Law School Innovation

Is wisdom a goal of legal education?

Last week I gave a paper at Baylor for a conference on "Educating for Wisdom."  It's an intriguing and challenging idea, and one I wrestled with for a while.

We certainly hope for wisdom in the products of our schools-- that is, lawyers and judges-- so it makes sense that we would do something as part of the educational process directed towards that hope.  If we do, though, it rarely seems to be intentional.

My own paper was premised on the idea that wisdom has something to do with decision-making which is rooted in principle.  This is different than most of our legal education process, where we teach decision-making as directed by rules.  Principles are different than rules; the latter direct an outcome (ie, not stealing), while the former tell us what values to consider in reaching an outcome (ie, mercy). 

The full paper, which includes some concrete ideas about educating towards wisdom, is available for download here.

-- Mark Osler

 

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

More, Cheaper Lawyers Needed (A comment on "law school scams")

In the "law school scam" dust-up, there has sometimes been inadequate attention paid to the gaping need for lawyers. The worry is that a proliferation of law schools is producing too many attorneys for the market to bear, leaving many jobless.

In my experience, many ordinary people need lawyers, but many also believe that they cannot afford the lawyers they need. (Yet other ordinary people might well benefit from legal advice, but not recognize their own need.) They suffer injustices silently, even when the law would be on their side.

I am not arguing in favor of a more litigious society--lawyers can often prove useful in putting deals together, benefitting both parties--and ensuring that neither is unduly exploited in the relationship.

Thus, trying to reduce the number of law graduates might itself leave a world with a greater measure of injustice.

One solution is to make law school cheaper--and thus make it possible for lawyers to perhaps lower their fees to make justice more accessible for ordinary people. An alternative is to offer loan forgiveness programs tied to lower-than-usual earnings.

The concept of "low-bono" is a particularly valuable one in this regard--providing affordable representation, yet still allowing lawyers to make a living.

Anupam Chander

The California Model

While reading this intriguing article linked in the post below (which describes the creation of a new law school in Indio, California), I was reminded of how California provides a distinct model for legal education.

In other states, bar membership is predicated on holding a degree from a law school which is nationally accredited by the ABA.  California, however, has its own state accreditation for law schools, and graduates of state-but-not-nationally-accredited law schools are eligible to become members of the bar.  Quality control is emphasized through the bar exam, which traditionally has been difficult to pass relative to the tests given in other states.

One result of this different model has been a proliferation of law schools.  For example, the law school mentioned in the article, the California Desert Trial Academy College of Law, will offer night classes in a courthouse for fewer than 50 students (at least in the begining). 

Certainly, there are advantages to the California model.  With more law schools, legal education can be more local and emphasize particular skills or areas of practice.  The Indio school is geared towards both factors-- it will emphasize trial practice, and was created in part because the next closest law school was "70 miles away." 

On the down side, many of the graduates California law schools fail to pass the bar exam, and have spent their tuition money only to fail to reach their goal.

Certainly, most other states lack the critical mass of people it would take to make the California system work-- there simply aren't enough potential law students.  But is it worthwhile, even in California?

-- Mark Osler 

 

 

Of interest in The National Law Journal

These recent pieces from The National Law Journal caught my eye this weekend:

• A law school sprouts in California's desert

• ABA should make law schools provide better job statistics now

• Illinois acknowledges goosing credentials of incoming class

• Law schools' credibility at issue

What are the best (and worst) law review websites?

At a production meeting for the Ohio State specialty journal for which I serve as a faculty editor, the Ohio State Journal of Criminal Law, I told the senior student editors that I believed OSJCL has one of the very best, if not the best, journal website I know.  Here are some of the reasons I make this claim:

1.  All of the OSJCL's content is fully available on-line and for free, and new content from new issues are put up on this website even before the hard-copy journal gets into circulation.

2.  All of OSJCL's content is easy to see an access on the website whether searching by issues, or by authors, or by article title, and all pieces come up as user-friendly pdfs with proper pagination.

