posted by Brian Sheppard
When I first read the commentary concerning Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree,” I was most surprised by the attention that the commenters paid to the paper’s passing reference to the typewriter. S&M are aware that their work arrives at a time when it is popular to believe that technology has wrought a structural change to lawyers’ earnings. For their part, S&M cite Frank Miles Finch’s obloquy against typewriters in the first volume of the Columbia Law Review to show that worries of technological ruin are nothing new in our line of work. After listing several other examples (such as word processing and Westlaw), S&M maintain that “lawyers have prospered while adapting to once threatening new technologies and modes of work.”
Taken out of context, this last statement might sound as if S&M are engaging in bold fortunetelling based on a scant historical record, but a few paragraphs later, S&M concede that “past performance does not guarantee future returns” and “[t]he return to a law degree in 2020 can only be known for certain in 2020.” When read in conjunction with the rest of the paper, the typewriter reference serves as a brief and lighthearted reminder that we, like others before us, can fall victim to nostalgic gloom and doom.
Despite its minor role in the article, commenters have been eager to mention the typewriter observation, with references ranging from the favorable (here), to the neutral (here and here), to the mildly dismissive (here and here), to the critical (here). Having given some thought to the last entry on this list, Deborah Merritt’s wonderful blog entry on Law School Cafe, I now realize that I shouldn’t have been surprised by the attention paid to the typewriter; it turns out to be an important point for S&M to make.
Merritt argues contra S&M that (1) Finch was not engaging in sky-is-falling melodrama and (2) that the typewriter “may have contributed” to a structural change in lawyers’ earnings—specifically, the creation of three-year law schools and formal schooling requirements for bar admission. As to the first point, Merritt explains that Finch mentioned the typewriter to bolster his argument that apprenticeships had ceased to be a viable training environment for lawyers. He was not predicting that the typewriter would lead to the demise of his profession; rather, he was talking about the need for an adequate training substitute. As to the second point, Merritt points out that the New York bar adopted Finch’s recommendations, in part, because it was persuaded by his Columbia article. I add that the ABA would eventually adopt similar requirements as well, also referencing Finch’s article in the process. Merritt highlights that Finch’s main point was that the typewriter limited apprentices’ exposure to the study of important legal texts and created a difficult learning environment. As a result, Finch argued, law school was the far better educational option.
Merritt’s post is thoughtful, well-researched, and concise. Moreover, she is largely right. Finch was not engaging in nostalgic sky-is-falling reasoning. In S&M’s defense, however, the notion of a Typewriter Doomsday was not altogether uncommon in the early Twentieth Century. To take but one example, Arkansas law titan George B. Rose mentioned the following in a 1920 speech to the Tennessee Bar Association:
A great menace to the wellbeing of the bar is the disproportionate increase of its numbers. With the invention of the typewriter, the simplification of pleadings and the improved methods of travel, one lawyer can now do the work of two in the olden time; yet the proportion of lawyers to the remainder of the community has enormously increased.
Rose’s remarks were received with great applause and an honorary membership into the Tennessee bar.
More importantly, Merritt stands on solid ground when she argues that technological change contributed to a shift in the business practices of legal professionals and, in turn, the shape of American legal education. There can be little doubt that this shift can be described as “structural.”
But I disagree with Merritt insofar as she believes that a structural shift in schooling requirements weakens S&M’s paper. To the contrary, it helps the paper by providing a prima facie explanation for relative stability in the law degree’s value.
We must be mindful of the distinction between structural shifts in lawyers’ earnings and structural shifts in other aspects of the legal profession, such as educational requirements. Clearly, Merritt’s focus is the latter, and S&M’s focus is the former. And just because S&M have chosen to focus on one kind of structural shift does not mean that they have “dismissed” other structural shifts, as Merritt says. S&M readily acknowledge that the structural shifts can occur with law school enrollment:
These distinctions and widespread publicity may enable critics to influence college graduates’ career plans, the judiciary, and perhaps the future of legal education. They may have already contributed to a steep three-year decline in law school applications and enrollments.
The more critical point is that breaking up structural shifts into various types can be a useful analytic tool. Distinguishing between structural shifts in the value of a law degree and structural shifts in access to the practice of law permits us to make an important observation—namely, that it is possible for the latter to prevent the former. Critics of S&M doubt that the past performance of law degree holders is a reliable predictor of future performance. We can hypothesize that, to the extent law degree holders can insulate themselves from exogenous forces that threaten the value of their services, they will increase the stability of the degree’s value and, therefore, the reliability of predictions based on their past performance. The underlying reasoning for the hypothesis is as follows. All other things being held constant, those who are within service industries that have the power and willingness to manipulate the supply of available service providers will likely be better at braving exogenous shocks than those who are not. Under those circumstances, when such measures are taken to protect those already possessing the credentials necessary to perform that service, the value of those credentials will tend to be relatively stable. Whether these measures have been or will be effective enough to stabilize the value of the law degree is a question worth considering.
