Charleston Law School survives, for now at least, but the management terminated seven faculty in May. Now two of them, Allyson Haynes Stuart and Nancy Zisk, are suing - apparently on the grounds of breach of contract. The motions for a TRO are here and here.
The University of New Mexico School of Law has announced that it will take the road less traveled, and will be led by co-deans. UNM Professors Alfred Mathewson and Sergio Pareja will share the job. Mathewson holds a JD from Yale and joined the faculty in 1983. Pareja holds a JD from Georgetown and joined UNM in 2005.
We all owe thanks to our new Lounge Colleague Steve Lubet for his exceptionally interesting and thoughtful string of comments here and elsewhere on Alice Goffman’s On the Run, an “immersive” sociological study of an impoverished Philadelphia neighborhood. (See here (Lubet’s original book review in The New Republic), here (Goffman’s reply), here and here (Lubet’s response to Goffman’s reply), here (UCLA sociologist’s Jack Katz’s comments), and here (Lubet’s rejoinder to Katz).) I’d like to offer another perspective on the Goffman book that may provide a useful complement to those expressed so far.
This additional perspective arises out of what I agree with Lubet is the striking and disturbing inconsistency between Goffman's original presentation in her book of her actions and motivations on the night she drove around with her armed friend Mike looking for their mutual friend Chuck’s killer in the hope of exacting revenge, and her later restatement of the same events after Lubet had pointed out that, as Goffman had originally portrayed her own conduct and intentions, she had not only committed a felony, but had endangered human lives. (Neither of these practices, it is fair to say, is or ought to be a common feature of sociological fieldwork, “immersive” or not. That may not be a very limiting constraint, but even if it were, I would hope that it could command a broad consensus.)
Specifically, Goffman relates in her book that, Mike having earlier affirmed that “somebody gon’ die regardless,” she volunteered to drive Mike around one night in search of their friend’s killer “because, like Mike . . . , I wanted Chuck’s killer to die.” Goffman says she waited in the car with the motor running, “ready to speed off as soon as Mike ran back and got inside,” as Mike got out with his gun to go after someone he thought might be the killer (it turned out he wasn’t). After Lubet raised serious and legitimate questions about what the hell an assistant professor of sociology was doing engaging in conduct that appeared to comprise a conspiracy to commit attempted murder, Goffman posted an explanatory response on the Internet asserting that “I had good reason to believe that this night would not end in violence or injury”; and that “Talk of retribution was just that: Talk.” As Lubet explains in more detail, you can shuck and jive all you want, but the “before” and “after” versions of Goffman's story can't realistically be reconciled. The discrepancy raises important and serious questions about which narrative more accurately presents Goffman's actual actions and intentions. As Lubet points out in one of his posts, we don't know, and that in turn raises troubling issues about the reliability of Goffman’s entire book.
That prompted me to think about the uncomfortable (and unwelcome) erosion of the distinction between memoir and fiction, which Lubet’s commentary began to persuade me might be traced to, or at least compared with, developments in social science research implicated here. It is my superficial understanding that, as originally conceived, sociological and anthropological ethnography was an observational science in which the investigator as dispassionately and “objectively” as possible described the behavior of a culture's members, and through observation and interview inferred their beliefs and motivations. (Readers should supplement or correct this understanding in the Comments if it’s incomplete or wrong; I freely disclaim any depth of expertise.) “Immersive” study allowed the investigator to step into and become to some degree a part of a culture or its practices: Instead of depicting Yaqui Indians engaging in ritual ingestion of hallucinogens, describing their gestures, words and post-hoc recounting of their experiences, Carlos Castaneda actually takes peyote with his brujo, Don Juan, and tells us what he saw and felt. (Castaneda’s first three books were part of his undergraduate and graduate studies in anthropology at UCLA.) More generally, “immersive” observation allows the investigator to observe her own feelings and reactions as well as describe those of the subject population, and hopefully thus gain additional understanding and perspective on the culture being investigated that is meaningful, and meaningfully different from dispassionate “objective” observation.
But whether you're watching from the outside or the inside, there will inevitably be questions about the integrity or verisimilitude of your portrayal. Margaret Mead's seminal and deeply influential 1928 study of Samoan culture, for example, has become a battleground over whether she got many important features right, and if not, why not. I don’t know that anyone has accused Dr. Mead of fictionalizing or embellishing, but you don’t have to. The problem is that any observed portrait of a culture necessarily simplifies it to make it accessible as an object for study and understanding. And it necessarily does so by emphasizing certain details and omitting or downplaying others; finding patterns in some concatenations of circumstance but not in others; and so on. Ironically, observation becomes characterized not by its accuracies, but by its inevitable inaccuracies—what the observer necessarily simplified, or emphasized, or left out to render us an observation that is more meaningful, organized, and accessible than the impossibly messy and inaccessible mass of countless human details the observer was watching and trying to describe.
