Paul Caron has posted his annual list of Fellowships for Aspiring Law Professors, a very useful guide for those hoping to break into law teaching.

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Prawfsblawg's community spreadsheet thingy is here.  You should contribute if you can.  It's already looking quite interesting.  

But it does illustrate one of the difficulties of trying to play moneyball in an area that isn't baseball, finance, or the weather.  For those subjects, data has been collected every day for decades, and it has been systematized in a single place.  

But we probably won't get perfect accuracy on who got hired by where from the Prawfs database, we won't get many variables on them, and law school hiring happens once a year, on different standards than law schools employed just ten years ago.  Apples to apples comparisons are difficult.  And if you want to know how those entry levels at top schools did it, you're talking about a tiny number of subjects.  What's the added value (or disutility) of a Yale JD, a pre-law career as an equities analyst, or a Ph.D in sociology?  I doubt you could tell anything other than an anecdotal story about whether these resume items are good or bad.  

Which in turn makes moneyball stories in law schools not tales of zigging where others zagged, but rather a plausible story that that's what you did.  That may be more an exercise in marketing, rather than number crunching.

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The NYT is having a discussion forum today on unpaid student internships.  For those of you who have not had this topic on your radar, here's a brief catchup:  Internships have become increasingly prevalent for college students, business school students and law students.  For law schools, internships and externships provide students with the practical experience that they need, supervised by folks who do this full-time.  However, the Labor Department has issued guidance on these internships that some people pay attention to and others don't.  I'll detail the guidance criteria below.  The debate is whether these criteria (and their enforcement) are beneficial in that they protect students from exploitation or whether they hinder students from obtaining useful work experience and career contacts.

According to a January 2010 memo from the U.S. Department of Labor, an intern may be considered an "employee" for purposes of the Fair Labor Standards Act unless the worker is a bona fide "trainee."  If the intern is an employee, then minimm wage and overtime provisions apply.  The memo then lists six factors to consider, including these two:  "training is for the the benefit of the trainees" and "the employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer's operations may actually be impeded."

So, in the context of a law school internship, to meet the criteria, the school would not be able to recruit employers by emphasizing the benefit the employer would get from our smart, go-getter students and the employer would not be able to profit from the student's labor (i.e., bill out the work).  According to the memo, "if the workers are engaged in the primary operations of the employer and are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits is unlikely to make them trainees given the benefits receied by the employer."  In other words, if it's a good deal for the employer, then it probably will not qualify as an unpaid internship.  Because of this, many law school internships are with nonprofits, who don't have to worry about this.  But, there are only so many nonprofits and some students would like (ahem) transactional experience in a corporation or a law firm.

The discussion is mostly about undergraduates, but Above the Law's David Lat weighs in from the legal training side.  His take is basically the same as mine.  These internships are valuable.  Everyone is making a rational choice.  They probably do not shut out those seeking paid work, but even if they do, so does the minimum wage that would otherwise apply.  If companies were not allowed to offer unpaid internships, then they would offer a much smaller number of paid internships (maybe zero). 

Some critics complain that the explosion of unpaid internships hurts those who are not in a financial position to take them.  This may be true.  Students from poorer backgrounds may not be able to pad their resumes with activities and volunteering, may have to work during college instead of studying 24/7, and may find unpaid internships pose a financial hardship on them.  No laws can change the myriad ways in which those with financial and social capital have advantages.  But, I think we should also ask "compared to what?"  I don't think there is a parallel world of thousands of paid internships that would instantly bloom if unpaid internships were outlawed.  I think the choices would then be between a small number of paid internships in a student's desired field compared to finding wage-earning employment in retail, food, etc.  For law students, paid internships and clerkships are at historical lows.  Liberalizing unpaid internships is more likely to get more law students more experience than convert all of those choice gigs into unpaid slave labor.

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This is the year for BYU Law School's accreditation review by the ABA, and we just had dinner with the ABA Site Evaluation Team. This sabbatical visit is designed to gather facts, so the ABA can determine whether we are in compliance with the ABA Standards. Critics argue that adherence to the ABA Standards blunts innovation in legal education. That is the thrust of the debate surrounding Duncan School of Law's battle with the ABA, which was featured last month in the NYT.

One thing that isn't often mentioned in these discussions is that the spreading of innovation is one of the ABA's stated purposes of the accrediation process. According to the ABA Overview, "Innovative approaches to legal education are to be encouraged and the accreditation process can foster growth and development by providing a clearinghouse for fresh ideas."

