Archives For law school

Last week the NYT’s David Segal attacked modern legal education in what many bloggers have criticized as an overwrought and inaccurate article. I joined the chorus. Referring to my article Practicing Theory, I noted that Segal had made the often-repeated mistake of blaming legal educators for teaching too much theory and not enough practice when nobody knows what the future of practice will be:    

Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains. * * * The real problem * * * is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands.

Today’s NYT has an editorial that tracks many of Segal’s criticisms. Leiter has already subjected the editorial to a thorough fisking. I agree with many of Leiter’s criticisms — and particularly regarding the editorial’s confused attempt to relate the problems of legal education. 

But I note with interest that the editorial seems to pick up on some of the points I made in my blog post and article:

  • The editorial notes the need to “teach to what legal practice now entails.”
  • Just as I said future lawyers will be “architects and designers” the NYT says they will be “negotiators and deal-shapers, and problem-solvers.”
  • Tracking my basic point, the editorial says “the choice is not between teaching legal theory or practice.” 
  • Both the editorial and my article criticized legal education’s Langdellian heritage. (Leiter correctly observes that the NYT’s criticism is misguided; the point in my article wasn’t so much that Langdell was wrong, but that his influence marked the divide between legal education and the market for lawyers). 

So maybe it’s not too much of a stretch to think the Grey Lady is stooping to the blogs, even if not getting her hands too dirty with them.

Richard Fallon thinks that when law professors try to influence public debate, as when they sign amicus briefs, they should know what they’re talking about.  Here’s the abstract:

With ever mounting frequency, law professors flood the courts with “scholars’ briefs,” in which they advise judges and Supreme Court Justices on how to resolve disputed issues based on their purportedly disinterested expertise. As often as not, however, scholars’ briefs are not scholarly. They commonly offer one-sided depictions of relevant authorities. In addition, many signatories attach their names to assertions that overreach their scholarly expertise. Political orientation frequently drives participation.

Examination of the standards that should govern law professors’ participation in scholars’ briefs is long overdue. That topic — which this Article opens up for debate — is important not only for its own sake, at a time when appellate lawyers increasingly solicit supportive scholars’ briefs as a routine litigation tactic, but also because it furnishes a window onto broader questions about law professors’ professional roles and obligations. On the one hand, it is discomfiting that professors who claim the mantle of scholars would file briefs that deviate very considerably from the standards of scholarly integrity that apply to books and law review articles. On the other hand, we are long past the day, if ever there was one, when most law professors thought their sole professional contributions should come through traditional scholarship and teaching. By participating in scholars’ briefs, law professors can potentially influence the direction of the law. And in many of law professors’ professional activities, within bounds that need to be defined, an ethic of consequences requires the tailoring of arguments to audiences.

In this Article, Professor Fallon examines issues involving law professors’ moral and ethical obligations through the lens of role-based moral theory. More particularly, he considers how professors’ participation in scholars’ briefs relates to other, presumptively permissible role-based activities in a world in which law schools boast in their alumni magazines and on their websites whenever faculty members author op-ed articles, appear on radio or television programs, testify before legislative committees, or even post comments on blogs. Professor Fallon argues that law professors ought to uphold higher standards of scholarly integrity — which he carefully explicates — than many now do when deciding whether to participate in scholars’ briefs. Along that dimension, the Article offers strong prescriptions for reform. But the Article also demonstrates that it is impossible to identify the moral and ethical standards that should govern participation in scholars’ briefs without taking account of the diversity of roles that professors play and of appropriate, role-based variances in their professional obligations. The Article’s analytical framework offers a template for addressing myriad issues of professorial responsibility.

Fallon’s paper deserves widespread attention in the academic community. It raises the question whether law profs should sign onto amicus briefs just because they happen to agree with the brief’s conclusion without understanding and agreeing with the arguments to that conclusion.  If the law professor derives authority from her expertise, then the brief should reflect that expertise.