And once you concede that your observations are necessarily inaccurate and incomplete, it is a much shorter and seemingly easier step to consciously and deliberately tailoring your observations to your conceptions in the service of the deeper "truth" that you have "found" embedded out there. Carlos Castaneda admitted to narrative license in his work “to heighten some dramatic sequences,” while at the same time insisting that his stories were absolutely true to life. Challenged about discrepancies in a Time magazine interview, he said, “To ask me to verify my life by giving you my statistics . . . is like using science to validate sorcery. It robs the world of its magic and makes milestones out of us all.” Boy, is that ever a long strange trip from Emile Durkheim’s imperative of observational objectivity less than a hundred years before. (I use Castaneda as an example here because he was so prominent in popular culture—his books were widely read in nonacademic circles, and he was featured on the cover of Time magazine in 1973. By publishing her study as a general-interest trade book, Goffman apparently aspires to similar popular notice and influence.)
Ethnographic observation, especially the “immersive” kind, is really a memoir of sorts. And it would be fair to say that the slide from motivated perception to self-deception to outright misrepresentation in some corners of ethnography saw parallel development in the literary memoir and, a bit later, even journalism. The 1990s and early 2000s brought us James Frey and his Oprah-endorsed memoir of recovery, A Million Little Pieces, significant parts of which turned out to be made up; Stephen Glass, who repeatedly fabricated sources and incidents in The New Republic and elsewhere to substantiate his perspectives on modern culture, and then manufactured fake reporter's notes and otherwise confabulated to try and cover it up, and Jayson Blair, who plagiarized and invented sources for his reporting in the New York Times. All of these people, and others like them, were using contrived "facts” to paint a picture they believed was ultimately accurate in some real and important sense, just as Castaneda’s narrative license created stories he felt were true to life (if not literally true) and consistent with the purposes of his ethnographic studies. This entire concept is brilliantly illustrated in Stephen Colbert’s notion of “truthiness”—made-up “facts” presented as reality because they demonstrate something important the speaker earnestly and sincerely believes to be true.
Given the discrepancies between Goffman’s “before” and “after” stories, it may be that she is just reacting to the shock of recognizing the moral and mortal danger in conduct that felt perfectly natural to her at the time and accurately mirrored the thoughts and feelings of the study subjects who had become her friends. But it may be that Goffman fits uncomfortably into the unfortunate if narrow tradition of ethnographer as fabulist. Was her stint at the wheel that night a focused and premeditated mission of revenge or, as she now insists, just participation in a ritual of grieving that threatened no one? How much of each version of the story, factually and emotionally, actually happened? Can she even tell anymore? The only thing that seems clear on the current state of the record is that both stories—asserted with equal certitude by the same observer—cannot comfortably coexist in the same reality. Something’s gotta give.
If you think about it, good fiction is just a skillful narration of invented facts resembling some of the ones we live with that, one way or another, illustrates truths about our culture or condition. Really good fiction may illustrate such truths more evocatively or indelibly than the accidental vagaries of reality. But that doesn’t mean that there’s no difference between reality and fiction. And it certainly doesn’t mean that you’re right to claim something fictional really happened in the service of a deeper "truth" you earnestly believe.
Steve has been doing a great job of catalyzing a conversation about Alice Goffman's book, On the Run. Eugene Volokh has a post up on the topic, and he includes comments from UCLA sociologist Jack Katz (who is a lawyer himself). Katz's thoughts are worth reading here.
This turns out to be an incredibly rich topic, touching on issues of ethics (writ large), professional ethics within different fields, the nature and demands of social activism, professional norms on note destruction (including the demands of IRB's), the challenge of critiques across disciplines, hyperbole, distinct norms of credentialing, intergenerational reputations, and much more.
All of this seems to insure that Goffman's book will see a large number of course adoptions in years to come!