Hmm ... does innovation really spread through the accreditation process? If so, how often?

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If you are interested in teaching business law, check out UCLA's new teaching fellowship. The details are here.

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I'm a little behind, but earlier this week, while I was teaching, the WSJ published an op-ed by John McGinnis (Northwestern Law) and Ruseell Mangas (Kirkland & Ellis and recent NW graduate) entitled "First, Let's Kill All the Law Schools."  The gist of the controversial op-ed is that by allowing Law majors in college to sit for the bar, we would increase the number of lawyers, cut fees, and cut the amount of tuition paid (debt borrowed) by lawyers-to-be.  Dan Rodriguez, the new NW dean, responded on his own blog here, then allowed for rebuttal here.  My reflexive response was similar to Dean Rodriguez's, but different enough to warrant a post.  I am all for creative ways to change legal education to meet the new legal market, but not all ways are without bugs.

The creative solution is to make the four years of college two years of liberal arts and sciences and two years of law.  Then, states could require a one-year apprenticeship program, reducing the cost of law school to zero.

First, the op-ed makes the misleading claim that "[t]he high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees."  The first half is false.  The high cost of legal education is not limiting the supply of lawyers.  We are opening new law schools each year, and I have not heard of any law school that is not filling its seats.  Applications are down, and schools are reachign deeper into the pool, but my sense is that there are still more folks each year applying to law school than being accepted.  That being said, the high cost of graduate legal education may be limiting the supply of great lawyers -- perhaps, using the authors' words "bright students with attractive career opportunities" opt to take those opportunities and not go to law school -- but not the supply of all lawyers.

The second half of the sentence is a causal claim that I would have to see some data on.  Do high tuition costs and high debt loads lead fees to go higher?  Dean R. says no.  I would be more likely to believe a claim that high costs lead students to choose higher paid legal work than legal aid work, but to say that fees are higher overall because of the higher cost of education would not some explaining.  (Perhaps one of the drawbacks of the op-ed format.)

The second assertion that did not ring true to me was that the college plus one-year apprenticeship model is the British model, and it works fine.  Except that it's not.  I'm not from the UK, but three minutes on the Internet showed me that after undergraduate college, would-be lawyers pay to go to school (Bar Professional Course or Legal Practice Course) for one more year, with either a solicitor curriculum or a barrister curriculum.  Then, graduates of those programs (which are not cheap) then apply to be an apprentice either for a barrister firm (pupilage for one year) or a solicitor firm (training contract for two years).  These are in high demand, and not everyone gets one (the pupillage statistics seem to suggest that only half of applicants get one), and the trainee is paid a minimum wage. (The trainee solicitor minimum in London is £18,590 ($28,762), and the trainee barrister minimum is £12,000 ($18,566), though the fancy places pay much more, just like in the U.S.  So, if we are going to fashion the new U.S. law model after the British one, and compare costs, we need to compare apples to apples.  College plus tuition-based one-year course, plus 1-2 year discounted wage training.  If you wanted to major in something else, like business or engineering, then add on one more year of post-graduate schooling.

A few more thoughts.  The authors' suggestion seems to also hinge on the assumption that college doesn't need to be four years, in addition to the fact that law school doesn't need to be three years.  the authors would condense college to two years, then have a condensed two-year law school.  Those who want more law or to someone distinguish themselves could take a substantive LL.M. course -- tax, securities, appellate, etc.  This assumption also rests on another assumption -- that law students all have liberal arts degrees.  Sure, I agree one could condense a lot of degrees to two years and add a streamlined two-year law degree.  (I went to college in three years).  Some law schools have had 3 + 3 programs for years.  But a lot of students are from the hard sciences, engineering, and economics.  I thought we wanted more of those?  Could you sit for the patent bar with only two years of undergraduate courses?

I also think that if we went to a four-year legal education (or even five year), that colleges would find a way to charge more.  Here at Illinois, engineering and certain other majors have a higher tuition than other majors.  Just throwing that out there.

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In the Crocker Fellows class today, we talked about teams. I have blogged about entrepreneurial teams and teams in the classroom, but the Crocker Fellows Program is built on a particular notion of teams, captured by the famous definition of teams in Katzenbach and Smith (1994): "a small number of people with complementary skills who are committed to a common purpose, performance goals, and approach for which they hold themselves mutually accountable." In our class, the teams of five people comprise a mix of majors, including engineering, computer science, business, life science, graphic design, etc.

