Law School Innovation

Willing yet again to consider putting my US News vote up for sale...

Long-time readers may recall this post from four years ago, in which I asked "Would it be unethical (or even illegal) to put my US News vote up for sale?"  Here is the back-story which prompted my (sincere? tongue-in-cheek?) inquiry in 2007:

For the second consecutive year, I have received US News' survey asking me to help identify "law schools having the top programs in intellectual property law."  My receipt of this survey highlights just how flawed some aspects of US News' rankings can be. 

I was an IP litigator a decade ago and I taught a few IP courses early in my career.  But, especially with my primary field so active, I cannot even hope to keep up with all the IP doings in law schools.  Nevertheless, US News seeks my opinion on which 15 schools have "the highest-quality intellectual property law courses or programs."  Candidly, I have absolutely no idea.

I suppose I could try to make educated guesses about the best IP programs based on who sent around the hottest "law porn"covering IP topics this year.  But I also could throw darts at the survey form and probably not do much worse. 

Consequently, I am now wondering if I could and should simply offer my US News survey to the highest bidder.  Helpfully, US News promises that survey responses are kept confidential, so nobody would know whether or to whom I sold my vote.

Of course, I do not want to do anything unethical or illegal, so I am genuinely seeking an answer to the question posed in this post's title.  I know vote selling in some contexts can be illegal, but I don't think a survey by a private magazine garners too much public protection.  As for ethics, well, what I am proposing seems no less savory than what some schools have reportedly done to game the US News rankings system.  Plus, some recent research suggests that open vote buying/selling may be efficient in this kind of setting.

Fast forward four years, and I am now in my office holding this year's version of the US News' survey asking me to again help identify "law schools having the top programs in intellectual property law."   Apparently the fact that I previously talked up the notion of selling my US News' vote to the highest bidder did not get me scratched from the list of potential voters.  (I assume that the people who run the US News' survey never got wind of my talk of vote selling.  But it is fun to imagine that they heard of my (joking?) plans and nevertheless still thought I was a good person to ask about the top 15 IP programs.)

If memory serves, nobody actually offered me any money for my US News vote back in 2007, so I never did have an opportunity to consider seriously whether I could be bought off.  I do recall a few folks responding to my post via e-mail with information about how great the IP program was at their school.  In other words, I most certainly did not get rich from, but I did get some useful information in response to, my prior post. 

Back in 2007, I ultimately concluded that too much personal bias and not enough valid information would end up informing my survey responses, and so I ripped up the form and tossed it away.  Disturbingly, this year's cover letter and US News form fails to suggest trashing the survey if one lacks the knowledge or information needed to fill it out appropriately.  That very fact has me wondering if US News actually would prefer me to complete the form after getting paid for my votes rather than fail to return the form at all.

"Measurement and Its Discontents" ... and US News rankings and law school grades

The title of this post starts with the headline of this interesting commentary published in yesterday's New York Times. Though not saying one word about legal education or law schools, I thought many parts of piece (and especially the passages quoted below) were especially interesting and deserved consideration as we head into the (never-ending) law school ranking season:

Why are we still stymied when trying to measure intelligence, schools, welfare and happiness?

The problem is not that we don’t yet have precise enough tools for measuring such things; it’s that there are two wholly different ways of measuring.

In one kind of measuring, we find how big or small a thing is using a scale, beginning point and unit. Something is x feet long, weighs y pounds or takes z seconds. We can call this “ontic” measuring, after the word philosophers apply to existing objects or properties.

But there’s another way of measuring that does not involve placing something alongside a stick or on a scale. This is the kind of measurement that Plato described as “fitting.” This involves less an act than an experience: we sense that things don’t “measure up” to what they could be. This is the kind of measuring that good examples invite. Aristotle, for instance, called the truly moral person a “measure,” because our encounters with such a person show us our shortcomings. We might call this “ontological” measuring, after the word philosophers use to describe how something exists.

The distinction between the two ways of measuring is often overlooked, sometimes with disastrous results. In his book “The Mismeasure of Man,” Stephen Jay Gould recounted the costs, both to society and to human knowledge, of the misguided attempt to measure human intelligence with a single quantity like I.Q. or brain size.  Intelligence is fundamentally misapprehended when seen as an isolatable entity rather than a complex ideal.  So too is teaching ability when measured solely by student test scores.