The texts for today’s homily are from Guys and Dolls and The Little Mermaid. Our first subject is Big Jule (alternatively pronounced, depending on the production, "jool" or "julie"), the enormous and imposing gangster from Chicago. Big Jule has come to town, flush, looking for a high-stakes crap game. Near the end of the musical, that game comes to a climax in the local sewer. After some unfortunate early losses, Big Jule has removed his coat and, with his revolver gleaming in plain view in his shoulder holster, pulls from his pocket his special “lucky dice.” These dice appear to everyone else to have blank faces because, Big Jule reveals, they have spots that only he can see. Miraculously, Big Jule’s luck turns, and he wins several big bets. When some of the other gamblers complain, Harry the Horse helpfully explains that “Big Jule cannot win if he plays with honest dice.”
Later that evening, disarmed and on the losing end of an unconventional bet with Sky Masterson, Big Jule finds himself obligated to attend a revival meeting at the Save A Soul Mission. Compelled by his bet to participate in the meeting and confess his sins, Big Jule makes a clean breast of it: “I used to be bad when I was a kid. But ever since then I gone straight, as I can prove by my record — 33 arrests and no convictions.” The prayer meeting is, improbably, a success; lovers are united; and everyone lives happily ever after. Big Jule presumably returns to Chicago to resume his blameless life.
I hope you’re smiling. Now I’m going to ruin everything by explaining why this wonderful story is funny. (A quick editorial aside before we begin: Guys and Dolls is not timeless in every respect, of course. It includes gender stereotyping and other cultural assumptions that, from our 21st-Century vantage, seem not-all-that-quaintly anachronistic. But the features of the story that I have excerpted above seem sufficiently salient to the matter at hand that I think we can make good use of them here.) Once again, the heavy lifting begins after the jump.
When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series. (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education. The first post is here; the second and more recent one is here.) Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here).
As is so often the case, the contention seems to spring from a few basic but important confusions. Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another. I hope to clarify where and how we disagree, and why I hold the views I do. If you agree with me, that’s nice too. If you disagree, I invite you to explain clearly how and why.
Advance warning: This post is a bit longer than usual (around 2,800 words). The public discourse on these issues is so mixed up that it takes some doing to untangle it. I beg your indulgence, and thank those who make it to the end for their dedication and patience. The heavy lifting begins after the jump.
Nova Southeastern University Shepard Broad Law Center and the Nova Law Review seek submissions for the Nova Law Review Symposium being held on September 18, 2015, entitled “Shutting Down the School to Prison Pipeline,” and co-sponsored by Gwen S. Cherry Black Women Lawyer’s Association, American Civil Liberties Union, Miami Dade Public Defender Office, and the Anti-Defamation League.
Abstracts are due June 1, 2015. Download more details here.
At the request of the organizers, I'm passing on the following:
The Food and Drug Law Journal is pleased to announce a forthcoming symposium—Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products—to be held at the Georgetown University Law Center (GULC) on Friday, October 30, 2015, and co-sponsored by the Food and Drug Law Institute and GULC's O’Neill Institute for National and Global Health Law.
This is the second in what I intend to be a short series of posts on the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent contributions to the literature on the purpose and value of a legal education. (The first is here.)
I’ll devote this post to setting aside what I think is a peripheral issue that has occupied some of the resurgent debate spawned by Mike Simkovic’s series of posts on Brian Leiter’s blog. In recent exchanges, this issue has emerged as a series of accusations and assumptions about what employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation. A lot of the recent controversy has focused on whether, when a law school reports its graduates’ employment numbers, “employed” should or should not include part-time, short-term or non-law-related employment; and whether “unemployed” should include only those actively seeking work, excluding the category the ABA collects as “unemployed—not seeking.” Similar disagreements persist over how to count school-funded positions, and what qualifies as law-related employment, though these are not front-and-center in the recent exchanges I’m writing about here.
Mike’s recent posts have taken the strong and categorical view that law schools, NALP and the ABA ought to report law-graduate employment the same way the U.S. government reports on employment generally, and that any other view is ignorant or misinformed. Board of Labor Statistics and Census data (among others) report people as “employed” if they have any kind of work at all, including work that is part-time, short-term, or (in the case of law-school graduates) entirely unrelated to their legal education; and as "unemployed" only those who are actively looking for work. The widely articulated criticism “that law schools behaved unethically or even committed fraud . . . by presenting their employment statistics in a misleading way,” says Simkovic, “comes down to this: The law schools used the same standard method of reporting data as the U.S. Government.” Any contrary view, he argues, is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . ,” a point he not infrequently expresses as an impatience for those who would be influenced by near-term results resembling the ones they might desire for themselves rather than more dispassionately considering lifelong outcomes of the JD population as a whole to assess their prospects.