Chris Mattson led the discussion, using the Nightline episode on IDEO as an illustration. Here it is:

Does anyone use the IDEO shopping cart? I haven't seen any in the US, but there are reports of similar carts in France. And Chris has seen similar carts in China ... so has this guy. If you are interested in more on IDEO, you might also check out Tom Kelly on Stanford's ecorner.

As for the Crocker Fellows, the teams are still in the "forming" stage (see Tuckman's stages of group development), but they are transitioning quickly into the "storming" phase. While I am eager to see what emerges from these teams, I was asking myself some questions today in my observer status:

• What is the role of law and lawyers, if any, at this stage in the innovation process?
• Lawyers work in teams to develop briefs or documents ... is the IDEO process essentially the same as writing an innovative brief or constructing a new deal structure?
• Could we use teams in this way to teach law? (My classroom teams have a more modest function than the teams we are using in the fellows program.)

No answers, yet, but maybe by the end of the semester I will have some more ideas.

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At the Glom, we haven't hid our fascination with the Battle Hymn of the Tiger Mother, and we have even held a discussion among other law prof supermoms on the book.  One of my disappointments with the book was that Prof. Chua didn't discuss her dreams, aspirations, successes and failures in her on career path.  Today, I saw this interview with Chua that talks a little bit about her dissatisfaction with law school and practicing law.

Law school tore down my confidence. I hated being called on. It's not a discipline that comes naturally to me. I did not click with law. I'm the hardest worker, but I could not retain the information

Chua then explains that her hard work led her to a clerkship, which she did not enjoy, and a career at Cravath, which she also didn't enjoy, though she worked extremely hard at both.  After a 14-year odyssey to break into tenure-track teaching, she found a niche for herself in law and ethnicity in developing countries, a few leaps away from traditional law classes and law practice.  One can jump to the conclusion that she might have been happier in a different graduate program in that field without the wandering in the wilderness.

As a professor, this makes me wonder how many really smart folks stumble into law school and just don't enjoy it because they would "click" with a different discipline.  As a law professor, we have the amazing flexibility of dabbling in other disciplines, but most folks in law school are destined for the less flexible world of practicing law.  I know that I have seen my share of students who are used to succeeding in school by working very, very hard and are flummoxed by the first year of law school.  Some double down and work even harder, like Chua, but others sort of stall.  (Of course, this is one reason why there are a growing number of people arguing to make it cheaper for law students to leave after one year:  Me, Ian Ayres & Ahkil Amar, and Ari Kaplan.

Of course the tabloid-y bit of information in the interview was that Chua and her older daughter, Sophia, were asked to be on The Amazing Race, though they declined.  From reading her book, I think Chua and younger daughter, Lola, would make a more ratings-ready pairing!

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ATL and several other media outlets have picked up on a story about David, an anonymous 2L at Cardozo, who voluntarily became "homeless" for nine weeks last semester just to see if he could.  I have no problems with David's experiment, and I don't think it makes hims hallow or insensitive to the plights of others.  However, I do think it is misguided for the media to pick up on his solutions for making his "homelessness" manageable as great ideas for folks who are actually homeless.  These solutions, which are making headlines, are showering and hanging out at an inexpensive health club and sleeping at the Cardozo law library.

As a background matter, David wasn't homeless.  He just didn't stay or sleep at his apartment.  He's more of an urban camper than a homeless person.  Just like campers aren't truly "living off the land," he wasn't homeless.  Like campers, he has all the markers of a non-outdoor/non-homeless life:  a place to go during the day where you are welcomed and tolerated for long stretches of time (a law school) and paid entry into other commercial establishments that must contractually welcome you and tolerate you (health club).  The law school is not open to all homeless folks.  (While visiting my friend at Cardozo, I worked in the library for two days and had to have myriad passes, etc.)   Yes, there are public libraries, and many see themselves as havens for the homeless (many do not).  However, public libraries do not tolerate sleeping.  I have been in public libraries where folks weren't allowed to put their heads down on tables or bring in bags as a means of curbing homeless traffic.  Law students pay a lot for the privilege of having access to the law building.  (David is on a scholarship, but his access has a FMV of tens of thousands of dollars.)   Second, he had a health club membership, and this almost seems like a no-brainer for homeless folks.  Yes!  Why don't they pay $1 a day to have a warm building with showers, soap, shampoo, TV, water, lockers, etc.?  Well, I'm going to bet that most health clubs require photo IDs, addresses, things like that.  And you don't get to pay by day, but maybe month, maybe year.  This may be a great idea for the newly homeless, but probably not for most homeless folks.