There are several important gatekeepers to the practice of law: law schools, the American Bar Association, state bar associations, state supreme courts, etc. These gatekeepers possess, and sometimes use, tools that have the potential to protect the economic value of the law degree. They can change the qualifications for entry, expand or contract the domain of permissible services, raise or lower rate maximums, or regulate advertising practices, among other things. And while a considerable minority of law degree holders do not practice law (about 40% according to the SIPP data that S&M consider), there are enough practicing lawyers to give protectionist measures a fighting chance to stabilize the overall value of the degree.
Merritt deserves much credit for bringing this observation to the fore in connection with the S&M paper, although she did not expand upon it (an excusable omission in light of the fact that we are talking about a single blog post).
Having the luxury of multiple posts, I will use Part 2 to discuss a few of the protectionist measures that gatekeepers have taken over the last century. I will focus in particular on the measure that Merritt discusses–the advent of a law school prerequisite for admission to the bar.
posted by David Schwartz
Before delving into the substance of my first post, I wanted to thank the crew at Concurring Opinions for inviting me to guest blog this month.
Recently, I have been thinking about whether empirical legal scholars have or should have special ethical responsibilities. Why special responsibilities? Two basic reasons. First, nearly all law reviews lack formal peer review. The lack of peer review potentially permits dubious data to be reported without differentiation alongside quality data. Second, empirical legal scholarship has the potential to be extremely influential on policy debates because it provides “data” to substantiate or refute claims. Unfortunately, many consumers of empirical legal scholarship — including other legal scholars, practitioners, judges, the media, and policy makers — are not sophisticated in empirical methods. Even more importantly, subsequent citations of empirical findings by legal scholars rarely take care to explain the study’s qualifications and limitations. Instead, subsequent citations often amplify the “findings” of the empirical study by over-generalizing the results.
My present concern is about weak data. By weak data, I don’t mean data that is flat out incorrect (such as from widespread coding errors) or that misuses empirical methods (such as when the model’s assumptions are not met). Others previously have discussed issues relating to incorrect data and analysis in empirical legal studies. Rather, I am referring to reporting data that encourages weak or flawed inferences, that is not statistically significant, or that is of extremely limited value and thus may be misused. The precise question I have been considering is under what circumstances one should report weak data, even with an appropriate explanation of the methodology used and its potential limitations. (A different yet related question for another discussion is whether one should report lots of data without informing the reader which data the researcher views as most relevant. This scattershot approach has many of the same concerns as weak data.)
posted by Nicole Huberfeld
Many, many thanks to Dan and the other CoOp regulars for having me back this month. For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services. To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan. I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon. But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… . Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance.
There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences. I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic. It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned). But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’ Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices. Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend.
In light of these musings, I have two questions, one general, and one more specific to Con Law:
1. Do you use exams to reflect on the success of the semester’s teaching? If so, how? What kinds of issues do you think warrant attention given the limitations of the law school exam structure?
2. Do you provide any background materials that are the equivalent of the civics lessons of yore? Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution. My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document). But, I have yet to find a good, concise background reader for my nervous con law newbies. I don’t think this lack of background affects exam performance, but I would like to find a good resource. Suggestions?
posted by Stanford Law Review
In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:
Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.
Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.
January 9, 2012 at 12:52 pm Tags: academia, Constitutional Law, Current Events, health care law, jurisdiction, PPACA, Supreme Court, Tax Anti-Injunction Act Posted in: Constitutional Law, Courts, Current Events, Health Law, Law Rev (Stanford), Tax Print This Post One Comment
posted by Nicole Huberfeld
I think most of us engage in informal mentoring of our junior colleagues as new hires enter the academy, but I recently have taken on more formalized roles that have me pondering what it means to be an effective mentor. Is it a matter of providing navigational guideposts for advancement toward tenure? Advice about publishing strategies? Providing a friendly eye for early drafts? Teaching aid and advice? Support for other decision-making, such as child-bearing, and attempting the elusive ‘work-life balance’? I think mentoring can be all of these things, depending on the mentee’s personal and institutional needs, but I started to question my own assumptions when asked during a panel at SEALS last summer whether anyone really needs a mentor. My gut reaction was yes, especially for women, minorities, and those who did not attend the usual professor-generating law schools (which are simply better at facilitating connections in the academy). But, it seems like not many receive the kind of mentoring they desire. Of course, some formalized inter-school mentoring opportunities exist, such as the annual SEALS conference, which is terrific for matching new scholars with mentors who provide substantive feedback. Also, the AALS Women in Legal Education Committee has its own website, which is designed to facilitate mentee cold-calling of mentors who look to be a good match (which may be a unique approach).
