The Faculty Lounge

More Law Prof Anxiety Dreams

Last night I had another of my infamous law professor anxiety dreams.  I thought I'd share it here because, if nothing else, it gives some of the guys over at Volokh something to chuckle about.  I guess I've been listening to too many law profs lately complain about lack of space in their buildings because this dream could be entitled 'law prof dreams, bursting at the seams'.  In my dream, we finally ran out of classroom space so I was scheduled to teach my trademarks class in the law school courtyard, which would have been fine except that this is Cleveland in the fall and it's already started raining (snow's on the way, I'm told).  My students had the bright idea that maybe we should move the class to the cafeteria, but they wouldn't let us in unless we were going to buy something.  So I had to foot the bill for all my students to have coffee and pastries during the class.  I was wondering if this would be a reimburseable expense I could claim against my faculty budget. 

In case anyone is really concerned, as far as I know, this afternoon's trademark class is being held in the usual classroom INSIDE the law school building...

Constitutional Law Class Blog Radio

The students in Brenda Reddix-Smalls' advanced Constitutional law class at North Carolina Central have launched a blog radio show on the first amendment.  You can listen live this afternoon at 1 pm to April Dawson speak about "Free Speech Without the Bleep: The FCC and Broadcast Televison."  The archive of broadcasts are here.

Five Chiefs

Earlier this month Little, Brown and Company published Five Chiefs, a memoir penned by former Associate Supreme Court Justice John Paul Stevens.

From the publisher's website:

In Five Chiefs, Justice Stevens captures the inner workings of the Supreme Court via his personal experiences with the five Chief Justices -- Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts -- that he interacted with.  He reminisces of being a law clerk during Vinson's tenure; a practicing lawyer for Warren; a circuit judge and junior justice for Burger; a contemporary colleague of Rehnquist; and a colleague of current Chief Justice John Roberts.  Along the way, he will discuss his views of some the most significant cases that have been decided by the Court from Vinson, who became Chief Justice in 1946 when Truman was President, to Roberts, who became Chief Justice in 2005.

You'll find reviews here, here, here, here, here, here, and here.  And you can listen to NPR's interview with the author here.

Judge Posner on Judicial Confirmation Hearings: "A Gaffe is Telling the Truth"

The September 29, 2011 issue of the New York Review of Books included this interview with Judge Richard Posner.  Eric Segall (Georgia State) conducted the interview, which ran under the headline, "The Court: A Talk with Richard Posner."  Here is an excerpt:

EJS: Hasn’t the nomination process become a total farce? At her confirmation hearing, Justice Sonia Sotomayor said repeatedly that she would decide hard cases based on the law, and John Roberts made the infamous analogy to the judge as an umpire.

RP: I have made fun of Roberts about the umpire thing but I don’t blame either of them because the confirmation hearings are not for real. At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law. Sometime later I received the printed report of the confirmation hearing, and my answer—my nuanced answer—had been changed (without notice to me) to yes, judges should just apply the law and not make the law.

EJS: You told the truth. Why can’t they now?

As I said, judicial appointments were less controversial in those days. * * * 

EJS: I think you wrote to me that the nominees should have to answer questions about specific issues and that we should do away with the hearings altogether.

RP: The senators do a very poor job at judicial confirmation hearings. It is amazing to me that no senator took Roberts up on his umpire remark. Fifteen of them were sitting there and they let the remark pass unchallenged. I think the problem is that they are given questions to ask by their staff. They read the questions to the nominee but since they don’t really know what is going on they can’t ask a follow-up question.

EJS: How could Justice Thomas get confirmed after he said under oath that he had never discussed Roe v. Wade with anyone is his life?

RP: The problem is that if the nominee says, “I’d be lying to you if I said I didn’t have a preliminary judgment,” he is accusing his predecessors of having lied, right? It is very tricky. The problem is that we have a political system in which the definition of a gaffe is telling the truth.

Judge Posner has a knack for telling the truth, even when it is not very attractive.  It's a great interview.

Read the full piece here.

MBZ v. Clinton Discussion on SCOTUSBlog

Today's discussion topic on the Community section of the SCOTUSBlog is MBZ v. Clinton, which will be argued on November 7.  Among the commenters are Vik Amar and Cheryl Hanna.  I've commented on this case previously and I've added to those comments in the SCOTUS discussion. 