And of course David could keep all of his old stuff at his apartment, which he returned to when it started to get chilly outside.  He had a locker at his law school, and places to eat food kept at appropriate temperatures.  He had lots of friends who presumably had shelter, who probably invited him over from time to time.  And of course he had money for food, clothing, medicine, emergencies, etc.  He mentions keeping his "laundry" in a locker, so I'm assuming he took it to the laundromat or cleaners.  He also didn't interact with other homeless folks, so he's not the Barbara Ehrenreich of homelessness.  He went on an urban camping trip, and now he's back.

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It's a pretty good article, but all the law school sturm und drang is still missing an important "compared to what?"  Federal school loan default rates are 9%.  I bet the loan default rates subsidizing community college attendance are substantially higher than the law school default rate, and we're expanding that program.  Since no one appears to have checked, I'm just going to posit that law school loan default rates are lower than they are for any other form of higher education.  And I bet I'm close enough to right about that to make other professional schools pretty nervous about going through the current law school wringer.

Anyway, and in contrast to the above punditry, I thought this observation by Henderson and his co-author was particularly insightful:

Students who choose the highest-ranked school to accept them tend to be the biggest borrowers because their LSAT scores and undergraduate GPAs are more likely to be below the school’s median statistics. As a result, these students get less merit scholarship aid, which pushes their cost of attendance to $40,000-$65,000 per year. After three years, the cumulative debt is $120,000-$195,000, with a blended interest rate of roughly 7.3 percent.

In other words, the long pushed best strategy of picking your law school may leave the students the worst off in its aftermath.  That's pretty interesting.

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Thanks to Erik Gerding for the opportunity to share some of my ideas on corporate criminal liability, Dodd-Frank, corporate influences on individual behavior and educating today's law students only three months into my new academic career. I appreciate the thoughtful and encouraging emails I received from many of you. I even received a request for an interview from the Wall Street Journal after a reporter read my two blog posts on Dodd-Frank conflicts minerals governance disclosures. We had a lengthy conversation and although I only had one quote, he did link to the Conglomerate posts and for that I am very grateful. 

http://online.wsj.com/article/SB10001424052970203733304577102412994084008.html?mod=WSJ_PersonalFinance_PF17#articleTabs%3Darticle

I plan to make this site required reading for my seminar students, and look forward to continuing to learn from you all.  

Best wishes for the holiday season and new year.  

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Law schools are under attack. Depending upon the source, between 20-50% of corporate counsel won’t pay for junior associate work at big firms. Practicing lawyers, academics, law students and members of the general public have weighed in publicly and vehemently about the perceived failure of America’s law schools to prepare students for the real world.

Admittedly, before I joined academia a few months ago, I held some of the same views about lack of preparedness. Having worked with law students and new graduates as outside and in house counsel, I was often unimpressed with the level of skills of these well-meaning, very bright new graduates. I didn’t expect them to know the details of every law, but I did want them to know how to research effectively, write clearly, and be able to influence the clients and me.  The first two requirements aren’t too much to expect, and schools have greatly improved here.  But many young attorneys still leave school without the ability to balance different points of view, articulate a position in plain English, and influence others.

To be fair, unlike MBAs, most law students don’t have a lot of work experience, and generally, very little experience in a legal environment before they graduate.  Assuming they know the substantive area of the law, they don’t have any context as to what may be relevant to their clients. 

How can law schools help?

First, regardless of the area in which a student believes s/he wants to specialize, schools should require them to take business associations, tax, and a basic finance or accounting course.  No lawyer can be effective without understanding business, whether s/he wants to focus on mom and pop clients, estate planning, family law, nonprofit, government or corporate law. More important, students have no idea where they will end up after graduation or ten years later.  Trying to learn finance when they already have a job wastes the graduate’s and the employer’s time.

Of course, many law schools already require tax and business organizations courses, but how many of those schools also show students an actual proxy statement or simulate a shareholder’s meeting to provide some real world flavor? Do students really understand what it means to be a fiducuiary?

