It’s always fascinating to see what others make of your ideas. Sometimes your readers find them a window into a world they hadn’t fully explored, which is ineffably gratifying. Sometimes your readers make them into strange lenses that refract things into exactly what they thought they already knew, which is rather less gratifying. Three journalists (well, two journalists and a full-time blogger) took a look at my new article, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21st Century,” described in my last post. Karen Sloan of the National Law Journal provided a fair and balanced summary of the paper’s content, but concentrated on the aspects of the analysis predicting that the number of entry-level Law Jobs will remain depressed for the foreseeable future. Jacob Gershman of the Wall Street Journal provided an equally fair and balanced summary, but focused on the paper’s additional and somewhat counterintuitive conclusion that, because poor job prospects are driving down the number of new law students, there will eventually be fewer law graduates seeking more or less the same number of jobs, which should make life somewhat easier for the fewer graduates on the job market some years from now. Elie Mystal of Above the Law treated us to one of his breathless, spittle-on-the-corners-of-his-mouth rants, and pronounced me a Don’t-Worry-Be-Happy academic apologist vying with purportedly like minds for the “neatest bit of sophistry in defense of going to law school.”
Poor Elie. It can’t be three weeks since he indulged in a similar surge of fury at Michael Simkovic and Frank McIntyre of Seton Hall concerning their study on “The Economic Value of a Law Degree,” and savaged the work for errors that even a casual reader would have appreciated simply weren’t there. (To be clear, I think there is plenty to argue with in the Simkovic-McIntyre analysis; unfortunately, almost none of it could be found in Elie’s landmark post “Another Garbage Study Offering Misleading Statistics On The Value Of A Law Degree.” This had the perverse effect of deflecting attention from a range of more subtle concerns with the paper, which I doubt was the intended effect of the attempted beat-down.) Since I am a teacher, I can’t help but notice that there appears to be lesson emerging here: Read before you rage.
So let’s see if we can straighten this out for anyone else in danger of confusion. Anyone who knows anything about my work (and to be clear, Elie Mystal is not to blame if he doesn’t) knows that I have argued explicitly and repeatedly that there currently are far too many seats in far too many law schools given the number of law-related jobs available; that this mismatch has visited tragic and incalculable misery on tens of thousands of aspiring lawyers, and that anyone who tries to assert otherwise is either grievously mistaken or contemptibly dishonest. Look here and here, for example.
Far from being “sophistry in defense of going to law school,” then, the “New Normal” paper (here) provides detailed empirical support for the propositions just described (with which, ironically enough, Elie apparently agrees). The paper shows that the entry-level Law Jobs market is currently poor and has been for the last five years (pages 24-25, 28); that reductions in BigLaw hiring are responsible for a disproportionate amount of that change for the worse (pages 30-35); and that there are strong objective reasons to believe that entry-level BigLaw hiring, and thus the entry-level Law Jobs market in general, will remain depressed below pre-recessionary levels for the foreseeable future (pages 35-54).
So far, it would appear that Elie and I are in complete agreement. The paper goes on to reason that if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs. Elie doesn’t fight the logic (you can’t); instead, he pronounces the prediction of a shrinking academy “almost certainly wrong” because he believes there is no way that the number of law graduates will fall. What is the empirical basis for this prognostication? He says the executive director of the National Association for Law Placement, James Leipold, told him so. Now, I have no idea what Jim Leipold told Elie Mystal, but I do know the facts. Here are a few of them: The largest first-year class in history entered law schools across the country in the fall of 2010; it was about 52,500 people. The first-year class that started in the fall of 2012 is estimated at about 42,500, a drop of about 20% in two years. [Update: LSAC reports an entering class of about 44,500 in 2012, only a 15% drop in two years. Others estimate the 2012 first-year class at less. Hat-tip to Paul Campos for pointing this out.] Last year, over half the accredited law schools in the United States shrank their entering classes by 10% or more. We don’t have entering class numbers for this fall yet, but there are reports –particularly among the schools that have had the worst placement records in recent years—of 30%, 40% and even 50% reductions in entering class sizes. The number of applicants to law school has shrunk by a third just between 2010 and 2013, and the number of applicants for the first-year class that will be starting soon is at levels not seen since Ronald Reagan was president. And remember that, historically, about 10% of each aggregate entering class drops out before graduation. So the number of new graduates we can expect to see three to five years from now will necessarily be much smaller than it was just three years ago, and it’s still looking for its bottom. In other words, what Elie thinks is impossible is actually happening already. By the way, all of this information is prominently presented in my paper. See pages 54-56.