The article relates to my own The Public Face of Scholarship.  There I argue for scholars’ participation in public debate through what I call “publicly engaged academic posts.”  Here’s the theory in a nutshell (footnotes omitted):

PEAPs’ significance as a distinct category of amateur journalism is that they connect both with journalism and scholarship. While PEAPs involve the same sort of activity as professional journalism, scholar-journalists gain an advantage over professionals by leveraging their expertise. This has three implications. First, the posts are more informed than other blogs that engage in self-expression. Scholars can draw from their expertise to make immediate and timely posts without engaging in the significant new research that generalist journalists would have to perform. Second, the post is likely to be more disciplined and objective than other selfexpressive blogs because it derives from a body of prior ideas developed without specific public policy objectives. Third, the blogger stakes her scholarly reputation on the post, and therefore has more incentive than other amateurs to carefully support her position. These differences between PEAPs and other forms of amateur journalism relate to the impact PEAPs may have on the nature and quality of professional journalism * * *

PEAPs are bloggers who derive credibility from their scholarly perspective.  This supports standards of academic blogging that are similar to those Fallon suggests for participation in amicus briefs.

The value of law school

Larry Ribstein —  22 November 2011

Herwig Schlunk updates his analysis of the investment value of a law degree. Here’s the abstract:

There continues to be an active debate on the question of whether or not law school is a good investment. I prefer to think of the question not in terms of “whether,” but in terms of “when.” In this essay, I conduct an analysis for three current undergraduates who are considering attending private law schools. I demonstrate how such individuals should take all known costs and all expected benefits into account in making their “investment” decision. As the calculation necessarily differs dramatically from one potential law student to another, my conclusions are far less important than my methodology.

Schlunk’s initial paper followed my highly simplistic analysis suggesting this investment approach. I haven’t fully analyzed this paper but it appears to be careful and competent. My main caveat is that valuing a law degree is immensely complicated by the significant technological and market changes the law business is undergoing (see Law’s Information Revolution).  This means that a legal education may be significantly more or less valuable than Schlunk assumes.  How much more or less depends in part on the type of legal education the new lawyer receives. That’s where my Practicing Theory comes in.  

The considerable flux in the market means law graduates may need to be patient in order to fully exploit their opportunities.  Obviously their ability to be patient will depend significantly on their debt load.

Given these extra complications on top of the complications inherent in Schlunk’s analysis, one must be skeptical of simplistic conclusions that law school is a rip-off or a good deal even for a particular applicant, much less in general.

Those attending the Wisconsin in-house counsel conference this weekend (kudos to Jonathan Lipson for a well-organized and comprehensive program) got a great overview of the problems and opportunities facing the lawyers who work inside corporations.  Here’s some brief observations.

As previously reported, my own contribution focused on how technology might significantly affect in-house lawyers’ work, including by moving many of their tasks to software and non-lawyers.  This has potential implications for the discussions by Larry Hamermesh, Don Langevoort, Deborah DeMott, Steve Schwarcz and Kathleen Cully of the watchdog or gatekeeper responsibilities of in-house lawyers. If in-house lawyers try to become gatekeepers, might this encourage firms to replace their lawyers with software and non-lawyer employees?

Several speakers (Sida Liu, David Wilkins, Christoph Henkel) discussed in-house lawyers outside the U.S. We learned, among other things, that countries such as China and Germany train and accredit lawyers separately for litigation and in-house service. I argued in Practicing Theory and in my paper for this symposium against the one-size-fits-all approach of legal education in the U.S.

The global perspective reinforced my view that U.S corporations and therefore their lawyers need to understand the laws of the many countries they do business in.  Daniel Chow, Mike Koehler, Andrew Spalding and Joe Yockey’s discussions of the Foreign Corrupt Practices Act also showed that firms need to understand foreign cultures. The U.S.-centric approach of U.S. legal education is increasingly out of step with global markets.