Not so fast. It matters who counts, and who cares. As for who counts, there is a very significant issue in equating the accuracy and reliability of statistics gathered and disseminated by disinterested government employees with those gathered and disseminated by self-reporting law schools, especially in an environment in which both rankings and prospective law student decisions essential to the welfare of the reporting school are often based on what it reports. I have no doubt that many schools are meticulous and unstintingly honest in their self-reporting. But we already have several documented incidents of motivated or flatly dishonest reporting, and my regretful suspicion is that such discrepancies will prove to be more common than anyone would hope as the ABA starts auditing.
As for who cares, my modest proposal is that people should get the information they want in the terms they are most likely to understand. I would guess that a libertarian economist like my friend Mike Simkovic agrees, in which case his arguments on these issues don’t square with our apparently shared principles in at least two important respects.
First, with respect to the proposition that people should get information in the form they are most likely to understand: It is demeaning and more importantly inaccurate to argue that everyone understands—or any “reasonable” person should—that law schools reported employment statistics the same way the government does. In fact many if not most people relying on US News rankings and law-school statistics (among others, tens of thousands of prospective law students and their families each year) didn’t understand that at all, which is why the ABA stepped in to change the reporting requirements in 2010. I personally was stunned when I first learned that law schools’ “employment” rates reported before 2011 included part-time, short-term and non-law-related work. I am not, as I have previously cautioned all of you, a social scientist, but I daresay I’m no more stupid or ignorant than the next guy. Countless others have expressed the same surprise, and even greater surprise at the discrepancies between “employment” as reported before 2011 and the more granular information reported afterwards. We needed more detailed and explicit reporting for the same reason that just about every state has consumer-protection legislation governing the form and content of disclosures regarding common consumer transactions: You take your audience as you find them.
Second, with respect to giving people the information they want: Simkovic and McIntyre are free to argue (as they do) that any prospective law student’s interest in the nature or duration of near-term post-graduate employment is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . .” And they have in fact presented significant empirical evidence suggesting that it is possible for some people to overemphasize these near-term details at the expense of best-informed decisionmaking. As I will discuss in future posts, that doesn’t mean that these conclusions should immediately be uncritically accepted as immutable laws of the universe, and it especially doesn’t mean that they are true for all of the people all of the time. And I assume that, even if they are fully convinced of the truth and immutability of their conclusions (a conviction I suggest is premature), they are not arguing we should withhold information from people so that they can make decisions that the authors consider “better.”
Just as importantly, Simkovic and McIntyre’s studies attempt to quantify the effect of a JD degree on career earnings, and offer suggested courses of action some might choose to take if their goal is to make as much money as they can over a lifetime. No one could claim that this is an irrelevant perspective, but it is hardly the only one we see: While it certainly isn’t true of everyone, many people actually go to law school because they want to be lawyers. Some crave the drama of the courtroom; some have specific social or political purposes in mind; some (and there is at least one study suggesting that this may be particularly true of some who attend lower-ranked law schools with less robust employment prospects and are among the first in their families to seek higher education) enjoy satisfaction from the prestige of being a professional. Even the most doctrinaire neoclassical economist would not presume to argue with a consumer’s utility preferences—which is just econo-speak for there’s no accounting for taste. For the population—and I will suggest that it is a significant one—that specifically wants to be lawyers, statistics about any old job held by JDs are not very helpful. And if you’re still thinking that this doesn’t reflect the real thoughts of real people in the real world, consult the recent exhortation posted by the dean of Cooley Law School—an institution that, with all respect, has an uninspiring recent track record in placing its graduates in lawyer jobs—proclaiming “Now Is the Time to Fulfill Your Dream of Becoming a Lawyer!”
So let’s talk about what information people might want, and let’s talk about how they ought to consider using it. I think Mike Simkovic’s recent posts on the Leiter Blog focus predominantly on just that, and hats off to him for doing so. Let the discussion continue.
But I do want to close by taking issue with one of those posts, which I view as a cautionary tale about the temptations of partisanship. On March 31, a Berkeley Law professor published an op-ed in the New York Times entitled “Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom.” The first paragraph poses the question “is now a good time to go to law school?” and the balance of the op-ed argues hell yes, focusing on (among other things) the employment prospects of recent graduates of Georgetown Law, and on the growth of “quite profitable” large law firms and in-house law departments to argue future need for “lawyers, and plenty of them.” Kyle McEntee (of Law School Transparency) and Steven Harper (of Belly of the Beast) both took strong issue with these arguments on a number of grounds, principally that they were inexcusably sloppy and cherry-picked statistics misleadingly—for example choosing one of the top law schools’ employment outcomes for an example when scores of them have much worse results; suggesting that large firms are hiring aggressively when in fact they are hiring about 30% fewer new lawyers than they did seven years ago; and using part-time, short-term and non-law-related employment outcomes to argue that we could anticipate lots of future demand for lawyers.