All of that said, CoOp readers, what do you think makes a good mentor? What are junior academicians seeking in this context that they can’t find? And, what other mentoring opportunities are out there? I would be most grateful for comments either here or by e-mail. Finally, I would be happy to aggregate information and post it (if enough flows my way before the end of the month).
posted by Stanford Law Review
The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”
In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.
December 12, 2011 at 4:52 pm Tags: academia, Brandeis, Constitutional Law, drones, Kyllo, Privacy, surveillance, UAVs, Warren Posted in: Constitutional Law, Law Rev (Stanford), Law School (Law Reviews), Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (National Security), Technology Print This Post No Comments
posted by Michael Pitts
Over at The Faculty Lounge, fellow election law expert and Florida State law professor Franita Tolson commented that new law professors often get advised not to worry about writing during their first year. She is a bit skeptical of that advice. So am I. I think a new professor should definitely get something into the publication pipeline during his or her first year in the academy.
The obvious problem for a first-year professor, though, is finding the time to write. The demands of the classroom can be overwhelming. Moreover, a first-year professor needs to acclimate to a new environment, including getting to know his or her colleagues. In short, it’s not easy to write much during the first year because there are other important and time-consuming activities in which a new law professor needs to engage.
So how should a new law professor structure his or her life in order to accomplish the goal of publishing during the first year? Here’s my advice . . . Read the rest of this post »
posted by Taunya Banks
Colleges and universities across the country are trying to find ways to curb, or off-set, increasingly prohibitive tuition costs. But Texas Governor Rick Perry has thrown down the gauntlet by challenging that state’s public universities (and the nation) to come up with a baccalaureate degree that cost students only $10,000. The current yearly in-state tuition at Texas universities ranges from $15, 348 to $25,477. These figures include tuition, fees, book, board and transportation.
This week Texas Commission of Higher Education, Raymund A. Paredes, declared that Perry’s proposal is “highly feasible.” He argues that the goal is “about making sure we have a range of options for young people so they can select a path to a baccalaureate that makes the most sense to them.” According to the Texas Higher Education Coordinating Board, this clearly and consciously “stripped-down degree” would account for ten percent of the total baccalaureate degrees from Texas schools. The more pressing question, however, is which students are most likely to “opt” for the “low-cost” degree. The obvious answer is low income students who also just happen to be disproportionately non-white.
What is not addressed by either the Coordinating Board or Commissioner Paredes is the long-term consequence of opting fora low-cost degree. What happens when students with low-cost degrees apply to graduate and professional schools? Will their degrees be considered competitive or will these graduates be consigned to jobs that nominally require a college degree? Will they become second-class college graduates – educated cashiers at fast food restaurants?
Most of us in higher education readily admit that tuition costs are too high and that we need to think about cost-cutting measures. But hopefully few of us want any variation of the Texas two-tier model, for if Texas has its way “low-cost” JD and MD degrees may not be far behind. I doubt that anyone wants to be treated by a physician with a low-cost medical degree, and I certainly would not want to be represented by a lawyer with a low-cost law degree. In the meantime in an attempt to off-set costs we set universities where increasing few teachers are tenured and language or classic departments and/or programs are gutted with little thought about their educational value.
It is time we ask ourselves a hard question the answer to which we might not want to know: whether the popular American notion that college should be available for anyone who has the money (or can borrow the cost of tuition) contributes to the high cost of a college education. In many countries with quality higher education systems, only the most talented need apply, and the costs are low. But before we can even think about limiting access to higher education we need to (re)commit to providing better primary and secondary education for everyone in this country. Only then can we focus on how to ensure that truly talented individuals obtain a college degree without being burdened with a life-time of debt. In the meantime, folks in Texas may have to “settle” for second-class degrees.
This is my final post on Concurring Opinions. Sorry I did not have time to post and provoke more. I’ve really enjoyed my month’s stint.
posted by Taunya Banks
Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy. In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.” The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.
The story struck a nerve, not only with the affected community, but with the Times’ readers as well. Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties. But the teen’s nude photo is still floating around. Information has permanence on the internet.