In general, while technology and markets are eroding the market for lawyers, there’s still plenty left for them to do, including in-house. But are U.S. law schools training for this work?

The NYT on law teaching

Larry Ribstein —  20 November 2011

The NYT brings another David Segal story on legal education.  Today’s sermon: law schools don’t teach “lawyering.”

Boiling away the overheated journalism, here’s the indictment:  Law profs are richly paid for writing mostly useless law review articles rather than “the essential how-tos of daily practice.” Students study cases about contract law but not contracts.  Clinics get second-class status.  New lawyers need law firm training to figure out how to “draft a certificate of merger and file it with the secretary of state.” A law graduate isn’t “ready to be a provider of services.” Clients won’t pay for work by untrained associates.  Legal education is not worth its high price.

Well, yes, law schools should pay more attention to the market for lawyers and offer more value.  But as I’ve written in my article Practicing Theory, this doesn’t mean teaching what lawyers traditionally do.  Lawyers now don’t draft agreements from scratch.  There’s an app for that — software templates modified by user input.  A technological tsunami is sweeping over legal services.

Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains. 

Law students also will need business skills that law schools don’t traditionally teach.  Indeed, Segal himself notes that “graduates will need entrepreneurial skills, management ability and some expertise in landing clients” without considering the implications of this observation for legal education.

The real problem, as discussed in Practicing Theory, is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands. Segal’s article, like others in this series, ignores such nuance, preferring to string together well-worn criticisms and to eschew coherent analysis in favor of attention-getting quotes.

But, then, this is what journalists learn in journalism school.  Just as law professors swing for the law reviews, so journalists swing for the Pulitzers.  No wonder blogs are replacing the mainstream media as the source of cutting-edge information.  If you want to know what is actually ailing the legal profession and the law professoriate, you would do much better to read, e.g., Bill Henderson, Dan Katz, Brian Leiter, Brian Tamanaha, Steve Bainbridge and me.  It will save time and trees.

Today’s WSJ offers an interesting perspective on the law school cost/student debt debate: from the folks who invest in student loans. According to the article, these guys say:

  • Law school * * * can end up a sucker’s bet in periods of high unemployment
  • U.S. has far more law schools than other professional schools, resulting in an excess supply of lawyers, argue investors and analysts.
  • In recessions, law school graduates have a harder time finding work than other graduates from professional programs and are more likely to default on their student loans.
  • Nevertheless, law students have been willing to take on even more debt for their degrees

So, the portfolio manager of one investment firm “is staying away from all student loan bonds right now.* * * “We don’t expect unemployment rates to go down for the next year or two so it’s difficult to get excited about student loans against that backdrop.””

Are law schools paying attention?  Education requires money and these guys are, ultimately, the ones who provide it. 

Remarkably, the real picture may be even worse than this article suggests. The article seems to assume a cyclical model of the law school market with an upturn after “the next year or two.” But I conclude that the decline is long-term, at least until law schools figure out how to offer students sufficient value or a low enough price to justify the student loans.

Going to 11

Larry Ribstein —  11 November 2011

Veterans certainly deserve their day but I hope they won’t mind my sharing it with Nigel Tufnel. Surely you recall his memorable question:

Well, it’s one louder, isn’t it? It’s not 10. You see, most blokes, you know, will be playing at 10. You’re on 10 here, all the way up, all the way up, all the way up, you’re on 10 on your guitar. Where can you go from there? Where?

The answer, of course, is “11.” 

We (or at least I) honor him today for reminding us that

  1. All innovation is not good.
  2. Just because an idea feels brilliant that doesn’t mean it is.

The latter insight may come in handy while listening to or reading some new scholarship, including your own.  Just thinking “it goes to 11” relieves the tedium or induces constructive self-doubt, depending on the circumstances. Try it and I’m sure you’ll agree this idea really does . . . go to 11.

Many believe that law school applicants have been misled about or just don’t understand the market for legal services. I think it’s worth exploring the alternative hypothesis that law school is college grads’ best opportunity despite the market.  