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

John Paul Stevens Interview

For that small cohort of readers who are a) interested in an interview with John Paul Stevens and b) haven't heard him interviewed on Fresh Air by the incomparable Terry Gross...this is your lucky day!  The interview is here.

Konefsky and Sullivan in the Chronicle of Higher Education

Fred Konefsky and Barry Sullivan have an article in today's Chroncile entitled "There's More to Law than 'Practice-Ready'."

h/t Susannah Loumiet.

Adventures in Staffing II: The End of the Partnership Track?

In my prior post on this topic (here), I suggested that rapid and accelerating changes in the way that legal process work (the gathering and organization of documents and information) is staffed and priced has significantly influenced the extent of the associate layoffs and the reduction in entry-level hiring among larger law firms in the last few years.  The result is that most large law firms have far fewer partnership-track associates today than they did, say, five years ago, and that seems unlikely to change substantially anytime soon, even as the economy recovers.

But another factor is also changing the structure of BigLaw:  Decreasing reliance on “up or out” promotion.  By way of background, from the early 20^thcentury until roughly the 1970s, larger law firms only rarely hired laterally at any level, and grew almost entirely from within.  They did so by hiring an annual class of talented associates right out of school (or brief government service such as judicial clerkships), trained and tested them for a relatively fixed period, and at the end of that period promoted a few to equity partner and let go virtually all others still remaining. This retention model, often referred to as the Cravath System for the firm credited with conceiving it in the 1920s, has long been emulated at virtually every larger law firm in the United States, and still at least in theory comprises the paradigm law-firm retention strategy today.  (The hopelessly insomniac among you can immerse yourselves in the details of this story in my article with Dave McGowan here.)

It has been widely observed—including by any number of BigLaw partners over the years—that many of those who did not make partner were skilled and able, valued by the partners who passed them over, and valuable to the firms that let them go.  Why, then, did larger law firms almost universally adopt a promotion policy that required them to jettison competent and valued workers in whom they had invested substantial time and training, at turnover costs that grew higher and higher as partner-associate leverage increased?  The most plausible theory suggesting some lurking rationality was advanced by Ron Gilson and Bob Mnookin in a 1988 Stanford Law Review article that (oversimplifying here for space and coherence) analyzed “up or out” retention as a means of managing strategic misuse of “firm-specific capital”—that is, investment in skills and knowledge that is appreciably more valuable at the firm where it was created than it would be anywhere else.  (This takes a fair amount of explaining, but the theory is not only cogent, it is consistent with the available empirical data.  Hats off to the authors.)  Examples would be a senior associate’s relationships with client personnel or knowledge of clients’ business operations, information infrastructure, organization and business patterns and preferences.

Generally speaking, a firm’s ability to develop firm-specific capital is associated with the stable, broad-based, long-term client relationships it is able to maintain.  Such relationships between larger law firms and corporate clients were extremely common through the 1960s, and then began to erode fairly rapidly as those clients began to spread their work around to multiple law firms on a project-by-project basis (“hire a lawyer, not a law firm” became the general counsel’s watchword), and to move more of it in-house. 

As the amount of firm-specific capital generated by most firms declined, so did “up or out” retention.  The late 1980s proved the high-water mark for partnership-track associates as a percentage of all lawyer-employees at large firms. From this point, associates continued to increase in number and remained the largest single category of licensed employees, but comprised a falling percentage of firms’ lawyer-employees overall, with the principal percentage gains in the “other” (non-partner, non-associate) ranks.  Partnership-track associates comprised 60% of large-firm lawyers in 1987; 55% in 2001; and 48% in 2010.  The extent of lateral hiring at all levels increased from the 1970s on as well.

In other words, as one (at least theoretical) incentive for “up or out” promotion declined, so did “up or out” promotion.  Two- (or multiple-) tier partnerships proliferated, and the number of non-partner (or non-equity “partner”), non-associate indefinite-term lawyer-employees steadily rose.

