August 27, 2013
Should we disclose bar exam scores?
Posted by Usha Rodrigues

Education, was in the news yesterday. The Wall Street Journal's Marketplace section covered on President Obama's call for eliminating the third year of law school.  Old ground, that.  But front page news was a new post-college graduation assessment test, the CLA+ which, "instead of measuring subject-area knowledge, it assesses things like critical thinking, analytical reasoning, document literacy, writing and communication."  The article blames GPA inflation for why employers can't trust good grades anymore.

Which got me thinking: if only there was a test administered to all graduating law students to assess their learning that could signal their relative worth to employers. 

Wait a minute...

I know very little about the disclosure of bar results, but my impression is that scores are not generally disclosed, unless you fail. Right now, law schools disclose bar passage rate by school, but nothing more granular.

Why not?  If the holy grail of law school rankings is measuring outcomes, aren't those scores meaningful data?  Prospective students might well care that graduates of Law School A score higher than graduates of School B. Employers would presumably like it even more.  Particularly if broken up by subject matter, employers would able to compare their prospective employees on the basis of their performance in business organizations, or trusts and estates, rather than whether they scored an A or A- in subjects taught by different professors at different schools with different schools.

I know the bar is an imperfect assessment mechanism, and that currently students are advised (as I was) to aim to pass and no more. And that, unless the bar exam changes, we'll have a lot more teaching to the test, with all the negatives that implies for critical thinking, for clinical training, and for a host of other valuable law school experiences.  So I'm not advocating this approach, exactly.  It just struck me, as I read yesterday's paper, that if outcome assessments become the new normal, the minimum-competency model of the bar exam may change.



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July 24, 2013
Mamas, Don't Let Your Babies Grow Up to Be English Majors. Or Lawyers.
Posted by Usha Rodrigues

Lee Siegel in the WSJ last week asked "Who Ruined the Humanities?" and I've been musing about a story ever since.  His launching point is the statistic that humanities majors comprised 14% of undergraduate majors 50 years ago, but only 7% today.  His real beef, though, is with the college English lit class:

Homer, Chekhov and Yeats were reduced to right and wrong answers, clear-cut themes, a welter of clever and more clever interpretations. Books that transformed the facts were taught like science and social science and themselves reduced to mere facts. Novels, poems and plays that had been fonts of empathy, and incitements to curiosity, were now occasions of drudgery and toil.

As the daughter of an English professor, with a B.A. in English and an M.A. in comparative literature, of course that got my attention.

What you're probably expecting next is a full-throated defense of the English major.  Somewhat to my befuddlement, I'm not sure I can give it.  Sure, Siegel's description is largely caricature, at least as compared to my experience at Georgetown in the early 90s.  Sure, the study of literature, like the rest of the humanities, can teach students how to read and write critically, to think analytically, to engage with and appreciate the world.  

But I'm not sure it does that.  I was a dedicated reader by the time I hit middle school.  My father taught me how to write before I got to college, bloodying my high school first drafts with so much red ink it was hard to see anything else.  Of course Georgetown made me a better writer and thinker.  But, as one of my professors observed, college isn't equipped to teach the uninitiated how to write (forget trying to do that in law school).

 I have 3 children now--would I advise them to be English majors?  I feel like a heretic typing these words, but I'm not sure I would. As a parent, I know I should talk to my kids more about net present values of degrees, both undergrad and graduate.  Debate has lately been swirling about whether a law degree is worth a million dollars, $330,000, or a hill of beans (Campos, Tamanaha).  These are vital conversations for us as legal educators to have.  And as a parent I'll no doubt have them, too, in 20 years or so.