Confusing the two ways of measuring seems to be a characteristic of modern life.  As the modern world has perfected its ontic measures, our ability to measure ourselves ontologically seems to have diminished. We look away from what we are measuring, and why we are measuring, and fixate on the measuring itself.  We are tempted to seek all meaning in ontic measuring — and it’s no surprise that this ultimately leaves us disappointed and frustrated, drowned in carefully calibrated details....

But how are we supposed to measure how wise or prudent we are in choosing the instruments of measurement and interpreting the findings? Modern literature is full of references to the dehumanizing side of measurement, as exemplified by the character Thomas Gradgrind in Dickens’s “Hard Times,” a dry rational character who is “ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to,” yet loses track of his own life.

How can we keep an eye on the difference between ontic and ontological measurement, and prevent the one from interfering with the other?

One way is to ask ourselves what is missing from our measurements.... In our increasingly quantified world, we have to determine precisely where and how our measurements fail to deliver.

I suspect many who read this blog would be quick to assert that law schools are "fundamentally misapprehended when seen as an isolatable entity [subject to ranking by US News] rather than a complex ideal."  In addition, lots has been said by many US News critics about what is missing from the US News measurements. 

And yet, I cannot help but wonder how much the entire traditional law school model — and especially traditional law school grading systems — also are subject to the problem of mixing "ontic and ontological measurement."  I have long thought and feared that law schools could hardly complain all that much about being peculiarly graded by US News when these institutions continue to graded the potential of future lawyers in a (more?) peculiar way.

Posted by DAB

NY state judges considering loan repayment to students who aid poor

I am pleased and excited to see this interesting new report, headlined "Under Plan, Lawyers Who Counsel Poor Would Get Loan Help," in the New York Law Journal.  Here are excerpts:

New attorneys who volunteer to represent low-income New Yorkers would receive state money to help them repay their student loans under a proposal being considered by court administrators.

The idea is being weighed by court administrators as they formulate the Judiciary's budget for the 2012-2013 fiscal year, which is due by Dec. 1, Chief Judge Jonathan Lippman said in an interview.

The plan was advanced by Justice Michael V. Coccoma, the chief administrative judge for courts outside of New York City, during a hearing this month by Judge Lippman and his task force on civil legal services into ways to improve funding for poor people facing foreclosure, eviction, the loss of health care and other civil matters.

The task force has estimated that, at best, only one in five poor New Yorkers in need of civil legal services receive representation. "I think we have to think out of the box to create ways to foster civil legal services," Judge Lippman said. A loan forgiveness program "is certainly worth taking a look at."

Justice Coccoma argued during an Oct. 3 hearing that the poor economy, the slack job market for law school graduates and the heavy debt load many law students take on could offer a ready pool of lawyers willing to represent indigent clients in civil matters as they work off portions of their loans.

"When I heard of an increasing number of recent law school graduates unable to find jobs, I asked myself, why could we not develop a funding stream, a steady funding stream, of programs which would provide an opportunity for these attorneys, who are eager to put their skills to work in public service programs to provide legal services to the poor?" Justice Coccoma testified. "Perhaps this task force could recommend that in exchange for a two- or three-year commitment to such a program, those lawyers would receive a reduction in their student loans."

He said the hands-on experience could be invaluable to new practitioners. "As a young attorney, you are meeting face to face with your client much sooner than if you are working with a larger firm," Justice Coccoma said. "Sitting in the office with a client face to face, then advocating for them in a court or with an agency, that is valuable experience. It is that person-to-person contact which I think is a valuable experience in a legal career."

Justice Coccoma said a state loan repayment program would be similar to those offered by the federal government to some 70,000 people through the federal AmeriCorps program, which provides tutoring, home improvements and other services to the poor.

New York state also operates projects in which medical school graduates earn reductions in their student loans by committing to practice in under-served areas. In the Doctors Across New York program, for instance, 41 doctors receive up to $150,000 in loan repayments for a five-year commitment to practice in those areas.

Lawrence Raful, dean of Touro Law Center on Long Island, said a loan repayment program for law students is a "terrific" idea. But he said it would have to be structured to provide new graduates with careful monitoring and mentoring.

"My concern is competency, mentoring, apprenticing, whatever you want to call it," Mr. Raful said. "I just don't know how you set it up. Doctors have the four years of medical school and four years of residency, so they are much more prepared to go out to western New York to provide exams and flu shots and the other basics. But how do you supervise these [civil legal services] people?"

