Will Law School Change?

A hot topic at law schools these days is whether the legal education business model is sustainable. Over at Balkinization, Brian Tamanaha suggests that law schools may be scamming students by taking advantage of students' unrealistic job expectations to get them to pay sky-high prices. An article by Daniel Theis (a student) in the latest Journal of Legal Education sounds the same theme. One of my own colleagues gave us a talk on the subject recently.

A common theme to the argument is that lawyers face permanent, structural changes in the market for their services. Clients, it is said, are no longer willing to pay top dollar for work by junior associates that really amounts to providing the training for these starting lawyers. Therefore, law firms can no longer afford to hire legions of juniors. High-salaried starting jobs at big law firms will become scarcer, and students will no longer be will to pay big bucks for an increasingly small chance at these jobs. In response, the argument goes, law schools will have to figure out how to deliver legal education at much lower cost (through greater use of adjuncts, Internet learning, etc.). There will also be a premium on skills and clinical education that will permit students to graduate ready for practice, and a de-emphasis on scholarship and other professorial activities that don't directly contribute to students' education.

It's always important to keep an eye on large-scale trends and to consider ways to improve. Law schools should take a hard look at trends in the legal world and consider whether they need to innovate. But I am somewhat skeptical about some of the changes that critics claim are inevitable.

First of all, it's not yet clear whether there really is a permanent, structural change coming in the provision of legal services or whether things will go back to their old patterns if the economy cyclically improves. But in addition, I've been hearing for at least a decade that the absurd cost structure of law schools can't possibly be sustained in the face of technological change. In the future, I've been hearing for a long time, a small number of superstars in each field will teach all the classes over the Internet, and the rest of us professors will be lower-paid, glorified TAs, who will grade the exams while our students watch the superstar teachers online.

I'm not saying this could never happen, but it hasn't happened yet. What all of these suggestions overlook, I would say, is something important about what law students are buying with their tuition dollars. Students are buying an education, but they are also buying the reputational value of their degree. That reputational value is very important.

If we professors abandoned every activity we engage in other than teaching, we could probably double the number of classes we teach. Then the school could fire half the faculty and deliver legal education at much lower cost. We could lower the cost still more if we taught everything over the Internet -- perhaps using faculty from other schools, as in the superstar model.

But what would happen to our reputation? A school like GW could probably coast on its prior reputation for five or ten years, but eventually the rest of the academy would notice that we weren't producing anything in the scholarship department, and our reputation would take a big dive, and with it the value of our students' degrees. That is why students have an interest in the scholarly production of their faculty. And as to Internet law schools, well, they do exist, but I haven't heard that their graduates are in much demand.

So I think that those forecasting big changes need to take more account of what schools need to do to invest in the reputational value of their students' degrees. I could imagine more change taking place at schools that aren't in the top 100 -- where the students are relying more on their moxie than on the reputational value of their degree to get jobs anyway. I'm not saying change isn't in our future, but I see an important counterweight that needs to be considered. Schools can't totally change the way they do business without considering what it will do to their reputations.

One change I would support, though, is fuller disclosure. Law schools should publish real information about their students' job statistics. Not just the bilge that is reported to U.S. News, but real information. If students are going to law school with the idea of getting a high-paying corporate job, they should be able to determine what their chances really are. Then they could make a more intelligent decision before they lay out their big tuition bucks.

The Slipperiest Slope

We all know that grade inflation is widespread at law schools, but I had never heard of a school's doing what Loyola of Los Angeles has now done: it retroactively changed grades, by adding half a step (actually .333) to all grades awarded in the last few years. So every B- became a B, every B+ an A-, and so on.

Apart from being a little tough on anyone who got an A+ (I presume that grade isn't being changed), such grade inflation is bad because it amounts to deception. The goal of grade inflation (apparently expressly stated) "is to make its students look more attractive in a competitive job market." That is, the goal is to play on people's perceptions of what the traditional grades of A, B, and C mean, while giving grades that have different meanings.