But what about that whole, "follow your passion and everything will work out" advice that you hear from every successful entrepreneur/politician/scientist?  What about doing what you love?  I majored in English because I liked it and I was good at it.  I went to grad school for the same reason, but along the way I found Siegel's "drudgery and toil".  I knew it was time to leave when I had stopped reading for pleasure.  Indeed, one of my Georgetown professors told another classmate she was unsurprised to hear I was leaving graduate school--I loved reading too much to study literature.  Plus it became starkly clear that the best I could do would be a tenure track job in the middle of nowhere, and I'd be lucky to get it.  

I went to law school because I thought it would be interesting.  I surprised everyone who knew me for choosing corporate work for the same reason.  It worked out well for me.  And the odds of getting a job were, then as now, a heckuva lot better than for literature Ph.Ds.

I'm emphatically not Pollyannically chirping, "Just follow your passion, and the rest will take care of itself!"  The best lessons of the law school scam movement seem to me to be  to take a hard look at why you're going to law school, how much it will cost, and how well you think you'll do.  Reevaluate after the first year.  For us legal educators, think hard about how to fix law school.  But for some people it's absolutely the right decision.  The question is how best to sort, right?  Education, like any investment, is in some sense a gamble.  Past performance is no guarantee of future results.  

I know I struck the right passion/payoff balance, but will my kids be able to do the same? I'm still not sure what to tell them in 20 years.  Luckily for me, they probably won't even ask my opinion...


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July 09, 2013
Vic Fleischer on Seton Hall and Academic Freedom
Posted by Erik Gerding

Here is Vic Fleischer's DealBook column on what the Seton Hall layoffs of untenured faculty means for academic freedom: Link

The budget situation of law schools is likely going to lead to other pressure on academic freedom.  Don't be surprised if the search for new revenue pushes many schools into an eat-what-you-kill focus on faculty funding much of their salaries through grants.  That might work well in the natural sciences (assuming that you have a funder like the NIH or NSF that has plenty of resources and solid academic peer review).    But much of law school research is normative.  Just try to present a purely descriptive paper at a workshop.   Who would fund research into financial regulation without placing strings attached?  The government of Iceland, NASDAQ, some industry trade group, an investment bank?

Moreover, many important fields in the legal academy might not receive any grants at all.  The marketplace for ideas is not the same thing as the marketplace for grants.


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June 05, 2013
"Vision without Execution is Hallucination"
Posted by Erik Gerding

This Thomas Edison quote comes from Paul Volcker in a short interview in the Washington Post Wonkblog.  The source of Tall Paul's consternation: the decline of schools of public administration in universities and the shift in many of these schools from "public administration" to "public policy."  (Here is one example of what Volcker describes: the lawsuit (over 5 years ago) brought against Princeton by the heirs to the A&P fortune that alleged that the Woodrow Wilson School was not using an endowment to educate students for careers in government).

This decline in public administration results in a deficiency of expertise in how to run governments well.  A particularly choice quote from the former Fed Chairman:

Everybody likes to talk about big issues of war and peace and how we take care of poor people and what we do about other social problems in the United States or elsewhere.  They do all this talking but they too seldom know how to implement what they’re talking about.

The legal academy ought to take heed.  Much of the interesting spadework in financial regulation scholarship involves questions of institutional design rather than substance.  That is, not what is the right legal rule, but how do make sure agencies have the capacities and incentives to write, interpret and enforce rules in the right way and over the long haul.

In terms of education, should law schools look to fill part of the gap in teaching public administration that Volcker identifies?  

Increasing the space for public administration or public policy in the law school curriculum faces some challenges.  One challenge is economic: how much gold is in them hills?  Will this help students find jobs and build careers?  A more daunting challenge is philosophical.  Law schools largely teach rhetoric.  Public administration/policy programs are about making decisions.  Just because the first word is the same doesn't mean that policy arguments and policy analysis belong to the same genus.

Still, there are some pearls for law schools even in Volcker's short interview, for example, teaching statistics and how statistics should and should not be used.