Few of us appreciate how readily obtainable our personal information is on the internet. Read the rest of this post »
April 3, 2011 at 2:43 pm Tags: academia, Google, Law School Posted in: Culture, Google & Search Engines, Law School (Teaching), Legal Ethics, Privacy (Gossip & Shaming), Social Network Websites, Uncategorized Print This Post No Comments
posted by Michelle Harner
I want to thank the permanent authors of Concurring Opinions for the opportunity to guest blog. I truly enjoyed the experience and the lively debate. Academia can be isolating in many respects—particularly compared to private practice—so it is nice to have this type of forum to exchange ideas and discuss timely and interesting topics.
For my last post, I want to highlight some trends in law firm practices and consider what they mean for the profession more generally. We are all aware of the difficult job market: law school graduates continue to receive deferred offers, summer associate classes continue to be smaller and many lawyers who lost their jobs are still unemployed. (Even lawyers who managed to keep their jobs may face challanges, see here.) These realities have translated into increased anxiety for law students (exactly what they do not need; law school is stressful enough when the market is good) and new challenges for law schools. But what do they mean for law firms? (For a thoughtful discussion of the challenges facing big law, see here.)
Many commentators have opined on the changing roles of law firms and lawyers, and they often paint a pretty bleak picture (see here, here and here). It is one where lawyers are marginalized and society protects its legal rights by purchasing commoditized legal products or interacting with a computer program or virtual lawyer. The profession also faces challenges from non-lawyers and non-U.S. lawyers. In fact, anecdotal evidence suggests that an increasing number of firms are—either voluntarily (to reduce overhead) or involuntarily (to meet client demands)—outsourcing certain legal services to lawyers in foreign countries (see here and here).
posted by Alan Chen
The Colorado Court of Appeals released its decision in Ward Churchill’s appeal in his First Amendment retaliation case against the University of Colorado last Wednesday (which must be one of the slowest news days of the year). A few years ago, the University terminated Churchill, a tenured professor in the University’s Department of Ethnic Studies, after concluding that he had engaged in several incidents of research misconduct, including evidentiary fabrication, plagiarism, and falsification. These conclusions were reached after several years of internal investigative and adjudicative proceedings to examine allegations of Churchill’s research misconduct. As most everyone is aware, the University did not launch its investigation until after a public outcry arose from controversial statements in an essay that Churchill wrote comparing the victims of the 9/11 terrorist attacks to “little Eichmanns,” in reference to the notorious Nazi war criminal. The perhaps forgotten larger point of the essay was an argument that the 9/11 attacks were provoked by American foreign policy actions.
Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.
In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed. Read the rest of this post »
posted by Alan Chen
As part of my current job, I try to track and distribute information about conferences and workshops that will interest my colleagues and provide good opportunities for them to obtain critical feedback on their scholarly work, as well as make connections with other scholars in their fields. Perhaps because I pay more attention to all types of conferences now (or perhaps because there truly are more of them), I sense a proliferation of smaller legal scholarship workshops focusing on particular subject matters or disciplines, bringing together scholars from schools in a specific region, or fostering development of junior faculty (of course, there are also combinations of these). Much of the anecdotal feedback I get from my colleagues suggests that these smaller workshops are extraordinarily helpful to participants because of the type and depth of feedback they get on their papers. The size of these gatherings also allows for richer opportunities to engage in informal discussions with colleagues and learn about each other’s work.
All of this brings me to the larger question I want to pose. What is the purpose of the annual January AALS meeting? Don’t get me wrong. I love New Orleans and San Francisco and catching up with friends and colleagues from other schools as much as anyone. But at this point, the conference itself seems like a bit of a dinosaur. If the principal justification for the meeting is intellectual enrichment, it’s pretty inefficient. Hundreds of papers are presented, the vast majority of them beyond any single professor’s areas of interest or expertise. And personally, with some important exceptions, I often have been disappointed with the papers presented at the annual meeting compared to the papers I have heard at specialized conferences (including specialized AALS conferences). One could make the case for the general meeting as an opportunity to hear work in fields beyond our specialty areas, but how many of us actually attend panels in fields completely unrelated to our work? I’m sure some administrative work gets done at AALS, but probably nothing that couldn’t be accomplished by a conference call.
Some academic disciplines combine their annual meetings with their hiring conferences. For example, the Modern Language Association has a long tradition of facilitating faculty job interviews at its annual meeting. That approach makes a little more sense because faculties from most schools are gathered in one place to interview candidates, anyway. But the AALS separated out its Faculty Recruitment Conference from the general meeting many years ago, so that rationale has disappeared.