Employers might fight back by ignoring the grades and relying on class rank instead. That would work -- you could call the grades A, B, and C or you could call them Apple, Fire Engine, and Giraffe, and it wouldn't matter as long as you had class rank -- but schools can thwart that tactic by abolishing class rank. That's what GW did when we raised our grading curve a few years ago.

I voted against the change to our grading curve because I thought it involved deception. And I didn't think that the fact that everyone else is involved in the same deception could justify it, any more than a student would be excused for cheating on the plea that everyone else was cheating too.

Over time, my view has evolved somewhat. As the proponents of the change argued at the time, grades have meaning only as a result of social understanding. There was supposedly a time when "C" meant "average," but certainly today a student who got all Cs would not be regarded as an average student. (I wonder if C was ever really the average grade actually given, or whether we have always lived in Lake Woebegone, where all the students are above average.) There is something to be said for the view that we have to give grades that match the current understanding. If all the other schools are now operating on a B+ average and we give grades on a B average, we are disadvantaging our students, and not necessarily achieving the goal of honesty.

Still, the whole thing leaves a bad taste in one's mouth. As today's NY Times piece observes, grade inflation is a never-ending arms race. Everyone uses the excuse that the social meaning of grades has changed to justify changing their own grades. And there's no point always being the last to catch up to the general trend -- in fact, every school has an incentive to be the leading edge of the trend. That, of course, just makes grade inflation go faster and faster.

It's a classic collective action problem. The problem could be addressed if there were some authority that had the power to impose national standards, but there isn't, and whatever the generally accepted view of the meaning of grades is, everyone has an incentive to cheat a little and have somewhat higher grades than that. There's no good solution, and I'll be torn when it next becomes our turn to raise our grades again.

Tired Cliche

I'm nearly done with the grading process, and boy am I happy about that. Grading is the worst part of the job.

About this time of year, you often hear professors console themselves by saying, "grading is what I get paid my entire salary to do. I'd do the rest of my job for free."

This was amusing the first few times I heard it, but it's gotten rather stale by now. And I'm sorry, but it's not true. Being a law professor is in fact a great job, but it's not something I or anyone else would do for free.

Don't believe me? Here's my standing offer to any law professor who makes a good salary and who insists on this view: I'll do your grading for you. You do the rest of your job. And you'll only have to pay me three-quarters of your salary. You can keep a quarter for yourself. That way, you'll be ahead of the game, since you've stated that you'd do the rest of your job for free.

Any takers?

Peer Review

A surprising new trend at law reviews: A couple of my colleagues have received requests this past week to conduct peer review of articles proposed for publication at other schools' law reviews.

How long has this been going on? I've routinely received such requests from my own school's law review (GW). But I've never received such a request from another school's review, or even heard about anyone else's receiving such a request. Maybe it's been going on for years and I just didn't know, but I would have expected to hear about it.

Is it a good thing? On the one hand, law review scholarship is crying out for peer review. That's the method used in other disciplines. Scholarly legal publication is exceptional in that it doesn't use peer review -- and the publication decisions are made by students, to boot. So why not institute peer review? Good for those students who have recognized that they could benefit from faculty input.

On the other hand, there are at least some perils to instituting peer review in a discipline that isn't used to it. There's at least some potential for strategic behavior and conflict of interest. If I were asked by Harvard or Yale for comments on someone else's piece, of course I would give my honest opinion, but is it not at least a potential problem if I have submissions pending there myself -- as I usually do? Then I have an interest in having other pieces get rejected. (This isn't such a problem when a law review seeks advice from faculty at the same school, because most faculty can get published in their own school's review when they want to and so have less of an interest in whether other authors get published there.)

Presumably, disciplines that regularly conduct peer review have thought about these problems and have worked them out somehow. Maybe they have an honor code for peer review? Also, there's probably less potential for conflict in other disciplines, because they don't have multiple simultaneous submission. In law, everyone submits their pieces to all the top journals every year, so most everyone always has something pending everywhere.