One of Mike’s posts not only defended the op-ed uncritically, but did so in terms and in tone that (I hope he’ll forgive me for saying) fall well below the standards I have come to know him for. “Mr. McEntee’s problem,” Mike wrote, “is not that The New York Times got the facts wrong. His problem is that The New York Times got too many of the facts right. Mr. McEntee simply dislikes the facts.” With all respect to Mike Simkovic, that’s really quite unfair. In my own view, McEntee and Harper both nailed it. The op-ed author used cherry-picked statistics including non-lawyer employment and lawyer underemployment to predict (among other things) the future demand for lawyers. That’s misleading. And the entire thrust of the op-ed—“is now a good time to go to law school?” and can those who apply to law school now expect to work as lawyers?—is antithetical to Simkovic’s and McIntyre’s hypotheses, which are that it’s a bad idea to ask whether now is a good time to go to law school (because you can’t know, and any one time is as a matter of prediction as good as any other), and an even worse idea to worry about whether you’re going to be a lawyer when you’re done (because that could distract you from the long-term earnings enhancements that they believe JDs offer most comers). Mike should have lambasted the editorial for citing his work while missing his point.
Next time we’ll talk more about Mike’s points, including both their valuable insights, and those insights’ potential limits.
There has been a flareup in the debate over the purpose and value of law school. The new discussion has been prompted by a series of posts by Michael Simkovic on Brian Leiter’s Law School Reports in which he summarizes and elaborates on his work with Frank McIntyre in two recent articles, “The Economic Value of a Law Degree” and “Timing Law School.” (You can get Mike’s complete set of posts—there are, by my count, 14—on Leiter’s blog by starting here (posted March 19) and scrolling up. Paul Caron has collected links to commentary on the commentary from both sides of the debate here, not all of which are subject to the objection I register below.)
Full disclosure at the outset: Mike Simkovic visited with us here at UNC last term, where he proved himself an excellent teacher and an engaging colleague. I consider him a friend. Of course, I don’t always agree with my friends on everything (maybe that’s why I have so few), and as you’ll see I don’t agree with Mike about everything he’s written. (Editorial Aside: I recognize that there may be no intrinsic reason why anyone should care whether I agree with Mike or not. But since you’re reading this, I’ll indulge the fantasy that you’re a little bit curious, if not about whether then at least about why.) All that said, anyone with any intellectual honesty must appreciate the importance of Mike Simkovic’s recent contributions to the ongoing public discussion on the purpose and value of legal education. His work (and let’s just agree that from here on “he” stands for both Mike and his co-author) is by my lights the first serious, empirically grounded, methodologically thoughtful showing that things—at least some things for at least some people—may not be quite as bad as some of us have feared.
Predictably, extremists on both sides of this longstanding debate have popped up to demonize or deify Prof. Simkovic and his work, vilifying or vaunting his motives and methods in sweeping and categorical terms. I have only one request of all of you—please stop. Stop the toxic name-calling. Stop erecting effigies of your adversaries’ graves so you can dance on them. The subject is much too important to be obscured in petty rivalries. You’re not enlightening anyone, and it’s way too early to claim a victory lap, let alone drag your enemy in circles at the back of your chariot for the next nine days. (I, at least, perceive Mike as having managed to hold himself mostly above the fray thus far, with only an occasional descent into the snippy or snide when goaded a bit too much. But that happens to all of us now and then—not least, I regret to say, your not altogether gentle scribe. I hope we’ll both try harder from here on out.)
In order to keep length manageable, I propose to share several posts over the next couple of weeks with some thoughts on Mike Simkovic’s important contributions. I’ll try to point out some of the questions I think his work addresses, and the questions we still need to explore. Like it or not, this kind of discussion tends to crowd out those prone to announcing that each new datum proves them right about everything all over again.