3.  The OSJCL website has some additional content beyond the journal's print materials via a special section called OSJCL Amici: Views from the Field.

4.  The OSJCL website includes this page with simple instructions for those interested in submitting drafts for publication consideration and this page with simple instructions (and an on-line form) concerning about subscriptions.

Because a few additional pages of the website are not always subject to timely updating, I think there is still room for improvement at the OSJCL journal website.  Still, because primary hard-copy content is king and because that part of the website is always easy to navigate and completely free to access, I am still prepared to put the OSJCL site in a top tier of law journal websites.

Can readers report other journal websites they really like and/or mention specific features of a journal's website that is especially valuable?  Alternatively, if folks want to call out terrible journal websites or problematic feature of some sites, that would be cool, too.

Posted by DAB

The Newest Clinic

This semester, I'm doing two unusual things.

First, though I am not a clinical professor, I am starting a clinic here at St. Thomas.  My colleagues and dean have been totally supportive of this transgression of boundaries, and it makes me wonder why we have them so firmly planted in the first place.  My scholarship is in the field of sentencing, and a clinic allows me to extend that scholarship to the real world in a very direct way. 

Second, the clinic itself is unique.  Along with Doug Berman, Margaret Colgate Love, and others, I began discussions a few years ago, focusing on the President's pardon power and how we might work to restore it to a functioning role in the criminal justice system.  As part of that project, I have begun a federal commutation clinic here, where students  will work with clients to prepare petitions for early release.  It's a great task for students, since there is no judicial proceeding to foul up timing, and the core of the job is discerning and describing a compelling narrative-- the same task that is at the core of most  criminal law jobs.

I'll report back as the project continues.

-- Mark Osler

 

 

 

The Audience for Law School Events

As the new head of the California International Law Center (CILC), I find myself thinking about the audience for the events I now host at the Law School.  The Law School student body at Davis is 600, the student body on the campus at large is more than 30,000.  Yet, I suspect that a non-law student in the audience of a public lecture remains rather rare. Given the fact that many talks are intended for a general audience, rather than for those steeped in legal knowledge, I often feel that the general university community is missing opportunities for edification.

Is this true of law schools around the country? Do some law schools make stronger (or more successful) efforts to promote events to a broader community?  Should law schools work with other units to promote events? Are there good ways to publicize events of interest to the broader community interested in environmental issues, or international legal issues, or technology law issues?  I suspect that the answers will lie (seemingly paradoxically) in both the Internet and in personal contacts.

Anupam Chander

Should law schools teach how the best lawyers and law firms use the internet?

Debates about adequate skills instruction have raged for decades within and outside law school.  Less debated, though no less important, is whether law schools are teaching their students the right kinds of lawyering skills.  My own experience as both a law student and a law professor leads me to believe and fear that law schools too often focus on teaching the next generation of lawyers the most critical skills of the last generation of lawyers.

Those who went to law school around the time I was a student (1990 to 1993) likely recall the debate over whether and how students should be allowed access to computer research sources like Westlaw and Lexis or instead needed to be taught how to "only use the books."  Savvy students (but very few faculty) at the time appreciated that computer-based research skills we ultimately likely to be much more important to our future than book-based skills.  Nevertheless, back then (and still it seems two decades later), commercial providers like West and Lexis supplied much more (and much more effective) training in computer research than did my law school.

This recent article by Robert Algeri in the The National Law Journal, which is headlined "The future of the law firm website: Your website will become bigger, more important — and more focused on the needs of individual attorneys," has me thinking about these realities and prompted the question in the title of this post. Here is how the piece starts:

After a half-century of remarkable stability and steady growth, the legal industry got hit by a ton of bricks called the Great Recession. Several years after the initial shock, it is clear that this downturn wasn't just a momentary blip, but a rather sizable shift in the business landscape. As a result, law firms are being forced to reconsider many aspects of how they do business.

