impede, the effectiveness of executive action . . ."

Of course, these represent only a handful of relevant data points. In conjunction with other indicators, however, they lead me to wonder whether we may stand at an important juncture, perhaps particularly in our approach to the discipline of administrative law, but in constitutional law as well. Implicitly, of course, the question of efficacy has always been on the table, as the rejoinder to demands for constraint. As suggested by Deb's paper, thus, the asserted efficacy of unconstrained power is the exact argument made against constraint. Increasingly, however, the efficacy of state action may be emerging as a topic deserving the attention of legal scholars, not merely as a footnote to our study of constraint, but as a question in its own right.

Posted by Robert Ahdieh at 09:28 AM | Comments (1) | TrackBack

Solum on Interdisciplinary Legal Studies

Over at Legal Theory Blog, Professor Lawrence Solum has a terrific post on interdisciplinary legal studies. He is responding to the discussion in the blogosphere sparked by Professor Brian Tamanaha's provocative post, to which I have responded (here and here). Several others have insightful commentary in the debate, such as Professor Ethan Leib and Professor Josh Wright. Belle Lettre collects links here and Professor Paul Caron collects more links here.

Larry Solum's post is terrific (caveat: it's also quite long), and it is well worth a read.

Posted by Daniel J. Solove at 04:23 PM | Comments (0) | TrackBack

Interdisciplinary Scholarship and the Cost of Legal Education

The other day, I responded to a post by Brian Tamanaha regarding interdisciplinary legal study at non-elite law schools. Brian suggested that non-elite schools reconsider whether they ought to pursue interdisciplinary legal scholarship, and I argued that they should.

In a follow-up post, Brian has clarified his argument:

My point was not to be anti-intellectual but to get us to think about a growing crisis in non-elite law schools.

Signs of the crisis are evident in many recent reports. The basic elements are this: tuition at private law schools ranges around $35,000-$40,000 per year, doubling in the past decade and still rising; pay for law jobs outside corporate law has stagnated, many in the $40,000-$50,000 range; the overwhelming majority of graduates from non-elite law schools will not get corporate law jobs, and will be saddled with a huge debt.

Brian suggests that the high cost of law school "is also a problem for society because the lower middle class and poor cannot obtain lawyers--it just doesn't pay enough." He concludes:

It's time we start thinking more seriously about whether non-elite law schools would be better served, and would better serve their students, if they develop a different model for training people who want to be lawyers. Otherwise the crisis might be one that non-elite law schools bring upon themselves, as more and more prospective law students decide that the cost of law school is not worth the return.

Brian points to an article about a Boston University Law School graduate who decided after graduating from law school to take a non-legal job and remains saddled with massive debts.

I now understand Brian's point to be more about the high cost of law school than about interdisciplinary studies. In fact, I see his argument as almost entirely independent of the question of interdisciplinary studies.

I wonder how much costs could be cut at non-elite schools by moving away from interdisciplinary studies. Why would this be a significant way to cut costs? I'm no expert on the economics of running a law school, but I don't think that interdisciplinary studies is the primary problem. Brian's argument could be applied to scholarship more generally, not just interdisciplinary scholarship. Costs at law schools might be cut more if some non-elite schools were to hire fewer professors and make them teach more classes and do less (or no) scholarship. These schools could require professors to teach many more classes than the norm -- maybe 3, 4, or even 5 classes per semester. As with the catch phrase in this season's The Wire, these schools could "do more with less."

If I understand Brian's argument, it is that there should be cheap law schools for students who have no desire to go to big law firms or otherwise pursue highly-lucrative legal jobs. So there should be a group of law schools that are designed to be "economy class" -- offer an inexpensive legal education for students who desire it. I have no objection to schools that decide to recast themselves in this model or to schools that are created based on this model. This would be the legal equivalent of the 'teaching university."

But I see this as a very different claim than the argument that non-elite law schools should move away from interdisciplinary studies. That some schools should have professors teach more and write less is a different issue than what the professors would teach -- they could teach interdisciplinary studies, for example, or they could teach only doctrines and practice skills, or something of both.

I personally believe that having professors who produce scholarship is good for a law school. But this need not be a requirement for all law schools. If students want to a cheaper education without scholarship-producing professors, then I don't see why there shouldn't be some options for them.

Posted by Daniel J. Solove at 03:17 PM | Comments (4) | TrackBack

Is Interdisciplinary Legal Study a Luxury?

