The Faculty Lounge

History Office History

 

 

            Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.

 

            In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.

 

            Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.

 

            This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.

 

            Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.

 

“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Bar-Admission Required, Full-Time, Long-Term: First Look

The ABA recently reported that 56.2% of the 2012 graduates from ABA-approved law schools were employed in full-time, long-term positions required admission to the Bar.

According to my analysis of the data for the Class of 2012, for graduates of the 197 reporting law schools located in the continental United States, 56.9% were employed in such positions. As you might expect, those graduates are not equally distributed across those law schools. The employment rates at those schools ranged from a low of 21.5% to a high of 94.5%. The 25th, 50th and 75th percentiles were

25th	50th	75th
46.7%	54.8%	66.2%

The following chart shows the distribution of law-school employment rates in full-time, long term positions with Bar-admission required:

The phenomonology of choosing to go to law school

There is a really interesting post over at Crooked Timber, What you Can't Expect when you're Expecting about the difficulty in treating a decision about whether to have a child as a purely rational (let alone economically rational) decision; you cannot really know what it is like until you do it, at which point (at least for most responsible people) it is too late to change your mind. Certainly once you've done it, if it doesn't turn out to match all of your dreams, it can be fairly devasting for all concerned, parents and children both. Happily, (or so it seems) a goodly number of people either find that being a parent does meet their dreams or they adjust their dreams accordingly.

In reading this piece I was struck by the parallels between the phenomonological problem described - i.e., that the experience of being a parent is something virtually impossible to "know" or convey before you experience it and thus makes rational choice difficult - and the decision to go to law school. And now that decision is more fraught than ever.

When I graduated from law school in 1991 we were in the midst of something of a recession and jobs were harder to get than they had been for some of our predecessors.  It was perhaps worse in Miami because so many people came from out of state and wanted to stay in Florida. I don't know how many of my peers ended up working as lawyers, but I suspect most of them did, even though it was such a tough market that even classmates on law review had trouble getting jobs. I do know though that some of my classmates found they hated practicing law, or at least they hated the big law firm form of practicing. And while the debt to earning potential was not as dire then as it is now, it was pretty significant and potentially life-altering, even then.  (Twenty some odd years later I am still paying on my students loans although I have a lot of complicating factors, not the least of which was an additional year at Harvard Law School getting an LL.M.) 

So what do we do with that particular insight? Should we tell potential students: "You know a lot of people find they don't like practicing law, especially in the sector in which the compensation makes it most likely for you to be able to comfortably handle your student loan debt."?

There is no doubt that many people decide to go to law school as a purely economic investment in what they image to be a lucrative career. And it is still is for some. But there is also no question that the debt/earning power problem has intensified the risk of the decision on whether to go to law school. And indeed some have suggested that these two questions - whether to go to law school and whether to have children have converged such that choosing one may rule out the other. 

But are these simply market driven decisions, or are there emotional and deeply personal value issues at play as well, ones that cannot be reduced to weighing the financial costs? And how do these two interact? Unclear. I think when you factor in these personal issues the decision is not so clear cut as many make it out. The bottom line seems to be that the only reason to go to law school is that you really want to either be a lawyer or have that credential for some reason related to your personal circumstances.  And if you want to be a lawyer it does not seem that evaluating this decision solely in market terms captures all that that means.

NOTE: A word about comments. I am going to delete what I deem to be abusive comments.  In particular, commentors whose anonymity does not seem to be predicated on a fear of professional repurcussions but merely a desire to throw brickbats without any accountability are going to be deleted. This is not TFL, this is me.  Civil commentary made anonymously will be accepted.

Law school: Are the wrong people being discouraged?

Brian Leiter has this interesting bit about an apparent slight uptick in applications to law schoools. Applications to Law Schools.  A curious aspect appears to be that the group seeing the largest decline may well be those for whom law school would likely be a good (or at least better) risk.

More on VAPS

Regular FL blogger Eric Muller posed a very interesting and thoughtful question in this post Are We Sustaining a VAP Trap? He did not argue that there was a "VAP trap"; he was inviting thoughful inquiry and perhaps reconsideration of whether, all things considered, it makes sense (at least for some)  to have such programs or to enter such programs in the current job market.

Here is a great post from Christine Hurt over at The Conglomerate which I think sums up the issue very well. The VAP Debate. The bottom line is that doing a VAP has always entailed uncertainty and is going to be more of a risk in a down market. And it is a down market right now, particularly since so many schools are doing precisely what so many of the critics of the status quo think they ought to do - to wit, downsizing their classes and thus  not hiring new faculty. 

Professor Hurt reports a few things that bear repeating: law schools pay VAPs, not the other way around, so this is NOT like being a student and not necessarily a cost savings for the school since, although VAPs are paid more than adjuncts, they are typically paid less than regular faculty and do not do any of the associated service faculty are expected to do and sometimes teach fewer courses (programs vary). Most school could get adjuncts to teach the same classes for less money. So the cheap labor thing just doesn't wash.

In the current environment, it may well be that some schools will cut back or eliminate their VAP programs.  We will have to wait and see.  As many have already observed, not all programs are the same. Some provide more opportunities to workshop papers, more mentoring, etc. than others.  The Bigelow at Chicago is a well-known example.

At any rate, go to the Conglomerate to read Prof. Hurt's take on this issue.

David Segal Trains His Haggler's Eye on Vet Schools

This story from the New York Time's Sunday business section should give some pause to those who think that law students' debt plight is unique to law students. High Debt and Falling Demand Trap New Vets. Maybe no one that thinks that, but at times, judging from some of the commentary, it sure has seemed that way.

Now I bring this up, not as a kind of "things are tough all over," so there's no problem, get over it. Far from it. But if things are tough all over, at least debt-wise, in higher education, which they seem to be (and we haven't  yet talked about the situation for graduate students in disciplines like English, Philosophy, History, etc.) then perhaps we should consider whether this is a systemic problem, especially since the Times also reports that at least in some quarters a 4 year degree is the new entry level standard previously represented by a high school degree.  It Takes A B.A. to Find a Job as a File Clerk

If it is true that at least part of the law school debt problem is a reflection of wider social forces, that suggests it is one that is not necessarily going to be solved by tweaks of the law school curriculum (and let me just say here that I assume that it is always a good idea to be open to continuous revision and reform in light of new information and conditions, as long as we also try not to reflexively discard valuable practices which may be good) or changes in accreditation practices.  Nevertheless, one aspect of this article stands out for me - the role played by the for-profit vet school.  Could it be that the combination of a federal student loan program designed and launched before the era of for-profit higher education and the emergence of these institutions has driven some of the problem by saturating the market? Or could it be that a general faith in for-profit entities and identification with market-based analogies and imagery has infected higher ed in a way that has been harmful to students? Bemonaing the corporatization of higher education Don't know. And it would probably be hard to prove a connection. But it is food for thought.

Women and Men in Competitive Environments

A friend yesterday forwarded me this story from Salon magazine which contains some interesting recent studies on the kinds of competitive situations in which women versus men tend to thrive.  It suggests that women are less competitive and choose to take risks which are more likely to pay off than men, while men often take greater risk if there's a chance of greater reward.  There are also suggestions about the optimal schooling environments for girls versus boys.  Food for thought ...

More on the National Jurist rankings

By now everyone has probably heard of thedubious law school rankings the National Jurist put together. See here Rankings. Perhaps the most dubious and comical aspect of these rankings is the inclusion of numbers from RateMyProfessor.com.   Brian Leiter has thoroughly covered the problems with this aspect of the NJ rankings, see Biggest Joke and Backpedal and others.

A couple of other aspects of this ranking that interest me: (1) Did the NJ intend to try to challenge and maybe even displace US News and thus capture a lucrative market - one that is apparently ever so much more lucrative than actual news since now US News does not publish anything but rankings.  Maybe.

And if they did, maybe all this publicity about the rankings and how terrible they are will actually serve to keep the issue in the news and get repeated coverage for them and actually lend some legitimacy to this effort if they correct only this one, fairly egregious aspect; especially since it purports to have created this to offer a ranking more geared to what students care about.  Mark me as skeptical.  (Bar pass rates only worth 5%? Really? Seem like students might care a lot about that.)  If so, this might go into the category of there is no such thing as bad publicity.

