So I assigned Larry Ribstein's Death of Big Law article to my upper level seminar yesterday.  For those of you who haven't read it, Larry takes the reader on a brief tour of old theories of the law firm (tournament of lawyers, etc.), the increasing specialization of partners and their willingness to jump ship the moment a better offer comes their way.  Larry goes on to discuss changes in the law market and how globalization and increasing price sensitivity among clients is threatening the Big Law model, which was never very stable anyway. 

I talked about the importance of a book of business and the pressure to generate billable hours for associates.  What seemed most surprising to the students was the discussion of law firms as businesses in the classroom, with partners and associates making economically self-interested decisions about their careers. 

Halfway through class I got the nagging feeling that I was breaking some unwritten law professor rule.  We're not supposed to talk about the business of law in law school, are we?  At least we generally don't.  Why not?

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New Mexico is looking to hire a visitor to teach in our transactional clinic in the Fall.  The ad is below.  My colleague, Nathalie Martin (martin@law.unm.edu) would be happy to answer questions.

The University of New Mexico School of Law ("UNM") seeks a Visiting Professor of Law to teach in its nationally-recognized clinical law program during the fall of 2010. The candidate hired will teach and supervise students in UNM's Business and Tax Clinic, who represent clients involved with small businesses and non-profit corporations with a variety of legal issues, as well as other clients with consumer, debtor-creditor, tax, and home mortgage issues. JD and admission to a US bar are required. Preference will be given to candidates with experience practicing law in the areas in which we assist clients, as well as experience teaching and supervising students in a transactional clinical setting. For best consideration, submit applications by February 24, 2010. The position will remain open until filled. However, UNM intends to fill this position by March 31, 2010. To apply, visit the UNMJobs website: https://unmjobs.unm.edu/. Please reference Posting Number 0805063. The University of New Mexico is an equal opportunity/affirmative action employer and educator. You also can call Nathalie Martin at (505) 463-9051.

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It is that time of year again. Many entry-level candidates have offers and are negotiating their first academic job. Despite the relatively short time I have been in the academy, I have had the pleasure and privilege of mentoring several entry-level candidates and professors who are (barely) more junior that I am. Time and again I am reminded that many entry-level candidates have less than the ideal amount of information when they begin negotiating their first law teaching position. With that in mind, I am linking to a few relevant posts and sharing the checklist of questions that I put together when I was interviewing for law teaching jobs not so long ago.  

I am aware of several helpful posts: 

• Brian Leiter on What do you need to find out now that you've gotten a tenure-track offer? (2009)
• Glenn Cohen on Asking questions on the job market - Part II: about the offer (2008)
• Geoffrey Rapp on Negotiating Your First Law Professor Job (2006)

I am sure that there are others out there and I hope that people will include links to them in comments to this post.

Questions to Consider in Academic Job Negotiations

1. Salary:
    a. What is the salary scale and where would you be on that scale? Is it negotiable? 
    b. Are there interim promotions and, if so, what are the expectations for promotions?

2. Teaching Package and Load:   
    a. What is the standard breakdown of the course package?   
    b. How are the courses distributed?   
    c. How is the class size determined?   
    d. What is the policy on determining the days and times to teach?

3. Start Date: What is the standard start date? Is it possible to start earlier to prepare for classes?

4. Moving Expenses: What is the policy on moving expenses?

5. Summer Research Money:   
    a. This Summer: Is it possible to get summer research money for the summer before I teach my first classes? Is the amount negotiable since you may have start-up costs?   
    b. Summer Research Money Pre-Tenure: What is the policy on summer research money pre-tenure? Can it be agreed in advance or do you have to reapply each year?

6. Pre-Tenure Teaching Dispensation: Is there a reduced teaching load in the first semester / first year / pre-tenure period?

7. Pre-Tenure Committee Dispensation:   
    a. What are the expectations around committees?   
    b. On which committees do junior faculty usually serve?

8. Conferences: Is there a policy on funding to attend conferences? Do you have to apply for each one? Is it possible to designate certain conferences that you will be able to attend even if you are not participating? Is there a different policy for domestic versus international conferences?

9. Research Assistants:   
    a. Is it possible to get money for research assistance throughout the academic year?   
    b. Is there funding for research assistants during the summer and if so, what is the procedure?