What does all this mean for legal marketing? Lots.      During the past two years, my colleagues and I have studied the Great Recession's effects on legal marketing and law firm Web sites.  Our conclusion is that the law firm Web site is about to undergo a revolution. Specifically, we expect law firm Web sites to:

• Become more valuable....

• Become bigger....

• Focus more on attorneys....

Web sites already play a vital role in law firm business development. Numerous studies show this.  However, I strongly believe that they will become even more important--nearly as important as face-to-face meetings.  Why?  Because face-to-face meetings will happen less and less.

The legal business has traditionally been locally focused, with clients and the firm often located within 25 miles of one another.  That's changing. The Internet and related technologies have made it much more practical to work long distance.  But that's the least of it: Our culture is also changing. 

I could say a lot about the long-standing failure of law schools to help students better understand the business of law and the provision of legal services.  Those broader concerns aside, given the tight legal marketplace and changing legal and technological environments, are law schools uniquely deficient for not helping students better appreciate when and how modern lawyers use the internet?

Posted by DAB

Interesting comments from Dean Chemerinsky on his "Ideal Law School for the 21st Century"

I just came across this article on SSRN titled "The Ideal Law School for the 21st Century."  The piece is authored by Erwin Chemerinsky, Dean of the new UC Irvine law school, and it describes his experiences starting the school and his "vision" for UCI Law School.   Here is one passage discussing this vision I found especially blog-worthy:

I felt from the outset that if we simply replicated other law schools we will have failed. There is not a need for another law school like all of the others that already exist.  I felt from the outset that if we simply replicated other law schools we will have failed.  There is not a need for another law school like all of the others that already exist.

My central vision is that I want us to do the best possible job of preparing students for the practice of law at the highest levels of the profession.  I certainly did not graduate from law school ready to practice law. On my first day at my first job after graduating from law school, as a trial attorney at the United States Department of Justice, my supervising lawyer told me that an answer to a particular question could be found in the local rules of the federal district court.  I did not know that there were local rules of the federal district.

Law schools do many things well, including teaching students skills such as the ability to read cases and construct legal arguments, and instructing students on the doctrines in many areas of law. But as many reports have noted, law schools are far less successful in preparing students for the practice of law.There are many reasons for this.  I believe that elite law schools have long eschewed this as a primary objective.  Long ago, they adopted the mantra that they teach students to think like lawyers and leave practical training for after graduation.

Also, the nature of most law school classes, a single instructor in front of a large number of students, does not lend itself to training in skills.  This format of instruction works for conveying information, but skills cannot be learned in this way.  No one would learn how to be a tennis player or a play a musical instrument by exclusively or primarily sitting in a classroom; that is true of any skill.  More subtly, having a single instructor in front of a large number of students limits most evaluations in law school to the grade from a single final examination.  No skills are taught by this experience; there is not even good instruction on the skill of taking law school exams because generally students receive no feedback other than a grade about their performance.

I also fear that the lack of skills training in most law schools is, in part, because most law school faculty are not equipped or oriented towards doing this.  The trend over the last couple of decades, especially in elite schools, is to hire individuals with Ph.D.s, but with no practice experience.  Even those who have practiced before going into teaching generally have done so for only a very short time.  I have observed that very few faculty at elite law schools are actively engaged in the practice of law.  My impression is that this has decreased over the thirty years that I have been an academic, partially because publication and other demands have increased and partially because those being hired are less oriented towards doing so.

Posted by DAB

The Moral Hazard of Big Law Firms

When I look through resumes of those hoping to become law professors, I usually find one common element:  A short stay (1-4 years, usually) at a large law firm.  Why did these people leave after that time?  Some, no doubt, were pushed out.  The others decided to switch career tracks on their own, despite success at the firm.  Given that these are smart, well-educated, successful lawyers, why is it that law firms lose them so readily?