Today’s WSJ discusses one possible basis for this conclusion — college students’ poor choice of what to study:

Although the number of college graduates increased about 29% between 2001 and 2009, the number graduating with engineering degrees only increased 19%, according to the most recent statistics from the U.S. Dept. of Education. The number with computer and information-sciences degrees decreased 14%. * * *

Research has shown that graduating with these majors provides a good foundation not just for so-called STEM jobs, or those in the science, technology, engineering, and math fields, but a whole range of industries where earnings expectations are high. Business, finance and consulting firms, as well as most health-care professions, are keen to hire those who bring quantitative skills and can help them stay competitive.

Why?

Science classes may also require more time—something U.S. college students may not be willing to commit. In a recent study, sociologists Richard Arum of New York University and Josipa Roksa of the University of Virginia found that the average U.S. student in their sample spent only about 12 to 13 hours a week studying, about half the time spent by students in 1960. They found that math and science—though not engineering—students study on average about three hours more per week than their non-science-major counterparts.

Tyler Cowen discusses the problem from a broader perspective:

Since 1997-2000, there is downward pressure on lots of wages, but morale matters and labor market incumbents retain a favored position. Though some wages fall, employers resist that downward pressure, and pass along a lot of the burden of adjustment to new job seekers. Even if that original downward pressure on wages is smallish, new job seekers have to make big adjustments in their career plans, majors, ambitions, etc. to get through the door at all. They didn’t. * * *

So the law placement problem may be about bad choices, but the choices are the ones made by college sophomores, not college seniors.  The persistent demand for law school might be at least partly explained by the fact that college hasn’t given law school applicants the skills to go where most jobs are. Law school then becomes the best way to utilize the skills that they have.

Perhaps colleges should offer better career guidance at an earlier stage. Or maybe the problem lies in grammar or high school education, or in the design of college science, math and engineering courses.

Law schools should, of course, provide full disclosure of the job market for their grads.  But we shouldn’t assume that disclosure is the whole problem, particularly as news of the law job market gets out anyway. Law school applications might be a symptom of a broader problem with broader solutions.  If I’m right, the real drop in law school applications may significantly lag the law job market as the message percolates down to college students.

And it’s worth adding that law itself might be a STEM job of the future, as law becomes more tech-oriented.

Law firms’ competition

Larry Ribstein —  6 November 2011

The biggest competition for law firms is not other law firms but in-house counsel. So reports the ABAJ.   I make a similar point in a paper I’m presenting at a University of Wisconsin program next week.

There are two reasons for this:  pressures on firms to reduce fees, and law’s information revolution which is reducing firms’ need to rely on traditional legal services. In my Wisconsin paper I consider the impact of the following developments, among others:  automated contracting, compliance software, knowledge management, streamlined dispute resolution mechanisms, and Web-based processes for learning about and hiring lawyers.

Simultaneously with these developments, law firms are becoming less reliable as reputational intermediaries because they do less monitoring, mentoring and screening of lawyers (see Death of Big Law).  Corporations are finding that they can dispense with the middleman (law firms) and hire lawyers directly.

I predict the next step in the evolution of corporate legal services will be the mutation of in-house lawyers themselves.  Instead of corporations simply bringing law firms within their walls, they will spread legal expertise throughout the organization — what I refer to in the Wisconsin paper as “embedded lawyers.”

These developments have significant implications for the market for corporate legal services.  Law firms have managed to survive for decades on a business model that enables them to charge corporate clients hundreds of dollars an hour more for their lawyers’ services than the firms are paying.  The difference, of course, is profits to the partners.  Corporations are now competing away these profits.

Needless to say, law graduates and law schools will see the effects of this competition between in-house and outside law firms.  At the same time that law grads are seeing fewer corporate jobs they may also be seeing lower wages for the jobs that are available.