What does all this mean for the future of BigLaw?  The two trends discussed above portend a gradual transformation, already well underway, from large numbers of “up or out” partnership-track associates and accompanying high levels of turnover to much more modest numbers of entry-level hires and a partnership “track” of indeterminate length.  Larger numbers of nonpartners who prove themselves sufficiently skilled and hardworking will remain indefinitely (or move laterally to similar indefinite-term positions at other firms), and equity partnership will be reserved for those who actually attract and control substantial paying law business.  It is possible that the partnership “track” as such will vanish altogether, to be replaced by more generalized paths of advancement in responsibility and compensation based on accomplishment, skill, and success in business generation.  Whether or not we see the end of the partnership track at many firms, however, I predict that this trend combined with the evolving staffing model for legal process work discussed in my last post will result in distinctly smaller numbers of highly compensated entry-level hires in BigLaw for many years to come.

To be clear, I don’t view this evolution as “good” or “bad”; it will be good for some and bad for others.  But like it or not, it’s what’s happening in our profession.  I will elaborate on the likely “winners” and “losers," and on how these forces relate to the current controversy between BigLaw and the Academy over training—who should be training whom for what—in subsequent posts.  Stay tuned.

Bernie

NLJ.com: Big law school loan provider getting out of the business

Karen Sloan reports that Access Group, Inc., one of the major private loan players, is exiting the market.  The only good news is that, according to Sloan:

Access Group had already faced challenges. Demand for private students loans fell steeply in 2006, when the government created Graduate PLUS loans, which allow students to borrow the full amount of the costs of their graduate education with federally guaranteed loans. Additionally, Access Group ended all private lending in 2008 after the credit crisis made money too difficult to secure, Chapman said. (emphasis added).

If that's the case, this is just throwing in the towel.  But, don't forget that, as Sloan notes,  Stafford Loan interest subsidization will soon be ending.

I'll Meet You In The Law School Bounce House In 20 Minutes.

What's that you say?  Your law school doesn't have a bounce house in its courtyard?

How unfortunate.

Lawtalk, Old and New

I've long been fascinated by the interaction of law and culture, and so jumped at the chance to be one of the authors of Lawtalk:  The Unknown Stories Behind Familiar Legal Expressions, due out in November. The rich histories behind phrases we law professors use every day, coupled with their tendency to pop up in today's headlines, is just plain fun.  So I'm also very happy to get this chance to guest blog a bit and share some of those stories with readers of The Faculty Lounge.

I'll start with two related terms:  "rap" and "rap sheet."  The former started life meaning a blow to a person or sharp tap on an object.  Over the centuries it developed a figurative meaning, and by the end of the 19th century to "get the rap" for something was well-established slang for getting the blame.  The lingo of criminal world then adopted "rap," adding colorful variations.  The New York Times in 1926 helpfully provided this translation of one meaning of "rap" for its readers:  "When one is singled out from a line of suspects as the dick who slid with the ticktick, one is the victim of a 'rap.'"

"Rap sheet" came along later, but was based on the well-established sense of "rap" as a criminal charge.  This straightforward history did not, however, prevent the establishment of a false etymology -- the belief that the "rap" in "rap sheet" is an acronym for "Record of Arrests and Prosecutions." It would make a logical acronym, like SCOTUS (Supreme Court of the United States). 

Logical, but untrue.  That version of "rap" sheet is another animal entirely:  the backronym.  While in a true acronym the phrase precedes the word, a backronym attributes a false back-story.  "Golf," for example, did not come from "gentlemen only, ladies forbidden," nor does "cop" come from "constable on patrol."  An enterprising computer programmer has even created a backronym generator. FACULTY, for example, becomes "Foolish Antiquarianism Clarification Unbecomingly Lateness Terrible Yelp," and LOUNGE is "Learn Old Unhallowed Neptunian Group Endowment."  One computer-generated backronym for RAP is "Ridicule and Penetration."

Nevertheless, the fiction is becoming truth.  A few states have actually formally adopted the phrase "Record of Arrest and Prosecution" and call the resulting records R.A.P. Sheets, converting slang into the official title for criminal history records and turning the simple, earthy "rap" into a pretentious series of initials.  "Rattling Analyst Poster," anyone?

 

Who Am I?

Recently I was asked, "If you could fix one thing about the American judicial system, what would it be?"