So yes, for the much smaller number of law school graduates we’ll be seeing three to five to seven years down the line, I do think it will be easier to get a law-related job, so long as the number of such jobs at worst stays at about the same seriously depressed levels we see today (which I think is a good bet, and probably a little conservative). But that is true only because there are currently way too many seats in way too many law schools, and only because a lot of people who might have considered applying to law school are already choosing not to do so, and even more in the future will continue to stay away.
What that means as a practical matter should be obvious: You need to figure out if you’re one of the many potential law-school applicants who ought to stay away for your own good. Nothing in my paper (or anything else I've ever written) should be read as suggesting that no matter who you are, things are going to be great for you if you start law school in the next few years. Things will improve only if more people avoid law school unless they are good bets to succeed. So unless you have a coherent and plausible plan for the use you’re going to make of your law degree that is rationally justified by your LSAT and undergraduate grades, don’t go to law school. If the only law schools you get into are ones with an acceptance rate north of 50%, don’t go.
If that makes me an idiot, I can live with it. When all is said and done, though, I do have one thing to thank Elie for. As Oscar Wilde memorably remarked, the only thing worse than being talked about is not being talked about. I thank Above the Law for subjecting me to the lesser of the two evils.
Sally Gordon's recent post over at the Legal History Blog on legal historians who are on the market this year raises some interesting questions. I've written briefly elsewhere on the "relevance" of legal historians within the legal academy. But Dan Ernst's reply to Gordon's post that, “Now, more than ever, legal history candidates must be able to explain why they can only do what they want to do as a member of a law faculty,” has me thinking about the "utility" of legal historians to law schools.
Dan’s focus is on candidates’ scholarship and pedagogy. But, for the moment at least, I'd like to shift the discussion to staffing and course load, which for many law schools ranks up there with scholarship and pedagogy.
Legal historians typically have a broad knowledge of law. While we all have our particular areas of emphasis, our training in and study of legal history constantly exposes us to a broad sweep of the legal experience. I think if you were to look at the reading lists for legal historians' oral/preliminary exams, you'd see a wide range of substantive legal areas, not to mention legal education and practice. And that is in addition to our training as "generalists" in law school.
I would think that this training would be of considerable interest to law schools, at least from the perspective of staffing courses. In my own case, I have been teaching Property as my main course, despite the fact that most of my scholarship focuses on constitutional history. I am teaching Con Law this year, though, in addition to Property. I would also be willing to teach any of the first-year courses, in addition to Ad Law, Legislation, Con Crim Pro, or Trusts and Estates, if the need arose. I have yet to teach American legal history, as it is currently well-manned by my colleague Art McEvoy (who also teaches Torts). My legal history friends who teach in law schools also teach big non-legal history courses (e.g., Torts, Con Law, Property, Trusts and Estates, Ad Law, Tax). One particularly insane legal historian I know is teaching Property and T/E in the same semester this year!
It would appear, then, that legal historians are providing important value to their institutions.But I'll put the question to you all. Is this teaching flexibility of value to law schools? More generally, what would you say is the primary value of any professor (or at least an entry-level professor) to a law school? What value do we, or should we, place on the size of the classes that faculty teach? For example, if I teach two big sections of Property, does it matter that my scholarship focuses on legal history? If it doesn't, and if legal historians by their training are potentially able to fill a range of a school's teaching needs, shouldn't that make the legal historian more valuable to law schools than the average entry-level candidate, at least from a teaching perspective?
Valuing education over selection. What if a law school was measured by the exception rather than the rule? Much of the heated discussion about the value of a legal education and the ranking of law schools is centered around issues of selection. Selectivity in UGPA and LSAT is considered a measurement of student quality. Selectivity reflected in first year attrition is considered a measurement of academic quality. Selectivity in bar exam scores is considered a measurement of professional quality. Selectivity in employment statistics of recent graduates is considered a measurement of institutional quality.