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May 28, 2013
How Many Business Law Professors Were Hired On Last Year's Entry Level Market?
Posted by David Zaring

Sarah Lawsky is very good to be willing to do the work to put together a possibly-incomplete-but-it's-the-best-we-have report on entry level hires; you should give it a look.  The business law market was pretty sliced and diced by the subject categories of the report; by my count [UPDATE: which is quite incorrect, but there is a better cut made in the comments, so do give them a look, and treat the below as very, very salty]:

1    Accounting

1    Agency and Partnership

2     Bankruptcy

1    Bus Org

2    Business Associations

1    Business Ethics

1    Business Law

5    Corporate

1    Corporate Finance

1    Corporations

1    Finance

1    Financial Institutions

1    Financial Transactions

4    Securities 

That's a total of 23, and I'm leaving out IBT (5), White Collar Crime (1), and Law & Econ (6), which seems reasonable; I think each candidate only got to pick one category.

How does this compare?  Health care seems like the niche where candidates are most likely to succeed; it had 9 hires, and it isn't easy to find nine bona fide health care candidates in the FAR. So that is quite mind-boggling, and may be a case of chasing the news.  As is typical, there were 15 international hires (and 7 immigration), but international is a field that provides a lot of candidates, as well as, for good or ill, a lot of demand.  Out of 106 total hires, the business law subjects accounted for 22% of the market, probably the largest category, but I'm sure business law professors would tell you that it isn't nearly enough.  If you ask me, it remains a category in which market candidates can find joy, and hiring schools can find the competition for slots strong.

But I'd be interested to hear your thoughts about the business law share too.

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May 08, 2013
Mentoring Fertility
Posted by Christine Hurt

OK, that's a weird title.  Once a year, I post something that I suspect makes Gordon cringe.  This will do for the year.

Around 2006, I was on a treadmill ( a literal one, not a figurative one) in Wisconsin watching some morning news program.  One of the bits was about a woman in her 50s who had successfully borne a child using eggs she had frozen back in her more fertile days.  I looked at my friend, a pediatric physician and researcher, and said, "Weird."  My friend didn't bat an eyelash, said, "That is awesome.  I totally would have done that."

In the WSJ this weekend, there was an article that suggests those of us who mentor young professional women should include a freeze-your-fertility discussion in addition to any lessons gleaned from Sheryl Sandberg's Lean In craze.  My first thought again was, "weird," but now I'm rethinking this.  But, more broadly, I think my reaction to the article and its suggestions raise broader questions.

1.  No one ever talks with male law students or associates about when children, so why talk to women about it?  I think this is what bothers me most.  In a perfect world, the questions that male law students ask me would be the same as the ones that female law students ask, but they aren't.  Female law students ask me all the time about having kids and making partner and whether those two things are mutually exclusive.  That's reality.  So, mostly I stick to answering the "making partner" part because I don't feel all that comfortable talking to people who aren't my close friends about making babies.  But I guess I'm not really answering the question then.  When I was an associate, a female partner came to my office and asked how old I would be when (if) I made partner (this was at Baker Botts, and the math turned up the magic age of 31).  She said, "There's the answer.  Don't have kids until then."  I was fairly appalled at this conversation.  Maybe because she was the last person I wanted to talk to about making babies, but also because of point #2.

2.  Having babies is a romantic notion, not a pragmatic one.  Bringing harsh realism into future thoughts of motherhood is icky.  I was appalled at the partner's advice partly because (as I repeated to my friends over lunch) "the moment I start timing my babies because of my career is the moment that I have lost it."  That makes for a great lunch soundbite, but it may not be all that realistic.  One reason for my declaration was that I thought I was the invincible rockstar associate.  I could do anything, including have a lot of babies and make partner, even though other, weaker women, had tried and failed.  But, not only was my impression of my own career trajectory romantic, but so also my visions of motherhood.  I was enough of a feminist to appreciate the ability of modern technology (birth control) to allow women to postpone motherhood until the right point in their adult lives (finishing education, marriage stability, financial stability), but not enough to embrace postponing motherhood for climbing the career ladder.  Because that would mean I was a bad person whose priorities were messed up.