I approach my thinking about the AALS meeting from a resources standpoint as well. At this time of year (as the early bird registration deadline approaches), I receive lots of faculty requests for funding to attend the meeting. Our school spends a disproportionate percentage of its travel budget sending faculty to AALS. In tight fiscal times, it seems useful to contemplate whether that is a good use of funds, or whether that money would be better spent sending faculty to the smaller specialty or regional conferences discussed above. Or, might we decide after considering the heretical idea of scrapping the annual meeting that the AALS’s winter fest is just too big to fail?
posted by Alfred Yen
In this post, I’m going to argue that prospective students should care whether a law school’s faculty publishes. Not everyone agrees, and we’ve all had professors who were great scholars but indifferent classroom teachers. I also freely concede that teaching ability does not necessarily go hand-in-hand with scholarly ability, so that a school’s best teachers need not be its best publishers. Nevertheless, I still think that faculty who publish have a better chance of offering outstanding classes than those who do not.
To illustrate, I’ll reveal a bit about two classes I have taught: copyright and evidence. I’ve published a reasonable amount about copyright, including a casebook published by West. By contrast, I’ve published nothing about evidence, with my background in that area coming from my work as a litigator.
Students have rated both of these classes well. In fact, I don’t think there’s any significant variation in the numbers. Yet, I firmly believe that I teach better a copyright than evidence class because the things I learn from research and publishing enable me to give copyright a deeper and more nuanced treatment. I know more about the overall structure of the area, respond better to student questions, and challenge students in more ways in copyright than in evidence.
Now granted, I don’t think this is something that students always pick up. My evidence class is pretty “black letter,” sticking to how lawyers need to work through evidentiary problems in courtrooms. This makes sense given how students will use evidence, and I think students feel that the course serves them well. Nevertheless, I am aware that I don’t blend in the “big theory” issues as well as I could because I don’t know them that well.
By contrast, I pack a lot into my copyright course. This sometimes frustrates students. Some only want “black letter” law (something that is very elusive in copyright at best). Some dislike what they consider theoretical digressions from what they need to know for practice. I could teach copyright to that lower common denominator, but I choose not to. And I like to think that my students come to appreciate that the complexity they encounter ultimately serves them well when they deal with that subject’s frustrating ambiguity in practice. In short, although I teach what I think is a good, competent evidence course, the academic “ceiling” in my copyright class is much higher.
To be clear, I am not saying that publishing is the only thing that prospective students should care about in evaluating a law school’s faculty. As I suggested in an earlier post, some law schools clearly value teaching and their professors are accessible to students in ways that can matter a great deal. Students should visit schools, talk to existing students, and see if classes are well-received. Such inquiry will probably identify a number of schools that appear to have good teaching. At this point, I think it makes sense for a prospective student to then compare publication records of the faculties to see how often they will learn from professors who are at the forefront of their fields.
posted by Alfred Yen
Every prospective student notices the physical facilities of a school when he or she visits. Wood paneling, marble floors, and grand foyers create impressions about whether a law school is well-funded and a “nice” place to study. I’d like to suggest a few other ways in which prospective students should evaluate a school’s facilities.
The most important space for students is the classroom. When you visit a school, look at some large and small classrooms and evaluate the sight lines and acoustics, preferably by sitting in on a live class. Do students sit in a pattern where they can see and hear each other? Can they hear the professor? You might be surprised at the number of classrooms where heating or air conditioning interferes with voices. This might not seem bad in the traditional lecture class you had in college, because professors can always wear a mike. But in law school, the Socratic method makes it important to hear what your classmates say. It’s impossible to follow along if you can’t. In addition to sight lines and acoustics, you might also look at the front of the room. Is there full audio-visual capability with a computer for the professor? Is there enough white or blackboard? Is the screen large enough for easy viewing by students?
Next, I would suggest looking at the individual and group work space available for students. Individual work space exists primarily in the library. There needs to be ample seating to support students during high demand periods like exams or major writing projects. Is there seating of the kind you prefer to work in? Long tables? Individual carrels? Big, padded chairs to sit in while reading? Is there ample Internet access, wired or wireless? You are going to spend a lot of time studying in law school. Unless you are sure that your apartment or house provides you with the space you need, you will likely spend a lot of time in these facilities.
Group work space exists in libraries and sometimes elsewhere throughout the school. How many small conference rooms are there that students can reserve? I personally wouldn’t be too happy with only a few. At certain times of the year such as moot court competitions, there is a lot of student collaboration going on, and demand for these spaces can get pretty heavy.
One other type of important student work space involves the facilities of any clinical programs. If the school has clinics where students actually represent clients, are there proper rooms where client meetings and interviews can be held, separate areas where students can do work and maintain case files? Clinics are expensive to run, and it is not uncommon for schools to trim those costs by providing clinic facilities that don’t fully support the clinics’ work. If you think a clinic will be a big part of your legal education, this could matter.