I’ll conclude this post and set the table for future ones by summarizing Mike’s principal conclusions in broad strokes. “The Economic Value of a Law Degree” uses some accepted techniques of labor econometrics and a federal government dataset to compare the earnings differential over an entire career of people who get a law degree compared with people who end their higher education with a bachelor’s degree. The paper concludes that, whether or not the JDs work as lawyers (and taking into account the costs of law school), a significant majority of them earn appreciably more over their careers than the BAs do. “Timing Law School” builds on these conclusions, and determines that it is not possible to predict a better or worse time to attend law school in order to maximize your lifetime earnings. That is in part because, the study finds, while those who graduate law school into a bad economy suffer some early hits to their earnings and their earnings advantages over BAs, and those who graduate law school into a booming economy enjoy some corresponding early advantages, these differences tend to moderate and then disappear over the longer run of a full career—again, whether or not the JD practices law. (It’s also because it proves to be just as hard to time the labor market as it is to time the stock market; that is, to the extent starting your law career in a better or worse economy affects your overall lifetime earnings, there’s no point in trying to take advantage of it, because you can’t reliably predict at the time you apply to law school what the economy is going to be like when you’re done.)
Again, I take issue with these conclusions in some respects regarding (among other things) their breadth and predictive value for reasons I hope to explain in coming posts. But now you have the big picture.
The University of Oregon has announced that Michael Schill, the Dean of the University of Chicago Law School, will be taking over as the President of UO. Since the late Dave Frohnmayer - a former law professor - left the Oregon presidency six years ago, the school has had significant turnover in the job - with four different people having been President either in a permanent or interim capacity in that short period. Schill has been Dean at Chicago since 2010 and served as Dean at UCLA before that.
I've used clickers since I started teaching. In some classes/lessons, I use them extensively. For example, my novelty and statutory bars sections of patent law are almost all clicker exercises, where I vary the hypotheticals just slightly to test the outer limits of what constitutes, say, "public" use. I think of it as lightning-round Socratic method, except that everyone participates. I also like to use them because it forces the students to take a position. I routinely get many more votes than I do hands raised when I just ask.
I also find that clickers embolden some to speak up, because when I show the totals and that many people agreed, students are more likely to raise their hands and explain their answers. This is helpful, because it allows me to figure out whether the class is understanding the material and, if not, to find out why. The clickers can also scare students off - if only one picked an answer, he or she is less likely to volunteer why. It frequently happens, though, that the minority of one was correct or recognized some nuance in the question. Thus, I use a belt and suspenders approach - get clicks, ask for hands, and then show the results and ask for more volunteers if need be.
I recommend clickers to anyone not using them. I find them helpful and my students have responded positively for years.
But as the ABA moves toward requiring formative assessments (Standard 314), I wonder whether the clicker slides are enough. On the one hand, the students answer questions and we discuss right, wrong, and iffy answers and they can judge for themselves if their responses were correct. But maybe that's just me being lazy and not wanting to do more work to change my methods. Perhaps it would be better if I required everyone to answer (my participation rate runs at about 2/3) and graded answers (I have colleagues that do this).
I don't know the answer to this question. On the one hand, the students are responsible for their own education and should participate as they wish to their benefit or detriment. On the other hand, maybe it would be better to have more grades spread out throughout the year. I'm not sure my students would like that so much, but the educational results may end up improved.
In the last week or so, two law schools have announced very big gifts. Indiana University - Bloomington (the Maurer School of Law) received $20 million from alum Lowell Baier. Meanwhile, Villanova Law snared $5 million from John Scarpa.
Last week, John Broderick - the former dean of the University of New Hampshire School of Law and the current Director of the Rudman Center for Justice, Leadership & Public Policy - announced that he would be stepping down as the head of the Rudman Center at the end of May. He cited a lack of support from the University.
According to a news report, on Friday an irritated UNH administration told him to turn in his security badge and vacate his office immediately. Broderick's name no longer appears on the faculty page or pretty much anywhere else. His title, after leaving the deanship, did not include being a professor - so I assume he didn't have tenure.
This may be my most "faculty loungy" post to date, but also the shortest. Law schools are in many ways separate from the rest of the university. They are professional schools, they have no undergraduates, and their policies and styles are just different. Indeed, they are so different that we have standalone law schools, separate from any university at all!
Yet, most law schools are part of a bigger university. My suggestion is that law professors consider taking on university-wide governance roles, whether on faculty governments, committees, cross-disciplinary programs, or whatever your school offers. I've been my law school's Faculty Congress representative for the last two years, and as part of that I sat on the "committee of the faculty," met with the university president, and interviewed candidates for the new provost.
I've learned an amazing amount doing this: about how the rest of the university works, about what's important in undergraduate and graduate education and research, about the trials facing campuses today, about the differences between the colleges, and about how great my colleagues in other departments are. This has helped me evangelize the good things we are doing at the law school, but also to bring new ideas back to the law school.
Thus, I recommend such governance activities for any law faculty members. There's something to be said about breaking out of the insular cocoon.