So, my first thoughts when the author (Sarah Elizabeth Richards) suggests that young women freeze their eggs is "ick -- your priorities are messed up."  But I think I'm wrong.  The reality is that to "have it all" or to "have something approaching all" is that a little timing is necessary.  I'm not a doctor, but my guess is that young eggs are healthier eggs, and I've known so many women who struggled with trying to make older eggs do the work of younger eggs.  Would it alleviate that heartbreak?  Some have argued that Sandberg finds it easy to talk about kids and work because she was already very successful when she had her children in 2005 and 2007, both post-age 35.  It is a tricky business to postpone kids.  Technology seems to have made it less tricky.  The 1970s may have given women the technology to postpone pregnancy at their own peril; today's technology may reduce that peril.

Will I ever incorporate this discussion into the many office conversations I have with female law students?  I don't know; that still feels a little too ick.  Maybe they can just read this blog post!

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May 01, 2013
ATL's Law School Ranking
Posted by Usha Rodrigues

A perspicacious reader tipped me off that Above the Law has a new top law school list out.  A few miscellaneous thoughts.

1. Does the world really need another law school ranking system?  ATL says what differentiates its methodology is an emphasis on outputs, not inputs. It has a nifty graphic rejecting traditional inputs like entering students' LSAT scores and GPAs in favor of "real law jobs, quality full time positions, school costs, and alumni satisfaction."  OK, I kind of get that.  Measuring outputs in general is the holy grail for law schools, something everyone wants to do but no one quite knows how to do.  

 2. How exactly do those outputs get measured and weighted? Here's the breakdown (again, go to ATL for the graphic)

  • 7.5% SCOTUS Clerks (adjusted for the size of the school)
  • 7.5% Active Federal Judges (currently sitting article III, adjusted for the size of the school)
  • 10% ATL Alumni Rating (nonpublic, a product of the ATL insider survey)
  • 15% Education Cost (total cost, adjusting the score in some cases for cost of living)
  • 30% Employment Score (counting full-time, long-term jobs requiring bar passage, excluding solo practitioners and school-funded positions)
  • 30% Quality Jobs score (placement with NLJ 250 firm plus federal clerkships) 

3. How did my school do?  Well, Georgia Law does well--many of you might think remarkably well.  I'm less surprised for two reasons.  First, Georgia looks pretty good according to these output measures:

  • We are cheap.  Georgia residents pay $16,506.  (Non-residents pay more than twice that, but qualify for resident status after a year.)
  • We have sent 6 graduates to the Supreme Court in the past 9 years.
  • Although this market has been brutal, I think our students have fared relatively well, especially because their relatively low debt burden gives them more flexibility in choice of job.
  • Our alumni have an almost cult-like love of the school.  

And second, just as most CEOs will tell you their stock is undervalued, probably most professors probably think their schools are undervalued.  Admittedly I bring some bias to the table!

Here are the top 20 (see here for the full 50):

1 Yale Law
2 Stanford Law
3 Harvard Law School
4 University of Chicago Law
5 University of Pennsylvania Law
6 Duke Law
7 University of Virginia Law
8 Columbia Law
9 University of California, Berkeley
10 New York University
11 Cornell Law School
12 University of Michigan
13 Northwestern Law
14 University of Texas at Austin
15 Vanderbilt Law
16 Georgetown Law
17 University of California, Los Angeles
18 University of Notre Dame Law
19 University of Georgia Law
20 University of Southern California, Gould

 h/t Haskell Murray

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February 26, 2013
The VAP Debate
Posted by Christine Hurt

I was catching up on blog reading yesterday and noticed a post by Eric Muller at The Faculty Lounge entitled " Are We Sustaining a VAP Trap?."  Catchy, I thought, but the thought of VAPs as traps didn't quite resonate with me.  Then I looked at the comments.  As of today, there were 141 comments.  Wow!  I had flashbacks to 2005 when we used to blog about anonymous grading and other "hot topix."