10. Research:  
    a. Does the law school support ExpressO for article submissions?   
    b. Does the library carry the law reviews and journals that are important to your field or research?   
    c. Does the law school have access to electronic databases that are important to your field or research?

11. Contract Duration:   
    a. What is the standard length of pre-tenure contracts?   
    b. What is the process for renewal?

12. Tenure:
    a. What is the timeline for the tenure process?
    b. What are the tenure expectations?
    c. Is there a mid-pre-tenure review process and when does this take place?   
    d. If there is a mid-pre-tenure review, and what are the expectations around that?       
    e. Is it possible to get an option to request earlier tenure review?

13. Housing Assistance:
    a. Is there a university-wide or law school program to provide housing assistance and if so, how is that structured? Is there anything to compensate for high property taxes?
     b. Is there travel funding to return for house hunting visit?

14. Faculty Budget: Do faculty members have a discretionary budget, for example, for books and, if so, how is that money accessed?

15. Bar Membership Fees: What is the policy on bar membership fees?

16. Furniture and Computer Hardware: What is the policy on furniture and computer hardware?

17. Health Care: What is the health care plan and how does that work?

18. Pension: Is there a pension or retirement program and how does that work?

19. Offices: How are offices allocated?

20. Parking: Is there a parking allowance? How does that work?

21. Sabbatical: Is there a sabbatical policy and if so, what is the policy?

22. Title: What do the terms assistant, associate, and full professor mean and what obligations, rights, and privileges are associated with each?

23. Junior Faculty Support:   
    a. How many other senior/junior people are they hiring this year, or have they already hired?   
    b. Are there programs in place for them (e.g. paper workshops, workshops on teaching)?

24. Timing for Answer: When do you need a response?

This is not an exhaustive list and candidates will need to make choices about which questions to ask, who to ask which questions, and when to ask these questions.   Many thanks to all my friends and mentors in the academy, who suggested these questions and advised me when I was on the market. 

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In the NYT today an article appeared about the downturn in the legal services market entitled "No Longer Their Golden Ticket."  (A fairly uninspired headline, but that's beside the point.)  The article points out that law firms have shed associates and even partners in this recent downturn, so a law degree, even from a prestigious law school, is no longer a golden ticket.  My first reaction was wow, we have a short memory if anyone thought a law degree was a golden ticket anymore.

I took the LSAT in June 1989 in anticipation of starting law school in the Fall of 1990.  When I was in college, it was fairly well-known that students at my preferred school, the University of Texas, wrapped up their entire careers by the end of their first year.  (In fact, this assumption was not limited to UT, but extended to other Texas law schools.)  Big law firms had first-year summer programs in which summer associates who didn't you-know-what on anyone's pantleg were given offers to return the next summer, and then after another summer of restaurants, opera and major-league baseball games, second-year summer associates were given permanent offers.  These offer letters would get you letters of credit, mortgages, anything you wanted.  By the time I showed up to law school in 1990, most law firms had scrapped their first-year programs in what was proving to be an economic downturn in Texas.  These programs never returned to their earlier strength.  Firms realized they were expensive and didn't have great yields.  In the summer of 1992, law firms that usually gave offers to 90% of their class gave offers to 50%, or even less. 

But, we all figured that once you were in the door as a permanent associate, you were there for a good long time.  You might not make partner, but you had job security for the foreseeable future, and what 24 year-old can fathom seven years down the road anyway?  My fellow associates and I often would joke about how long a person could stay employed, taking home great money, and not do a darned thing.  We all agreed it was at least three or four years.  A story of mythological proportions was told to us about a senior partner in our section of an associate who was down right horrible.  At a partners' meeting, it was all agreed that he should be fired, but a year later, every partner was waiting for someone else to do it.  In my partner's words, "No one likes to tell someone they should be in a different line of work."  Even if associates were fired, they were usually given 6-12 months to vacate, which often became extended.  But then came the next downturn, beginning in 2000.  All of a sudden, associates got one year at the same law firm.  If your billables were low after one year, you were out and no 6-12 month hanging around, either.  Suddenly, billable benchmarks became billable minimums.  Law firms that had increased salaries twice or three times in the late 1990s were suddenly saying that the pay required performance, and there is nothing more stressful than trying to spin billable hours when there isn't any work.  (I was pretty good at going up and down the halls in 1994 like a beggar, asking partners and senior associates if they needed help.)