The short answer (based on the experience of those I know) is that many of them are miserable working at large law firms, despite the high rate of pay.  It is soul-less and unfulfilling for these top achievers.

Are we doing the right thing in pushing our top students towards these jobs?  In the context of students with a strong Christian faith (and those of other faiths as well), I think it may be a disservice to both that student and the firm.  Recently, I wrote a short book review for the Journal of Christian Legal Thought, reviewing a wonderful book by John Allegretti called The Lawyer's Calling,  Here is the conclusion of that review:

We must be peacemakers...

This may not seem a remarkable thesis, but at its heart is a bedrock rejection of the business practices of those very law firms we send so many of our best and brightest students into. Of course those firms are amoral at best; they are structured that way, and present economic circumstances have only made that worse. We can pretend that this isn’t true, but those of us who have spent time in large firms know better. Neither should we continue to lie to our students, saying or implying that the practice of most large law firms is consistent with the Christian faith. An amoral environment, especially for the powerless junior associate, is anathema to faith, to the idea of vocation, and to the ethic of love.

Allegretti’s book is practical, but it directs us to a nearly impossible challenge: To undo the primary business structure in our field, or at least decline to any longer feed that beast with the bodies and souls of our young. Are we that brave?

I realize that my critique is probably too broad.  I think there ARE law firms that foster healthy vocations for lawyers of faith; I also know that some of my best friends are people of faith who work in good conscience at large firms. 

But still, as a general matter, isn't there something there?

-- Mark Osler

 

 

 

Should you go far away to a higher ranked law school?

Above The Law makes the common claim:

“In most situations, going to the highest ranked U.S. News school that you can is going to be really important for your career.”

It's not clear to me that that is truly the case.  Does it make sense for someone in California to journey across the country to attend a law school that is a few ticks up on the US News ranking?  My suspicion is that, with the exception of the truly national schools--something akin to the top ten or so law schools in the country--most law schools are ultimately regional. That is, I suspect that their graduates generally end up working at firms in the same state--or in states adjacent to--the state of the law school they attend.

Ted Seto has done some important empirical work demonstrating this. In his paper, Where Do Partners Come From?, he argues that one should often choose a law school located in the geographic area in which one hopes to work.

As a professor, I often talk with applicants about how to realize their life goals. I recall in particular a student attempting to choose between Vanderbilt and the school at which I teach – Loyola Los Angeles. His ambition was to become a big-firm partner in Los Angeles. As students often do, he chose the higher U.S. News-ranked school. When he graduated from Vanderbilt, he was unable even to get an interview in LA. Had he attended Loyola, his paper credentials and performance at Vanderbilt suggest that he would have graduated near the top of his class. If he had, his chances of getting a Los Angeles big-firm offer would have been quite high. Again, based on the results of the study reported in this article, I can

Those deciding between law schools might do well to examine the list of firms that actually come calling to that law school's recruitment week.  For the most part, it is uneconomical for a firm to send partners to interview candidates in distant jurisdictions, because few students from those distant locations may be inclined to move to that firm's city. Staying within the state is likely to prove more efficient, in terms of partner time.

Anupam Chander

Identifying the disconnect at the center of the "law school scam"

I still continue to find Inside the Law School Scam an interesting and useful read, and this passage from a recent post comparing law schools to other graduate programs (and some follow-up comments) has helped me to see the heart of the problem that keeps pumping blood though the modern legal education market and has allowed the so-called "law school scam" to develop and continue.  First the passage from ILSS (with my emphasis added), then my explanation:

[It] is an interesting comparison [between law schools and the huge recent expansion of creative writing MFA programs], although in some ways an obviously inapt one.   No one goes into an MFA program intending to make lots of money.  Indeed it's notable that such programs never focus on producing successful genre writers -- i.e., the next Stephen King or John Grisham -- but are rather dedicated almost exclusively to literary fiction. Nor, as far as I know, do MFA programs engage in industry-wide placement stat deception.  (Unlike business schools I know something about these programs because my best friend and his wife are graduates of one).  The biggest distinction between law schools and MFA programs goes to the crucial issue of what economists call psychic income.  Lots of people grow up hoping to write the Great American Novel.  Nobody grows up hoping to one day be Henry Kravis's water carrier on a big M&A deal.  People go to law school, with occasional exceptions, in order to acquire a respectable and well-paid career.  MFA programs cater to peoples' dreams.  Law school is where dreams go to die (Yes I'm generalizing).