The comment thread is full of criticisms of VAP programs from posters who refer to themselves as "sad VAP' and "another VAP out in the cold" and other handles reflecting a disappointing hiring season.  Some analogize to the "law school scam" narrative of law school applicants being duped somehow into borrowing money to finance what is a much riskier venture into the shrinking law job market.  Hmm.  I am always sympathetic to folks on the job market, but here are some points to ponder before we label programs "traps" or "scams."

The hiring market is tough.  Definitely the market for law faculty is shrinking and is probably only in the beginnings of that contraction.  The last few hiring seasons have definitely seemed tougher for candidates from my obviously limited point of view.  I've seen a lot of candidates end up a little lower in the law school chain of being than I would have suspected or even go through the process twice, but the hiring market has never been perfectly efficient.  But, we can determine if schools are hiring fewer candidates.  The AALS keeps statistics on how many candidates are in the FAR register.  (Unfortunately, the last year that is posted on the website is for 2008-09, but any enterprising person could get the number from a colleague on the appointments committee with access to the register.)  Then, one could cross-reference that against the various blog postings with (admittedly incomplete) lists of the lucky hires (earlier ones from Larry Solum and recent ones from Sarah Lawsky).  When I went on the market over a decade ago, the general rule of thumb was that 10% of the FAR candidates landed in a t-track job (a little less than 1000 registrants; a little more than 100 hires).  This may be less now, but we would need to look at the numbers.

Evaluating a VAP program is not tough.  Back in the stone age, there were a handful of formal, yearly "fellowship" programs, mainly at very prestigious law schools, and in many of those, fellows taught legal writing.  Other schools had informal, occasional programs, mostly for their own alumni.  (I am, of course, thinking of the nicknamed "Lawless VAP'" at Illinois, whose nickname referred to my colleague, friend and neighbor, Bob.)  Then, in the past decade, a thousand flowers have bloomed.  Many law schools have VAPs or fellowship programs, and some have multiple ones.  The route to t-track law teaching seemed to not be the "clerkship, fancy law firm, article" track of yore but either the Ph.D. track or the "clerkship, fancy law firm [optional], VAP, multiple articles" track of the future.  So, how is one to choose between so many?  Lots of good tools here.  First, one can look at those Entry Hiring Reports referenced above, which list all the self-reporting new hires and their various VAP/fellowship programs.  And, many VAP programs list their placement records on their websites (e.g., here and here).  If that data is not listed, ask.  These are not hard statistics to find or recount in a telephone conversation.  Placement statistics for a law school's graduating class are fuzzy, hard to find, hard to analyze and easy to fudge.  But, ask me where my law school's VAPs have placed in the past few years, and I will be able to tell you off the top of my head, as would any member of the faculty.  Alos, ask the school you are considering what they would do if a VAP didn't place during his/her second year.  And, ask the school what sorts of efforts they make to mentor and place their VAPs.  Any faculty member who has been associated with appointments knows which VAP programs help their candidates and which basically give VAPs an office.

Lastly to this topic, candidates should choose a VAP program as carefully as they would a graduating institution.  Don't pick one merely because it's where you live, so it doesn't require you to move.  And, don't pick one merely because you think that's where you want to end up teaching.  Sometimes this works for people; sometimes it doesn't.  Some schools have rules or norms against it; some schools may give you misguided optimism.  As Orin Kerr put it in the comments to Eric's post, VAP candidates should be sophisticated consumers, and the information they need is cheap to acquire.