Over at Balkinization, Professor Brian Tamanaha (St. John's School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian's post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer -- most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don't have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn't in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one's general store of knowledge, one's understanding of life, and so on. This indirectly enhances one's ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare's Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus's speech. Behavioral economics, psychology, and cognitive science -- the work of Daniel Kahneman and Amos Tversky, for example -- reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that "no convincing evidence has been provided to demonstrate that 'interdisciplinary studies' will help one whit in the training or performance of lawyers." But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.

Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.

So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more -- see issues and arguments that the more narrowly-focused doctrinalist won't see. I've read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I've seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn't push for more. And on the flip side, I've seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.

What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There's a certain wisdom that comes from experience that seasoned practitioners have and that I don't think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.

So if lawyers learn some of the most important lessons about practice after they graduate from law school, then what's the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn't the luxury of sitting back and thinking more broadly about the law. There isn't as much time to enrich one's mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn't demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: "I won this case because of reading this particular thinker." But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I'd venture to say yes.

Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.

All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds -- it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one's legal career is when the building gets built.

So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don't see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.

Brian Leiter is also collecting comments.

Posted by Daniel J. Solove at 04:37 PM | Comments (12) | TrackBack

The Future of Federal Courts

In an earlier post, I offered some modest praise of the AALS annual meeting, as a potential venue for legal scholars to explore topics of interest beyond their core research areas. In between my efforts to actualize that theory at the recent annual meeting, though, I also attended several sessions of quite direct interest.

Among the latter, one of my favorites was a panel organized by the Section on Federal Courts, on The Federal Courts and the International System. Besides Ernie Young, who served as moderator, the panel included A.J. Bellia, Curt Bradley, Henry Monaghan, and Trevor Morrison, as well as Sarah Cleveland, who was invited to speak for the "international law" crowd. (As Sarah pointed out, Curt is also an international law scholar, if not the designated internationalist that day.)

Much of the discussion focused on the many intersections of international law and federal jurisdiction in recent years, including the succession of enemy combatant/military commission cases, the Supreme Court's OT 2005 decision in Sanchez-Llamas v. Oregon, and its impending decision in the fascinating case of Medellin v. Texas - a complex intertwining of international and federal courts law that only a law professor could dream up, and even then, only as an exam question. Naturally, the nature of customary international law as federal or state law was discussed as well, if only for a bit.

At Ernie's prompting, though, the panelists also took up - in sometimes heated discussion - the necessary and appropriate content of the standard Federal Courts course, given the self-evident "internationalization" of the federal courts. To what extent, the panel explored, do international law, international courts, and international questions belong in the Federal Courts canon? Naturally, the Hart and Wechsler casebook - arguably the keeper of that canon - was a focal point for much of this discussion.

In essence, the question boiled down to the wisdom - and viability - of bringing international law and courts into the Federal Courts curriculum. The panel itself clearly had mixed emotions, with Henry Monaghan expressing the greatest doubts on both counts, if particularly on the viability of fitting it all in, and Curt Bradley perhaps most vocally in favor of greater inclusion.

I was particularly struck by Judith Resnik's question from the floor, though, which queried how a modern-day version of the course in Federal Courts could exclude international law and courts or, for that matter, tribal courts operating within the United States?

This seemed to resonate most with my own sense of the question. What, I wondered as I listened to the discussion, should we understand as the heart of a present-day course in federal courts? Ernie Young, in a forthcoming piece in the Emory Law Journal, which he delivered at a symposium on The New Federalism: Plural Governance in a Decentered World, an event co-sponsored by the Center on Federalism and Intersystemic Governance I co-direct at Emory, describes federal courts law as being about "managing jurisdictional conflicts and developing rules for remedies and choice of law." If so, with the growing number and influence of international tribunals, isn't the natural - perhaps inevitable - evolution of the standard Federal Courts course to bring them into the mix?

Posted by Robert Ahdieh at 06:43 AM | Comments (0) | TrackBack

Lessig on PowerPoint

Following up on Deven's recent, well-deserved praise of Larry Lessig's Free Culture, I wanted to mention the rather distinct grounds on which I've often had occasion to praise Lessig: His use of PowerPoint.

I've long had doubts about the the value of PowerPoint as a pedagogic tool. Essentially, I'm unsure what it adds. Often, I hear folks talk about visual learners, but does PowerPoint - at least as commonly used - do much for such learners? Too often, I see speakers use PowerPoint simply to squeeze in more information, with less structure, thought, and analysis, than they might otherwise bring to their remarks. Listeners, I have consequently come to suspect, may actually be learning less with PowerPoint. Perhaps I'm not yet ready to conclude that the crash of the space shuttle Columbia can be traced to PowerPoint, as some have suggested. Given its capacity to bury and obscure relevant information, though, I'm not far off.