But considering that theory, a colleague asked me, "Who is the National Jurist published by? Is it owned by the same company as US News?"  I thought it was an interesting question.  Apparently, it is owned by a fairly small company located in San Diego which publishes 2 other magazines. One, "Golf, Inc." is aimed at the owners of golf courses. (The connections between this and its other magazines see tenuous unless you think a lot of gold courses are owned by lawyers, or maybe lawyers play a lot of golf?) The other is "PreLaw Students," which is the most recent publication established in 1997.  Their link is here Cypress.  The direction they seem to be going is talking to law and pre-law students. Perhaps they sense a market here. 

A second interesting aspect of these rankings: reputation is not part of the calculation. That may be an admirable attempt to not reinforce the pernicious way in which the US News reputation score can operate. See the post from Dean Yellen on this blog US News and costs and Michelle Meyer on this blog and her observations about letterhead and credentials bias and the claim by others that it substitutes for peer review L'affair Scholastica.   See also some of the comments here National Jurist rankings which again express sympathy for trying to break out of the assumption that reputation invariably = quality.

Or it may reflect something else less laudable. And it may be  they were trying to capture the reputation of the graduates, not the faculty or student body, with the inclusion of some of the other categories that are almost (but not quite) as dubious as the Rate my Professors -- The number of Super Lawyers, a category which itself has some rather trenchant critics (mostly anonymous) Super Lawyers, and the number of lawyers in top 200 firms. The latter is a number that is likely to skew toward east coast schools and those in major metropolitan areas.

Interestingly, Super Lawyers is itself apparently owned by Thomson Reuters A Thomson Reuters Service and is itself in the rankings biz.

The American appetite for rankings seems inexhaustible. It seems to me though an open question whether these types of rankings actually provide a consumer service or whether they mainly drive advertising revenue and ought to be included with miracle fat dissolving pills, creams to cure baldness and other perennials in the category of snake oil salesmanship. Rankings may always partake of a somewhat dubious proposition - that you can compare very different institutions across some baseline metrics.  Some say you can't do this and it is like comparing apples and oranges. I wouldn't go that far. But if you can't demonstrate that the components are valid then it seems like the product is fairly dubious.

 

The utility of scholarship - round two

A good debate is always worth having, but the majority of the comments responding to my last post on this subject appear to have been responding to arguments I did not make.  I appreciate that other people think the question I ought to have discussed is "What is the cost of producing legal scholarship?" or "What is the proper balance of scholarship to teaching?" However, those were not questions I was attempting to raise.

Nor was I attempting to suggest, in Panglossian fashion, that we currently enjoy the best of all possible worlds in legal education or that I was indifferent or unsympathetic to the problems  so many law school grads have finding jobs.  On that matter, see this great post from Adam Levitin The Legal Employment Market (As an aside, with respect to many of the suggestions commonly made, both in the comments to my post and elsewhere, about what law schools ought to do, Tulsa has been doing many of them for several years. These include: reduction of class size, holding down tuition costs, introducing experiential learning opportunities, etc.  And our employment numbers have been comparatively good for what is without a doubt a terrible market. Again, I do not say that to suggest that everything is great or that there are other reforms that we or other law schools might undertake. But that is not this post.)

Instead, I was actually trying to make a relatively narrow and I think pretty unassailable point: It is very difficult to measure the “utility” (or cost) of scholarship where (a) the time horizons for its effects to be fully felt can potentially stretch out so far, and (b) where citations are not a reliable metric for assessing the impact of a piece of scholarly work.

Some readers clearly don't agree with this proposition.  However,  I invite those in doubt to read the Redish article I cited and compare it to the Virginia Pharmacy decision and decide for themselves whether it appears that the Redish article influenced the Court's decision. I think it did. Most knowledgable observers think it did. It was not cited by the Court [point (b) above] and yet it clearly had an influence on the Court and everyone who knows anything about the commercial speech doctrine knows that the theory advanced in this article, which was so outside the mainstream at the time that the late, great Thomas Emerson devoted only a few paragraphs to commercial speech in his book "Toward A General Theory of the First Amendment" the year before,  now represents, some 30 years later,  the dominant view of commercial speech as reflected in recent judicial opinions [point (a)].

Of course this is but one example. I offered other examples gleaned from my experience and from suggestions which came from others. Those examples lead me to suspect there are more and that at the very least  this phenomenon ought to give one pause before making snap judgments about scholarship's "worth" as a global matter or about how much is the right amount to invest in it. 

Since I wrote that initial post I have recieved several new examples from others - some relating to influential student pieces; and since at some reviews student authors are anonymous, this adds an additional complicating factor for tracking influence.  No less an authority than Judge Kozinski has observed, "Published student papers can also be quite useful and influential in the development of the law. A few law review notes and comments become classics cited widely by lawyers, courts and academics." (This quote is from the foreward to Eugene Volokh's Academic Legal Writing which is an invaluable resource btw, for  writing law review article - for students and faculty alike - and no, I'm am not being paid to say this). 

Judge Kozinski goes on to note that (in his opinion) "most" student articles are not influential. And who can argue with this? Whether it is "most" though  an empirical question. I rather hope that professor's articles have a better track record for influence than student pieces, but I don't know that this is true. I've given examples and reasons for thinking that it might be difficult ex ante, or even at publication, to determine what proportion of legal scholarship - from whatever source - is "useful."

Notice, my claim is not  that all scholarship is inherently valuable, nor that some "x" quantum of work needs to be produced in order to generate such useful scholarship.  It is a claim that one ought to perhaps be cautious  before concluding that "most" scholarship is worthless or that its worth pales beside the cost to students of producing it. Maybe. But maybe not.

I have no idea how much subsidy we ought to give scholarship to produce good work or whether the current amount is enough or too much. But I think is far from proven that the cost of producing these articles is "immense" as Ralph Brill suggests.  I don't think reduced teaching loads are that common outside of the top twenty law schools.  And I have no idea how many people you need working, for how many hours, to get good work. (I know my own knowledge about the commercial speech doctrine has taken years to acquire and involved a lot of help from a great many research assistants.) And while it is true that many of the examples I listed involve famous legal scholars, they didn't all start out famous. And not all influential articles have been published in top 20 law reviews. If you don't believe me, check it out for yourself. You don't have to find very many counter-examples before you have reason to doubt whether the metrics being proposed for how to identify what constitutes useful or worthwhile scholarship, or whether scholarship has any value at all, pose problems because worth is a difficult thing to measure.

Again, I make no claim about the proportions, although I notice most critics have no hesitation about tossing off empirical claims about how "most" legal scholarship is not influential.  I am willing to assume for purposes of argument that this is true. Still, since we don't know ex ante how much scholarship needs to be produced in order to generate "the good stuff";  and we know that relying on the status of the institution or the scholar to determine who ought to get support would be a form of hindsight bias and would rely on the signaling function of the prestige of the law review or the author to substitute as a measure of quality, we have a problem calculating that figure.  We know that status already matters a lot, but I daresay some of the articles which caught the negative attention of the critics like the Chief Justice appeared in these very prestigious publications or from well known authors.  So prestige, like citation counts, may be a blunt and unreliable instrument for judging worth or quality.

But here we come to another hot button. And this too comes out in some of the comments. One gets the sense that what bothers some critics is the subject matter. (Some of the commenters seemed determined to confirm this suspicion). The usual suspects are anything having to do with feminism or critical race, or perhaps critical approaches generally. Whatever one's feelings about feminism or sexual harassment as a cause of action, Catharine MacKinnon's "Sexual Harassment of Working Women" has been cited by at least 40 courts. Litigants can now sue for an injury that didn't have a name before. And of course those litigants have lawyers.

Like it or hate it, no one can deny that works like these and many more influenced the law, gave work to lawyers and therefore had "utility" if by "utility" we mean that it was relevant for litigants. I suspect that was not how much of this work was viewed when it was first published.

Similarly, Charles Lawrence's "The Id, The Ego & Equal Protection: Reckoning With Unconscious Racism," 39 Stan. L. Rev. 317 (1987) has 16 judicial citing references on Westlaw. (It has been cited hundreds of times in treatises and other law reviews).  Some courts found his work very persuasive indeed, even if not all others have agreed. So the claim that CRT or feminism is somehow inherently lacking in merit simply betrays the normative commitments of the critic. If "merit" = "influence" both theories have had a great deal of influence  in the courts and in society at large.

If you want to argue about whether these offerings have made net positive contributions to law (and I think they have), that is a different point than the one I am offering here. 

