posted by Brian Sheppard
In my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.
Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements. At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.
My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer. By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.
In this second post, I’d like to offer some final observations on gatekeeping. I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population. Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements. To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read the rest of this post »
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 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 David Schraub
I taught my very first class today, and let me tell you, it was nothing like what I anticipated. Contrary to my expectations, I did not simply stare at my students blankly for an hour. Nor did I break down crying or throw up. Indeed, I thought we had a very nice, intelligent, lively discussion on how questions of identity are and are not relevant (and are and are not dangerous) in resolving important social justice questions.
Right now, my evaluation of teaching is that is equal parts exhausting and invigorating. Despite the aforementioned success in not running out of things to say in the first half-hour, my main concern continues to be making sure I pace myself properly (this isn’t helped by my tendency to talk at something approximating Mach 3).
I do want to say that, while between many years of being a student and a few scattered experiences as a guest-teacher I had some inkling of what I was getting into — no, really, I didn’t. It is exciting though. And practice makes perfect. So next week, it’s back into the breach once again.
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 Andrew Martin
March 28, 2011 at 10:00 am Tags: Empirical Analysis of Law, Law Practice, Law Rev (Yale), Law School, Law School (Scholarship), Symposium (What Difference Representation) Posted in: Symposium (What Difference Representation) Print This Post No Comments
posted by Michelle Harner
I heard an interview today with a representative of a nonprofit organization that matches volunteers with organizations in need—a sort of match-maker in the volunteer context. Interestingly, the representative reported an increase in the number of available volunteers during the recession (see also here and here). She attributed this trend to two things: people who had lost their jobs wanting to keep up their skills while searching for new employment and people generally wanting to help others in need.
The report piqued my interest regarding whether the recession was having a similar, positive effect on the provision of pro bono legal services. I suspected that more people were in greater need of legal assistance as a result of the recession, which in fact turns out to be the case (see here and here). I did not know, however, whether lawyers were meeting this increased demand. I like to think we are, but the profession’s record on this point is not necessarily encouraging (see, e.g., here).
The results appear mixed. Some reports suggest that the level of pro bono activity has remained the same or increased slightly in the past few years (but see here). (For interesting perspectives on the recession and the legal profession, including pro bono legal services, see here and here.) Nevertheless, even these increased activity levels fall woefully short of the reported need. So, given high lawyer unemployment rates and the desire to better train new lawyers, why does this gap exist?
posted by Michelle Harner
One of my favorite courses to teach is Legal Profession (i.e., ethics and professionalism) because it truly is an “ah-ha” moment for many law students. I tend to believe that not many students consider the “profession” part of the “legal profession” prior to attending law school. Rather, I suspect they view law school as a means to an end—landing a lucrative job (or at least that was the case in days gone by; see here, here and here). They probably give little thought to the fact that they are preparing to join a “profession.”
I know that many even inside the legal profession question whether it remains a profession or is now just a business and all about the bottom line. (For interesting discussions of this debate, see here, here, here and here). I am very traditional in this respect, and I hold dear the notion that the law is an esteemed profession. (I particularly like Roscoe Pound’s definition of the legal profession as “a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.”) And I am proud to be a member of that profession.
For this reason, I stress the nature of the profession and what it means to be a professional in the early days of Legal Profession. I often quote the Preamble of the Model Rules of Professional Conduct to emphasize that a lawyer does more than serve clients. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” I then use a series of hypothetical problems to work through what that triad of responsibilities means for lawyers. You can actually see the light bulb go off for some students.
posted by Michelle Harner
When I was in private practice, I never gave much thought to how law schools prepare students for a career in the legal profession. I was fortunate to have a very positive law school experience and even more fortunate to end up in a small practice group within a big law firm that took pride in training its young associates. (I also had a wonderful mentor during my judicial clerkship experience.) As a result, I never felt unprepared for the practice of law.
It was not until I left practice and started teaching that I truly appreciated the gap between legal education and legal practice. I know that statement is not a new revelation; many have discussed the lack of practical skills imparted to students during their three years of law school (see, e.g., here, here, here and here). And I do not make it to criticize legal education (for the most recent critique, see here). Although some things could be done differently (for a collection of articles on legal education reform, see here), I believe that teaching students critical analytical skills provides a solid foundation for legal practice and inculcates a skill set that translates beyond the legal profession (see here and here). I raise it, however, to share my recent, very enjoyable experience with third year law students in Business Planning.
This fall, I co-taught Business Planning with my colleague, Dan Goldberg, who focuses his teaching and scholarship on tax law. Dan and I worked together to prepare lesson plans and assignments, and we co-taught each class meeting. In fact, we structured the class to simulate a small law firm; Dan and I played the role of the tax and corporate partners, and the students played corporate associates. (For a discussion of training law students to be more client ready, see here.)
The class started with one of the law firm’s long-time individual clients seeking the law firm’s assistance in structuring a new business venture among the firm’s client and two other individuals. The students confronted ethical issues presented by this request and then helped the individuals evaluate their entity choice options from tax, governance and general business perspectives. This exercise introduced students to business plans, balance sheets and organizational documents. The hypothetical law firm and student associates served as counsel to the newly-formed business entity during the remainder of the semester, and they helped this hypothetical client work through liquidity and growth issues, an unsolicited purchase offer and an initial public offering.
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.
posted by Michigan Law Review
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.
posted by Jon Siegel
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.