Law School Innovation

Taking an Oath to Serve the Greater Good

The New York Times has a fascinating story by Leslie Wayne identifying a possible new trend among business students--to take oaths to serve the greater good, especially during their careers to come. 

Should law students take similar oaths? Lawyers, after all, were involved with Enron, Madoff, and, most infamously, torture.

Lawyers, of course, are already bound by professional ethics, and serve, among other things as, officers of the court. Yet, a promise to "serve the greater good" seems to state an ambition more directly perhaps than our lawyerly professional canons (though perhaps those better versed in these might enlighten me on this subject int he comments).

There is yet another issue: whether it is important that professionals see themselves as serving the "greater good." The famous Adam Smith passage saw a greater good arising out of the self-interested behavior of individuals. But perhaps even greater good might arise from more directly socially directed behavior, such as that arising out of a sense of professionalism.

Here's an excerpt from the NYT story:

When a new crop of future business leaders graduates from the Harvard Business School next week, many of them will be taking a new oath that says, in effect, greed is not good.

Nearly 20 percent of the graduating class have signed “The M.B.A. Oath,” a voluntary student-led pledge that the goal of a business manager is to “serve the greater good.” It promises that Harvard M.B.A.’s will act responsibly, ethically and refrain from advancing their “own narrow ambitions” at the expense of others.

What happened to making money?

That, of course, is still at the heart of the Harvard curriculum. But at Harvard and other top business schools, there has been an explosion of interest in ethics courses and in student activities — clubs, lectures, conferences — about personal and corporate responsibility and on how to view business as more than a money-making enterprise, but part of a large social community.

“We want to stand up and recite something out loud with our class,” said Teal Carlock, who is graduating from Harvard and has accepted a job at Genentech. “Fingers are now pointed at M.B.A.’s and we, as a class, have a real opportunity to come together and set a standard as business leaders.”

At Columbia Business School, all students must pledge to an honor code: “As a lifelong member of the Columbia Business School community, I adhere to the principles of truth, integrity, and respect. I will not lie, cheat, steal, or tolerate those who do.” The code has been in place for about three years and came about after discussions between students and faculty.

In the post-Enron and post-Madoff era, the issue of ethics and corporate social responsibility has taken on greater urgency among students about to graduate.

Anupam Chander

What should we make of all the law profs involved in the Obama transition?

Professor Nan Hunter has this helpful post compiling information on all the law professors who are playing formal roles in the Obama transition.  As of this writing, the post is headlined "Law professors in the Obama administration: 35 and counting."

To my knowledge, there has never been a formal head-count of how many law professors were involved in prior presidential transitions.  Still, the number already involved in the Obama transition seems high, though I suppose not surprisingly high given that both the President-Elect and the Vice-President-Elect are law profs themselves.

Of course, as a personal friend and fan of many law profs (including some on this growing list assembled by Nan Hunter), I am inclined to say "the more, the merrier" when thinking about law profs in the new administration.  But maybe others have different views.

Posted by DAB

If you build it (around SCOTUS), they will come

The latest issue of the ABA Journal has this interesting article discussing perhaps the most significant innovation in elite law schools in recent years: the development of Supreme Court litigation clinics.  The entire article merits a close read by any and all wanna-be law school innovators, and I found these excerpts particularly interesting:

Since Stanford Law School launched the first such clinic in 2004, others have followed: North­western, Yale, the University of Texas and the University of Virginia began theirs in 2006; Harvard and New York University kicked off last fall.

The clinics function as miniature pro bono law firms, tackling cases concerning criminal and discrimination issues, as well as laws governing voting rights and maritime jurisdiction.  Typically, their clients are petitioners lacking the resources to move up the appellate chain without the assistance of eager students, full-time faculty and dedicated outside practitioners willing to give their time.

But the clinics share something else.  All have allied with well-known Supreme Court practitioners and their law firms.  The advantage is mutual: Top-tier law schools gain a glamorous clinic to offer students and to appeal to applicants in an increasingly competitive market.

Faced also with a shrinking Supreme Court docket, firms are going all out to seek opportunities to appear before the justices.  Meanwhile, law firms — facing their own competition for high-powered clients and the most talented grads — get a leg up on recruiting as well as an additional labor pool....  Not that the law firms realize a profit from the clinics; on the contrary, the students require a large commitment of nonbillable hours from the overseeing attorneys. With the focus on developing skills using real cases and with a strong emphasis on writing, students often have to rework documents numerous times before they are ready for submission....

Most of the clinics bring students to Washington at least once to hear oral arguments on Supreme Court cases with which they have assisted. Harvard goes a step further, offering students the opportunity to spend their winter term in Washington working with attorneys from O'Melveny & Myers.

And while few students will go on to seek careers as Supreme Court litigators, students and faculty alike agree that the experience offers invaluable training.  “My biggest goal when I come out is to be prepared to handle appellate litigation — not to be surprised by the process,” says Richard Kirkendall, a 25-year-old student attending the clinic at Northwestern. “I think it’s a good opportunity to see the full litigation process.”

I have worked directly with a number of these clinics on a number of different projects, and I cannot overstate the value that elite law schools and elite law firms are adding to both the development of important legal ideas and the development of the profession.