Coming up in future posts: Is the dollar cost of producing scholarship really so great as some propose? And, if scholarship is so despised and useless, why does it appear that law firms and interest groups are paying to produce it? Do we really want to go to a system where the only funding for scholarship comes from those who want to use it promote a particular agenda? And finally, a quick survey of recent law reviews where in I ask the question: "Do these articles sound useless?"

[This is a corrected version of the earlier post which fixed some typos and added some missing words. The substance is unchanged. ]

The utility of scholarship

One thing we in academia are often hearing about from members of the bar and bench is how irrelevant much legal scholarship is for practice or how too much of legal education is "theory driven" instead of being "practical."  The Chief Justice himself has weighed in, suggesting that too often law reviews are filled with content he finds of little value. Many people have addressed this issue. For instance, there is this nice bit from Sherrilyn Ifill. What the Chief Justice Should Read. But it seemed worthwhile to weigh in again on this question since it is a complaint also raised in connection with the general fusillade of criticism launched at legal education, that is, that one reason legal education is too expensive is that professors spend too much time on this relatively worthless enterprise.  I am not going to try to argue how much is the appropriate amount of time to spend on scholarship. But I do want to take issue with the issue of its worth as measured by its impact in the world. It has more impact than these criticisms reflect.

The criticism of scholarship is intertwined though with another criticism, this about the utility of practice to scholarship and teaching and whether law schools pay enough attention to practice in their hiring.  That old canard, "those who can do and those who can't teach" rears its ugly head in the comments section to the piece cited above. That too deserves some rebuttal and since it is connected I will address it first.

On the hiring issue, my sense is that most law professors have some practice experience.  There is no question that practice experience is valued differently at different schools and  it is probably the case that in most schools a very long period of time in practice may raise some concerns about whether someone can successfully transition to an academic position and be willing to, as it were, start at the bottom again as a junior member of a new profession (academic) after getting used to the prestige and authority of being a senior member of the profession of practicing law. But Jeff Lipshaw has words of wisdom for that transition (see his great article Memo to Lawyers ); and he and countless others have proven that it can be done. So the idea that practice experience is not valued is not true at the level of gross generality in which it is often repeated. - the cararicature of a professor who has no idea what it is like to practice law.  It is simply not true in my experience.

Now admittedly, "my experience" is not a scientific study;  but I have been a student, faculty member, visitor or fellow at a wide range of schools: University of Miami, Harvard Law School, Stanford Law School, University of Missouri-Columbia and FSU, in addition to my permanent position at University of Tulsa. And in all those places most (even if not all) of the faculty had some experience practicing law, often at a very high level.

But here's the rub. Even if you have practice experience, at some point that experience will become stale. That is, your practice experience from 10 or 15 or 20 years ago undoubtedly continues to have relevance for your teaching and scholarship; but some of it is going to reflect a different world than the one your students enter. When I was in practice we still routinely dictated memos and pleadings. I don't know if that is common now. The internet, email and electronic discovery/filing barely existed, even though word processing and computers did.  Court reporters took most depositions and video depositions were the exception not the rule. Social media didn't exist at all. Does that mean my practice experience is irrelevant? I hope not.

But even if all law schools suddenly made practice experience the sine qua non of hiring, that experience would soon become stale with the passage of time unless we continue to practice (and some do). Whether you think this is a bad thing may depend on what you skills and knowledge you think practice experience brings to teaching and scholarship. It could well be that the bits that degrade over time aren't so critical to what you have to offer to students from your practice experience and so it doesn't matter that it wasn't very much or that at some point it will become stale.

Either way, given that it will inevitably grow stale, it is easy to understand why schools wouldn't make practice experience the be all and end all of hiring. What they do clearly value is scholarship. Written work is one of the few things that it is possible to assess ex ante as opposed to ex post.  (It is hard to assess in advance what sort of teacher someone will be.) We want professors to be productive scholars. Productivity is often a product of intellectual curiosity and enthusiasm. And that intellecutal curiority and enthusiasm often contributes to good teaching as well. So there is nothing particularly illegitimate that law professors, like professors in other fields, explore what is of interest to them without first considering whether it will be of interest to others, or more grandly, to the practice or even the world as a whole.

And that brings me back to the utility of scholarship. The idea that scholarship makes little or no contribution to the practice of law or society is simply not true.  In saying this I do not mean to question the sincerity of those expressing contrary opinions.  Perhaps critics are really responding to the great increase in quantity. Or maybe to the quantity compared to quality. Or maybe it reflects discomfort with the subjects - feminism or queer theory and isn't really about relevance at all. I can't really do more than speculate about the reason why this complaint has so much traction now. It is worth noting however that it is an old one and so not the product of some recent decline in standards or loss of focus. After all it was Fred Rodell who in 1936  wrote, "There are two things wrong with almost all legal writing. One is its style. The other is its content." Goodbye to Law Reviews

However, this complaint has new life and particular traction in light of the distress in legal education. So I want to offer a modest objection and corrective. This is only a partial list of examples of legal scholars who have influenced the law and society generally. It is by no means exhaustive, but I think it is sufficient to show that legal scholarship has had and continues to have an enormous impact on the law.

So here it is. I apologize in advance to anyone I may leave off of a particular subject and I hope readers will offer their own examples.

Let's start with the "good old days":

• Felix Cohen - Indian Law

• Karl Llewelyn - the U.U.C.

• Von Mehren & Trautman - General and specific jurisdiction (hat tip to my colleague Chuck Adams for this one)

• Berle & Means - corporate law, the agency problems and corporate purpose

"But," perhaps, I hear you say, "that is precisely the point! Legal scholars used to contribute to the development of the law but they do not do so any more."

So let me move to more recent examples:

• Martin Redish - the commercial speech doctrine

• Richard Posner, Calabresi, and a host of others - application of economic analysis to law of all types, torts, contracts, even First Amendment

• Joseph Sax - Environmental law

• Morton Horwitz, Lawrence Friedman - history and law

• Duncan Kennedy, Peter Gabel and a host of others - CLS (which in turn was incredibly generative of a critical turn in law generally mcuh like economic analysis)

• Catherine MacKinnon - sexual harrasment

• Lawrence Lessig/Jonathan Zitrrain - internet and IP

• Richard Friedman - Confrontation Clause

• Monahan & Walker - Social science and law

• Saks, Kaye, Faigman, et al. - and forensic science and evidence

• Cass Sunstein - punative damages (and plenty more)

These are just a very few examples and they are rough abbreviations of subjects. (I trust people will feel free to add and correct as they see fit.) Even so, I think the list serves to make the point.

Moreover, even with such an illustrious list, if you look for evidence of these authors' influence in  reported decisions you won't always find it there.  I will use the example I know best.  No one reading Martin Redish's 1971 article, "The First Amendment in the Marketplace: Commercial Speech and the Value of Free Expression,  39 Geo. Wash. L. Rev. 429 (1971) can doubt that it influenced the 1976 Virginia Pharmacy decision, or at the very least those who argued the case. But the article was not cited in the opinion.  Moreover,  the article was written in 1971 but it is not until recently that the Court has come to more fully embrace the arguments there. It has only taken about 37 years.

This is but one example of a legal scholar having a profound influence on the law. But those two aspects of this example - the absence of citation and the range of time over which it took for its full influence to be felt - illustrate some of the pitfalls of trying to assess the "worth" of scholarly activity by its immediate utility to practioners or by citation counts.  Sometimes good work takes a long time to make its impact felt. Sometimes it may be adopted quickly. Sometimes one's view about whether it is "good" is a normative matter or how you define "good." But if "good" = "influential" there is no question that this peice was incredibly influential and thus very good indeed.

Normative disagreement with the substance of a field or an approach (which I thinks accounts for overlooking the contributions of CLS, CRT and feminist theory to offer only a few examples) does not mean it is not useful. I daresay the work of MacKinnon and others was very useful to Ann Hopkins and her attorneys.

I suspect there is plenty of work being produced now that is similarly useful but the utility of whichwe may not know for some time to come. I submit that in legal scholarship, just as in other research, it is very difficult to say in advance which theories will bear fruit and which will not, which are "useful" and which will be forgotten. And it may well be the case that a very great deal of work needs to be produced in order for any good work to be produced. But that inability to say in advance what is "useful" should not be a reason to abandon legal scholarship or to disregard its very profound and continuing influence on the law, even if that influence isn't always immediately apparent.