Second and on a related point, in the core courses, students may not need to draft interrogatories in a basic civil procedure course, but they should at least read a complaint and a motion for summary judgment, and perhaps spend some time making the arguments to their brethren in the classroom on a current case on a docket. No one can learn effectively by simply reading appellate cases. Why not have  students redraft contract clauses? When I co-taught professional responsibility this semester, students simulated client conversations, examined do-it-yourself legal service websites for violations of state law, and wrote client letters so that the work came alive.

When possible, schools should also re-evaluate their core requirements to see if they can add more clinicals (which are admittedly expensive) or labs for negotiation, client consultation or transactional drafting (like my employer UMKC offers). I’m not convinced that law school needs to last for three years, but I am convinced that more of the time needs to be spent marrying the doctrinal and theoretical work to practical skills into the current curriculum.

Third, schools can look to their communities. In addition to using adjuncts to bring practical experience to the classroom, schools, the public and private sector should develop partnerships where students can intern more frequently and easily for school credit in the area of their choice, including nonprofit work, local government, criminal law, in house work and of course, firm work of all sizes.  Current Department of Labor rules unnecessarily complicate internship processes and those rules should change.

This broader range of opportunities will provide students with practical experience, a more realistic idea of the market, and will also help address access to justice issues affecting underserved communities, for example by allowing supervised students to draft by-laws for a 501(c)(3). I’ll leave the discussion of high student loans, misleading career statistics from law schools and the oversupply of lawyers to others who have spoken on these hot topics issues recently.

Fourth, law schools should integrate the cataclysmic changes that the legal profession is undergoing into as many classes as they can. Law professors actually need to learn this as well.  How are we preparing students for the commoditization of legal services through the rise of technology, the calls for de-regulation, outsourcing, and the emerging competition from global firms who can integrate legal and other professional services in ways that the US won’t currently allow?

Finally and most important, what are we teaching students about managing and appreciating risk? While this may not be relevant in every class, it can certainly be part of the discussions in many. Perhaps students will learn more from using a combination of reading law school cases and using the business school case method.

If students don’t understand how to recognize, measure, monitor and mitigate risk, how will they advise their clients? If they plan to work in house, as I did, they serve an additional gatekeeper role and increasingly face SEC investigations and jail terms.  As more general counsels start hiring people directly from law schools, junior lawyers will face these complexities even earlier in their careers. Even if they counsel external clients, understanding risk appetite is essential in an increasingly complex, litigious and regulated world.

When I teach my course on corporate governance, compliance and social responsibility next spring, my students will look at SEC comment letters, critically scrutinize corporate social responsibility reports, read blogs, draft board minutes, dissect legislation, compare international developments and role play as regulators, legislators, board members, labor organizations, NGOs and executives to understand all perspectives and practice influencing each other. Learning what Sarbanes-Oxley or Dodd-Frank says without understanding what it means in practice is useless.

The good news is that more schools are starting to look at those kinds of issues. The Carnegie Model of legal education “supports courses and curricula that integrate three sets of values or ‘apprenticeships’: knowledge, practice and professionalism.” Educating Tomorrow’s Lawyers is a growing consortium of law schools which recommends “an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession.”  The University of Miami’s innovative LawWithoutWalls program brings students, academics, entrepreneurs and practitioners from around the world together to examine the fundamental shifts in legal practice and education and develop viable solutions.

The problems facing the legal profession are huge, but not insurmountable. The question is whether more law schools and professors are able to leave their comfort zones, law students are able to think more globally and long term, and the popular press and public are willing to credit those who are already moving in the right direction.  I’m no expert, but as a former consumer of these legal services, I’m ready to do my part.

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I am honored to be a guest blogger, especially since I am brand new to the academy having worked in the private sector for nineteen years as a commercial litigator, HR executive, deputy general counsel and compliance/ethics officer for a Fortune 500 multinational corporation.  I will spend the next two years as a visiting assistant professor at the University of Missouri-Kansas City learning to teach (marrying theory and practice) and focusing on scholarship and coursework related to corporate governance, compliance, social responsibility and the future of the legal profession. 

Over the next two weeks I plan to write about two Dodd-Frank provisions- conflict minerals and whistleblower; my call for an affirmative defense for a redesigned “effective compliance program” under the Federal Sentencing Guidelines; the ongoing debate about the value of a law school education; in-house counsel as "gatekeepers"; and a book review of Cultivating Conscience: How Good Laws Make Good People by law professor Lynn Stout, which offers an alternative look at the homo economicus model. I look forward to receiving comments that can inform my research and thank Erik Gerding for the opportunity to share my thoughts. 