What if we are measuring the wrong things . . . and what if those measurements have misinformed us about who, what, and how we should be teaching in law school?
As a small community law school, Monterey College of Law has the relatively unique opportunity to consider these questions. Of course, it certainly helps that we have the luxury of being far removed from the klieg lights of national rankings, NALP reporting, and ABA regulations [MCL is accredited through the State Bar of California, not the ABA].
What is most interesting is that as we have changed our focus away from prioritizing selection and more towards emphasizing education . . . the objective results that can be measured, such as diversity, attrition, bar pass rates, and employment statistics . . . have all improved.
As we considered how to re-emphasize educational outcomes, MCL has implemented the following changes.
De-emphasis of the LSAT – Better mousetrap: a two-unit summer course that both instructs students on effective study skills and includes five graded exercises to better evaluate student's readiness for law school. Students must pass the summer course to be eligible to enroll in additional 1L fall semester classes.
Emphasis on Academic Support and Reduced Attrition – Added a new full-time position of Asst. Dean of Academic Support who coordinates 10-12 tutors, 4 teaching fellows, provides one-on-one academic counseling, teaches small group workshops on study skills, subject-specific learning strategies, and exam writing, and coordinates an extended bar review program (utilizing BarBri course content).
Expanded legal writing faculty and curriculum – Students take nine required units of Legal Writing, Legal Research, and Legal Analysis. Each course has a primary faculty member and at least one grader to facilitate more writing assignments and additional feedback. The self-guided program Core Grammar for Lawyers has also been added as a required part of the curriculum.
"No fault" repeat policy on bar-tested subjects – Students who earn a sub-standard grade in a bar tested subject are provided the opportunity (and sometimes are required) to re-take the course. No additional tuition is charged for the repeated course and the (hopefully) improved grade replaces the lower grade in GPA calculation.
Bar review program included as (non-credit) part of curriculum and included in tuition – Upon completion of the regular curriculum, students are provided both an extended bar review program and/or the regular 10-week crash course. There is no additional cost, because it is included as part of regular tuition. The law school facilitates additional full-day practice exams and grading for practice exams beyond the services included in the regular bar review program.
(Note: The law school has also initiated changes in how we are teaching individual courses to better reflect the practical skills component of subject matter. However that will be a subject of a future post.)
Although anecdotal, consider some of the recent results that we have seen. We accepted a small group of students as second-year transfers who had a poor experience and marginal grades from their previous law school. After completing our semester-long writing workshop and receiving supplemental substantive tutoring, 75% increased their next set of exam grades (from 5 to 15 grade points). Out of the group, only one student did not improve and one student dropped slightly in performance. In a recent tutorial program, the lowest 20% of the first and second year classes (based on mid-term grades) were required to participate in either small group substantive and writing workshops or individual tutoring. The average grade point increase for the group was 10 points and individual grade point improvements ranged from 6 points to 16 points.
Given these results, it is not hard to see why MCL’s attrition rate has significantly dropped over the past several years and our bar pass rates have improved.
Once an institution commits to educating individual students rather than group cohorts . . . teaching to the “exceptions” as well as to the “rules” . . . surprising results can be achieved. Of course it is much easier to achieve and maintain academic elitism if you systematically screen out the high (or even medium) risk student populations.
Selection over education . . . an interesting question about whether the legal academy is measuring the right values.
Well it appears that I have survived my first post despite deliberately touching the proverbial “third rail” of legal education – suggesting broader utilization of adjunct practitioner faculty and questioning the long-term financial efficacy of traditional faculty tenure.
Emboldened by the stunned silence . . . let’s move the conversation into another faculty favorite . . . transitioning legal education towards a clinical education model that emphasizes practical skills training.
As a community law school, Monterey College of Law’s relationship with the local courts has developed beyond utilizing judges as faculty and having them judge our moot court program. As the state budget crisis hit the California courts . . . and the recession hit California citizens, the two problems intersected.
First, the appearances of self-represented litigants in family law and civil cases significantly increased . . . and second, self-help center hours and staffing at the court were cut. Pro per litigants were wrecking havoc on an already stretched judiciary. With an interest in playing a role in the justice continuum within the community, MCL recognized an opportunity for the law school to be part of the solution.