 

 

Tulane U. And Bucknell U. Gave False Data To US News

It now appears that the Tulane University business school provided false admissions data to US News for its graduate school issue for several years while Bucknell University provided fake undergraduate SAT scores to US News.  

This piles on news about data fabrication from GW, Emory and Claremont McKenna.  And that doesn't even mention provision of false law school admissions data.  It is precisely this grim state of affairs that makes the former head of the FBI the perfect higher ed attorney.

I think most people imagine that there are scores of other examples, most of which may never see the light of day.  And each new instance inflicts incalculable damage on all providers of  higher education.  

Still More on What Matters Most (Or, A Guided Tour of Pandaemonium)

As I have previously observed, if you think there is no oversupply of recent and imminent law graduates, you live in a fantasy world.  If you think that every underemployed law graduate in America is just too lazy, too stupid or too greedy to take one of the countless paying jobs just waiting out there to meet the legal needs of the poor (who have no money to pay you, despite their substantial and serious needs), you live in a fantasy world.  If you think that there are untold thousands of wonderful, remunerative jobs that don’t require a law degree but that instantly become available to law graduates just because they have one, you live in a fantasy world.  We have lots of data measuring the differences between what’s going on here on Earth, and what you think you see from Planet Pangloss.

But there is an equally corrosive rhetoric at the other extreme in this discussion, and it is just as pernicious and misleading.  For example, this recent quote from Paul Campos in Fortune:  “[I]t's like the subprime mortgage scandal without securitization. When people realize it's a worthless degree, the system is going to collapse.”  Lest anyone accuse me of being a hater, let me be clear that I think Prof. Campos has done us all a great service in raising and focusing public discourse on a number of extremely serious and important issues regarding the current state of legal education, and has regularly contributed to the discussion with reasoned and empirically-based arguments about where we are and where we might be headed.  My concern is his tendency to lapse into self-loathing (such as in this inaugural post on his blog and much of the rest of what he posted there that month) and hyperbole (such as the remark I just quoted), and the rage and panic it excites in many of his followers. 

In a recent post, I called those indulging these rhetorical extremes “Pandemoniasts.”  I was thinking of Milton’s Paradise Lost, and the prospect of Hell presented to the fallen angels from the site of the city they will build there, Pandaemonium, which sounds for all the world like this crew’s prospect of all life after law school:

The dismal Situation waste and wild,
A Dungeon horrible, on all sides round
As one great Furnace flamed, yet from those flames
No light, but rather darkness visible
Served only to discover sights of woe,
Regions of sorrow, doleful shades, where peace
And rest can never dwell, hope never comes
That comes to all; but torture without end . . . . 

(Book I, lines 60-67, spelling modernized) 

Before those on the waiting list for anger management start to pile on, let’s all be clear that there is in fact loads of misery in the post-law-school world.  There are literally tens of thousands of recent law-school graduates who made six-figure investments in their legal educations, many of them incurring huge nondischargeable loans to do so, who cannot find full-time, long-term employment making any substantial use of what they paid so dearly in time and treasure to acquire.  This distress is by no means evenly distributed across the graduates of all law schools, but it is having real and significant effects at almost all of them, including many very well and thoughtfully administered institutions such as the one where I am fortunate to work.  This is nothing short of tragic, and of course it has to be addressed to reduce the numbers of future victims of this misfortune.  (And we should never forget that prospective reform of the kind currently under discussion in many quarters does little for those already caught in the riptide of the shrinking law-job market.  Disaster relief for those already swept out to sea will be the subject of a future post, and is something we should all be thinking about as well.)

That’s why I’ve argued that What Matters Most right now is that there are not enough law jobs for the recent and imminent law grads entering the workforce:  Responding to precisely these circumstances, the relevant markets are already bringing powerful forces to bear.  What happens when you make more of something (here, entry-level lawyers) than the market wants?  Supply contracts and price falls until the market clears.  And that’s exactly what’s going on right now.  Law-school applications are down precipitously again this year (hat-tip to Dan Filler for the latest numbers) as more prospective law students conclude that the investment of time and money in a JD is not justified.  The first-year class that started this past fall is smaller than the previous year’s by at least 10% at roughly half the accredited law schools in the United States.  Many schools will shrink, and some will simply fail when they cannot attract enough of what they consider the right kind of applicants.  Similarly, price competition among law schools for desirable matriculants is already increasing, right now mostly in the form of price-discounting through offers of financial aid, but with a few institutions freezing and reportedly considering reducing their tuitions.

Judging from the oversupply revealed by the employment numbers gathered and disseminated by the ABA Section on Legal Education, my relatively unscientific guess is that we can expect the number of seats in accredited law schools to shrink somewhere between 20% and 40% from its high in the class entering in the fall of 2010.  My equally unscientific guess is that we can expect to see the reduction fairly quickly (on an academic timescale)—perhaps within the next 3-5 years.

This correction, which is obviously substantial, will create more dislocation and hardship.  That is deeply regrettable.  Students at institutions forced to close will have their studies disrupted, and perhaps terminated (with concomitant loss of their investment) if they cannot find an institution willing to accept them as transfers.  The faculty and staff of those failed institutions will lose their jobs, and finding similar jobs elsewhere will be very difficult as many of the schools remaining downsize their own faculty and staff to serve reduced student bodies.  (The difficulties I am hearing about from very accomplished and talented applicants for law-teaching jobs this year are just a small harbinger of things to come.)  Schools that choose to compete by reducing price, either by selective awards of financial aid that allow them to price-discriminate more effectively, or by reducing nominal tuition rates across the board, will undoubtedly require their faculties to teach more and get paid less.

These hardships will not fall equally on every law school.  The really interesting questions are which schools are going to be most quickly and profoundly affected and why.  I have some thoughts about that, which I’ll share in a post soon to come.  Readers’ predictions in the Comments are solicited.  In the meantime, some schools are embracing the inevitable proactively (props to Dean Frank Wu at Hastings, for example, who decided last spring to reduce his census by 20% even though he could still fill 100% of his existing seats, thus seizing the opportunity to manage into and through the change), while others will undoubtedly be dragged down in price or numbers kicking and screaming (and denying and denying some more).

Those in the Schadenfreude brigade who take some joy in these prospects should be ashamed.  When markets contract, many people suffer.  But is this the end of the world as we know it?  Is “the system” going to “collapse”?  Don’t be ridiculous.

The legal profession is still an indispensable handmaiden to the American economy.  Even with a deeply depressed economy and critical structural changes reducing the staffing and pricing of legal services, there are still countless disputes of all kinds to be resolved, still deals to be done, and more regulations than ever to comply with.  There is an interesting debate to be had about whether, in the medium or longer term, the traditional model of conventionally defined legal services provided by guild-licensed professionals will survive (Gillian Hadfield and Richard Susskind, among others, think—with apologies to Prof. Hadfield for oversimplifying her complex and nuanced views—perhaps not).  But right now, and for the foreseeable future, there is no responsible argument that every law degree is “worthless” or that “the system” is on the verge of “collapse.”  Over 23,000 of the law students who graduated in 2011 had long-term, full-time jobs requiring a law license within nine months, and some modest (and I stress “modest”) complement on top of that found work towards which their law degrees made a real and significant difference.  That’s a lot fewer than the 43,000+ who graduated that year, and some of those who succeeded in the job market are making only a marginal living.  Those are very significant problems that have resulted in real and serious loss, disruption and pain to many thousands of disappointed graduates.  But to suggest that soon no one will be attending law school because there are, or will be, no economically viable entry-level law jobs is absurd.

Bottom line:  The legal academy is already shrinking, and that’s going to accelerate for a while—but it will slow and then stop.  We have the choice to face the forces driving these changes thoughtfully and proactively, or to be dragged along willy-nilly.  What we can’t do is resist them, and those who try will do so at their peril.  When it’s done, we will likely be sadder, hopefully wiser, and certainly more modest in our dominion.  “Better to reign in Hell than to serve in Heaven”?  You tell me.   

--Bernie

A Second Job

My first week as the American Bankruptcy Institute "Resident Scholar" has proved interesting. I had been active as a member of the ABI as a practicing lawyer and had remained involved after switching to the law teaching side. Back in 2010 I received a call about serving as what's impressively called "resident scholar" and was finally able to fit it into our schedules for the spring 2013 semester. I'm still teaching a light load home at Regent but until I got here, I didn't really know what I'd be doing.