Finally, I suggest looking at the spaces where students can gather informally. Is there a good student lounge or other gathering place like a cafeteria? Are there seats in hallways where you can sit for conversations? Granted, these amenities may not seem terribly important, but their absence impairs the creation of a community where students get to know and support each other.
All of the things mentioned here seem pretty obvious, perhaps so obvious that one would think every law school would take care of them. It may well be the case that the schools you’re comparing will all have good physical facilities. But you might also be surprised at how often schools, even some of the top schools, have facilities that don’t fully support their educational ambitions.
posted by Alfred Yen
I thought I would say a bit about faculty – the people who teach all those classes in the curriculum. Every law school will tell you that its faculty is excellent, and with justification. Law teaching jobs are sufficiently desirable that law schools generally have many, many qualified applicants for openings. Law schools today hire very well qualified people. Nevertheless, I would like to suggest one way in which prospective students can evaluate whether a particular faculty will provide a good educational experience.
Professors come in many types. For purposes of this post, however, we can get along with a distinction between permanent faculty and part-time (frequently called adjuncts) faculty. For permanent faculty, law teaching is their full-time job. Part-time faculty, as their name implies, generally have another job and devote a relatively small amount of their time to law teaching. They generally teach one class at a school, often in the early morning or evening, and they frequently do so from year to year.
A good school should have the vast majority of its courses, particularly first year courses and basic doctrinal upper year courses, taught by permanent faculty. This is not to say that part-time faculty can’t do a good job. Many are good, dedicated teachers. Nevertheless, full-time faculty are at the school, present for students in ways that would be impossible for part-time faculty. Those professors have more time to focus on teaching, and they bring cutting edge expertise based on their research to the classroom. There are, of course, areas in which part-time faculty can do a better job than permanent faculty. For example, skills courses or courses focused on specialized topics related to practice (e.g. business planning) benefit from the day to day practical experience of adjuncts.
Accreditors give significant importance to the principle that law students should be taught primarily by full-time faculty, and accreditors will give law schools trouble if the principle is violated. Surprisingly, however, law schools sometimes overuse part-time faculty. This happens because, at some schools, permanent faculty do not want to teach first year or other basic courses. Student enrollments in those classes are high, so teaching those classes takes more time than teaching smaller seminars that may be more closely related to a faculty member’s research. It’s obviously hard for schools to force tenured professors to teach classes they don’t want to teach. Indeed, faculty who don’t want to teach a class may not do a good job.
For prospective students, a law school that does not put its full-time faculty in basic classes raises a question that needs to be answered. Do the school and its faculty really give sufficient priority to teaching students? Every school will of course answer yes, but sometimes actions speak louder than words.
posted by Alfred Yen
Law schools compete for students by touting the strength of their curriculum, and with every school claiming that it is strong in a particular area, it’s sometimes hard to get a handle on whether a particular school really would be better than another for a student interested in, for example, corporate law or environmental law. One possible way to assess this might be the raw number of courses in a particular area, and in a sense more can be preferred to less. That having been said, I’d encourage prospective students to look beyond raw numbers when evaluating claims of curricular excellence.
A school that offers, for example, 24 intellectual property courses surely offers far more courses than an individual student could ever take. That doesn’t mean that the large number of offerings is valueless. Rather, a student should think carefully about how many courses one can profitably devote to concentration in a particular area versus the general education that forms the foundation for the successful practice of law. For example, a student may want to specialize in intellectual property, but she should also make room in her curriculum for corporations, commercial law, antitrust, employment law, and other areas that arise when considering IP issues. Additionally, I think it’s important for students to take a class or two devoted to perspectives on law like jurisprudence, law and economics, or legal history. They greatly enrich a legal education. When one adds these classes to requirements such as professional responsibility and courses people take because the subjects appear on the bar, there aren’t that many open slots for specialization. At some point, adding classes is nice, but perhaps overkill.
A student should also evaluate whether the courses offered by a school permit effective progression from basic study to advanced possibilities. Each field has basic courses that serve as entry points of study. In the corporate law area, that would probably be a course like corporations or business associations. More advanced doctrinally oriented courses might include corporate finance, securities regulation, and mergers and acquisitions. Beyond that, students might branch out in a couple of different directions. One would be toward increasingly advanced theoretical or policy study, perhaps in a seminar with a large research project. For example, a school might offer a seminar on theories of corporate governance or applications of the efficient capital markets hypothesis. The other would be towards practical application of knowledge and skills training. These classes would include classroom skills courses like drafting or trial practice, live client clinics where students actually practice under the supervision of faculty, and externship placements in law firms, companies, or government offices.