Similarly, the chairman of the New York State Bar Association's Young Lawyer's Section, James R. Barnes of Burke & Casserly in Albany, agreed that there would have to be close oversight of participants. "Are they going to be completely on their own?" Mr. Barnes said in an interview.  "I know that many young lawyers indicate a hesitancy at going out on their own practice.  But if it is part of a larger practice you might find enough people who are willing to make that sort of commitment. I would assume the pay wouldn't be extensive, but you add it to the loan forgiveness and experience, I think you have a viable product."

Mr. Raful also questioned whether the Judiciary, if it promotes a loan repayment program, would get the plan through the Legislature.  "I am not so sure, to be honest, that the public, and therefore the Legislature, is as enamored of legal services as they are with [providing adequate] health care in under-served areas," he said.  "I am not sure about the mood of the Legislature, I am not sure they are going to throw money at this, as opposed to, say, the Tappan Zee Bridge."

Indeed, Justice Coccoma's idea was panned in an Oct. 11 editorial by the New York Post. "Once again, New York is on its uppers, and talk of new 'funding streams' for anything — let alone paying down young lawyers' student loans — is absurd and inappropriate," the paper said. It said the shortage of jobs of lawyers carries a message that "New York has enough lawyers already — and maybe too many."

As regular readers know, I think this kind of innovative program is exactly how both courts and law schools should be seeking helpful joint solutions to some of their current structural problems.  This NYLJ article effectively highlights some of the pragmatic and political challenges for the proposal being considered, but I think both could and should be readily surmounted if there is enough will among the courts and judges, interested public policy groups, and the law-school-reformer-types engaged in the scam debates. 

Some recent related posts:

• Imagining a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better
• More, Cheaper Lawyers Needed (A comment on "law school scams")
• Identifying the disconnect at the center of the "law school scam"
• Given modern labor realities, should law schools admit fewer students? Fail more out? 

Posted by DAB

The unhappy associate

While doing a little background work on lawyer happiness, I stumbled across a fascinating article by David T. Zaring and William D. Henderson entitled "Young Associates in Trouble."  (The SSRN link is here). 

Zaring and Henderson are writing to review two novels about troubled big-firm associates, but they move beyond that to actually conduct a quantitative study of the issue:

"In this review essay, we compare Kermit Roosevelt's and Nick Laird's bleak portrayals with findings from a unique dataset on law firm profitability, prestige, hours worked, and various measures of several associate satisfactions. We also mine the findings of several empirical studies that track the experience of lawyers over time. We observe that higher firm profitability is associated with higher salaries, bonuses, and prestige. Yet, higher profits also have a statistically significant relationship with longer hours, a less family-friendly workplace, less interesting work, less opportunity to work with partners, less associate training, less communication regarding partnership, and a higher reported likelihood of leaving the firm within the next two years. Nonetheless, graduates from the nation's most elite law schools tend to gravitate toward the most profitable and prestigious (and most grueling) law firms. The attraction of the most elite firms may be superior outplacement options. Or perhaps, as both novels intimate, it may stem from a reluctance to make hard life choices."

As legal educators, is it part of our role to help our students make "hard life choices"-- even if that choice is away from the most lucrative jobs?

-- Mark Osler

"What is ‘Good Legal Writing’ and Why Does it Matter?"

The title of this post is the title of this notable new paper available on SSRN and authored by Professor Mark Osbeck. Here is the abstract:

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing.  The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills.  Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing.  As a result, legal writers are left without a conceptual framework to ground the individual rules and suggestions.

This article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well-written.  It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well-written.  It argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties.  The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader.

The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. The article then goes on to explore what it is that makes such writing elegant, and whether it is desirable for legal writers to strive for elegance in their own writing.  The article concludes by briefly considering the pedagogical implications of the analysis discussed in the previous sections.

Law School Innovation Thanks Master Innovator, Steve Jobs

The visionary who made the computer more personal (in President Obama's elegant words) contributed to educational innovation by making technology seem less the realm of computer scientists, and more the realm of a broader community of creative persons.  I received my first Macintosh in 1984, and have owned Apple computers ever since, going through every generation in turn. 