As I say, I would submit honest comments anyway, as I expect most law professors would, but the problem is at least something to think about. Students deserve kudos for seeking faculty input on publication decisions, but at the same time I'm surprised that there hasn't been more academy-wide discussion and vetting of this new trend.

Exam Time

Sorry, Faithful Readers, but I am consumed with that semiannual joy of law professors, exams. I finally finished writing my exams -- and wow, that took a long time -- and now it's time for the worst task of all, grading them. Blogging will be minimal from now through the end of the year.

Happy holidays to all. Health and prosperity to you in 2010.

Course Evaluations

My faculty voted on Friday to change the course evaluation form that we ask students to fill out. It's a small thing, but that didn't stop us from debating it for nearly two hours.

The length of the debate partly reflects our idiosyncratic love of long meetings -- we seem to have a Law of Conservation of Meeting Length, so that we find something to discuss regardless of the actual magnitude of a proposal's importance -- but it also reflects the fact that, although a change in the course evaluation form may seem trivial, it can actually have subtle and important implications.

For example, we voted to ask students to rate professors on their "ability to present the subject matter in a clear and organized manner." That seems pretty straightfoward, and it won't bother me, because the students have always regarded my teaching style as clear and organized. But what if a professor believes that the essence of the Socratic method is to revel in the ambiguities of the subject matter and to require the students to figure out the answers for themselves, with no clear guidance from the instructor? I can certainly remember professors who ran their classes that way. (Although I may be giving them too much credit for thinking about their teaching styles -- perhaps they were just intrinsically unclear and disorganized). They will be disadvantaged.

Also, we deleted an inquiry about the professor's "enthusiasm." That seems to me to be an important component of good teaching. I was sorry to see that one go.

So while it might hardly seem worth debating, the centralized choice of the specification of the components of good teaching actually has subtle but important impacts on academic freedom. Maybe our debate was worth it after all.

Curricular Reform Revisited

Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform. Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments. So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily about discovery practice with much less time devoted to personal jurisdiction and Erie. My reason was that law school is not so much about learning particular skills and knowledge as it is about acquiring the ability to acquire skills and knowledge.

This basic thesis came in for a lot of critical comments. “Mike” and “shg” kicked things off by suggesting that I was in the wrong job and that I was making my students suffer by teaching a philosophy of law course instead of giving students the skills they need to become lawyers. Mike said that “In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied,” which means “a lot of mundane memorization and synthesi[s] of many inter-related rules. That’s it.”

I disagree with these comments, particularly with the suggestion that students only need a lot of mundane memorization of rules and “that’s it.” There are many reasons for this.

Real practice is not just about mundanely applying rules. In my own practice of law, prior to entering academia, I was constantly amazed at how frequently, in routine situations that must arise every day, the law was utterly unclear. As a real practicing lawyer, I was constantly called upon to sort through conflicting opinions as to what the applicable rule was. No amount of memorization could have helped me. It was up to me to discern the rule from, and argue for the rule based on, conflicting authorities. That is the skill students acquire from considering matters from a more doctrinal, policy-oriented, and theoretical perspective.

The law also changes all the time. Suppose, in teaching civ pro ten years ago, I had avoided all theory and had just required my students to memorize the rules and requirements for complaint drafting as they existed at that time. The Supreme Court recently blasted those requirements to smithereens in Twombly and Iqbal. Now what? Oh, you say, the student (now the lawyer) will now just rote-memorize the new rules. But how is the lawyer to know what the new rules are? Everyone’s still struggling to interpret the Supreme Court’s pronouncements. The lawyers who will gain an advantage by knowing the new rules are not going to be rote rule memorizers, but those who are best able to discern the new rules, which requires not just reading them from the opinions (because there is widespread disagreement as to what the opinions means) but a fine sense of how the opinions fit with the whole subject of civil procedure and what the trend is. It requires skills not available to rote rule-memorizers.