MCL collaborated with the Superior Court to identify how supervised law students could best be utilized. In a three-part initiative, the law school expanded existing mediation programs to reduce the number of cases coming before the court, developed new community clinical workshops to assist pro per and other litigants, and provided student research assistants for habeas corpus petitions and to assist court staff research attorneys and judges.
The result, so far, has included the following community clinical/workshop programs staffed and supported by MCL and supervised law students.
Expanded existing programs:
1) small claims advisory clinic; 2) small claims mediation program; 3) court-directed mediation program for limited civil (under $100K in controversy); and 4) special mediation program for neighbor disputes (referred by courts, code enforcement, and local police).
New programs (within the past three years):
1) guardianship workshop; 2) domestic violence restraining order clinic; 3) expungement clinic (for youth offenders); 4) family law clinic (financial documentation); 5) small claims collections workshop; and 6) unlawful detainer workshop.
In order to provide enough student hours to staff all of the programs, MCL made three changes to the law school’s curriculum and policies. First, we increased the number of credits required for graduation from 85 to 86 credits. The additional credit allowed the school to increase the minimum number of required clinical/workshop credits from two to three. Second, the school discontinued a previous policy that limited students to five clinical/workshop credits that could be counted toward graduation. Students can now theoretically earn as many as 10 elective credits through clinics, workshops, and internships. Practically speaking, it is difficult for students to schedule that many units, but on average, the number of per student clinical credits has doubled from three to six. Third, we made completion of a two-credit, 30-hour mediation certification program a requirement for graduation.
A State Bar of California Task Force recently issued a report that recommended three pre-licensure requirements for new lawyers: 1) mandatory practical skills training in law school, 2) mandatory pro bono legal service experience prior licensure, and 3) additional CLE training in areas such as ADR/mediation.
This is another example of where community law schools such as MCL realized the importance of this type of professional training years ago. MCL students will typically graduate with more than 200 hours of practical skills training, 180 hours of pro bono community service, and a mediation certificate that meets the proposed CLE recommendation.
During the State Bar Task Force hearings on the new recommendations, not a single ABA law school supported the new recommendations. Our experience is that these changes have made our program more relevant to the students, improved the transition from school to practice, and created relationships with the local bench and bar that provide valuable professional opportunities for our students and graduates.
Frank Bruni’s column in yesterday’s New York Times reminded me of one of the unfortunate aspects of academia. Bruni wrote admiringly of the productivity of Joyce Carol Oates, who manages to publish prolifically despite teaching a full “load” at Princeton.
It’s no secret that many professors prefer working on their scholarship than teaching their students. Still, it’s disheartening that academics and others describe the teaching responsibility of a professor as a “load.” It reminds me of my days as a resident in internal medicine, when we referred to patients newly admitted to our care from the emergency department as “hits” (as in, “I just took another hit”).
Perhaps, professors would feel better about their teaching responsibilities if we started describing them as “opportunities?”
I’m very excited to be visiting here as a guest blogger. I thought I’d start off by discussing a very interesting Arizona case I came across while exploring recent developments in Property Law. Sussex v. State of Arizona is a trespass case that’s currently pending in the Arizona Court of Appeals, and I’ve found it to be a great teaching tool as well as an interesting factual setting in which to think about laches. The facts are contested, but the Sussex family, who are the defendants, have averred that their family has been living on the property that the state claims to own since 1894 (part of the property appears to be claimed by the City of Tempe—it’s the driveway to the house that is allegedly on state land). Arizona sued siblings Steven Sussex and Judy Troutman and Mr. Sussex’s wife Virginia Sussex for trespass to the land in 2005. In August 2012, a jury awarded the State $1,500 in damages after a judge ruled against the Sussex family’s laches argument. The State apparently originally received the land from the federal government as Common Schools Land.
Although there are several issues in the case, the laches argument interests me the most. The basic argument is that the State’s ability to enforce its claim to the land is barred by laches because the Sate waited so long to enforce it, to the detriment of the Sussex family. The trial court ruled that laches doesn’t apply to the State when acting in its sovereign capacity and also suggested that the Sussex family’s laches argument was improper because it was basically an attempt to adversely possess state land despite the bar on adverse possession of government land.