Obviously, the course content of a particular curriculum is not the only thing that determines its quality. A lot depends on who does the teaching, a subject I will address in another post. But for now, students can probably identify schools that will serve their needs by considering not only the number of offerings in an area of interest, but also the structuring of the curriculum to provide opportunities for intellectual depth and development of skill.
posted by Alfred Yen
Legal writing programs get staffed in 3 meaningfully different ways. One model relies primarily on part-time instructors (generally adjunct teachers or graduate student fellows) supervised by a director of the program who is sometimes, but not always, a full-time specialist in legal writing. A second model uses a director (sometimes, but not always, a full-time specialist) who works with faculty teaching doctrinal courses like torts or contracts to integrate writing exercises into those doctrinal courses. A third model uses full-time faculty who specialize in teaching legal writing. Each has its pros and cons.
Model 1 is inexpensive for a school to operate. Adjunct faculty don’t get paid very much, so this saves faculty positions for people who will teach other subjects. Devoting slots this way arguably benefits students in a couple of different ways. It might mean lower student-faculty ratios in upper level classes or a wider variety of courses from which to choose. And, it could mean more faculty publishing and advancing the school’s scholarly reputation. (Note: This second point may be hotly contested depending on one’s perspective. Conventional wisdom holds that tenure-track faculty who teach outside of legal writing publish more than legal writing faculty. This is partly because many legal writing faculty hold non-tenure track positions for which publication is not a requirement. This may be changing as legal writing faculty have begun to hold tenure-track positions and publishing more.) All of this comes at a cost, however. Full-time faculty who specialize in legal writing develop considerable teaching expertise. Perhaps more than any other type of law school faculty, full-time legal writing teachers think and write about how to train lawyers. With all due respect to those who teach legal writing as adjuncts or fellows, I think that full-time legal writing faculty will, on the whole, teach better classes than part-time faculty. An adjunct has another job that is his primary income. He understandably pays more attention to that than his students. And, adjuncts frequently teach for only a few years. Just when they’re starting to figure things out, they move on.
Model 2 has intriguing possibilities for excellence that may not always be realized. When full-time faculty teach writing as part of a doctrinally focused course, the integration could lead to a deeper understanding of legal problems and how to write about them. Class discussion can explicitly tie big substantive questions to challenges in writing memos or briefs. If this works, it probably creates an excellent legal writing class. Unfortunately, the faculty I know who have taught in these programs report that the promise is not always realized because faculty who teach doctrinal classes do not, as a whole, make legal writing a priority. They prefer to concentrate on their substantive law specialties and their scholarship. Only an unusually dedicated non-legal writing specialist professor will spend the time necessary to become a top-flight legal writing teacher. Some undoubtedly do it, but others I’ve spoken to find the obligation to teach writing a burdensome distraction from teaching and writing about subjects they prefer.
Model 3 uses only full-time faculty who dedicate themselves to teaching legal writing. The obvious benefit is the development of expertise I mentioned earlier. Not every law professor will agree with this, but I think that top-flight legal writing teachers bring great value to their students. Those who don’t agree may say that any of us (meaning non-legal writing law professors) could step right in and do just as good of a job, but I’m not sure it’s as simple as that. A good legal writing course combines the reading and analysis of cases with instruction on how to write about the law. It isn’t obvious that “just any” professor would immediately do a good job of it. If experience matters in teaching torts, it probably matters in teaching legal writing too. So why don’t all law schools employ a full-time staff of legal writing teachers? Well, it’s expensive. Full-time legal writing teachers occupy faculty slots that could be used for teachers in other areas. A school may not think that legal writing is sufficiently important to warrant the expenditure.
From the standpoint of a prospective law student, it’s worth deciding how important legal writing will be to you. You will have to candidly assess your writing ability, how easily you will adapt to legal conventions, and your willingness to experience stress if you’re behind fellow summer associates/new lawyers who have had more training. To be clear, I’m not saying that legal writing should be your primary method for choosing a law school. But, if schools are fairly close in other ways, the legal writing program is one important and frequently overlooked way to identify the right school for you.
posted by Alfred Yen
Let me use this post to suggest one way in which prospective students can begin comparing academic programs. All law schools require their first year students to take a heavily prescribed curriculum. Few, if any electives exist, and indeed the required courses are practically the same at most schools. By contrast, second and third year students usually have great freedom to choose their courses.
The similarity between law school curriculums may give students the impression that there is little to distinguish the program of a particular school. However, there is one area – legal writing – where schools differ a great deal.