That all said, I hope the SCOTUS clinic model can and will be expanded to focus on appellate litigation opportunities and needs outside the beltway.  Every state has its own version of the Supreme Court (some even have two), and I think (only elite?) state law schools would be wise to seriously consider the development of state Supreme Court litigation clinics.  Similarly, there are over a dozen federal courts of appeals that all could benefit from the time and energy that law schools and their professors and student could devote to their major cases (especially when these cases go en banc).  I think lots of law school — especially those in or around the main location of a federal circuit court — would be wise to seriously consider the development of federal appellate circuit litigation clinics.

If any of this work is already on-going in school beyond those discussed in the ABA article, I would be grateful to hear reports from the field.

Posted by DAB

The virtues (and vices?) of law professors being friendly with courts

Over the last year or so, I have author or co-authored numerous amicus briefs filed in various federal courts.  (Specifically, I have been involved with four Supreme Court amicus briefs and with amicus briefs filed in seven distinct lower federal courts.  My latest friendly effort — concerning acquitted conduct sentencing enhancements delivered to the Sixth Circuit last week — can be found here.)

Because I am finding lots of professional rewards (and a few professional detriments) in this work, I thought I worthwhile to reflect publicly on a few virtues and vices I have discovered in being so friendly with courts lately.

Some professional virtues I have experienced from amicus work:

1.  Rediscovering the critical importance of facts, building an effective record, and deadlines, all of which are worth emphasizing in the law school classroom (even though professors rarely do).

2.  Having various opportunities to put my scholarly ideas into action, which is intellectually satisfying and helps me appreciate the opportunities and challenges for operationalizing scholarly ideas for judges.

3.  Working more closely with many terrific practicing lawyers, which has an array of professional fringe benefits (some of which I can share with students and academic colleagues).

Some professional vices I have experienced from recent amicus work:

1.  Rediscovering the critical importance of facts, building an effective record, and deadlines; litigating real cases is often harder (and more time-pressured) than making up hypos for class.

2.  Having few opportunities to get formal recognition or credit for putting my scholarly ideas into action, which is frustrating because a lot of hard work cannot and will not be rewarded in my professional marketplace.

3.  Working less closely, simply because I have less time, with my terrific students and colleagues.

Though I have a lot more to say, I will conclude here by saying that the net gains makes amici work an easy call for tenured academics: I think every tenured academic should try to be involved in some kind of amici work on a regular basis.  Sadly, though, I fear the limited ability to recognize and fully credit this kind of service in a tenure file likely means that untenured faculty should be mindful of the potential opportunity costs of investing a lot of time in amici activities.

Posted by DAB

Is the Future President of the U.S. Sitting in Your Class?

Yet again, the race for President of the United States (and putative leader of the free world) is crowded with lawyers.

Consider the leading Democrats:

Hillary Clinton (Yale Law School)

Barack Obama (Harvard Law School)

John Edwards (UNC Law)

Joe Biden (Syracuse Law)

Chris Dodd (Louisville Law)

(Bill Richardson graduated from the Fletcher School of Law and Diplomacy, a particularly appropriate training ground for future statesmen and stateswomen, but that institution does not offer a J.D.)

and the Republicans:

Rudy Giuliani (NYU Law)

Fred Thompson (Vanderbilt Law)

Mitt Romney (Harvard Law (joint JD/MBA program))

Sam Brownback (Kansas Law)

Duncan Hunter (Thomas Jefferson Law)

The fact that the three leading candidates for President in both parties are all lawyers is quite astonishing.

Among recent Presidents, the following were lawyers: Richard Nixon (Duke Law), Gerald Ford (Yale Law), and Bill Clinton (Yale Law). I see that USA Today has noted this year's lawyer crop of candidates, and helpfully reported that

Twenty-five of 43 presidents have had law degrees, but the American Bar Association says the proportion has fallen from 76% through the 19th century to 39% in the 20th century. Some recent presidents have perpetuated negative views of lawyers: Richard Nixon resigned during the Watergate scandal and Bill Clinton was impeached. But lawyer-presidents also have included Franklin Roosevelt, Abraham Lincoln and Thomas Jefferson.

As a Law Professor, I have long known that my students will hold positions of leadership in the community, the nation, and the world. This suggests that initiatives such as those at Ohio State (naming 3 students as Leadership Scholars) and Santa Clara teaching leadership to law students are especially important.

Any theories for why so many of these candidates have a J.D.? Should law proessors be concerned when our former students promise to "double Guantanamo" (as Romney, the Harvard-trained lawyer, promised to do)?

Anupam Chander

Should advocacy count as scholarship?

Law professors' involvement in individual cases, often at the appellate level, is nothing new.  However, it seems that such involvement may be growing, as professors file more briefs and increasingly serve as amici in order to be put their position before a court. 

Generally, I think this is a good thing.  In our area of scholarship, federal sentencing, I have written briefs on behalf of Doug Berman and others as amici, and he has most recently done the writing while I serve among the amici.   This allows us to take the ideas we have propounded as scholars though journal articles and put them before a decision-maker considering a discrete set of facts. 