Although the defense of laches traditionally has not been available against government land claims, the issue has been coming up in Federal Indian Law cases in the past few years. In that context, the Supreme Court has begun to apply the doctrine against tribes on land-related claims (loosely speaking), without even requiring a factual showing as to the first element of laches—the unreasonably long delay in assertion of rights. See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 217-221 (2005); see generally Kathryn Fort, Disruption and Impossibility: The New Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11 Wyo. L. Rev. 375 (2011). Given the legal and economic obstacles tribes faced in bringing such claims until recent years, this application of laches seems quite troubling, but , in the Sussex case, the equities appear (to me at least—my students have not always agreed) to cut the other way. Here we have a family that has been using land for over one hundred years, and the State decided only fairly recently to sue for trespass, which would cut off their access to their home. The State’s responses--that, because it acted in its sovereign capacity with respect to the land, laches shouldn’t apply and that it shouldn’t be expected to have been keeping track of whether trespassers were utilizing its vast land holdings seem like they would allow the State to work an injustice in this particular case, if accepted (although that doesn't necessarily mean the traditional bar against asserting laches against a sovereign should be jettisoned). And the prejudice the Sussex family has suffered as a result of the delay is linked to—and illustrates nicely-- some of the justifications of adverse possession—particularly those of Radin and Holmes (even though laches and adverse possession are clearly separate issues).
The case has been a great teaching tool for me in Property, where I use it to introduce the notion of laches and to discuss the policy implications of applying the doctrine to a sovereign, as well as to illustrate some of the justifications for adverse possession. I also use it as a jumping off point to explore creative approaches the State’s lawyers might have taken instead of litigation. And, especially given my Indian law background, the case also provides an interesting framework in which to think about the application of laches.
Much in the news the last few days are reports of a growing number of law schools offering one-year full-time or two-year part-time pre-JD master’s degrees in law. Apparently nearly 30 institutions offer or soon will offer a degree of this kind. Coverage in the National Law Journal can be found here; Wall St. Journal (subscr. req’d) here; Above the Law here. The degree is variously denominated a “Master in Legal Studies” (MLS), “Master of Studies in Law” (MSL), “Juris Master” (JM), “Master of Jurisprudence” (MJ) or “Master of Science in Legal Studies” (MS).
So many acronyms. Is this just another case of More Universities that Like to Collect Tuition (MULCT)? Let’s look at the early evidence.
The NLJ quotes the view of one senior faculty member at Indiana University at Indianapolis that “[t]his is about finding a different pool of potential students.” While this is a refreshingly candid reflection on why the program might be good for law schools, particularly those with rapidly diminishing JD enrollments, it does raise certain questions about the degree’s utility for potential students.
On this question, the NLJ quotes Frank Wu, dean at UC Hastings, and in my own opinion one of the genuinely thoughtful, constructive and creative law-school administrators navigating these difficult times:
“Many lawyers work in human resources, but you don't have to have a J.D. It’s the same thing with compliance officers in banks and hospitals. There are all these jobs in law — criminal justice jobs, law firm management jobs, consultants — where a J.D. makes no sense but some legal training is useful.”
Fair enough. But wait a second. Those familiar with the dreary tidings that the ABA and NALP employment outcome figures have borne in recent years know that these days law graduates’ reportable employment successes come in two principal categories—positions that require a law license; and “JD Advantage” positions that do not require a law license but for which the law degree provides “a demonstrable advantage in obtaining or performing the job.” The ABA Section on Legal Education defines “JD Advantage” positions in part like this:
“A position in this category is one for which . . . the JD provided a demonstrable advantage in obtaining or performing the job, but itself does not require bar passage, an active law license, or involve practicing law. Examples of positions for which a JD is an advantage include a corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, and accountant. Also included might be jobs in personnel or human resources, jobs with investment banks, jobs with consulting firms, jobs doing compliance work in business and industry, jobs in law firm professional development, and jobs in law school career services offices, admissions offices, or other law school administrative offices. Doctors or nurses who plan to work in a litigation, insurance, or risk management setting, or as expert witnesses, would fall into this category, as would journalists and teachers (in a higher education setting) of law and law related topics.”