Moreover, applicants for these in-house jobs will have to meet corporate specs. Under the old model, law firms hired generalists from the best schools and trained them.  Corporations hired some of the better ones a few years out. Now corporations are looking to hire cheaper lawyers right out of law school.  They’re looking for graduates who don’t need the law firm apprenticeship.

The law schools that will win the corporate job placement derby will be the ones that can provide some of the training law firms used to provide.  In other words, while law schools seem to think they need to teach their graduates where to find the courthouse, the biggest need will be those who understand how businesses make money.

These developments have implications beyond corporate legal services.  Corporations can access legal technology without worrying about the unauthorized practice rules that restrict this technology at the consumer level.  But once this technology is widespread in firms it will be harder to block its availability to consumers.

Watch this space for more on these issues.

Bill Henderson vs. Orin Kerr (in comments, with reply by Henderson). HT Leiter.

Henderson:

U.S. Legal Education is in the midst of a large, structural transformation. This structural shift is driven by a confluence of factors, which includes three significant trends:

  1. The decline, or plateau, of the traditional time and materials legal services model
  2. The politics of law school finance
  3. A new generation of legal entrepenuers that are turning some aspects of law into process-driven products and services. * * *

My post raises two questions for law faculty that need to be answer in order:

  1. Is the evidence of structural change sufficiently compellling that we need to retool in order to survive? This is a business decision. It must be based on facts and probabilities. And it has to be answered first so the appropriate urgency and perspective is present to answer question #2.
  2. If the answer to #1 is yes, how should our law school retool its curriculum and appointments process? Law professors are prone to focus on the difficulty/impossibility of the retooling process because–let’s face it–we are worried about how the changes will affect us. Question #2 is the wrong place to start.

Kerr

When I have asked a few peers who are in the business of practicing law if they think we are undergoing a major change in the legal market, or if we are just experiencing the usual cyclical pains of a recession, they generally respond that they think we are seeing the latter rather than the former. So that means that you as an academic are saying one thing about what is happening in the legal market, and the group I have spoken with who are actually in the legal market generally are saying another.

Henderson reply:

Lawyers generally don’t consult industry level data. When I talk to groups of practicing lawyers–and I do so regularly–and I show them trendlines and comparisons with other industries that have undergone structural change, very few continue to advance the deep recession argument because such an analysis just does not fit the industry level trendlines.

I’m with Henderson.  Here’s my take on the future of legal education in light of the developments he describes.  It seems clear that conventional law jobs are rapidly being replaced by technology, there is significant political and competitive pressure on the existing regulatory model, and that changes in the profession will accelerate with deregulation. These shifts are occurring apart from problems in the economy.  Indeed, these changes will increase as the economy, and therefore environment for innovation, improves. In other words, a significant portion of the legal profession may be left behind by the recession’s end.

Think what even a 30% decline in the demand for legal education (or more if tuition continues to increase) would mean for legal education.  The law schools outside the first tier in places with poor legal job markets will be left stranded.  All law schools outside the very top will have to scramble for position by changing their products.

Exactly what law schools should be doing is unclear.  This is not a time to set in place a complete revamp that could get the market’s direction wrong. But law schools are foolhardy if they think they can continue to bury their collective heads in the sand because of the soothing noises they’re hearing from their (currently) successful alumni.

My blogging colleague Josh Wright has a useful summary of the “Chicago School’s” views of the future of law and economics.  I have some further thoughts.

I think the key challenge and imperative for law and econ scholars in law schools will be to relate what they do to the market for their output — i.e., jobs for their students.  (Shouldn’t market-oriented scholars pay more attention to this?)

I recently discussed this market-oriented perspective on law teaching in my article, Practicing Theory.  The article’s basic point is that deregulation and fundamental changes in the market for legal expertise, particularly including those driven by technology, will  force law schools to think harder about how to make their students more competitive.  Unlike many commentators on legal education, I don’t think this involves more trial practice, clinics and externships in law schools, but rather a refocusing of the theoretical and policy-oriented work that is legal education’s traditional comparative advantage.