I've taught bankruptcy and secured transactions many times and have published on both topics but a large part of my spring gig will be helping to design a continuing legal education program. I've done individual CLE presentations in the past but here I'll be working on an all-day "Nuts & Bolts" program for new lawyers or lawyers new to the bankruptcy practice.

Over the years I've used three bankruptcy casebooks and have wrestled with the amount of practice-oriented detail to mix with policy (along with a soupçon of a theology of debt relief) and very challenging material. I hope to use the results of this project to give my future students a leg up on the world of practice without sacrificing the deeper, more analytical aspects of a law school class.

Law School Transparency Jumps the Rails (Or, Why I’m Still Disappointed with LST’s Latest Contribution to the Discussion on Law-School Reform)

With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that).  The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education:  Dabbling in Disaster Planning.”  Familiarity with my original post is not presupposed.

As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable.  There is a good deal to admire.  LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree.  They believed that potential consumers of legal education would make better choices if they were better informed.  They were pointed, patient and persistent in pressing for more and better disclosure.  They were an instrumental part of the process that effected that change.  And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).

So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)?  Here’s a catalogue of my most serious concerns:

Don’t overdramatize.  Don’t let your urge to be the center of attention distract from the ideas and their merits.  To those of you who pointed out that this was a vice of my original post (most of you in the most understated and appropriate way): you were right, and thank you.  This vice appears in “Disaster Planning” in the overused and overwrought rhetoric of crisis that pervades a certain class of commentary about the current state of the legal academy and the legal profession.  LST’s title tells us its paper is all about “Disaster Planning” to address the “Crisis in Legal Education.”  And indeed the word “disaster” appears three times in the first paragraph of the Abstract alone, with two “cris[e]s” thrown in for good measure.  By the third page, “the law school disaster” has been erected as the foil against which the paper’s recommendations are defined. 

Don’t allow hysterical language to mask a failure to define the issue you need to address.  So what is “the law school disaster” according to LST? I scoured over forty pages without finding an answer.  While “Disaster Planning” trots out various inventories of misfortune, it fundamentally fails to identify the “disaster” it’s “planning” for, leaving us facing down that “disaster” armed only with the queasy uncertainty that we won’t know when we’re ready for it, how effectively we weathered it, or when it might be over.

Am I suggesting that there is nothing amiss in the legal academy or the legal job market?  Of course not.  Law schools; their faculty, staff and administrators; law students; law graduates; lawyers and legal employers—and by far most importantly, clients—are all currently awash in real, serious and substantial difficulties of various kinds.  But which are causes, and which are effects, and which are which for what?  Or to put it slightly differently, it’s pretty much impossible to solve a problem you haven’t defined; in fact, it’s difficult to speak coherently about a problem you haven’t defined.  You end up with exasperated generalizations on the order of “life sucks; then you die” (which, I might observe, leaves you with innumerable inconsistent avenues to explore concerning whether or how to make life suck less, or end quicker).

Some measure of how serious an obstacle this tactic is to sound analysis can be found in the responses I received to this point in my original post.  Several of you (including Kyle McEntee himself in a very thoughtful and measured Comment for which I thank him) chastised me for quibbling with LST when it was perfectly obvious what the “disaster” was—and each of you identified different issues!  Mr. McEntee believes that “the disaster would be if legal education's traditional and important role in American society is further delegitimized”; others of you identified the problem as the excessive cost of legal education (a subject I will discuss in an upcoming post); still others pointed to the genuinely tragic flotilla of unemployed law grads currently marooned in a sea of debt. 

That’s why I have devoted (some might suggest squandered) so many words in this space considering “What Matters Most.”  For those no longer keeping score at home, what I think Matters Most—that is, what is most fundamentally a direct or indirect cause of more current hardships, and what would be most difficult, and least likely, to change—is the fact that there are significantly more recent and imminent law graduates than there are entry-level law jobs.  You are invited to review my empirical and logical bases for the conclusion that this is What Matters Most right now (e.g., here and here), and fault my reasons in any way your reason will permit.  But for heaven’s sake, let’s have a coherent and common-sense discussion about causes and effects grounded in actual facts and practical realities, and leave Henny Penny in the barnyard.

Whether you agree with my assessment of What Matters Most or not, defining the problem you want to solve is utterly essential.  Beyond insignificant and temporary adjustments on the margin, law schools don’t create law jobs, and they don’t destroy them.  Legal employers and clients do that, driven by their own economic exigencies.  Law schools have been making the same mistakes that LST and others identify today in one form or another for close to 40 years, during which time legal employment saw essentially uninterrupted and unprecedentedly rapid growth at rates far in excess of the greater economy’s.  There is no empirical evidence, and no coherent argument, that whatever you think law schools are doing wrong today made one-third or more of all entry-level law jobs suddenly disappear between 2008 and 2010.  There is no empirical evidence, and no coherent argument, that any change to the substance or method of legal education today would bring any material portion of those recently disappeared jobs back into the economy. 

What this means is that, if you’re trying to relieve the oversupply of recent law graduates (or the undersupply of entry-level law jobs), tinkering with law-school curricula or instruction methods will not meaningfully touch the problem.  Nor will simply lowering the cost of a law degree, which as I’ve already suggested in this space, seems more likely to increase the number of unemployable graduates as reduced price stimulates demand.  This is not to say that I endorse the current economics of law school, but that’s no excuse not to think through the plausible consequences of your policy prescriptions.

So while I do not question the seriousness and good faith with which LST advances its proposals, I hope none of you will question the seriousness and good faith with which I suggest that some of the ideas in “Disaster Planning” deserve some further thought and refinement.  To put my examples in context, two of the big ideas around which LST wants to build an experimental “modular” law school are (i) shorter-term class “modules” lasting only a few weeks apiece in lieu of most full-term courses (a Colorado College model for those familiar with it) (ii) taught predominantly by adjuncts at a cost far lower than permanent faculty.  In the remainder of this post, I’ll try to illustrate some recurring errors in LST's article that we can all try to avoid in our next efforts.

Don’t ignore the implications of your justifications.  A number of the explanations offered for LST’s specific proposals don’t respond to broadly held perceptions of what’s broke; don’t hang together, or just don’t make much sense.  For example, the authors praise the compressed class “module” structure because it “encourage[s] exploration of topics that would otherwise be considered too narrow in a semester-long curriculum structure.”  But overbreadth of particular class offerings is not a common view of the current deficiency in curricular selection; if anything, excessive and impractical narrowness is.  This does not necessarily mean that shorter “modules” are a bad idea; but it does mean that how they are selected, structured and coordinated is quite important.  Future discussion should bring this essential factor, which is not addressed in the current paper, into play.  Similarly, LST touts its proposed structure because it allows faculty to respond nimbly and rapidly to the curricular “input” and “demands” of students.  This is not altogether surprising given that the authors are all recent law-school graduates.  But the premise is not unlike criticizing a physician for bad patient service because she did not provide the diagnosis or prescribe the therapy the patient thinks he prefers.  Most students come to law school having no idea what they need to learn to prepare themselves for one of the innumerably varied careers they have not yet chosen.  The fact that some of the doctors may be loopy or self-involved is no reason to put the patients in charge of the asylum. 

Don’t ignore inconvenient facts.  One of the greatest challenges in formulating coherent law-school reform proposals is (as a number of you pointed out in response to my original post) how little we actually know about what works or why.  Experimentation should be undertaken advisedly, since the guinea pigs are people who are gambling huge amounts of money and their future on the experiments’ outcome.  So when we actually have empirical data, we are duty-bound to make the most of it.  In this particular instance, LST—ordinarily an outspoken champion of better information driving better decisions—refuses.  Dean Erwin Chemerinsky, the authors note, has pointed out that one of the serious objections to a very small core of full-time faculty surrounded by a cloud of adjuncts who wander in for their three-week modules and then disappear until next year (or forever) is that adjuncts regularly receive materially less positive student evaluations of their teaching in the aggregate than permanent faculty.  One likely reason, Dean Chemerinsky has argued, is that whatever else teaching involves, it is a skill that benefits from practice.  LST’s response is a series of unsupported assertions that the student evaluations are somehow comprehensively wrong, and that most practitioner adjuncts are really better teachers, both in their practices and at school, than most permanent law faculty (something not entirely obvious to anyone who has ever worked in a law firm, which none of the authors has for any length of time).  While greater use of adjuncts may present other advantages—which, while not in my view as self-evident as the authors apparently believe, seem to deserve exploration and testing—it is at the very least self-defeating to deny years of actual empirical observation and evaluation by the very student population the authors wish to serve.  Let’s use the facts we have, not pretend they don’t exist. 