These “JD Advantage” jobs are counted (at least in part) as employment successes by US News in determining the employment component of its rankings, and are touted by various Panglosses (like this one) and Polyannas (e.g., the second comment to this post) in the legal academy as a consummation devoutly to be wished and an independently sufficient justification to seek a JD. But the very positions offered to justify a one-year master’s “where a J.D. makes no sense”—“human resources,” “compliance officers,” ”criminal justice jobs,” “consultants”—are specifically enumerated examples of “JD Advantage” positions in the ABA definition. Oops.
Of course, this doesn’t prove that there is no position not requiring a law license for which a JD provides advantages so irreplaceably substantial that it justifies three years’ time and tuition. Undoubtedly some such positions exist. But what it strongly suggests is that many of the jobs conventionally offered as examples of such positions really aren’t, and that overall there are vastly fewer genuinely JD-Advantaged positions than some law schools’ self-reporting or a sensible definition of the category might imply. Put slightly differently, the broader the population for which a one-year master’s degree makes sense, the narrower the range of “JD Advantaged” positions for which pursuit of a JD provides any cost-justified advantage. This also suggests that this novel marketing tactic may prove self-defeating, as the wider availability of one-year masters’ programs persuades larger numbers of potential JD seekers that there is a shorter, cheaper path to a range of law-related work.
Those of you who are kind enough to follow my posts on this site will recall my repeated insistence that What Matters Most right now is that there are substantially more seats in law schools than there are law jobs for graduates. (E.g., here, here and here.) How many of you seriously believe that the solution to this problem is to find more butts—that “[t]his is about finding a different pool of potential students”?
If you think that the solution to the legal academy’s excess supply is to develop “products” that can be “marketed” to a broader range of “consumers,” then the law-school scam brigade is right that you should be regarded, and treated, like a door-to-door encyclopedia salesman. If, on the other hand, you view the master’s degree as an innovation designed to regulate the proportionality of the cost and extent of legal education to its utility in particular circumstances (and from his comments I would put Dean Wu in this camp), you may be on to the beginning of something interesting.
I'm delighted to see that Florence Roisman's casebook on Property and Human Rights has appeared from Carolina Academic Press. Cribbing now from the Press' website:
This book contains materials regarding intersections of property law with civil and human rights claims in the United States and internationally. The chapters cover The Nature of Property, The Development of Civil Rights Principles in the U.S., International Human Rights Law, and Human Rights in the U.S. Roisman addresses homelessness, expropriation, and discrimination on the bases of race, sex, sexual orientation, disability, and other characteristics. Among the recent cases presented are the U.S. Supreme Court’s 2004 decision rejecting a claimed property interest in the recognition of a protective order, a South African case enforcing a right to housing, a 2003 Maryland decision assessing the need for just cause for eviction in Low Income Housing Tax Credit developments, a 2002 9th Circuit opinion regarding disability discrimination, and the Michigan Supreme Court decision overturning Poletown.
This book looks terrific and I'm looking forward to reading it and I hope teaching from it as well.
I'm writing a short essay on a survey of student attitudes towards intestacy and also towards the marital elective share that I conduct on the first day of my trusts and estates class. I survey student attitudes on those issues as a way of introducing them to some of the topics we're going to be talking about in class -- and I often find that the students' ideas about what should happen don't really match up at all with what does happen. And therein begins some great discussion both on the first day of class and down the road in the semester. I use surveys at other points in the class to gauge students' attitudes towards cases and see if they vary according to gender. It won't surprise any trusts and estates teachers that male and female students differ greatly in their attitude toward In re Strittmater. But that's really a story for another time.
I remember about fifteen years ago -- back when I was teaching administrative law -- really enjoying an article that Cass Sunstein wrote (actually co-authored, though I'd forgotten this) on a survey he conducted in his administrative law class about students' attitudes towards allocation of resources in response to risk. (The article is by Christopher E. Houston and Sunstein, Risk Assessment, Resource Allocation, and Fairness: Evidence from Law Students 48 Journal of Legal Education 496-523 (December 1998).) And so I was looking for that article this weekend as a sort of model for this very compact essay I'm writing. I remembered that it was in the Journal of Legal Education, but I'd forgotten the title. But I figured that it would have been cited a bunch and would be easy to find. It actually didn't take long to find, thanks to the magic of westlaw, but I was surprised that it hadn't been cited much, at all -- I think only twice in westlaw's JLR file.