My reply?

"I would make all my dissents into majority opinions."

Who am I?

Law School Data Fraud Creates New Accounting Niche

My dean recently shared a piece of correspondence from a Big Four accounting firm that shows the state of law schools (and, I suppose, the accounting industry.)  The letter opened by referencing the fact that on August 12, the ABA censured an (unnamed) law school for its reporting of admissions data.  After noting that this school had retained the accounting firm as part of its remediation plan, the author offered to provide our law school assistance in our compliance efforts.  A year ago, who'd have thunk that a law school would need a Big Four firm to accurately determine the median LSAT for a class of 200? 

But it's not a year ago anymore.  And apparently at least one of the Big Four believes that law schools indeed aren't capable of keep their numbers straight without some outside help.   A more cynical view might be that the firm suspects that there are other schools that will need to disclose data "errors" and it hopes to be part of the remediation solution in those cases as well.

Is it necessary for law schools to take this step?  Others have suggested that law school data could simply be compared to the data LSAC already has - although the folks at LSAC have explained why, for now,  this isn't a complete solution.  But any major university already has a strong internal auditing function - both for purely internal purposes and because most of these schools are receiving tons of federal money (NSF, NIH, Medicare, Medicaid, etc.) and are highly exposed in cases of fraud.  Auditing is a routine part of the function of any major non-profit.  It's hard to imagine that these problems can't be easily addressed without the help of the Big Four.

 

Welcome Guest Blogger Beth Thornburg

We're very pleased to welcome guest blogger Elizabeth Thornburg, a professor of law at Southern Methodist University, to the Lounge.  Beth's teaching and scholarly foci are civil procedure and ADR.  Now she and her co-authors Marc Galanter, James Clapp, and Fred Shapiro have a new book coming out from Yale University Press entitled  Lawtalk: The Unknown Stories Behind Familiar Legal Expressions.  We're looking forward to hearing more about that and other things while she visits with us here.  Welcome Beth!

Upcoming Events in Chapel Hill Area

My friend Mark Auslander of Central Washington University will be speaking at UNC Bookstore ("The Bull's Head") this Thursday on his new book, The Accidental Slavehowner, at 3:30 pm.  You can read part of the book, by the way, now on books.google.

Also, I've already announced this, but on Friday November 3 in Raleigh there is a day-long program on Albion Tourgee.  More details are here.

Also, here's an article from the Atlanta Journal Constitution about Mark's research.

Update as of November 1: Here's a picture of Mark talking at the Bull's Head Bookstore and a picture of the audience.

Dean Search: Campbell University

As we mentioned in this earlier post, Campbell University is seeking a new law dean to replace Melissa Essary, who is stepping down and returning to the full-time faculty in June 2012.  The University has posted a position announcement here.

I'm not on the search committee but would welcome the opportunity to answer any questions from prospective candidates (or refer your questions to one of my law school colleagues on the search committee).

The Problem with Reporting Starting Salaries

In a recent post, The Depth and Breadth of  Misleading Employment Numbers by Law Schools (And How to Solve It), Brian Tamanaha (Washington, St. Louis) focused on what statisticians would call the selection bias in salary reporting. For most law schools, graduates who report employment status do not report their starting salaries. In general, students with high starting salaries are more likely to report salaries that students with low starting salaries. As a result, the reported salary ranges are higher than actual salary ranges. 

Prof. Tamanaha also posted a chart that showed that lower-tier law schools tend to have a smaller proportion of reporting graduates that supply salary information. That said, reporting rates vary widely, and the range of variation (variance) increases as law-school rank decreases. By the nature of proportion sampling, the variance is "heterogeneous"--it is not constant across the range of the other variable. As a numbers guy, I'd rather see a chart of proportion reporting by LSAT score of the law school's entering cohort that just graduated, with a logistic fit line.

Prof. Tamanaha suggest that lower-tier schools don't try to get better information, because they don't really want to know what salaries their graduates are actually getting. I don't that that is true.  At least at my own school (South Texas College of Law), the Career Resources office aggressively follows up with graduates who do not report employment status, or who don't give salaries. They even contact employers to try to get salary information.