Don’t assume away the problems you perceive; recognize and try to solve them.  No proposal is perfect.  Good policy involves identifying the weaknesses in your suggestions and figuring out ways to avoid or ameliorate them.  Bad policy leaves the problems you know are out there for someone else to take responsibility for (so at least the program’s failure won’t be your fault).  For example, the authors concede that “[t]he sheer number of adjuncts may accentuate the problem of finding, scheduling, evaluating, and filtering competent teachers.”   Their solution: “The . . . faculty must be actively managed in a way that ABA-approved law schools are not presently doing.” Any suggestions about the quantitative or qualitative nature of the “problems” their novel structure creates, or what any of those currently nonexistent techniques of “active[] manage[ment]” might involve?  Nah, these mere operational details are delegated to a “module coordination staff, focused on the challenges distinctive to the modular structure,” who will somehow do what such currently nonexistent people have never done before “ensuring a sound and affordable legal education.”  Any solution involving the adjunct cloud that LST favors cannot be taken seriously without some very detailed prescriptions for how to manage this very significant challenge.   

LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems.  The execution leaves something to be desired for the reasons just discussed.  But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible.  We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new.

Next time, my promised response to the crisis-mongers.

In the meantime, a Happy New Year to all.

--Bernie

Why is Grading so Aggravating?

    Over the last few days, I have been considering the twice-a-year obligation that we have to grade examinations. (Thinking about grading exams is certainly more enjoyable than actually doing it). I have yet to meet any colleague who enjoys grading; indeed, most of us seem to treat it as the most loathsome part of our jobs. Why?

    For those of us who teach larger classes, I suspect some of the dread stems from the idea of having to read the same answer (or at least what should be the same answer) time after time after time. Certainly, in the years where I’ve had over a hundred students in my Introduction to Property course, this has been a significant factor. How many of us would go to the same movie or read the same novel a hundred times? But repetition cannot be the only explanation — I also teach much smaller classes and don’t enjoy the grading any more.

    Grading can also expose the fact that there is a difference between teaching and learning. I have not found it uncommon to read an answer and wonder whether the student ever came to class or read the materials. “Executory vested remainder” can never be the correct answer to any question on a Property exam as no such thing exists. At the same time, all of us know that not everyone who attends law school should be doing so. Finding the occasional failure among the examinations should be unfortunate, but should not trigger such dread. Also, you would expect this to be more relevant for introductory classes rather than more advanced ones whose members have already shown some competence. Fearing student failure cannot be the full reason, for our grading discomfort, therefore.

    The last reason I’ve come up with is one of potential misdirection. When we grade an examination and find it wanting, are we also saying something about our inability to teach? While, like most other professors, I can articulate many reasons why students’ failures are their own responsibility, maybe the dread of grading we feel originates with a feeling that it is our failing not the student’s.

    So, assuming that you also dislike grading, do you have a reason?

The Student’s Paper

    Many of us, I’m sure, have been the faculty advisor for a student’s independent study paper. I don’t do this often, not because I don’t like doing it, but because I have the earned reputation of being a hard grader. Over this fall, however, one of my brave students wrote a very good paper dealing with the standards associated with granting zoning variances.

    For the non-property law scholars out there, the traditional and almost universal rule is that a variance cannot be granted without a showing of a substantial hardship (or similar standard). Her paper argued that this standard was inappropriately high on the merits and is, in reality, almost universally ignored at the local level.

    When I have taught zoning in my property class, I presented the standard view fairly uncritically. It seemed easy to justify: zoning is to serve the public good and if exceptions are too easily made, it rapidly becomes a tool that serves the ones who are wise (or rich) enough to apply for a variance. Somewhat surprisingly, I’ve continued to mirror the standard line even after I started serving on my local zoning board which grants many a variance of dubious merit. I don’t think I can teach the subject the same way this year, so it is time to rebuild the material on variances.

    I have always seen independent studies as a good way of allowing a student to do in-depth research on a topic. After almost thirty years in the academy, its time to acknowledge their broader potential.

More On What Matters Most (Or, Paging Dr. Pangloss)

Change is hard.  Big changes are underway in the economics of the legal profession, and they are driving equally big changes in legal education.  These changes have imposed genuinely tragic hardships, most immediately and directly on the aspiring lawyers trapped in their cross-currents.  Those who entered law school in 2005 and later implicitly or explicitly made rational (or as time went on, at least not entirely irrational) assumptions that the legal economy would continue, mutatis mutandis, as it had for the last forty years or more, an endlessly rising tide lifting even the leakier and more crudely-finished boats.  Sadly, and through little fault of their own, they were wrong, and at great personal cost—in time, in money and in life plans gone awry.

Change is scary.  The fear is palpable among those speaking to current circumstances out of the academy, and has produced the two results that such fear predictably spawns:  Rank denial and frank hysteria.  Neither is merited.  Today, prompted by yesterday’s much-downloaded op-ed in the New York Times, I speak to the Panglossians; my next post in this space will address the Pandemoniasts.

My message to Dr. Pangloss is simple:  Stop and think.  Please.  You can’t whistle “Don’t Worry, Be Happy” loud enough to drown out the anxiety that is prompting this forced insouciance.  And you are wasting valuable time and energy not only denying the existence of important questions you ought to be addressing, but potentially confusing others who will make errors they could have avoided and lose opportunities they could have claimed. 

Those of you who remember my post on “What Matters Most (in legal ed these days)” (and blessings be upon you if you do) will recall that I suggested that by far the most salient feature of the legal education landscape today is that there are too many law graduates and too few law jobs.  The Panglossians deny that this is true, or argue that it doesn’t matter if it is.  In doing so, they depend almost entirely on wishful thinking masquerading as empirical assertion.  While we would all be very interested in any meaningful empirical evidence supporting the Panglossian view, I haven’t seen any to date.  And I have seen lots to the contrary.

Some of the Panglossian commentary is downright meanspirited, and takes the basic form that there are in fact lots of law jobs out there, but recent graduates are too lazy, too stupid, too greedy, or too ill-prepared by their law schools to claim them.  When any evidence of the existence of this sea of unclaimed jobs is offered, it is generally either the fact that there is substantial unmet need for legal services among the poor and middle class; or that Nolo Press and Legal Zoom are still in business.  Let’s be clear:  There are now tens of thousands of unemployed or underemployed recent law graduates out there dying to make some use of their legal education.  If they could make a living starting a practice at very low rates, they would do so.  That’s how labor markets work.  But as I have commented in this space previously, the poor are poor because they have no money; and the middle class have very little disposable income to devote to legal services not covered by insurance or contingent fees.  As for Nolo Press and Legal Zoom, they are successful in the marketplace precisely because they offer very basic legal services at prices that are cheaper than virtually any practitioner can manage to charge and continue to eat regularly.  Even still, there are plenty of ads for dirt-cheap flat-fee incorporations and uncontested divorces in your local yellow pages.  The low-price market is saturated.  Stop blaming the victims of a rapid and significant contraction in the entry-level legal job market for something they didn’t create and can’t overcome—which is what you're doing if you deny there are significantly too few law jobs, whether you do it by attacking recent law grads directly or by the tactics I turn to now.

Many Panglossian apologists suggest that everything is still just fine because a law degree has innumerable profitable uses beyond qualifying its recipient to get a license to practice.  An example can be found in a well-respected law professor’s comment on Dan Filler’s recent post on the plummeting numbers of LSAT takers.  This argument takes a range of forms that range from the (always unsupported) assertion that “lots” of the speaker’s graduates get “wonderful” jobs that make great use of a law degree but don’t require a law license, to the (equally unsupported) assertions that a law degree is ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates.