A student who has done nothing more than memorize a set of rules is not going to be well positioned to understand and memorize new rules. That takes the skill of knowing how to acquire knowledge. The student who has the latter skill can learn the rules that become relevant in the student’s actual practice after graduation, but someone who has done nothing but memorize rules will be ill suited to handle the changes that constantly come up.

This point also addresses another commentor’s question, about why I thought it important for students to understand how legal change interacts with social change (I observed that personal jurisdiction provides an excellent illustration of this point). Lawyers need to know this because the law is not static. A lawyer’s duty to the client includes anticipating where the law is going, because it might be going there right now. A lawyer needs to understand how legal change interacts with social change because that process might be occurring right now in connection with a matter the lawyer is handling.

Of course, this whole discussion is somewhat unrealistic, just as the comments on my post were unrealistic to imagine that I don’t teach my students rules. It is unrealistic to imagine that anyone is either solely a rule-memorizer or solely a theoretician. A class must include both. As my old civil procedure professor, Harold Koh (now legal adviser to the Department of State), used to say, you have to consider the law on multiple levels — five levels, in his view. You need to have actual clinical practice skills, you need to know the black-letter rules, you need the doctrine and policy that underlie the rules, you need a theoretical and interdisciplinary perspective, and you need a critical perspective. All of these come into play in actual legal practice, and I teach all of them in my course, including a lot of black-letter rules and practice pointers. But theory is an essential part of the picture.

Finally, as any teacher can tell you, a successful teacher must inspire interest in and love for the subject. Some commenters on my previous post complained about those who have never practiced law but who imagine they can teach it. Well, I have practiced law quite a bit, but let me complain about those who have never taught law and who imagine that they could teach it. Let’s have one of you come in and teach a class that consists of nothing but having students memorize mundane rules about civil procedure, and I’ll teach my class, which inspires students to love civil procedure. We’ll see whose students actually learn more. I predict that all of the other class’s students will be asleep and won’t learn much of anything except how to hate civil procedure.

Now, with all of that under our belts, let’s turn to Spencer Waller’s post. Spencer makes the good point that a focus on litigation procedure (not, as I understand him, a mundane rule-memoriazation focus, but more emphasis on that part of the course) rather than personal jurisdiction might be better tied to actual litigation today and might lead to a better understanding of the litigation process. I am not wholly wedded to our customary fascination with personal jurisdiction and Erie and would be open to rethinking things. (Although actually, at my law school, Civ Pro is divided into Civ Pro I and Civ Pro II and we have to adhere to general understandings of what goes in which part, because students may have different professors for the different parts of the course.) But even if I altered my overall time allocations, I wouldn’t alter my overall approach, which would still devote time to policies, doctrines, and critical and theoretical perspectives, rather than having nothing but rule memorization. Even if I increased my focus on discovery, the course wouldn’t be about memorizing every facet of every discovery rule. There would be some of that, but more doctrinal and theoretical analysis of discovery rules.

In my view, a course that was nothing but rote memorization of discovery rules would be the course that would really make the students suffer.

Curricular Reform

Professors on the Civil Procedure professor listserv are debating the recurring question of why we devote so much energy to topics that come up only rarely in practice, particularly personal jurisdiction and Erie. Some are suggesting that the civil procedure curriculum should be much more practice oriented, which would mean spending a lot less time on these subjects and more time on what most lawyers actually do in practice, particularly discovery.

I think it is an error to imagine that the law school class time devoted to a particular subject needs to be proportional to the time students will spend on that subject in actual practice. Law school is partly about acquiring particular skills and knowledge, but also, and probably more, about acuqiring the ability to acquire skills and knowledge. We will never teach the students all they will need to know as they practice law, but we can teach them how to learn what they need to know.

The amount of time devoted to personal jurisdiction and Erie in many Civ Pro classes makes little sense in terms of the practical importance of those topics in typical litigation. But personal jurisdiction provides a lovely illustration of the process of legal change over time that students can appreciate as the law they learn changes over the course of their careers, and Erie provides an illustration about how imoprtant theoretical issues relating to federalism impact practical doctrines. The students need to know how to appreciate the ways in which legal change interacts with social change and the ways in which theory impacts doctrine just as much as they need to learn what Rule 26 says about discovery and disclosure.