Law schools generally benefit from placing VAPs, not from the VAP labor.  The trap/scam analogy seems to break down over the element of intent.  Yes, law schools generate income by admitting law students.  But, the law schools I'm familiar with get VAPs who teach 2/3 load and no service for about 1/2 pay.  (Get it, VAPs don't pay tuition; they get paid.  And, yes, I do know there are opportunity costs.)  That's not a huge bargain for schools.  Adjuncts are much cheaper if schools just want a cheap labor source, and experienced, practicing adjuncts have other benefits.  But, if a school has a successful program, it will attract bright, energetic faculty who will go on to wave the school's flag for years.

VAPs should keep their options open.  One of the first comments to Eric's post was from Michael Risch, who posited that most VAPs could go back to practice if they did not land a t-track post.  Many commenters cried foul and argued that "failed VAPs" were stigmatized and shut out from future legal employment.  Unfortunately, VAPs who are finishing this year left practice at a bad time and are re-entering at an only slightly-better bad time.  I am aware of three past VAPs at Illinois (two from our informal program and one from our formal program started a few years ago) who returned to their successful practices.  Each case was different, but each one decided that practice was more appealing than teaching.  None went on the market, but I don't think that would have mattered.  I think each of these individuals kept doors open when they entered the VAP program, rather than leaving with the air of an escapee, and kept close contact during their time here.  So, if someone is considering leaving a successful associate position for a VAP, he/she should be nice and even talk to someone about whether returning to that position would be an option.  If someone entered a VAP because their firm was laying off or otherwise failing, then yes, re-entering at a new firm will be a challenge, just as finding new employment from your firm two years ago would have been a challenge.  Finally, some VAPs are coming from clerkships or Ph.D programs and don't have a practice to go back to but merely good relations with summer employers, perhaps.  Then yes, entering the market for the first time will be challenging.  I don't think post-VAP practice opportunities hinge on whether you are a "failed" VAP or not, but what your law firm connections were when you entered the VAP (and whether you kept them).

Eric wonders whether it's ethical to maintain VAP programs.  Orin says yes, as long as schools are honest about the prospects.  I agree.  I don't think programs have to have a 100% success rate in order to be ethically continued.  However, schools don't seem to have an incentive (to me) to continue programs that continue to fail for a number of years.

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February 25, 2013
The Problem with Law Schools (and a Proposed Solution)
Posted by Gordon Smith

According to my friend and former dean, Jim Huffman, the problem with law schools is excessive regulation by the ABA. The solution:

The ABA should free law schools from most of the existing standards and encourage them to draw on the enormous intellectual power of their faculties to design and test innovative approaches—and let a thousand flowers bloom. The ABA's role should be limited to assuring that prospective students and legal employers get full and honest information about what could become a bonanza of legal education alternatives.


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February 07, 2013
Pildes on the Legal Academy and the Temptations of Power
Posted by Erik Gerding

Richard Pildes (NYU) recently posted on ssrn a thoughtful book chapter that confronts law professors with a series of tough questions about the trade-offs of becoming engaged in the policy process, which ranges from co-authoring an amicus brief to serving in a President’s Administration or even running for office. (The abstract is at the end of this post).

Pildes intentionally seeks to raise more questions than answers. Although much of his essay may not strike the reader as new, it renders an invaluable service nonetheless by renewing the call for legal academics to reflect on the inherent conflicts between critiquing the law and helping interpret, apply, or construct it. This is itself a variation of the ancient tension between describing how the law is and how it ought to be.

Pildes sees a generational divide among legal scholars. On one side, he places the generation of scholars like Bruce Ackerman, with a legendary disdain for engaging the political process. On the other side, Pildes claims younger scholars are more likely to write to shape policy and to be active in litigation, consulting, and government service.

I’m not so sure this is factually correct. (I can think of numerous older and mid-career professors on the Harvard faculty when I was a student who served in Presidential Administrations, worked on law reform, or argued before the Supreme Court). Perhaps the trend is cyclical. Pildes surmises that the generational shift he sees may stem from two Democratic Administrations in the past two decades. The existence of this generational shift seems like an area ripe for empirical study.