So in 2007, did no one remember 2001, much less 1993?  Yes, this is a brave new world now, and associates won't get a golden ticket, but I think some great marketing must have been going on if anyone believed they were still printing those.  However, this downturn does seem worse than earlier times, and so the expectations that are being lowered so dramatically may not bounce back so quickly.

One final note, the article seemed to emphasize as a horrible product of the downturn how stressful it is to be a junior associate these days, with a lot of pressure to bill, less perks and both too much/not enough hours to go around.  However, surely the worst consequence of the downturn is that fewer and fewer graduates are getting the opportunity to be so stressed out and oppressed.  (If readers didn't hate attorneys already, reading about these young people griping because they have to work so much and they aren't even getting the $160k they thought they would will probably recruit some new members of the lawyer-hating crowd.)  I suppose it was easier for a reporter to find junior associates listed in the Martindale-Hubbell (or whatever it's called these days) than to find the phone numbers of those still pounding the pavement.

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While most professors were busy giving and listening to talks at AALS, our deans were having apparently unpleasant conversations with the ABA on proposed changes to the accreditation process. The Chronicle of Higher Education report is here. The 20 second summary: the ABA wants to change accreditation standards to measure outputs (how well students are learning) instead of in-puts (for example, how many books are in the library).

Sounds sensible, right? The deans, however, are reportedly balking because of the potential costs of switching standards in a tough economy and doubt as to whether the ABA’s metrics for “output” will be sensible.  This led to a politically devastating headline for the Chronicle story: "Law Schools Resist Proposal to Assess Them Based on What Students Learn."

The decanal concerns might be valid, but in the medium run, law schools ought to join this effort to judge schools based on how well we are performing in our most basic mission. One potential unstated concern: the current accreditation process has subtle benefits for law schools. Law schools can use accreditation reports to bargain with university central administration. “We need more of X, otherwise our accreditation is in doubt. See -- here is the ABA letter.”

There is a larger question of what the ABA’s role ought to be. It might be time to change that role from a gatekeeper model of accreditation towards improving and auditing disclosure to prospective students and the bar. In other words, other than flunking schools with serious deficiencies, the ABA should focus on making sure that law school disclosure to the outside world is accurate and free of gimmicks. To analogize to securities regulation, let’s move from merit regulation to a more purely disclosure regime. Instead of decrying U.S. News rankings, deans and law faculties should take a page from the Brian Leiter book, and develop more useful metrics of law school quality.

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I've been wondering what to say about the Times story on transforming the business curriculum to a liberal arts curriculum.  Eric blogged about it here. The story certainly suggests that Toronto and Stanford are zigging while other places are zagging, but the odd thing about business schools is that they are increasingly mini-universities, with the resulting disaggregation (Stanford has some excellent political scientists, there's plenty of psychologists around, and so on), and so curricular innovations in one part of the school may not carry over to another.  I viewed the Times story as a management department phenomenon, though the ethicists and lawyers in my department would of course find the liberal arts ideal intriguing. 

But there are other curricular b school innovations happening at the same time - social responsibility is increasingly heard in the corridors, as is social impact - that might make it look like the business curriculum is getting revolutionized.  And it may be, but from a research perspective, business schools have earned their place by excelling in quantitative finance and accounting that do not require a revolution in the curriculum.  I'm not sure I think that b schools are turning into liberal arts programs yet, but it will be interesting to see how Wharton's Shakespeare and debate clubs end up faring.

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A story in yesterday's NY Times reports that some business schools are moving more towards a liberal arts education (just as many legal educators are talking about moving in the opposite direction).  The theory is that business school students need to develop critical thinking skills and get more creative.  Some of the curricular innovations sound odd ("Fundamentals of Integrative Thinking").  Others sound downright fun - like Stanford students working at a design institute.

Are there any implications for law school?  I'd be reluctant to graft these courses into a law school curriculum.  But there are some lessons for law school nonetheless.  Truly excellent lawyers thrive because of creativity -- albeit a cabined kind of creativity.  And some scholars - like Ribstein and Triantis - are arguing that law firms need to invest in r&d.