Commencement Day

It's time for our annual spring ritual -- sending our students out into the great big world. It's Commencement Day.

I'm prepared with my regalia as usual, although as usual slightly disappointed that Yale's regalia regulations require its graduates to wear a mortarboard. I always wanted one of those cool tams.

When I got my regalia, I thought about cutting loose and getting a tam anyway, cheeky rebel that I am. But just about that time, the head of the Navy, Admiral Michael Boorda, committed suicide after a reporter questioned whether he had worn a medal to which he was not entitled. I decided to stick with the mortarboard.

Also (to the considerable mirth of my Ph.D.'d girlfriend), we lowly J.D.s wear a master's hood (only 3.5 feet long) instead of a doctoral hood (4 feet long with side panels). And we don't get to wear a gold tassel. But that's OK -- I like my purple tassel.

Of course the other burning question is whether it is permissible to bring a book or other reading material on stage and read it surreptitiously while 500 students are getting their diplomas one by one. I'm in the "no" camp, but I can't deny that my mind wanders by the time the Gs and Hs are crossing the stage.

Congratulations to graduates and best wishes for the future.

Almost There

Reached an important milestone -- made it through the last pile of exams. I'll still be crunching numbers and doing other grading stuff all weekend (and I still have four term papers to read), but it's a big moment. I was singing "Zip-a-dee-do-dah" as I started preparing the spreadsheet.

As bad as grading is -- and it's really bad -- it does have the redeeming aspect that the task is relatively clear. Most of a professor's life is a plunge into the unknown. In the most important part, scholarship, there is no clear goal, no easy way to tell what topic to take up next, no obvious set of tasks to do each day. Of course that's what makes the job so great, but it can also be daunting. So although grading is painful, particularly when you have 144 exams and have to grade 10 to 14 hours a day, day after day, it's refreshing to have such a clearly defined task to do for a change. I'm definitely not volunteering for more, but, with the exams safely shelved for another year, I can see some slight pleasure in knowing what I'm supposed to do.

Still Grading

Just in case you were wondering. There's nothing like a pile of 104 exams (I finished the 40 in my other class) to keep you in a grading daze. And then I also have four term papers. I should be done May 12. Blogging to resume thereafter.

Grading

Sorry, faithful readers, I'm busy grading lots of exams (145 of them, but who's counting?), and you know what that means . . . not much time for blogging.

Remember, you can't spell "grading" without "grrr"!

No Insult

A commenter on my last post asks if I considered how it would make students feel. I hope students understand that there is no insult to them implied by the post. I refer to the exams as "bad essays," but how good could they be? It's not possible to write a really good essay in 30 or 60 minutes. I wouldn't write a good essay in that amount of time. Tom Wolfe wouldn't write a good essay in that amount of time. So while calling them all "bad essays" is a little hyperbolic, it's no criticism of the students. It's just a reflection on the inevitable quality that results from the exam situation.

Nose to the Grindstone

Sorry, faithful readers, but blogging will be somewhat limited all week as I am grading 170 exams.

Grading is a professor's chance to feel like an hourly employee: the job is to do a particular, defined task again and again and again, and then the next day -- same thing.

This is the one bad part of academic life. If you've never read 100 bad essays on the same topic, it's not something you want to start now.

But it's only 3 weeks out of the year. Forty-nine weeks of the year, we have the world's greatest job. Smile, professors. I'll smile next Tuesday.

Are we irrelevant?

Perhaps you saw Adam Liptak's piece in the NY Times about the disconnect between legal scholarship and judicial decisions (or perhaps not, it's behind the TimesSelect wall). Liptak observes that "Articles in law reviews have certainly become more obscure in recent decades," that "scholarship no longer had any impact on the courts," and that "the legal academy has become much less influential."