Certainly, if there is a problem with this trend, that problem cannot be that we are taking a position on policy issues-- academics, in their writings, are expected to take strong positions on policy issues, as that is a crucial role we serve in the larger society.  However, it could be that we risk blurring the line between somewhat objective academic and practitioner/advocate when we put our ideas in the form of a brief rather than an article.

I would not suggest that within the realm of legal scholarship briefs can serve as substitutes for articles, essays, and books.  However, can briefs be considered a form of scholarship, secondary to more traditional academic work?  Or are they something less, even a frolic and detour which should be discouraged?

-- Mark Osler

Prominent profs affiliating with prominent firms

Who says established and renown law professors cannot be innovative?  As detailed here at the WSJ Law Blog, Harvard Law Professor Laurence Tribe has has continued a new innovate consulting trend by engineering a deal with Akin Gump.  As the WSJ Blog notes:

Akin Gump's announcement continues the trend of firms cutting various arrangements with prominent law professors. Last year, Stanford's Kathleen Sullivan, a protege of Tribe, joined Quinn Emanuel Urquhart Oliver & Hedges's Silicon Valley office in an of counsel position.  Earlier this year, UCLA's Eugene Volokh affiliated with Mayer Brown Rowe & Maw.

Innovating in sports

The WSJ Law Blog has this great post entitled "The Heisman Trophy, Archie Griffin & the Law," which provides a link to this great New York Times article about John William Heisman.  The post spotlights that Coach Heisman earned an L.L.B. from the University of Pennsylvania Law School in 1892 and thereafter became a football innovator largely responsible for the forward pass, the "hike" vocal signal, the audible, and even the scoreboard.  Especially as I anticipate another Heisman Trophy for a Buckeye, this post got me to thinking about whether and when a "forward pass" type innovation might arrive at law schools.

Posted by DAB

Should law professors be required to practice?

Law professors are required to teach (a little) and expected to produce scholarship (a lot).  The third part of the job description is "service," but this can mean just about anything or nothing.  Committee work, CLE lectures, conferences can all count as service, and few schools demand or even expect "service" to include any real practice of law.

Reading Neal Katyal's terrifically interesting new Harvard Law Review comment about his work in the Hamdan case has me thinking about requiring law professors to do some practicing.  Here are a few passages from Neal's piece that prompt these thoughts:

Perhaps fueled by an intense desire to move up in published law school rankings, many of the nation's leading law schools have ramped up course offerings and the number of faculty members devoted to legal theory while disparaging practitioners.  Like any excluded group, practitioners have begun disparaging the theoreticians in return.  We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students' activities upon graduation....

The truth is that very few law schools today prepare students to be lawyers: this responsibility is shunted off to law firms, the judges for whom students clerk, prosecutors' offices, and others.  The obvious exception is law clinics, which do offer crucial lessons in the art of good lawyering.  But clinics, despite their many virtues, still do not reach most law students, and their connection to the theoretical law taught elsewhere in the school is often left murky.

The cost of this educational failure is massive, forcing employers to spend their limited resources on training new lawyers in the basics of their jobs.

Neal's article ultimately provides a partial defense to all the theory in law school, but it still spotlights the insights a law professor gains from working on a real case.  Of course, Neal's amazing experiences with Hamdan, one of the most intriguing modern constitutional disputes, are not what all law professors would get from practicing in their field.  But, speaking for myself, I have gotten so much from working with clients and writing amicus briefs recently, and my forays into practice have greatly enhanced my teaching and scholarship.

So why not demand (or at least expect) law professors to write a real brief or contract or will or legislative proposal every few years?

Posted by DAB

Why shouldn't all law schools regularly host real oral arguments?

As I was gearing up this new blog adventure, Dave Hoffman at Concurring Opinion reacted to hearing appellate arguments at Temple School of Law by suggesting here that states "stop building new appellate courtrooms, and have law schools (in effect) subsidize some of the costs of the court system in return for educational benefits."  Howard Bashman of How Appealing, who happened to be one of the appellate lawyers involved in the arguments at Temple, followed up here by suggesting  that one lesson law students in attendance should have drawn "is the extent to which appellate courts are forced to ration justice due to the crushing burden of an overwhelming caseload."

These two intriguing posts got me thinking that all law schools should regularly host real oral arguments — and, ideally, lots of different kinds of oral arguments involving different kinds of courts hearing different kinds of cases.  A very enriching and useful aspect of my clerking experience was observing oral arguments and discovering the wide diversity of judicial and litigant styles.  Now, as a law professor, I continue to learn a lot from reading SCOTUS oral argument transcripts and from watching/listening to on-line oral arguments in my field.

So, furthering Dave's idea, I would encourage law schools to actively recruit (local and distant) courts to conduct oral arguments within its walls.  Law professors could actively develop innovative educational programming around these arguments — by having students read briefs before the argument and perhaps even script questions for the judges; by having students draft opinions based on what they saw and perhaps even write reviews of the lawyers' and judges' performances.

Does anyone know if any law schools host real oral arguments on a consistent basis?  Does anyone see any real downsides to doing so?