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We love our student/consumers at Wharton - indeed, we are in the midst of a curriculum review that we hope will make our affection for them even more clear.  Just so those of you who aren't business school people know, there's a debate in our corner of academia over whether the ideal MBA curriculum ought to be mostly mandatory - that's the Harvard model - or elective - that's the new Chicago model.  The Times has put up an interesting debate on whether business school enrolees ought to be treated as students or customers, and the Chicago dean gets to make his pitch for electivity over there.  Adam Benforado has some useful thoughts on the law school implications here.

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Tomorrow I will begin teaching a new seminar on shareholder activism.  Of course, I thought that by debuting the seminar in the spring, I would be starting the seminar after the SEC had made a more definitive decision on proxy access.  Instead, it looks like I will be teaching in the face of uncertainty on this issue, which, among other things, can be a challenge for creating a concrete syllabus.  To be sure, such uncertainty seems to be par for the course with many corporate governance issues. 

The good news, at least for purposes of my seminar, is that shareholder activism has not waned.  Instead, despite--or perhaps because of--the recession and financial turmoil, shareholders' activismhas persisted and even increased in some areas.  RiskMetrics' proxy season data reveals that as of December 15, 2009, not only have shareholders increased the number of proposals submitted on a range of issues including say on pay, majority voting, separating the office of board chair from CEO, and calling special shareholder meetings, but shareholders also have increased their levels of support for such issues. 

Then too, we have seen some critical changes at the federal level that will have an impact on shareholder activism, and thus my seminar.  For example, as we know, TARP companies must now allow their shareholders to have a say on pay--and Schumer's Shareholder Bill of Rights Act, as well as the Wall Street Reform and Consumer Protection Act which recently passed the House, would require such a vote for all public companies.  Hence, the seminar will be able to examine how shareholders respond to the ability to cast such votes.  (To be sure, one Wall Street Journal article indicated that initial tallies at several companies reveal favorable outcomes for directors, ranging from 63% shareholder support to close to 100% support for compensation packages at Goldman Sachs).   So perhaps such votes have no impact?  Another significant change that will be interesting to explore will be the impact of changed NYSE Rule 452.  Indeed, shareholder meetings held on or after January 1, 2010 will feel the impact of the new Rule which eliminates a broker's ability to vote uninstructed shares in uncontested director elections.  Some have predicted that the changed Rule not only will make it more difficult to achieve a majority vote for certain directors, but also to achieve a necessary quorum.   Perhaps companies will need to enhance their solicitation efforts or otherwise engage in greater outreach to their shareholders?  Added to these changes, Delaware made critical amendments to its laws that should impact shareholders, including clarifying the validity of expense reimbursement bylaws.  Hence, we will be able to talk about the potential impact of this change--including HealthSouth's recent adoption of such a bylaw.  It certainly will be interesting to see if such reimbursement provisions have an impact on the frequency of, or the manner in which shareholders engage in, proxy contests.

So it is safe to say that my syllabus will be in flux, and hence we will be discussing new initiatives and their impact as they are happening.  I am hoping that will make for a stimulating seminar.  We certainly will not lack for new things to discuss.

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As my colleague Larry Cunningham over at concurring opinions has noted, the business law faculty at GW have been pretty busy lately working to launch a comprehensive business law program, the Center for Law, Economics and Finance (C-LEAF).  In addition to other endeavors, C-LEAF will feature a junior faculty workshop and junior faculty prize focused on scholarship related to business, economic and finance issues, and we will be seeking submissions for the papers in the Fall of 2010 for an event to be held in the Spring of 2011. 

Of course, law schools and law organizations often host junior faculty workshops.  Moreover, some recent junior workshops have added a substantive focus, such as those in environmental law organized jointly by Harvard, Berkeley and UCLA or the one in family law at Washington & Lee.  GW's junior workshop will focus on business and financial law.  Of course, we at the Glom are intimately familiar with junior faculty workshops tied to these issues since Christine, the rest of the Glommers and friends of the Glom pull together an impressive online version of these junior faculty workshops.  The Glom and other academic institutions promote junior faculty workshops because they help enrich the scholarship of young faculty while giving such faculty the opportunity to interact with others in the field.  So GW is excited to be building on that kind of work in this area.  Indeed, we have a strong interest in promoting scholarship in this field, and the faculty at GW wants to be a part of providing forums to exchange ideas and showcase new scholarship in this area.