My colleague Michele Pistone is the founder of LegalEd, a nonprofit dedicated to using new ideas and technology to improve legal teaching. Its 2015 Igniting Law Teaching conference is this week. Even if you can't attend, check out the videos either on live feed or after the conference - last year's presentations have been viewed thousands of times.
Here is the announcement and info:
Registration is now open for LegalED’s Igniting Law Teaching 2015. The conference is Friday, March 20, 2015 from 9:00 am – 5:00 pm EST at American University Washington College of Law. It is also available for live viewing by webcast.
The conference will feature talks by 30 law school academics and practitioners from the US, Canada and England in a TEDx-styled conference to share ideas on teaching methodologies. LegalED’s Teaching Pedagogy video collection includes many of the talks from last year’s conference, which have been viewed collectively more than 5000 times.
The panels for this year include: Law Teaching for the 21st Century, Applying Learning Theory to Legal Education, The Art and Craft of Law Teaching, Using Technological Tools for Legal Education, and Pathways to Practice. Here is a link to the topics, speakers and schedule.
The Igniting Law Teaching conference is unlike other gatherings of law professors. Here, talks will be styled as TEDx Talks, with each speaker on stage alone, giving a well scripted and performed 8 minute talk about an aspect of law school pedagogy. In the end, we will create a collection of short videos on law school-related pedagogy that will inspire innovation and experimentation by law professors around the country, and the world, to bring more active learning and practical skills training into the law school curriculum. The videos will be available for viewing by the larger academic community on LegalED, a website developed by a community of law professors interested in using online technologies to facilitate more active, problem-based learning in the classroom, in addition to better assessment and feedback.
My last post generated some spirited and thoughtful comments. Some of those comments seemed to miss my point, so I thought I would expand here. Several of the comments were that I somehow misunderstood Harrison & Mashburn, because law school tuition is so high, and students are subsidizing legal scholarship (and therefore, it must show value to justify the subsidization).
But these comments demonstrate my point. The mere notion that scholarship is somehow subsidized, or that professors are "teaching part time" while working on scholarship, or more generally that its value is present only if the work is beneficial to someone else reveals the prior normative viewpoint that I simply disagree with. I write this post not to convince those who hold the prior. I will not convince them, and they will not convince me. I write this because I don't think that they even recognize that they hold the viewpoint; which is why they cannot fathom how I might disagree with the inquiry in the first place, and instead must somehow have misunderstood their point.
I get the point. I merely have a different normative view of the enterprise: that academic scholarship--including legal scholarship--is a good in itself, and that one need not show its value to others to justify its existence. Now, this doesn't mean that there isn't a lot of useless work out there, because there is. And it doesn't mean I think all scholarship is of high quality, because it isn't. And it doesn't mean that we shouldn't make it better - I agree in principle with many of the suggestions in the Harrison & Mashburn article. It just means that I view scholarship as something law professors should be doing as part of their jobs, just like any other academic.
But law school is different.
I wrote in my last post that I reject the law school as trade school motif. And so do universities. At my old school, a research university, every professor from every school filled out a form detailing how much effort would be devoted to teaching, scholarship, and service. No more than 40%, no less than 20% was allowed for each category, and each school's dean used these percentages to judge merit pay.
Law professors filled out this form as well. Why? Because scholarship and service are part of what law professors do, just like any other professor. Sure, you can view it as subsidized; goodness knows that no one should have to pay for me to sit in another committee meeting. But self-governance is an important part of university life, and that can take time. It's all part of the basic salary.
But tuition is higher!
I'm not convinced this is completely true. Tuition for undergraduate schools is pretty expensive. But tuition and professor pay are what the market will bear. The market is bad right now, and tuition (after discounting) is going down, and hiring is down (and I suspect faculty salaries are not growing at the moment). Students pay what they will pay for the university enterprise, with scholarship and service built in. If they don't want to pay it, then they won't come (and, indeed, they are not coming right now). But they did before, and they will again. And none of that has anything to do with whether professors should produce scholarship, because that's what professors are paid to do.
And I should note that at least some of this is benefits students. The US New rankings are based in large part on peer rankings, which are based in large part on historical scholarship produced. So, tuition dollars pays in part for scholarship, which pays for prestige. The feedback loop is imperfect, as we know (and as the Harrison & Mashburn article shows), but it is naive to say that students get nothing from tuition spent on scholarship. (I do note that tuition is high at some lower scholarship producing schools - I discuss this below). Of course, this shouldn't matter either way.