Apple long cultivated a close link to educators and students, even when Microsoft sought to make itself indispensable to business.  While I am critical of Apple's proprietary approach and its overly aggressive patent claims, I appreciate Steve Jobs' love of design and his belief in the beauty of technology.

Thank you, Steve Jobs.    

-- Anupam Chander

 

Let me join in with the expression of thanks for Jobs' legacy (even though I suspect through the years I have enjoyed his Pixar contributions more than his Apple products).   Let me also wonder aloud why the law school arena (as well as the law services industry) has not seen an innovative figure like Jobs in its recent history.  

I suspect that, despite all the purportedly progressive individuals involved in the law school universe, the reality of the social environment and the economic marketplace of law schools tend to be quite conservative and pretty reactionary when it comes to innovative ideas and models.  But these realities will not stop us here at LSI from continuing to talk about new ideas and models.

Posted by DAB

"Another 15 law schools targeted over jobs data"

The title of this post is the headline of this new piece from The National Law Journal, which begins this way:

The attorneys behind class actions against New York Law School and Thomas M. Cooley Law School announced plans on Oct. 5 to sue 15 additional law schools for publishing what they described as misleading postgraduate job statistics.

They have yet to secure enough name plaintiffs for those suits, however. They won't file until three alumni from each of the targeted schools sign on, they said during a conference call with reporters. The announcement was intended in part to drum up plaintiff interest, they acknowledged.

The attorneys, David Anziska and Jesse Strauss, detailed what they said was convincing evidence that law schools have offered a skewed picture of postgraduate employment rates and salaries for years, not just since the latest recession. "The problem isn't going away, and the legal academy isn't owning up to it," Strauss said. "We strongly believe that by the end of 2012, almost every school in the nation will be sued, if not by plaintiffs who are represented by us, then by plaintiffs represented by other law firms."

Strauss and Anziska said they are targeting the 15 schools either because alumni or students approached them with concerns, or because the postgraduate job data they have reported to the American Bar Association were "implausible."

What technologies (other than e-casebooks) can or will transform legal education?

The question in the title of this post is prompted by this notable commentary discussing some new tech ideas in the field of K-12 education.  The piece by Jonathan Alter is headlined "Robo-Truant Tech And Other Apps To Fix Education," and here is a snippet:

The education reform movement is at an important juncture. It will either peter out in platitudes or advance based on a new consensus.  At this week's Education Nation conference in New York City, I came away with some hope for the latter. My cautious optimism is rooted in two Ts -- technology and transparency....

Even if they cordially despise each other, reformers and traditionalists will now have to work together to implement the new accountability laws enacted in the past few years in about a dozen states. One way to do so is by embracing smart new technology.

For years, faddish tech fixes like computers in the classroom have yielded few results. But that could be changing.  One of the most intriguing parts of Education Nation was the Innovation Challenge, a contest with shades of Donald Trump's show, "The Apprentice." Three young innovators presented their ideas on stage to a panel of judges moderated by Tom Brokaw:

Classdojo.com uses a competitive point system (always popular with students) to enable teachers to better handle the behavioral problems that so often impede learning.  The idea is to build character by rewarding teams of students who work together to stay on task and avoid disruptions.  Technology can't substitute for a teacher's class-management skills. But with as much as half of class time consumed by dealing with disruptive kids, it can help....

Classdojo won the $75,000 prize.  Even if this and other 2011 innovations flop, we're edging closer to the era when technology finally changes what is essentially a 19th-century system of education.  In science, paradigm shifts follow technological breakthroughs. Education won't be any different. 

Regular readers know I have been saying for quite some time that e-readers will eventually transform the traditional casebook model for legal education, and the popularity of the iPad and the forthcoming Kindle Fire reinforce my views on this front.  But I am wondering, and truly hoping, that there will be other technological innovation and/or breakthroughs that further revamp legal education for the 21st century.  Anyone bold enough to make predictions about what those innovations might be?

Some related prior posts:

• Could the iPad help transform law school and even lawyering?
• An iPad in a Law School Class -- A Skeptical View
• How an iPad (or an even better e-tablet) could transform legal education
• Incorporating Technology & University Responses
• How could/should Apple (or other tech companies) partner with a law school to foster e-casebooks?
• Supreme Court Justices are now doing work on iPads and Kindles, when will law students?
• “I think [the iPad] could very well be the biggest thing to hit school technology since the overhead projector.”

 Posted by DAB