As Larry noted in his post, details about the rest of the C-LEAF programs will come via a more "formal grand announcement," but these junior faculty workshops are time-sensitive enough that we wanted to provide some advance notice.  C-LEAF will host an annual or biennieal Junior Faculty Workshop starting next year.  As many as seven to ten papers may be selected for presentation at an academic workshop where senior faculty will provide feedback on the papers.  Selected authors will receive a Junior Faculty Prize--a combination of cash, symbolic recognition, and an invitation to become affiliated members of C-LEAF.  In addition to the participants and senior faculty commentators, the workshop audience will include GW Law School Faculty, and other invited guests, likely to include colleagues from the winning junior scholars' home schools, nominated by them.

Both Larry and I will provide further details about the junior faculty workshop and C-LEAF.  In addition, details will be available on the GW web site.  But interested scholars may contact any one of the business faculty at GW to get on our mailing list and receive details directly.  We are: Michael Abramowicz, Don Clarke, Larry Cunningham, Lisa Fairfax, Theresa Gabaldon, Scott Kieff, Jeff Manns, Dalia Mitchell, Larry Mitchell, and Art Wilmarth.

In the meantime, stay tuned. . .

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Joseph Blocher asks an intriguing question. (And answers "blogging.") Brian Leiter surveys.

My answer: the U.S. News, even though it did not seem like a development of the 2000s to me. It's effect on legal education certainly was very important in the 1990s.

Blogging? With SSRN, it's in my Top 3.

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Next summer I will be teaching a course called "Corporations: U.S. and Transnational Perspectives" in Georgetown Law School's London Summer Program. Since 2001 I have been teaching fairly regularly in summer abroad programs, and I am excited for the opportunity to spend four weeks in London. If you are a student checking out summer programs, here is the flyer for this one.

If you are a young professor thinking about spending a summer abroad, the main reason to refrain is that these programs tend not to leave a lot of time for research. You will teach two hours a day, five days a week. When you aren't teaching, you need to spend time preparing for the next day's class, and that also means that this is not equivalent to a European vacation. 

So why do I do it? The initial incentive was my interest in comparative corporate law and EU studies. Although most of my scholarship and teaching focus on U.S. law, I have done some comparative writing and teaching, and I am interested in doing more. Summer programs usually provide a nice opportunity to study law in a comparative dimension, and they often involve networking opportunities with non-U.S. professors.

A secondary benefit is that family members always accompany me on these trips. Sometimes the whole family goes, sometimes just one or two children. Although the modest stipend that accompanies these gigs is never enough to cover all of our expenses, I am grateful that my children have been able to experience many countries in Europe, as well as Australia and China. (By the way, I have a son who is keen to visit Greece, so if you know of any opportunities there ...) 

Third, even though my days will not be free of labor, many afternoons and evenings, as well as most weekends, are filled with tours, shows, restaurants, etc. We tend to stay close to home base on these adventures, so rather than trying to see all of England, we will spend most of our time right in London. Frankly, I find that experiencing a city in short intervals like this is much more enjoyable than trying to cram in all of the top sights in a few days.

Finally, if I did not love living in the U.S. so much, I would gladly live in Europe, and these summer excursions provide a taste of that life most summers. We always rent a private apartment, condo, or home, and we enjoy shopping at the local markets, riding the public transportation, or relaxing in parks or cafes.

 Just writing all of that makes me anxious for London!

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Last weekend, The New York Times reported that internships are again en vogue and offer a welcomed path out of the recession for many seeking to transition between careers or aiming to take advantage of employment opportunities complementary to their areas of expertise. The premise of the article seems reminiscent of an article that you may have read last summer in the National Law Journal regarding Howrey Simon’s law apprenticeship program. For better or worse, Big Law seems to be setting the business trends this time around.

The article from last summer describes Howrey Simon’s intentions to create an apprentice program for their incoming associate classes. Compared to medical residency or secondment of a young accountant at a client’s offices, the apprenticeship program intends to focus on skills developing opportunities such as legal writing and research through pro bono and similar opportunities. While seen as a maverick by some, Howrey is only breaking ground locally. Internationally, other jurisdictions already require a kind of apprenticeship. England and Wales have an article requirement and Scotland has a traineeship requirement. The idea already has a well-established track record in the Americas. In Canada, “articling” is a prerequisite to being called to the bar; bar candidates take bar exams after they  article for one year. A “principal” or admitted lawyer must agree to be responsible for an articling bar candidate’s training during the articling year. How’s that for forced bonding and mentorship! Though, in practice, bar candidates’ experiences are likely quite varied based upon the principal with whom they spend the year working.