I would be delighted to see any empirical evidence supporting these assertions, but unfortunately there isn’t any of which I’m aware.  Recent ABA employment outcome statistics devote a segregated category, called “JD Advantaged,” to jobs that do not require a law degree but for which the degree “provides a demonstrable advantage in obtaining or performing the job.”  This is an overinclusive definition, because what we really ought to be looking for are the jobs for which a JD provides a sufficiently substantial advantage in hiring, retention or advancement that the holder’s investment in the degree is justified.  After all, the fact that you get a job after graduating from law school, even one to which your legal knowledge is somehow relevant, does not necessarily mean that the job made the time and tuition worth it—especially if that job does not require a law license or even a law degree.  But in all events, what the ABA employment statistics show is that this “JD Advantaged” category of jobs is, for most schools, a small proportion of what anyone might call placement success.  Moreover, the number of such jobs for a law school’s graduates is significantly negatively correlated with that school’s prestige as measured by its US News ranking.  In other words, at the schools where graduates have the most employment options, they choose significantly fewer of these “wonderful” jobs, further suggesting that they are second-best (or considerably worse) outcomes.  As for the argument that law school somehow makes you so much better at everything that it’s worth whatever someone wants to charge you for it, I assume that requires no further discussion.

Finally, a few words about yesterday’s New York Times op-ed from the new dean at Case Western, unapologetically entitled “Law School Is Worth the Money.”  There are several postings already online pointing out astonishing deficiencies in this Panglossian effort’s coherence and empirical support (which I borrow from as well as add to below; three pretty devastating ones are here, here and here), but I want to dwell briefly on two particularly egregious examples. 

The op-ed argues that things are actually good for law grads today because the median law-job salary figure for 2011 graduates is $61,500.  But unless you look closely, you won’t see that this is the median salary only among those who actually have law jobs in the first place.  (The op-ed, and I, rely on statistics from NALP.)  In other words, the op-ed’s median salary number doesn’t appear to take into account the pay (if any) of those graduates who have no law job, or no job at all.  All told, that median is based on only the 36% of 2011 graduates who both had law jobs and reported their salaries.  And what that means is that only 18% of the class of 2011 (half of the 36% on which the median is based) were confirmed to have had JD-required jobs that paid more than $61,500.  In other words, the data on which the op-ed relies show that a randomly selected 2011 law grad had less than a one-in-five chance of getting a job as a lawyer that paid more than the $61,500 "median" salary that the op-ed offers as proof of a prospective law grad’s excellent prospects.

Similarly, the op-ed makes a great deal out of a comparison between a percentage of graduates who took jobs in private firms in 1998 (55%) vs. 2011 (50%), arguing that this shows that things are only a little worse now than they were at another time law-firm hiring was a relatively low portion of all law hiring.  It fails to mention that the cited fraction is not the portion of all graduates who got private firm jobs, but rather only the percentage of students who got law jobs in the first place and whose jobs were at private firms. And according to NALP, a much greater percentage of law graduates in 1998 got full-time law jobs in the first place (something like 80% of all graduates, or perhaps more depending on how you count), while approximately 55% of all 2011 graduates got jobs requiring a law degree.  In fact only 41% of law grads whose employment outcomes were reported to NALP got jobs at law firms.  And some of those jobs—after three years and $200,000 worth of law school!—apparently were as secretaries, paralegals or clerks, or were only part-time.  Take those out along with cases where a new grad is practicing as a solo (which is “getting a job” in name only), and less than 30% of the class of 2011 whose employment outcomes are known were employed at private law firms nine months after graduation.  So this statistic compares most of an apple with a very thin slice of orange. (Not to mention that it is a meaningless thing to worry about in the first place, as there are many excellent law jobs in government and nonprofits, and many low-salary and low-satisfaction jobs in private law firms.)

One other frankly bizarre assertion in the Times needs brief mention.  The op-ed argues that, even if entry-level hiring is at historic lows relative to number of graduates (which is likely the case even though the rest of the piece apparently tries to suggest otherwise), that doesn’t matter because first jobs don’t matter; it’s the subsequent positions that the law degree assertedly allows you to obtain later in life that really matter.  Of course, we have no longitudinal data on the future job prospects of initially unemployed or underemployed law graduates because there has never been anything close to so many at once before.  But does anyone seriously believe these folks are going to get a great second or third legal job without ever having had a first one?  Or that any discriminating legal employer is going to see two years of flipping burgers, stocking store shelves or selling jeans as good preparation for law practice?

I could go on, but others already have.  If a student turned in a paper with arguments like these in a class I was teaching on the legal profession, I know what grade I would give it.  I encourage you to draw your own conclusions.

I close this post by reiterating my initial point:  While none of this proves that the sky is as clear and cloudless as the Panglossian deniers would have you believe, none of it proves the sky is falling either.  The Pandemoniast view I will discuss next time is, in my view, just as overwrought and undersupported as the Panglossian one.  In the meantime, it’s time for the “Don’t Worry, Be Happy” crowd to impose on themselves the commitment to thoughtful and honest data-driven argument that I hope and assume they regularly urge on their students.  Dr. Pangloss, heed thyself. 

 --Bernie

Faculty Buyouts (Or, How Much Is Tenure Worth?)

Vermont Law School announced yesterday that it would be offering “buyouts” to staff (and possibly, faculty) in an attempt to weather the sharp drop in law school applicants and LSAT takers and a $3.3 million budget shortfall.  As a stand-alone institution, VLS perceives itself (and rightfully so) as more vulnerable to these market shifts than university-affiliated law schools.

Other media outlets (and blawgs) have devoted ample space to the “crisis,” so I won’t repeat these arguments here.  I will note, though, that the idea of “buyouts” for faculty is an interesting (and potentially troublesome) one.  Universities have been offering tenure buyouts for years – public institutions, especially, have seen their budgets slashed by state legislatures desperate over shortfalls not unlike the one facing VLS.  Buyouts are not without controversy – for example, tenure rules frequently limit the types of buyouts that can be offered (and to whom such buyouts can be extended).  Moreover, schools must be careful with their doomsday predictions when making buyout offers.  Case in point:  Whittier offered buyouts to certain tenured law faculty back in 2007 and found itself on the receiving end of a lawsuit; faculty claimed that the school’s representations regarding frozen salaries and 50% increases in courseloads (in the event that the buyouts were not agreed to) were fraudulent.  Whittier had offered the buyouts on the heels of the ABA putting the school on probation; after students’ bar exam pass rates improved, the school took steps to raise faculty salaries and maintain existing faculty workloads.

It remains to be seen whether Vermont is headed toward faculty buyouts, but if this is a sign of a trend, we should all be paying close attention (at every level).  What is tenure worth?  Can it be assigned a dollar value?  Is there some idiosyncratic or personal value attached to this form of property (see my earlier post on personality theory)?  Is it fungible?  Can partner buyouts at underperforming law firms be a model for these initiatives?  I look forward to your thoughts on this.

The Bard of Avon in Prison

Los Angeles Times, November 25, 2012

Reading “Hamlet” Behind Bars

By David Schalkwyk

It doesn’t look like much — just a tattered, 1970 edition of The Complete Works of William Shakespeare. But inside, the book bears testament to an era.

Currently on display at the British Museum as part of an exhibition called “Shakespeare: Staging the World,” the book belongs to Sonny Venkatrathnam, who was incarcerated during the 1970s in South Africa’s apartheid-era political prison, Robben Island. Having convinced a warden that the volume was a Hindu religious text, Venkatrathnam was allowed to keep it with him in prison, where it was passed from prisoner to prisoner. At Venkatrathnam’s request, his comrades signed their names beside their favorite passages.

On Dec. 16, 1977, Nelson Mandela signed next to these lines: ‘Cowards die many times before their deaths; / The valiant never taste of death but once.’

Walter Sisulu, another African National Congress leader and close confidant of Mandela, put his name beside a passage in ‘The Merchant of Venice,’ in which Shylock talks about the abuse he has taken as a Jewish money-lender: ‘Still have I borne it with a patient shrug / For sufferance is the badge of all our tribe.’

And Billy Nair, who went on to become a member of Parliament in the new South Africa, chose Caliban’s challenge to Prospero from ‘The Tempest:’ ‘This island’s mine, by Sycorax my mother / Which thou tak’st from me.’

The Robben Island Shakespeare is the only book from the prison that records an act of personal literary appreciation by the major figures incarcerated at the time, many of whom went on to play major roles in post-apartheid South Africa. It is a kind of ‘guest book,’ bearing the signatures of 34 of the Robben Island prisoners. But is also more than that.

When they signed their names against Shakespeare’s text, each prisoner recognized something of himself and his relation to others in the words of a stranger. The Robben Island Shakespeare records that community of character and signature as an example of Shakespeare’s global reach and as a historically specific witness to a common human identity and shared experience.