Pildes follows a provocative essay by Richard Fallon (Harvard) two years ago critiquing the standards for law professors co-signing or authoring amicus briefs (here are both a draft and final version). Fallon’s essay generated both NY Times coverage as well as equally incisive replies (e.g., Amanda Frost’s (American) essay).

The Fallon debate yielded a particularly useful harvest. It prompted many academics to articulate their standards for writing or co-signing amicus briefs. The academy needs a similar debate to offer guidance to professors (particularly, but not exclusively, junior professors) on other aspects of policy engagement. What should professors consider in testifying before Congress or an agency? When to take on consulting or litigation work?

The questions Pildes raises assume a greater urgency because of institutional pressures he does not address in the essay. Budgetary pressures will undoubtedly pressure law schools and professors to seek more soft money grants and big hard money donations to fund programs and professorships. To what extent will this put pressure on the valuable role of academic dissent that Pildes rightly cherishes? This institutuional economic pressure may present more of a challenge to dissent than revived questions about academic tenure.

It is, however, by no means a new challenge. Bruce Ackerman, for example, holds the Sterling Professorship at Yale, which was funded by John William Sterling, founder of Shearman & Sterling and counsel to Standard Oil, Henry Ford, and Jay Gould. But institutional pressures on law schools and professors merit re-examining again and again with fresh eyes.  

Here is the abstract for Pildes' chapter (after the jump):

This essay is meant to prompt professional self-reflection for academics, particularly legal academics, on the appropriate relationship between the pursuit of knowledge and the pursuit of power. 

Academic institutions, in theory, should be among the most robust sites in which dissent against conventional or widely-shared views of policy and law ought to find easy expression. That has long been part of the justification for the general principle of institutional academic freedom, as well as for specific organizational features of the academy, such as tenure. 

Yet the legal academy risks being more compromised, and increasingly so, in its ability to play this role than is often recognized. The reason is the paradox of the relationship of legal academics to actual political power. Legal academics are not just independent scholars of public policy, law, legal or political institutions. They are also often direct participants in the systems of public and private power they study. Unlike academics in most other disciplines (except, perhaps, economics), legal academics have greater opportunity for effective influence over policy, law, and politics. The various forms of practical engagement which legal scholars undertake -- consulting, litigating, testifying to Congress or courts, service in government -- have significant benefits, both in the classroom and in scholarship. But they also come with significant risks, including risk to the ability to play an essential role that justifies academic institutions, the role of being able to stand apart from existing constellations of power or interest or conventional wisdom on issues of moment.

This essay identifies the various ways in which the paradoxical position of the legal academic and the temptations of access to political and legal power threaten the ability of the legal academy to be a source of dissent. The essay then explores how legal academics ought to think about the benefits and risks of the unique position of academics closely connected to the institutions and actors who wield actual political and legal power. I emphasize that the foundation for considering the role of legal academics as potentially important sources of dissent must be a belief in the existence and importance to collective decision making of expert knowledge about the kinds of questions legal academics teach, research, and write about. This premise needs emphasis because many forces press against it. American democracy since the Jacksonian era has always contained a strong strand of anti-elitism capable of being mobilized by political actors against various claims to specialized knowledge and expertise. 

In my view, Intellectual independence, and the capacity to dissent from various orthodoxies and structures of power is more difficult to attain and maintain than academics often recognize. That is so even though academics are institutionally and structurally situated to be in most able to resist the political or ideological conventions of the moment. As one example, I discuss the political scientist Arthur Schlesinger Jr.’s distortion of history in his public attempt to legitimate President Truman’s unilateral decision, without congressional authorization, to commit massive military force to defend South Korea against North Korea’s attack in the 1950s. The unauthorized Korean War was a turning point in American political practice regarding unilateral presidential commitments of military force. Twenty years later, during the Vietnam War, Schlesinger publicly recanted and acknowledged that he had distorted the history to support Truman’s war. 