Interestingly, articling, is a requirement of the provincial bars and offers firms an opportunity to expand the “trial period” of their courtship with bar candidates for a longer and more substantive period than the three month summer associate program common in the U.S. A bit of regulatory capture there by the bars(?)–reinforcing the notion that young lawyers are still in training and are economically less productive (and therefore, justifiably paid less, a Howrey program proponent might add).  

Three observations about the introduction of the apprenticeship model. First, the introduction of the Howrey model facilitates a broader market reversal in associate compensation and reduces the reputational threat for firms who dare allege that students who completed three years at Big Law Schools still lack lawyering skills. Cravathand others’ bonus announcements this winter parallel the $25,000 discretionary bonus described in Howrey’s apprentice program. Second, while the Howrey apprenticeship announcement every-so-carefully declared no further reductions in pay levels, I expect that we will see creative explanations regarding decisions to reduce Big Law first year salaries from their current historic high of $160,000. Third, while Gordon rightly notes the record numbers of LSAT takers in the current period, perhaps the shift in the structure of compensation and the lengthening of the timeline for eligibility for Big Law associateship (5 years if including 3 years of law school and a clerkship or two year apprenticeship at the firm) may influence, if not dissuade, future LSAT takers.

Whether or not the Howrey program represents a good business model, it's a great idea for a pilot: The Apprentice: Big Law, a reality show that depicts junior lawyers competing for a place as an associate at a large New York/Chicago/San Fran law firm. We have seen many lawyers on television and lawerly television shows, but never a survivor-for-junior-lawyers. Should I start working on the script?

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I've spend a good chunk of my guest-blogging stint making dismal predictions about the future of law schools. In reply to Usha's post, the first thing I thought about is how these predictions will affect me. I waited a long time to become a law professor, and I'm having a ball. So clouds darkening the horizon are unnerving for many personal reasons too.

I'm also not so sure blogging about the problems in legal education is a great career move for the untenured. To wit, late last Friday afternoon my dean knocks on my door and says "I've just read your blog . . ."

Actually, it was a pleasant conversation and he thinks New Mexico is in relatively the same position that Georgia is. As long as tuition stays in line with students' job prospects, law schools will weather the storm. That's not to say there will be smooth sailing. New Mexico still depends heavily on subsidies from the state legislature. And I am seeing my students face greater competition for New Mexico jobs from out-of-state students.

So, to continue the drinking and nautical metaphors, when the weather turns, it's okay to have a drink, but then we should start planning for the icefield. I'd rather not ride out the storm in the same boat with the prime minister in the old Canadian joke: "he was called to the bar and never came back."

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Following my post on revisiting the "Contracts Crisis", I am wondering how those of you teaching Business Associations and Corporations have integrated the financial crisis into your classes.

I'm sure that the crisis will make my end-of-the semester class on Corporate Social Responsibility even more lively. I wish I had remembered, but I meant to talk about why Bear Stearns didn't just abandon their two hedge funds in the context of my veil piercing classes. Moral or implicit recourse seems an important lesson; just because shareholders have protection of the corporate veil, doesn't mean they will use it. The crisis also came up in the context of executive compensation and the Disney and Jones v. Harris cases.

The progression in the Klein Ramseyer book from Disney to Jones v. Harris also allowed a brief discussion on unintended consequences of corporate law reform. We talked a little bit about how option based compensation resulted from a desire to cure management entrenchment and better align management incentives with those of shareholders. We then talked a bit about the lesson of being careful in designing options or other compensation or you might stimulate short-term decision-making and accounting gamesmanship.

Jones v. Harris (subject of the Glom's forum two weeks ago) provided an opportunity to talk about how the rise of institutional shareholders was supposed to play a key role in corporate governance. We also discussed how institutional investing just pushes the agency costs to another level.

The law of unintended consequences should be sobering as we discuss reforms to this crisis too.

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