Some time ago, however, a friend forwarded me this link, to a talk and PowerPoint presentation by Lessig, back in 2002. (Even if you've seen it, I'd encourage you to sample it again, as a truly amazing piece of work.) Basically, by the spare use of select words and phrases, Lessig successfully conveys both his broad themes and a substantial amount of information, in a way that even visual images - let alone line after line of PowerPoint text - could never have done. I'm confident that my absorption of the relevant ideas and material was exponentially greater than my normal (perhaps abnormally low) rate.

Here, Lessig credits someone else with helping to create the final product, perhaps affirming Deven's point about his modesty. At a minimum, though, he deserves credit for his excellent judgment, in recognizing a good thing when he sees it.

Posted by Robert Ahdieh at 03:36 PM | Comments (5) | TrackBack

Small Teaching Idea

With all the discussion about law schools and teaching I thought I would share something that I tried last year and plan on trying again in my trademark class. Near the end of the semester, I called a partner at my old firm and asked for the cease and desist letter, complaint, and summary judgment motions from a live case. I had the class read the materials and then explain why certain facts were used in the complaint and the motions. In addition, I asked them to argue the case in class informally. (This year I will likely make the arguments more formal). The class seemed to connect the dry aspects of trademark law to the pleading. In addition, they started to see how likelihood of confusion as a mutli-factor test to know is nice but that applying and arguing it is a bit more challenging. Another interesting point was when one student started to argue theory/policy to question the way the motions presented their cases and how the law operated.

I am sure others have done similar things. For example, Mike Madison has offered me some great ideas on connecting theory with practice in the classroom that involve a law firm style assignment, but I will let him share those so I don't lose something in translation. Luckily Mike writes quite a bit. So here are some related links with insights and thoughts on teaching, Teaching and Learning IP, Wikis for Collaborative Teaching, The Way We Teach, and Faculty Tech Fundamentals. Brett Frischmann has described to me a more formal but group-based, plaintiff, defendant, judge approach with writing and oral argument but again I'll let him give the details so as not to lose nuances. In the non-IP context my colleague, Laura Berg, used actors and depositions to show students how to extract facts and use them. I may even try and use a case file to direct students towards gleaning key facts from the volume of information encountered in discovery.

What is interesting to me is that these folks talk to me about theory all the time and write well. The theory helps guide students regarding what to look for in a case and where arguments can be made. These types of assignments work because of the theory and teaching leading up to them.

So if anyone has suggestions or experiences of this nature, please share.

Cross-posted at Madisonian

Posted by Deven Desai at 09:00 PM | Comments (0) | TrackBack

"In the Company of Scholars"

Our intrepid library director, Professor Betsy McKenzie, set a note to our faculty a few days ago, and it included a reference to the above-titled book, a personal reflection by Professor Julius Getman of the University of Texas Law School on the status of higher education. I had heard about the book before, and meant to get to it, because my first encounter with a law school class was Jack Getman teaching our small section of Contracts at Stanford in September, 1976.

I recommend the book heartily. Indeed, I read the following passage on the T home last night, and it expressed exactly how I had been feeling in the midst of a peroration on agency and partnership only an hour or so before: "Bruce Mann, who now teaches at the University of Pennsylvania, told me that in his first year, 'I was constantly afraid that someone would come into the classroom and arrest me for impersonating a law professor.'"

This also struck close to home (and I mean me, not anybody else, even if I'm not young):

... I realized that many students and young faculty members behave in self-defeating ways. . . . They do not believe that they have anything of value to contribute to a high-level academic debate. Often this feeling prevents people from publishing or teaching effectively and sometimes it makes them pedantic, overly abstract, or unnecessarily elegant in the presentation of their ideas. Sometimes I think that the great majority of young academics fall into two categories: the unnecessarily diffident and the infuriatingly arrogant. In more reflective moments, I realize that the two categories are essentially one. Underneath the arrogance so common among young academics, there is generally fear of being exposed as an intellectual charlatan. The feeling is almost universal. The fear reflects, among other things, that deep down almost all of us are aware of how little we know about the subjects we teach. One of the ablest law professors I have ever known, Charles Black of the Yale Law School, told me that whenever he finishes a well-received class, he usually feels one thing: "Well, I fooled them again."

Posted by Jeff Lipshaw at 01:30 PM | Comments (1) | TrackBack

Bainbridge on Law Professor Well-Being

'Tis the season for discussions of happiness. Steve Bainbridge has joined the fray with Are Law Professors Unhappy? And, if so, Why? Check it out. He answers his titular question as follows: (1) no; and (2) "In sum, there may be miserable law professors, but I suspect it’s more likely because they’re miserable people than that they have a miserable job."

