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 [...]]]>

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.

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.”

Calo writes:

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 [...]]]>

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.”

Calo writes:

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.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.

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 [...]]]> 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 . . . First, do as much writing as you can between the time you accept your appointment and the time you move to your new institution. You’ve probably already been writing in order to get your initial appointment, so this shouldn’t be much of a switch for you. Second, get summer money from your new institution so that you can make it financially feasible to move to your new office by no later than June 15. Third, don’t even consider prepping any classes until at least early August. The only thing you should focus on in relation to teaching during the months of June and July is creating a syllabus for your class (and you should do this activity during the evening). Fourth, during June and July (and the early part of August), work exclusively on writing an article.

If you are disciplined with this approach, I think you will likely have a fairly decent working draft of an article by the time classes commence. To be sure, the article won’t be complete and will still need to be edited, sent out to others for comments, etc. But my experience is that revising an article is much easier to fit into one’s first-year schedule than trying to more or less write an article from scratch. In addition, you can use your Fall Break (if you have one) and part of your Winter Break to do more substantial work on the article. Presumably, then, by the time the winter law review submission cycle rolls around in February/March, you’ll have something to shop.

Of course, not everyone will be able to structure one’s life this way, individual writing styles vary, and this is all easier said than done. But the payoffs are enormous. You’ll feel great about having that first publication as a full-fledged law professor out; your colleagues will likely be impressed with your scholarly ambition; and you’ll be able to breathe just a slight bit easier in the summer following your first year with the knowledge that you’re already ahead of the curve.

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 [...]]]> 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.

The story struck a nerve, not only with the affected community, but with the [...]]]> 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.  Just google your name and see what you learn about yourself.  One of my students did and found, along with the usual links to law school and other websites like Facebook, a statement he made while running for an office in the Christian Legal Society posted on a website unknown to him.  Without paying he found his name, home town and state, and a list of his immediate family members.  Googling his phone number the first link that popped up was a map that located where he lived.  The next link was to spokeo.com “a people search engine that organizes vast quantities of white-pages listings, social information, and other people-related data from a large variety of public sources.”  According to Spokeo, its “mission is to help people find and connect with others, more easily than ever.” This site provided, without charge, the initials of all his family members, his approximate age and that of his parents and sister.  It revealed the family’s home address, approximate home value and length of residence.  Then my student saw a Google picture of his house and himself walking to his car with his backpack, presumably leaving to go to school.  He was stunned.

Much of this information reaches the internet through social networking catching us, and our students, off guard.  Some of us have Facebook accounts and followers on twitter, while others, concerned about privacy, think we can avoid internet scrutiny altogether, but alas we cannot.  While Facebook is more of a “socializing” network, LinkedIn calls itself a “professional network” designed to promote professional contacts.  It too has a “friend” feature and I have received email requests from students and law faculty I vaguely know to join their LindedIn network.  I’ve declined. Just how “social” should we be in our professional capacity as law professors, students and lawyers?    This question plagues all of us in the legal arena, even judges.

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court, in addressing several issues about a judge’s use of a social networking site, wrote that these sites generally serve two purposes.  First and foremost they are places “to post pictures, comments, and other material that visitors to the site can view.”  But increasingly networking sites are places “to identify a member’s ‘friends’….[,] a person who requests to be identified as the member’s ‘friend’”. The Committee concluded that “a judge may [not] add lawyers who may appear before the judge as ‘friends’ on a social networking site, [or] permit such lawyers to add the judge as their ‘friend.’”

Should we develop similar networking standards for professors and their students?  I plan to explore this question in my torts class this fall.  So I am constructing a series of problems that involve social media to keep them engaged in thinking about tort law.  This also is an opportunity to get them thinking about how their use of social media may raise ethical and professional issues starting as early as law school.  Wish me luck.

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 [...]]]> 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).