But Prof. Tamanaha if correct in noting the disconnect. At my own school, South Texas, about 26% of the 2009 and 2010 graduates who reported employment status also reported salary. It would be helpful if schools also published the such proportions. It might also be useful to report the distribution of salary-reporting graduates by employment type.

But why not report the ranges of salaries by employment type? If, as we suspect, the problem is under-reporting by graduates in lower-salary employment types, the number reporting (the "sample") will be much lower-- the "N" would be low--so the reported salaries would be less reliable.

What to do about that? Prof. Tamanaha noted an entry on the Forbes website, Law School Graduates Do Not Make $160,000, that discusses a report that Forbes commissioned (bought) from Payscale on the salaries of graduates of 98 law schools that were in Payscale's database.  The Forbes article includes the median salaries for the 98 schools.

The NALP conducts an annual survey of law firms asking for information about associate base salaries. The annual NALP Associate Salary Surveys are available for purchase from NALP, but most law-school Career Resources office probably have a copy.

According to the 2011 Associate Survey (press release), the national median starting salaries by firm size, and the number of reporting offices, are as follows:

NALP 2011 Associate Salary Survey Median Starting Salaries by Firm Size
Firm Size	Salary ($)	N	%
2-25	073,000	29	07%
26-50	086,000	25	06%
51-100	091,000	48	11%
101-250	110,000	64	15%
251-500	125,000	85	19%
501-700	120,000	119	27%
701 or more	160,000	70	16%
All Firms	115,000	440

 Even the NALP survey show a selection bias, with larger offices making up a disproportionate part of the survey;  62% of the reporting offices are offices with 251 or more lawyers. 

In addition to the national data, the NALP surveys break out salaries by firm size for metropolitan areas with populations in three ranges:  (i) 1.5 million or smaller; (ii) from 1.5 to 5.0;  and above 5.0 million.  That data shows the number of reporting offices for each category.

The NALP survey also gives starting salaries for some 28 cities.  But, the survey only gives overall associate starting salaries for those cities, together with the number of reporting offices, which often are small--for example Baltimore, 2010, 5 offices.

Robert Half Legal also has a free 2012 Legal and Professional Salary Guide. with ranges for starting salaries by size of firm:

Robert Half Legal Starting Salary Range by Firm Size
Firm Size	Salary Range ($)
below 10	47,000-64,000
10-35	56,750-80,250
35-75	66,750-97,750
75-plus	82,500-134,250

The Salary Guide then includes index scores for a number of cities, with 100 being 100% of the national salaries, to let you calculate salary ranges for those cities.

Robert Half Legal Selected City Index Numbers>
City	Index
Chicago	122.7
Houston	104.0
Los Angeles	124.5
New York	141.0

Thus, for Houston (multiplier of 1.04) and New York (multiplier of 1.41), the putative salary ranges for large (75+) law firms would be $85,800 to $139,620 (Houston) and $116,325 to $189, 294 (New York).

What about the ABA? The ABA has decided to start direct electronic reporting of comprehensive placement data for each responding graduate, beginning with the Class of 2011 9-month data in February 2012.  If that information includes both starting salaries and location, the ABA should be able to compile overall salary information by employment type and firm s size, both nationally and by region or by metropolitan area.  Aggregating salary reported for graduates of all law schools will not eliminate selection bias, but it should raise the number reporting salaries by employment type or by size of firm.

UMass Law Dean Resigns Suddenly

Robert Ward, dean of the UMass School of Law - who oversaw the acquisition of Southern New England School of Law by UMass Dartmouth - resigned yesterday, effective today.  His stated reason was that his two hour commute was taking a toll on his health and family.  At the same time, however, he disclosed that he had used his state credit card for personal expenses and (once told of this) had reimbursed the state.

We've previously blogged about the controversial merger between UMass and SNESL here, here, here, and here.  It's easy to imagine that every aspect of the law school's operation was subject to greater scrutiny once the school switched from being a free-standing, private institution.  It will be very interesting to see if the university selects an academic, a practicing lawyer, or someone with strong political ties to head the institution going forward.

Chronicle's Discussion of Teaching Loads

Some of you may have seen the Chronicle of Education's discussion of the rising teaching loads.  Their brainstrom blog is talking about the article as well.