Implicit in this passage are three critical contentions/assumptions about the professional thinking of some (many? most?) law students: (1) students go to law school intending to "make lots of money" (not because they dream of practicing law), (2) students expect that "average" performance at an "average" law school will result in a in a "respectable and well-paid career," and (3) students rely on deceptive law school placement stats to justify these decisions and expectations.

I trust some (many? most?) law students — especially those who are most aggrieved and vocal in their complains about the "law school scam" — would endorse these three critical contentions/assumptions and agree they help explain why so many recent graduates are now so upset that they "invested" so much in law school and are now not getting a fair (or any) return on that investment.

Changing perspectives, let me articulate what I suspect to be professional thinking of some (many? most?) law professors: (A) students interested primarily in making money should go to business school (because only those with lawyer dreams will be happy lawyers), (B) students with "average" grades at an "average" law school can find legal jobs, but they will need to "pick up their game" in practice to have a "well-paid" legal career, and (C) students who make serious and savvy efforts to find a legal job will eventually get a legal job.  

Perhaps I am wrong to assert that others would embrace points A, B, and C above, but these realities account for why I personally have not been attuned to "law school scam" complaints until quite recently.  I have long believed that (A) those who went to law school for "the wrong reasons" were unlikely to be happy no matter their professional success, (B) my "average" students could and would find legal work at a living wage, and (C) I can help my students land a legal job if they are serious and savvy in their efforts.  (Indeed, I still hold these views, though I now better understand that (too) many law students may be in it "just for the money" and that the recession has made it much harder for "average" students to find legal work at a living wage.  But while these students may often feel "scammed," they do not often come by my office to ask for job-hunting advice.  I often have "top" students coming for job advice, typically to ask which of two job opportunities they ought to pursue, which I now realize greatly distorts my perspective on the legal job market.)

Not to be overlooked here is the inevitable affinity for law schools to spotlight — in recruiting materials and alumni publications — their most successful and happy graduates and to "hide" their least successful and miserable graduates.  A coming attractions even for a lousy Jack Black movie creates the (deceptive?) impression everyone should spend money on that movie even though only Jack Black fans will be content with the product.  (This preview metaphor justifies greater transparency in law school employment data — i.e., studios should not "scam" Brad Pitt fans into paying to see a Jack Black movie by having the whole preview focus on a tiny Brad Pitt cameo.  But this metaphor might help students appreciate the unique (insulated) perspective of law professors: law profs are essentially Jack Black fans (read, law geeks) who assume the only folks paying for their movie (law school) are fellow Jack Black fans who should still appreciate the experience even though better movies (other professional opportunities) might be at the Cineplex.)

So, even as I grow more aware/attune to the "law school scam" and suffering grads, I still have a hard time viewing law professors as avaricious Ponzi schemers eager to drive students into a lifetime of debt to fund a lavish lifestyle.  Instead, I see a group of well-meaning service-providers (law professors/schools) working earnestly to provide what they consider a valuable non-economic service ("teaching students how to think like a lawyer") to some people who are paying a lot of money (law students) problematically believing they are getting a valuable economic service ("becoming a practicing lawyer").   

To the extent that deceptive placement stats fuel this disconnect between the "law school service" most law professors seek to provide and what some (many? most?) law students actually want and expect, more honest employment data should help considerably.  But if one fears (as I do) that much bigger societal and human psychology forces are in play, more honest employment data is just a first step on a long journey toward a sounder legal education system.

Posted by DAB