More specifically, we need better integration of law and technology.  We should also focus on legal architecture or engineering rather than the mechanics of applying received legal wisdom.  In the future the machines will do the mechanical stuff.  Legal experts will be needed to craft policy and design legal software.

So the question is, how can the theory and practice of law and economics best meet these market needs? Richard Posner comes closest to this general sentiment when he says “economic analysis of law may lose influence by becoming too esoteric, too narrow, too hermetic, too out of touch with the practices and institutions that it studies.”

David Weisbach offers what may be the most practical suggestion — more thinking about the use of computational models in law.  As he says,  this

is a very different view of legal analysis—it views problems as engineering problems that we model and test. It is empirical, practical, and solution-driven. The role of the legal scholar is to help frame problems, to think about how institutional structures affect the framing, to suggest solutions, and to help interpret and evaluate results.

I recognize that this view may irritate some scholars.  We all like universities for the same reason as Dan Aykroyd’s character in Ghostbusters, “([t]hey gave us money and facilities, we didn’t have to produce anything! You’ve never been out of college! You don’t know what it’s like out there! I’ve *worked* in the private sector. They expect *results*”).

I’m not talking about my preferences but about where I think things are actually headed in legal academia given rapid changes in the legal profession. Law and econ scholars, like other legal academics, increasingly will need to justify themselves in market terms. On the bright side, who is better able to do this?

One of my colleagues recently accepted a publication offer on a law review article, only to receive a later publication offer from a much more prestigious journal.  This sort of occurrence is not uncommon in the legal academy, where scholars submitting articles for publication do not offer to publish their work in a journal but rather solicit publication offers from journals (and generally solicit multiple offers at the same time).  One may easily accept an inferior journal’s offer before receiving another from a preferred journal. 

I’ve been in my colleague’s unfortunate position three times: once when I was trying to become a professor, once during my first semester of teaching, and once in the semester before I went up for tenure.  Each time, breaching my initial publication contract and accepting the later-received offer from the more prestigious journal would have benefited me by an amount far greater than the harm caused to the jilted journal.  Accordingly, the welfare-maximizing outcome would have been for me to breach my initial publication agreement and to pay the put-upon journal an amount equal to the damage caused by my breach.  Such a move would have been Pareto-improving:  I would have been better off, and the original publisher, the breach “victim,” would have been as well off as before I breached.  

As all first-year law students learn (or should learn!), the law of contracts is loaded with doctrines designed to encourage efficient breach and discourage inefficient performance.  Most notable among these is the rule precluding punitive damages for breach of contract:  If a breaching party were required to pay such damages, in addition to the so-called “expectancy” damages necessary to compensate the breach victim for her loss, then promisors contemplating breach might perform even though doing so would cost more than the value of the performance to the promisee.  Such performance would be wasteful.

So why didn’t I — a contracts professor who knows that a promisor’s contract duty is always disjunctive: “perform or pay” — breach my initial publication agreements and offer the jilted journal editors some amount of settlement (say, $1,000 for an epic staff party — an amount far less than the incremental value to me of going with the higher-ranked journal)?  Because of a silly social norm frowning upon such conduct as indicative of a flawed character.  When I was looking for a teaching job, I was informed that breaching a publication agreement is a definite no-no and might impair my job prospects.  After I became a professor, I learned that members of my faculty had threatened to vote against the tenure of professors who breached publication agreements.  To be fair, I’m not sure those faculty members would do so if the breaching professor compensated the jilted journal, effectively “buying himself out” of his contract.  But who would run that risk?

So I empathize with my colleague who now feels stuck publishing in the less prestigious journal.  And, while I recognize the difference between a legal and moral obligation, I would commend the following wise words to those law professors who would imbue law review publishing contracts with “mystic significance”:

Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract.  Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained.  The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else.  If you commit a tort, you are liable to pay a compensatory sum.  If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference.  But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can.

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).