There's certainly some truth to this critique. When I read law review articles from about the 1950s, it's amazing how much influence some of them had. Professors wrote articles and the law changed. For some reason, a great deal of the legal academy deliberately ran away from the goal of having any influence on the law.

But not everybody. The law and economics movement has had tremendous influence. So have the legal feminists. And occasionally individual articles just nail an issue. I'll always remember the very first case I worked on -- a tragic case in which my client (the United States) had negligently failed to warn a woman that she had breast cancer, resulting in her death. But, according to the factual findings of the district judge, there was a 20% chance that she would have died anyway, even if she had been warned. How should that affect her damages? The classic rule was that if the lost chance is less than 50%, it has no effect on damages, but if it's greater than 50%, the plaintiff should recover nothing. In 1981 Professor Joseph King wrote an article in the Yale Law Journal called "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," which said that the better rule would be, in all cases, to multiply the plaintiff's total damages by the lost chance of recovery. I can't tell you how many different state courts said, "we used to follow the classic rule, but Professor King's article convinces us to follow his rule." Wow. That guy had influence.

I don't understand why professors wouldn't want to have that kind of influence, and I think the bulk of us still do want that. At this point, I agree with Michael Dorf, who said that "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable." The fault lies on both sides. We need to make our articles shorter and more accessible (kudos to law journals for encouraging this recently), and judges need to look for them.

Changing Law School

A job candidate today called our attention to a study called "Educating Lawyers: Preparation for the Profession of Law" by the Carnegie Foundation for the Advancement of Teaching. The study observes—and this is hardly a secret—that "legal education typically pays relatively little attention to direct training in professional practice." In this regard, law school is unlike other postgraduate education, particularly medical school. My understanding is that after a year or two of medical school, medical students actually know how to do some real, useful, professional things—say, how to set a broken bone. A second year law student, by contrast, might have no idea how to file an actual complaint or interview a client. The Carnegie study suggests that law schools need an "integrated curriculum" that teaches doctrine, skills, and ethics, and in which all faculty teach both doctrinal and practical courses.

Sounds lovely, doesn't it? People are always encouraging change in law school education. And it's not that the Carnegie study's suggestions are so bad. But I do have two fundamental problems with them.

First of all, I have always disagreed with critics who complain that law school is disconnected from the development of actual legal practice skills. It's not that the critics are substantively incorrect—law school is rather disconnected from actual legal practice skills—but I have never regarded that as a terrible problem. A lawyer has her whole life to learn how to practice. But never again will she have the luxury of taking the time necessary to think about big theoretical and doctrinal issues. A lot of legal practice is a continual series of meeting deadlines. The three years of law school are a magical opportunity to think about issues. Sure, lawyers think about issues too, but rarely with the time and breadth available in law school. I regard that as good, not bad.

A second fundamental issue with the Carnegie report and with other big-picture plans to revamp law school is that the incentives are all wrong. I'm willing to assume that some of the suggestions in the Carnegie report could improve student experiences (although I didn't see much data to support this claim). But it would be a lot of work. And it would be a lot of work related to teaching. And work related to teaching is not rewarded.

That's a fundamental problem with legal education. I happen to teach at a school that takes teaching more seriously than any other school I know of the same or better quality. We have a culture of working hard at teaching and doing it well. I'll match my teaching evaluations against anybody's. And teaching well is intrinsically satisfying; I enjoy doing it. But the career value? Basically, zero. It certainly does nothing for one's reputation in the legal academy generally. People at other schools can't even observe your teaching; they can only read your scholarship. Indeed, some people seem to think that if you're a really good teacher, that's a negative, because it means you must not be spending enough time on scholarship.

So I would say that the Carnegie study's suggestions can't possibly be achieved without a fundamental change in the reward system for legal academics. And it's hard for me to see how that change could occur. Even if an individual school chooses to reward good teaching, it can't affect the external incentives that academia as a whole creates.

Posted 2-13-07 4:20 pm