Others are willing to pay for scholarship in other fields, but not law.
This is an overstatement in two ways. First, I think that people underestimate the amount of scholarship that is funded by outside sources. First, many summer grants are endowed. Second, many endowed professorships come with research money. Third, outside money is growing, though much of it is private. Indeed, there probably would be more private funding except taking that money would make scholars look biased. I know I haven't sought all the money I could because a knee-jerk reaction is to judge scholarship based on the funder.
But let's do a thought experiment. Let's say the government gave every professor another $50K to do scholarship. Would we really expect tuition to decrease? I don't think so. First, for the reasons described in the next section, I don't think law schools would suddenly cut tuition. We know undergraduate professors are funded; where are the tuition cuts? Second, the reality is that such funding is often not for the researcher's salary - it is for costs associated with the research: labs, equipment, materials, assistants, graduate school candidates, etc. When the money does actually pay for the researcher's salary, you often find the researcher not teaching! Why? Because scholarship is part of what a professor does, but so is teaching. And the professor funded for extra scholarship might buy out of teaching. So, if $50K grants started coming in, you would see the same tuition, maybe $50K reductions by law professors in exchange for reduced teaching, and that $50K spent on others who teach instead (and also do unfunded scholarship).
For those of you who think I'm talking crazy, take a look at this chart of costs of research:
This chart tells us a lot of things. First, it shows that the supposedly huge spending on law scholarship is actually tiny when compared to many other fields. (If you can't read it, that's Billions on the Y axis.) Indeed, for the amount produced, it's a downright bargain. So, if you think quality and usefulness is low, perhaps you get what you pay for.
Second, the chart tells us that law is a lot like the humanities - a low grant funded area that arguably has little external benefit. And there are lots of folks who think we should get rid of humanities scholarship, too. But I don't, because that's part of what professors get paid to do. Yes, they get paid less in the humanities, but see my point above about supply and demand.
Third, business schools are not far behind, and they share many of the same traits as law schools - expensive professional schools. But the demand for business school remains high (with less tuition discounting, I'd guess) and no one questions the existence of business school scholarship or requires it to be useful to justify its existence. Why? Because that's part of what professors are paid to do.
Fourth, medical schools have very expensive tuition, and yet they are also primary recipients of grant funding because everyone wants their research. Why is that? Because it's expensive to do that kind of research. But the grants are not somehow magically lowering tuition because all those researching professors are getting the research paid for. As I note above, it's about supply and demand, and it's also about the fact that research professors getting big grants either pay others with the money or they pay themselves and maybe teach a bit less (or they teach the same and make more money). But what they don't do is reduce student costs because someone else is paying for scholarship. Because scholarship is part of what professors are paid to do.
What happens if we got rid of scholarship?
One commenter asked me to discuss why I disagreed with the estimate on the cost of scholarship, and what I meant by marginal cost. By marginal cost, I mean the marginal cost of producing all scholarship versus none. The cost estimates assume that if scholarship went away, then somehow law school would be cheaper by applying a percentage of time formula. I don't think so. First, you are unlikely to see major drops in the number of professors. Sure, some professors can teach more classes, but you still need subject matter diversification for expertise (expertise enhanced, I should add, by doing scholarship). More cynically, if law schools are really as corrupt as everyone says, then it's more likely that professors will just stop doing scholarship and continue to work "part time." Tuition would remain the same, but now there's no scholarship. Marginal cost of scholarship/benefit to students of removal = 0.
Another way to think about this is to plot tuition by scholarship produced for each school. You would be all over the lot. In the top 10 for student indebtedness are some of the lowest ranked schools and some of the highest. Surely the amount of scholarship produced between them varies widely, but the tuition does not.
You either buy in, or you don't
This is not a new debate. Someone else must have written about this before, and if this were a law review article I would find and cite (and engage with) such discussion. But the upshot is that you either see law school as an academic unit whose professors should be doing three things (teaching, scholarship, service) or you don't. And if you don't, then of course you will look for the value of scholarship to justify its price tag. I think there can be such value even if many articles go unread and uncited, but I'm not engaging that debate here. I'm just putting myself in the the camp that says that student tuition pays for professors who do more than teach, just like it does in every other academic unit -- even the ones that get grant funding.
For those who followed my posts on law professor use of Twitter, I thought this recent article, called "The Unbearable Lightness of Tweeting," at The Atlantic was illuminating. The gist of the article was an author's self-study of the rate that users click through to read an article. The results leave a lot of questions about the information sharing value of Twitter, not just for law professors, but for everyone.