It’s not at all clear how big a role the book played in the lives of prisoners other than Venkatrathnam. Not one of the memoirs written by inmates at Robben Island mentions the volume. And when the ANC was asked to comment on the significance of the book this year, its spokesman asked, ‘What is this “Robben Island Bible”?’ He denied that it had played any special role in the struggle against oppression.

Nevertheless, all the accounts of political imprisonment in South Africa during the apartheid era suggest that the humanities were central to the lives and needs of the prisoners. In an environment of extreme sensory deprivation, designed to deny people their affinity with others and to strip away humanity, the soul staked its claims with striking insistence. Music, some prisoners declared, was more important to them than food; many were prepared to suffer physical punishment for the sake of a book or a newspaper; and the cold of concrete and steel was turned into the warmth of community through common reading and shared education. Jacob Zuma, the current president of South Africa, has said he received his basic education at the ‘University of Robben Island.’ [….]

The rest of the article is here.

(David Schalkwyk is director of research at the Folger Shakespeare Library in Washington and editor of the Shakespeare Quarterly. He is the author of Hamlet’s Dreams: The Robben Island Shakespeare. He will be lecturing at the Huntington Library in San Marino on Monday evening.)

Related Miscellany:

Here’s an inspirational story of an inmate “sentenced to 16 years for felony assault, a period extended by three years after an altercation with a guard in prison,” whose prison reading contributed to his becoming something of an expert on hieroglyphs: “Hieroglyphics Turn Prisoner Away from a Life of Crime.”

Duly inspired, here’s a link to the Prison Book Program.

And this may be a propitious occasion for the few of us dispositionally inclined to read the likes of Aristotle, John Rawls, Robert Nozick, Michael Sandel, Iris Marion Young, G.A. Cohen, Thomas Pogge, and Amartya Sen on justice (distributive and otherwise), to be reminded of the relevance of Shakespeare, who also speaks to us about such things: A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice (2011).

What Matters Most (in legal ed these days)

For those of you who noticed I hadn’t posted here lately, thanks for noticing.  I’ve been listening and thinking, two virtues we all too often honor in the breach.  What I’ve mostly been listening to and thinking about is the swelling threnody bemoaning—or in some cases celebrating—the impending Demise of Legal Education As We Know It.

What all this shouting about Fraud, Failure, Exsanguination, Plague and Death has given me is an appetite for some perspective.  (My favorite Thanksgiving side dish, inexplicably not served in many American homes these days.  Go figure.) 

What kind of perspective?  Let’s start with some clear thinking about What Matters Most in legal education’s current circumstances.  What I mean by this is that we ought to start our discussion about What’s Broke and How To Fix It by isolating, among the many matters of legitimate concern at this time of profound and rapid change, which ones are the most fundamental—the ones that provide the necessary backdrop and context for the rest.

I’m going to start that effort here. I’m working on a longer piece that will explore these issues at greater length and with some effort at empirical support, but as the lamentations swell, I’ve become increasingly concerned that this question is getting drowned out, and at some considerable expense to clear thinking.  In my efforts to isolate What Matters Most, I imagine I will exasperate quite a few of you who are understandably preoccupied with issues that I don’t think Matter Most.  So let me be clear:  The issues that I don’t think Matter Most are still very important, and deserve concerted attention.  But those issues are not are the ones that necessarily define the context for plausible definitions of problems and solutions.  First things first.

There are roughly three categories of contumely being heaped on the legal academy these days.  Two of them have received disproportionate attention, and what’s striking is that they are pretty clearly not the ones that Matter Most.  Those two are arrays of related contentions (1) that law school fails to prepare students for practice; and (2) that law school costs too much.  Let me say again before readers start calling me names in the Comments that these concerns are, in one formulation or another, both quite important and quite well taken.  But they’re not What Matters Most. 

What Matters Most is that there are today significantly more seats in accredited American law schools than there are entry-level law jobs for the emerging graduates.  This is obviously neither an original nor a novel observation; lots of people in addition to me have written about it.  But its fundamental importance has received surprisingly little attention. 

To appreciate why it’s important, let’s refine the observation a little.  You can argue about how big the overproduction of law graduates is right now.  Numerous commentators have focused on ABA employment statistics counting the number of law graduates who have found full-time, long-term jobs requiring a law license within nine months of graduation to argue that something like half of all recent law graduates are “unemployed” or “underemployed.”  For reasons I have elaborated on previously in this space, I think this overcounts the number of law graduates unable to make good use of their law degrees in the job market.  But however you count it, the overproduction is currently very substantial.  I’m still working with the data, but I would estimate overproduction of law graduates today at about 1 in 3—that is, that roughly 1/3 of recent law graduates cannot get a job that makes good use of their law degrees. 

You can also argue about how long the overproduction will last—that is, how much of this overproduction is cyclical, caused by depressed demand for legal services resulting from our depressed economy; and how much is structural, resulting from changes in the provision, staffing and pricing of legal services driven by changes in technology and business practices.  The difference is critical, because cyclical forces should largely resolve themselves as the economy eventually improves, while structural forces should force long-term reduction in the demand for young lawyers regardless of the pace of economic recovery.  I was on record early with the view that the changes we are observing in recent years are much more structural than cyclical in origin, and what has happened since has only confirmed that the sudden reductions in law jobs that have emerged since the economy crashed have resulted predominantly from pent-up structural forces that had been building for years. 

If that’s right, What Matters Most is the current and foreseeable future overproduction of law graduates.  Period.  This matters more than law schools’ pervasive failures to prepare their students adequately for practice—failures that, by the way, have persisted for at least a generation and probably two during which demand for young lawyers grew rapidly and consistently.  Why?  Because the reason that substantial numbers of recent law graduates cannot get a law-related job is not for lack of practical training.  It is for lack of jobs.  Schools that improve their practical preparation may help their graduates seize a marginally greater share of the limited law jobs available, but they will not materially expand the job market.  While my friends in the Crisis Chorus would probably liken this to improving your chances at Musical Deck-Chairs on the Professional Titanic, I reject this metaphor, but only because I deny the analogy to the Titanic, not the very apt analogy to musical chairs.  Again, this is not to say that curricular reform is not very important and long overdue, but it is not What Matters Most.

Similarly, overproduction of law graduates matters more than the excessive cost of a law degree (and the indiscriminate availability of government lending to fuel its increase).  Why?  Because the reason that substantial numbers of recent law graduates can’t get a law-related job, or a law-related job that pays enough to service their student loan debt or economically justify the cost of their professional degree, is not mainly because they are overburdened with debt.  It is because they are undersupplied with jobs.  If there were any more law-related jobs available, even at very low pay, the unemployed and underemployed recent law graduates extant today would be swarming to fill them.  But they don’t exist.  And lowering the price of a law degree will not create more law jobs.  In most markets, if you lower price, demand rises.  So if you lower the price of a law degree, on the margin you will induce more people to apply to law school (lower cost; lower risk; why not see how I do?), and create an even greater oversupply of law graduates.  Is this wise?  Yet again, I am not suggesting that there is much good to say about the manner in which legal education is currently priced and funded.  Nor am I suggesting that every law school should remain as expensive as it is.  But I am suggesting that, if the markets want cheaper law degrees, ordinary price competition (with some interference from regulatory forces such as accreditation and licensure standards that may need attention) should help provide solutions.  Watch for it in the next 12-24 months.  But with all respect to Jimmy McMillan, I’m not prepared to join The Rent Is Too Damn High Party.

I’ll have more to say about this in coming months, but this post is already long enough.  The long and the short of it is that What Matters Most is that there are too many law-school seats and not enough law-grad jobs.  In most markets, what happens when there is an oversupply is that production and price fall until the market clears.  That’s already happening today.  Prospective law students have become aware of the undersupply of law jobs, and law-school applications are falling significantly.  Many law schools appreciably reduced the size of their entering classes this fall in response to the falling number of qualified applicants.  Price competition on tuition (right now predominantly through the tactical use of financial aid) is being reported.  Many schools will shrink, and some will fail.  Many will experiment with curricular, placement and financial innovations to meet the demands of the times and attract more and more-qualified applicants.  Critically, all of this will be driven by the applicant pool’s perceptions about what kinds of value a law degree will furnish by the time you’re done getting one.  And that’s why the oversupply of law-grad production and the undersupply of entry-level jobs are What Matters Most right now.  The really interesting questions are which schools are going to be most and most quickly affected by these forces and how. 

Stay tuned.

--Bernie