When I went to law school, I mistakenly thought that legal writing was the least important course I would take. And indeed, that is exactly how my alma mater, Harvard, treated it. The course was taught by second and third year students, giving it the feel of an afterthought to the “real” courses taught by full-time faculty. We didn’t pay much attention to it, and my education suffered for it. After my first year of law school, I arrived as a summer associate thinking I’d be well-prepared, only to find that I knew very little about how to conduct effective legal research or write memos. If not for the advice of a kind fellow summer associate educated at a supposedly “lesser” school, I might have failed in my first legal job.
Legal writing is important well beyond the summer associate experience. People may think of lawyers as oralists, but cases are really won and lost on briefs. When I practiced in California, judges issued tentative rulings based on briefs, and wouldn’t even hear argument from the “winning” side unless the “losing” side could convince the judge otherwise in a very few minutes. And of course, transactional lawyers must document deals clearly.
Despite the importance of legal writing, most law schools do not promote the details of their legal writing programs as heavily as other things. I can think of a few reasons. First, legal writing was not traditionally important to elite law schools, and one could argue that it still isn’t. Second, legal writing is not generally considered an academic discipline like torts or civil procedure. Third, legal writing comes across as un-sexy. Accomplished students of the sort who get into law school don’t feel good being told that their writing skills need improvement. It’s far more exciting to tell them that a school will make them experts in international human rights.
All of these things conspire to hide the importance of legal writing to students. Nevertheless, I’d suggest that it’s very much worthwhile for prospective students to compare legal writing programs at various schools and think about what kind of program best suits them. In my next post, I will describe 3 general types of legal writing programs, their pros and cons, and some of the reasons that schools adopt them.
posted by Alfred Yen
So let me start with just a few thoughts about U.S. News and how much weight it should be given. In my opinion, U.S. News gives a rough indication about how prestigious a school is. Every prospective law student wants to know what a school will do for his resume, and U.S. News helps answer that question. The top of the list – perhaps 5 to 8 schools – are sufficiently prestigious that simply going there will do a lot for the student in question in terms of career opportunities. Beyond that, however, things get more dicey. The schools that follow surely carry prestige, but employers will no longer pay attention “just because” a particular applicant went to the school. The individual’s ability matters more. That’s not to say that a school’s reputation becomes irrelevant. It remains relevant, but in my opinion a prospective lawyer needs to think about what school will make him a capable lawyer.
To make this clear, look at the numerical scores assigned by U.S. News to various schools. In last year’s ranking, Yale was #1 with a score of 100. Harvard was #2 with 95. Duke, Northwestern, and Virginia shared #10 with 80. Now let’s take a look further down the line. Three more schools shared #20 with scores of 66. Five schools shared #30 with a 62. In short, the difference between numbers 20 and 30 was one point LESS than the difference between numbers 1 and 2, and 16 points less than the difference between numbers 1 and 10. That means, according to U.S. News, there’s not much difference between a school ranked 20 and one ranked 30.
Despite this, I suspect that many aspiring lawyers place unwarranted weight on the relative rankings of schools outside the top few. U.S. News (and maybe others) need to have a “top 20” or “top 50” to make rankings interesting. A law student, however, needs to find the school that will best educate her, and I am hoping that the posts I intend to write will help students identify schools that will help them flourish.
posted by Alfred Yen
I want to thank Larry Cunningham for his generous and kind introduction. I greatly enjoyed my guest appearance here a couple of years ago, and I look forward to contributing my thoughts again.
The opportunity to blog here fortuitously coincides with a topic that has been in the back of my mind lately. It’s spring, and thousands of applicants are now getting the news that they’ve been admitted to a range of schools. How should they choose? Over the last decade or so, rankings like U.S. News and World Report’s have become increasingly important in making those decisions. How heavily should a would-be lawyer rely on these rankings in making her choice of where to attend? And are there other things she should examine if rankings don’t tell the whole story?
Over the next few weeks, I intend to post some thoughts about these questions. Like most law professors, I’m curious to see how my schools (I teach at Boston College and went to Harvard) get ranked. But beyond that idle curiosity, I’ve thought a bit (and just a bit) about evaluating the quality of a school because I’ve had the privilege of serving on American Bar Association teams that visit schools and prepare reports for purposes of accreditation. These visits typically last 3 days and offer team members a real “look under the hood” of what is happening at a particular school. I’ve also had the opportunity to get to know a couple of other schools through visiting or other methods that offered more than a casual glance at their programs. In some cases, I’ve come away convinced that schools deserve their rankings (whether high or low). But in others, I’ve come away with the impression that a school is actually a lot better or worse than its U.S. News ranking suggests. I am not going to discuss the specifics of those impressions, but I will try to share the general things I’ve learned in hopes that it will help those choosing law schools.