I mean, I'd understand it if it were on pre-Civil War popular constitutional thought -- even more so if it were on pre-Civil War trusts and estates or landscape art and property law. But this is Cass Sunstein -- and it's on adminstrative law and risk. Just further evidence that you shouldn't judge an article -- even an article's utility -- solely by its citations.
I usually teach one of two classes. The first is an experiential learning class we offer as a part of our Indigenous Law Certificate. The second is Advanced Topics in Indian Law. My topic is the Indian Child Welfare Act (ICWA).
Congress passed ICWA in 1978 to address the states' wholesale removals of Indian children from their families. Continuing a process the federal government started during the boarding school era, state social service agencies and courts removed Indian children from their families with no due process and with little reason. Congress heard testimony for years about these practices and constructed a law to combat them that appears simple on its face, but becomes complex quickly. Judge Maldonado at the Little Traverse Bay Bands of Odawa Indians, likens the law to chess--easy to learn, but takes years to master.
The law has two main parts--the jurisdictional and the procedural. Depending on the domicile of the Indian child (who is defined in the law as either a member of a federally recognized tribe, or eligible for membership, and a biological child of a member), a tribe either has full jurisdiction or concurrent jurisdiction with the state. The tribe's interest in the child is at least on par with the interests of the parent and of the child. If the state retains jurisdiction (which may happen for a number of reasons, and can be litigated), there are certain procedural provisions the state must follow. These include a heightened standard of evidence for removal and termination of parental rights, the testimony of a qualified expert witness to the effect that the state provided active efforts to prevent the breakup of the Indian family. The child must be placed with a family that meets certain placement preferences dictated by the law. The only Supreme Court decision on ICWA was a strong endorsement of both the reasons behind, and the requirements of, the law.
ICWA applies to both involunary removals and voluntary adoptions. This second area--when the court must follow certain provisions when parents choose to give a child up for adoption--leads to some of the most contentious litigation. The fact pattern in the Baby Veronica case, now in front of the Supreme Court, where a non-Native mother decides to give up a child for adoption and the Native father and/or tribe objects, can lead to the most difficult of the ICWA litigation.
When I proposed teaching a class on the law at Michigan State, I did some research into how many ICWA cases were appealed in a single year. There are generally between 200-300 on the Westlaw database. But though many cases have been appealed, the Supreme Court has ignored ICWA cert petitions entirely. Except this year, when the Court granted cert in the case--right after I had finalized my syllabus. Which I then changed pretty dramatically. I changed the reading to include the cert petitions and the lower court decision. Usually I require a research paper, but this year I divided the students into groups, and assigned them to be petitioner, respondent, and amici on either side. They have to draft a brief, with each team member (3) picking one portion of the argument. The amici have to figure out their interests, talk with the principal brief writers, and address something that isn't addressed in the principal brief. On the last day of class, the amici become the justices, and the principal teams have to answer their oral argument questions.
Having never done this before, I am not sure how it will turn out. The students seem to appreciate writing something other than a standard law school paper. They know the facts of this case better than I do at this point. They are able to relate key points of law in class back to the case. And given the potential importance of the case, it seemed vital to include it in a fundamental way in the class. It did mean we jumped into the law in the middle with our reading, and then had to track back to cover all of the provisions.
However, if our students are in family law, they are going to run into an ICWA case. And if our students are working for tribes or parents, they will write appellate briefs in an ICWA case. And while it is true most of my students are not likely to practice in front of the U.S. Supreme Court, I have no doubt they will be doing this work in front of various state supreme courts, probably on this very law.
For anyone interested in using the same-sex marriage oral arguments in class, or if you're just interested in listening to the arguments but don't want to listen to over 3 hours, I've edited down each day's arguments into just under 30 minutes. They are below with times in parentheses after each argument.
A couple of caveats. First, I edited them to use in my 1L conlaw course, so excerpts were chosen with that audience in mind. Second, they are all mp3 files, so they are relatively small and should be easy to download.Perry jurisdictional argument (7:06)
Perry merits argument (21:19)
Windsor merits argument (21:47)
Feel free to use/link/pass along as you wish!