As I have previously mentioned, I enjoyed private practice and working with clients to solve their legal problems or accomplish their legal objectives. And I have a soft spot for the professional components and service-to-justice principles underlying the profession. So I have a more optimistic view of the profession and what lawyers can do to address the challenges we currently face. I know that the profession is fortunate to have a wealth of talent working on these issues, and I remain confident that we can retool what it means to be a lawyer or law student in the current environment and strengthen the profession in the process.

I like some of the innovation that emerged from law firms facing economic pressures—from implementing apprenticeship-like programs (see here and here) to subsidizing lawyers’ pro bono and self-development projects. These are good trends that should continue as law firms look to reposition themselves in the marketplace. Admittedly, continuing some of these changes would require an adjustment to the traditional firm compensation models, but I think that process is already well underway.

Lawyers also need to continue to explore ways to better use technology. I personally do not think that technology can or should act as a substitute for human analytical skills and counseling (see here). A core part of a good lawyer-client relationship is a lawyer who listens to the client’s story, takes time to understand the client’s objectives and invokes her skill set to consider nuances and factors that identify or create a legal solution for the client. This is true in the corporate or consumer client context. That same lawyer, however, certainly can use technology to work more efficiently for, and improve communications with, the client.

I have no doubt that more changes are in store for the legal profession as we move through the next few years. I remain an optimist, however, about the profession’s ability to respond in an innovative and positive manner. Hopefully, the lessons of the recession are not for naught.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

A school that offers, for example, 24 intellectual property courses surely offers far more [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship [...]]]> It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks.  Last night, like 10 years ago, I got lost on my way to an interviewing suite.  I still find the bar scene a little anxiety producing.  So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship of those on the market. 

I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week.  And a quick tip:  when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer.   I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.”  We all have colloquia, research stipends, and collegial sharing of documents.  We all generally do try to give junior faculty reasonable teaching loads, etc.  And if we don’t do any of these things, we won’t acknowledge it here!

The Michigan Law Review has a new and greatly improved website.

First Impressions, the Review’s online companion, now accepts submissions of essays on timely legal topics.

To view the submission guidelines, go here. For questions and comments, please contact Dean Baxtresser, Executive Editor of First Impressions.

I’m actually looking forward being back in the classroom. I didn’t feel this way so much on my first sabbatical back in 2001-2002, or even in the first semester of this sabbatical, but beginning around January or so I started to think, hey, where are my students? I miss them.

The funny thing, which I do remember from my first sabbatical, is that the students have no idea. As I walk in today, they won’t be thinking, whoa, this is his first class in 15 months — I wonder how he’ll do — better cut him a little slack. No, they’ll just expect the same polished performance [...]]]> Two hours from now I will teach my first class in 15 months. My sabbatical is over.

I’m actually looking forward being back in the classroom. I didn’t feel this way so much on my first sabbatical back in 2001-2002, or even in the first semester of this sabbatical, but beginning around January or so I started to think, hey, where are my students? I miss them.

The funny thing, which I do remember from my first sabbatical, is that the students have no idea. As I walk in today, they won’t be thinking, whoa, this is his first class in 15 months — I wonder how he’ll do — better cut him a little slack. No, they’ll just expect the same polished performance as always.

Which leads to a more general observation: That’s what the students always expect.

Think about a water tap. When you turn it on, you expect water to come out. It occurs to you only rarely, if ever, to think about the amazing amount of labor, planning, and ingenuity that went into bringing the water to that tap. You just expect it to work.

If you’re a professor, that’s how your students think about you. To them, you are a water tap. When they turn you on, they expect a class to come out. They never think about the preparation and planning involved. Your need to prepare a class while juggling your writing projects, committee responsibilities, and personal life, and the possibility that you may be ill or out of temper, are equally outside their consciousness. When I was a student, I was among the more academically minded (I did become a professor, after all), and still, I had only the dimmest notion that professors spent time preparing for class.

The result is that students will sometimes be insufficiently prepared to receive the benefits of the class you have worked hard to plan for them and they may show less appreciation than your efforts deserve. Professors, never resent this or expect it to be otherwise than it must inevitably be.