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I've been doing a few other things lately, but out of the corner of my eye, I noticed at least two articles about the high costs of law school that I feel not only need commentary, but I guess my commentary.  (If youa re blogger and don't think the world needs your commentary, then that would be odd.)

Ian Ayres and Akhil Amar propose giving law students a rebate of half a year's tuition if they quit after first years.  I suppose I should say this is a good idea (or at least half a good idea) because I suggested essentially a full year's rebate eighteen months ago here.  I still think that lessening the sunk costs of quitting is a good idea, but many people in the blogosphere disagreed with me at the time.  Here is one of the more positive critiques, by my colleague Larry Ribstein, but I saw on some students' blogs phrases like "worst idea ever."

And, of course, David Segal's NYT article, which seemed to imply a connection between rising law school costs, writing law review articles, and not teaching law students practical skills.  The article had lots of numbers about how much it costs to produce a law review article and how many days new professors have practiced, but it didn't have any numbers as to whether clinical education was on the wane or on the rise in law schools.  However, the article definitely seemed to say that if law schools hired lawyers, rather than Ph.D.'s, then more practical skills would be taught, teaching would be better, law school would be cheaper, and there might be better job prospects for graduates.  As someone who practiced for five years before teaching (and whose spouse practiced twice that long), I should agree with Segal, but I just can't.  His article rests on many unproven and nonintuitive assumptions.

First, that lawyers teach better than Ph.D.'s, or that folks who have practiced longer teacher better than those that have practiced less.  Teaching is part skill, part substance.  Lawyers may know more substance about particular areas, but that doesn't guarantee good teaching.  Looking around my faculty, which houses many excellent teachers, there is no direct tie between practice experience and teaching skill.  In any event, at least Ph.D.'s, or those who have been academic fellows or VAPs, have experience teaching.  I once supervised 31 adjuncts at a law school, and some were magnificent, some were horrible, some just did not have the time and some even disappeared.

OK, but what about the related assumption that lawyers teach practical skills better than academics.  This is probably true, which is why clinics are usually supervised by those with experience (though I have actually seen the opposite).  However, that then leads to the next assumption, which is that lawyers teaching practical skills would be cheaper than academics.  This does not seem to be true.  First, clinics have to have a different student-teacher ratio, so you have to hire more lawyer-teachers.  Very successful lawyers have very high opportunity costs, so most schools couldn't hire one of them, much less twenty.  So, clinics tend to be limited, serving a small number of students, to keep the hiring down.  And, clinical professors tend not to be paid as well, so whether you can attract those with exceptional skills varies greatly depending on location, luck, etc.  Or, you can hire adjuncts, which has also has high variance depending on location, luck, etc.

There seems to be an assumption that back when law schools hired from the practicing bar only, law school graudates were better prepared.  I've been around law schools for over 20 years now and the theory v. practice argument was old when I was applying to law school.  Law schools weren't full of clinics, they just had former practitioners teach the same classes that are taught now in the same way.

And (almost) finally, law school tuition was lower years ago because law schools hired from the practicing bar.  This doesn't ring true, either.  Tuition has gone up greatly, but the reasons seem to be diffuse.  State tuition has gone up dramatically because it is no longer subsidized.  (I guess there is an argument to be made that at one point, state-run legal education was underpriced, and I'm glad that I benefited from that!)  Rising salaries may have contributed to some of the increased costs, but it's hard to tie rising salaries to a rising preference for nonpractitioners.  The rise in salaries seemed to track the rise in legal salaries, which seems to point to the opportunity costs for hiring those with either experience or practice opportunities.  We're just at an odd point now where legal salaries are in decline, but academic salaries aren't because of organizational differences (tenure, etc.).

And, finally, that law school could effectively and economically prepare law students for law practice without relying on firms to provide training.  Given the heterogeneity of law practice, I'm just not convinced.  Thinking about medical school, that practical training takes four years, with one year of clinical rotation, and is very expensive to deliver.  In addition, medical school graduates, though medical doctors, then have to complete a residency program, and possibly a specialty program in order to "walk into a courtroom."  So, following that model would make law school much more costly for the student, much longer, and probably require federal subsidization the way that residency programs do.

OK, that's enough.  I'm one of the first people willing to say that a lot could be done to reform legal education and the tuition structure, but I don't think I'll take a lot of my ideas from David Segal.