Thank you, Al, for inviting and introducing me. I've been reading The Faculty Lounge since you all started it. We started our blog, Turtle Talk in 2007, just before The Faculty Lounge. Though I don't post nearly as much as my colleague, Matthew Fletcher, it's taken some time to be able to tear myself away and write over here. Turtle Talk is comprised mostly of primary source material surrounding cases in federal Indian law (briefs, decisions, news articles, law review articles), though we periodically post commentary. This has the added benefit of keeping us fully engaged in developments in our field, which can at times feel overwhelming.
Al said he wanted to hear a bit about history in federal Indian law, but as a non-Ph.D holding person, this always makes me nervous! I majored in history in undergrad, but did not complete (nor attempt) any graduate work in the field. However, in law school I wrote a small history paper on the Cherokee Freedmen and treaty concerns, and then found myself digging into the issue of laches and Haudenosaunee land claims once I was employed by Michigan State. Tracing the dramatic shift in the equitable defense of laches from its development in England to a series of cases in the Second Circuit, starting with Cayuga Indian Nation v. Pataki, made me antsy to write about legal history and the Supreme Court, at least as it affected American Indian tribes.
My most recent article identifies fundamental problems with originalism interpretation and how the assumptions underlying that interpretation harm tribal interests today. I've had a mixed response, including the argument that the Constitution provides strong language for tribes under an originalist interpretation. I'm not sure that's entirely true, regardless, given the dismal results for tribal interests at the Supreme Court, the argument certainly isn't working, which is what I was (and am) interested in.
To begin my time here, however, I think I'll start with the other area of my focus, the Indian Child Welfare Act (ICWA). The Act, passed by Congress in 1978 and interpreted by the Supreme Court once in Mississippi Band of Choctaw Indians v. Holyfield, is in front of the Supreme Court again this term. This semester I'm also teaching a class on ICWA. I hope to write here about ICWA, how I changed my ICWA class at the last minute to incorporate the case (and what I'd change in the future), how amicus briefs inform my writing and teaching, how my service on the Court Improvement Program in my state provides me with ideas for teaching, and back to how my role at the law school often leads me to base my writing projects on external needs or requests for our Center. I still have writing projects in mind surrounding equity and tribes, the public interest doctrine and tribes, and one with a friend tracing the history of the modern Haudenosaunee land claims cases, which I hope to get back to as our semester winds up.
Till then, thank you again for having me.
I've been asking a few students lately what they mean by a phrase most of us profs hear ocasionally at this time of year when going over last semester's exam papers: "I didn't get the grade I was expecting."
And I don't mean this tongue-in-cheek. I'm really interested because I've never understood the concept of a student "expecting" a particular grade in a subject. The student has no idea how other students will perform compared to them - and regardless of whether there's a curve applied in a given subject, there's always a comparison.
So what is the student's expectation based on? It could be past performance. If someone is a straight A student, they may expect an A by default based on past performance in other subjects. It may relate to how much effort they put into the subject. "I put in X amount of effort so I deserve Y grade." Or it may be something else entirely.
A couple of my students suggested to me that in some of their classes professors have told them that all the grades bunched together so it was very difficult for the professor to meet the curve. The notion here is that a particular arbitrariness then comes into grading decisions, which may well be true. But to me, this is potentially a question of poor exam design on the professor's part rather than a reflection of student effort.
In other words if students could assume an ideal world in which grades wouldn't bunch and wouldn't be given arbitrarily, what would the "expectation" of a particular grade be based on? Do grade "expectations" ever arise outside concerns about the curve? And if so, what are they based on?
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.
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.
Today marks the 150th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes? I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.
Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership. Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!
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.
While the profs have been weighing in re attitudes on grading in an earlier post, I wondered if any students (if any are reading this) would like to weigh in on what they most dislike about exams - other than having to take them!
What are the most aggravating/difficult instructions or exam formats you have faced this year from professors? I don't necessarily mean this to be tongue-in-cheek. I would honestly be interested in knowing what would make life easier for students, within reason, to ensure that instructions and assessment methods are as clear and accessible as possible.