Fun thought. When you put discussions of law professor happiness together with Jeremy's recent post here, I think you could come up with a chart of some sort, where there is an optimal level of happiness resulting in maximized scholarly output. Really miserable professors, like me, right now, grading exam #120 out of #150, don't write. Really happy professors also don't write, but they feel good about it. What lateral hiring committees should be looking for is a baseline level of happiness mixed with tinge of anxiety and status-based competition.

Posted by Dave Hoffman at 06:44 PM | Comments (1) | TrackBack

Best Music To Get You Motivated To Grade?

I know that I'm not the only law professor out there grading right now. It's a dreary time, and music helps to keep things moving.

Here's my suggestion. It's got everything you'd want from power rock: hair, bongos, artificial smoke!

Posted by Dave Hoffman at 03:42 PM | Comments (9) | TrackBack

Sanity Break

If you are still taking exams, or (worse?) you are grading them, you probably could use a view of this scene from law school education's mythological, ugly, lamented, past. Enjoy!

Posted by Dave Hoffman at 10:13 PM | Comments (5) | TrackBack

The Fellowship of the (Hi)Ring

Thanks to Dave and the rest of the perma-bloggers for the invitation to blog here. I have been told that I am the first non-tenure-track guest on this site. I am one of those aspiring academics in limbo: not yet on the tenure-track. In short, I, like so many other aspiring academics these days, have a graduate fellowship.

There has been a proliferation of fellowships and VAP positions; and it seems clear that more and more entry-level candidates are seeking some sort of pre-market academic employment. Perusing the list of last years' entry level hires, many of the successful candidates had either completed a fellowship, a visitorship, or some other form of academic study beyond law school.

Cynically, one could suggest that graduate fellowships are a means for law schools to extend the tenure track on the backs of low-cost labor. Let's examine this position a little closer.

First, entry-level candidates are now not judged on potential, but on a proven record of publication. Thus, candidates are expected to have spent time before entering the academy writing and publishing. To the extent that writing articles takes time, schools have lengthened the tenure track. And graduate fellowships are one place that aspiring profs can park themselves as they write their way into the academy. And, although you can't blame the longer tenure-track on the fellowships, they are indicative of the longer lead time to tenure.

Further, while by no means poverty-inducing, taking a graduate fellowship is not a lucrative proposition. (Then again, neither is academia in general.) Georgetown pays $70,000 for an eighteen month period. Harvard offers $60,000 per year for the Clemenko. Yale offers $42,250 for the Ruebhausen and Ribicoff. Stanford offers $50,000 for a first year fellow and $55,000 for returning fellows. Temple offers $36,000. These stipends are certainly less than the average tenure track professor. [Feel free to leave more details about the stipends in the comments section. Applicants may be interested.]

Okay, so perhaps these fellowships do provide cheap labor and an extended period of work before a tenure decision. But how do schools reap the benefits of the extended tenure track? First, those schools that offer graduate fellowships benefit from additional pre-tenure labor, cheaper labor. Second, to the extent that anyone counts the number of publications from a school within a year, schools that offer fellowships, may get additional credit for articles produced by fellows. Lastly, all schools benefit from the greater sorting potential based on more applicant writing samples. So perhaps the cynic is correct.

But these fellowships can mean a great deal more than just a place to write for individuals who come to the academy several years after law school or for folks from outside the traditional academic mold. For instance, beyond writing an article or two, one could spend time during a fellowship finding a voice and reading the current literature to find where he or she fits in. Further, one could think seriously about what motivates him or her as a scholar. That is, one could take the research agenda question seriously. Moreover, one could learn to teach by developing a syllabus, writing lesson plans, and standing up in front of a class. And, one could meet other faculty members and find out how they develop ideas for articles and budget their time between writing, classes, students, and service.

Posted by Rick Swedloff at 08:44 PM | Comments (3) | TrackBack

The Death of a Legal Writing Memo

I imagine that this video will speak to many first-year law students, currently working to finish their legal writing memos. Having once barbecued college rejection letters, I can appreciate the value of a little paper-directed violence.

Posted by Dave Hoffman at 12:02 AM | Comments (0) | TrackBack

How To Do Better On Law School Exams, Part XXIII

Tired of studying? Don't know which strategies to pursue? Think grading is random?

Stop worrying. There is an easy solution to your problems. Change your name to Abby, Alan, Adam, or Albus or Aberforth.

You really can prove anything with a good regression these days.

(Image Source: Afghan College student entrance exam, courtesy of Wikicommons)

Posted by Dave Hoffman at 03:03 PM | Comments (0) | TrackBack