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Others have already contributed more thoughtful reactions to today’s New York Times front page indictment of legal education, than I can. But, let me offer a few thoughts of my own. Because the article places a premium on practical experience, I’ll borrow a page from my 8 years in practice and offer a bullet point list:

1. Practice for the long haul: I wholeheartedly agree that law schools should be doing a better job preparing graduates for practice. Yet there is a substantial difference between preparing a law graduate to practice on day one and preparing a graduate for practice over her entire career. Law students should get a generous helping of training in legal analysis and legal skills so that they can hit the ground running. But they also need other tools if they are going to succeed and perhaps even enjoy legal practice over the long run. Legal theory of various stripes, much maligned, gives graduates the context of “why.” “Why does the client want to do this deal?” “What is the regulator’s concern here?” “What can we accomplish for the client with this litigation?”

Young graduates are not going to get this context in practice – whether they work for a law firm, a public interest organization, or the government. There is no time and little immediate incentive to ask these questions when you are working 70 plus hours a week. There are also few mentors available to answer “why” questions.

But if legal graduates are going to get their heads above water and carve out a long term career for themselves, they need to think about why. They need to retain their ability to think creatively. A lot of the “law and…” courses give graduates a framework for thinking about legal problems that they can use, if not in year 1, hopefully in years 5, 6, 7 … And graduates will certainly need a larger framework and broader perspective if they hope to change the law. Or do we not care about that?

Law schools need to get students jobs today, but we should not let our time horizon switch to the equivalent of educational day trading.

2. Don’t judge teaching by a professor’s ssrn page: A professor’s scholarship is not always an indication of how she teaches in the classroom. I’ll use myself as an example. My scholarship is theoretical. My teaching is much more nuts and bolts practice oriented. I look to give students what I wish I had learned before I practiced.  

3. Judges are generally not the audience for scholarship: I don’t really care if my scholarship is cited by the Supreme Court. That is not the audience I am writing for. I would hazard a guess that many professors are like me and write (not only for other legal academics) but for Congressional staff, regulators, practitioners, industry participants, consumer groups…

Plus, why would an academic aim to write for Supreme Court justices? I thought all they did was call balls and strikes. If judges are not interested in scholarship, why write for them?

4. Some courts do read scholarship: As Matt Bodie pointed out in the blog a few days ago, some judges, like those in the Delaware Court of Chancery, are active readers of legal scholarship.

Now that the bullet points are out of my system, there is a lot that the NY Times article gets right. Brian Leiter, by no means a legal practice freak, asked a few weeks ago why schools weigh research potential so much more than any other factor in hiring. Scholars with advanced degrees in other fields play a vital role in legal education, but would students want a whole school of professors with no practical experience? Perhaps, but only if the school is so highly ranked that students can get jobs regardless of the content of their education but because employers will hire them as the school super-selectivity means it has already cherry-picked the brightest young things. The thing about selectivity and school competition though, is that by necessity only a few schools can get away with this.

Of course, lots of schools want to be Yale and lots of professors want to be at Yale. So do what Yale does. We need to pay close attention to law professor incentives. If you want to move up the academic ladder, publishing is paramount, placement is prestige, and citation counts are crucial. So you have to write something that will appeal to a student law review editor at a top journal (who also cares about how often the piece will be cited in the future). This is not news.

But there is one feature of citation counts that has been “under-explored” (to use one of the most “over-used” phrases in law review speak). It tends to result in professors writing on topics that appeal to a much broader audience than just the specialists in their field. This tends to lead to a surplus of articles on “My New Theory of Law.” (To give law review editors a preview of my next piece, I argue that “law” should be thought of by imagining its under-theorized, polar opposite, “wal.”) Some of this ambitious work is quite good. But the question is what happens when too many professors have the same ambition.

This little rambling post started out as a critique of the Times article, but ends with a warning that the legal academy should not get too satisfied. There is great danger is thinking backwards from “this is what I have always taught and wrote” and “this is what will get me ahead” to “this is how the law school ought to function.” There is a real crisis in student employment and law schools need to keep nimble and keep rethinking legal education. But let’s have a sensible mix of practical and theoretical education that prepares students for a longer horizon than the NY Times news cycle.

(By the way, anyone want to bet on how long it takes the NY Times to run another path-breaking story on the crisis in legal education? My guess is three weeks – right before Christmas.)

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