This necessarily brief essay is meant mainly to raise and provoke further discussion of these issues, rather than to offer a comprehensive analysis. It is not offered as a moralistic exercise, and I have engaged in many of the practical activities I describe. But power -- political, financial, and other -- is seductive, and the tensions between it and intellectual independence are central to the modern legal academy and warrant fuller discussion.


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January 29, 2013
Is W&L The Biggest Legal Education Story Of 2013?
Posted by David Zaring

Bill Henderson has an enthusiastic post about the successes of the remodelled practice/clinics-style third year curriculum at Washington & Lee, my old employer.  Basically, the story is that students like it, partly in a way that I credit - W&L seems to have received more applications and gotten more yield after announcing the change - and partly in a way that I treat with caution - students self-report greater satisfaction with the third year with law school there today than they did in 2008 and 2004.

Here's the yield story (which also suggests that W&L is increasing enrollment - without cost to its overall numbers, apparently):

... after their experiential 3L year was up and running and the overall legal job market continued to stagnate, W&L yields spiked. Ordinarily they would enroll 135 students. But for the fall of 2012, they received enrollment commitments from well over 260 students. Indeed, at the ETL conference Jim Moliterno said the school had to offer financially attractive deferments to get the class to approximately 185 incoming students -- a 50 student bulge.

The 3rd year satisfaction survey data is interesting too.  W&L has always had a reputation as a happy place to be.  It is cosy, it has a friendly culture, good teachers too.  Now, students are reporting that they are working harder and being asked to do a wider range of things compared both to peer schools and earlier graduates.  And they appear to like it, though grumble, grumble self-reporting, where's the experiment, &c.

What we don't yet know from Bill's posts is whether employers are also buying what W&L is selling.  And what kind of employers, too.  That seems like the other proof in the pudding to me.  And that is the thing that could sustain something that looks like it might be a one-time bump.  But still, happy students is certainly one thing that it's nice to be able to argue that you've delivered, if you're going to go through the drama of curricular reform.

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December 18, 2012
Lowell Milken Institute Law Teaching Fellowship
Posted by Gordon Smith
If you are looking for a teaching fellowship in corporate law, it would be hard to beat the Lowell Milken Institute Law Teaching Fellowship at UCLA. Now accepting applications.

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November 23, 2012
Thought for Food
Posted by Erik Gerding

A few links to tide you over during your tryptophan-induced torpor:

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October 30, 2012
Sorkin's Right About The Facebook - Ceglia Mystery
Posted by David Zaring
It's hard to believe that DLA Piper, and, briefly, Kasowitz Benson, were willing to take up Paul Ceglia's claim that he owned as much as 84% of Facebook.  Especially now that he has been charged with fraud for it by the USAO for the SDNY.  Moreover, as Andrew Sorkin observed, their participation was crucial in establishing his credibility.  It is why it is a good thing that Sorkin is following up - law firms can be unaccountable for the misdeeds of their clients, and maybe that's often as it should be.  But not necessarily when the client's case basically requires the firm's imprimatur.

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August 29, 2012
Law School Textbooks: The Price of the Penultimate Edition?
Posted by Christine Hurt

Probably two years ago, I began fielding a question or two every August that went something like this:  "Professor, I noticed on the syllabus that you require the [X]th edition of the textbook.  Will the [X-1]th edition suffice?"  My first (and second) reaction to these email questions was fairly snarky:  What does the word "require" mean to you?  I was also puzzled that the questions seemed merely to be asking permission to deviate from instructions, not seeking information as to whether the deviation had any risks or drawbacks.

But this year, the Torts book I use is in a new edition, and I have been asked the question repeatedly.  So, I sent an email telling students that they were free to buy an old edition or no edition, as long as they understood the consequences.  I was not going to check page by page to see how the new and old page numbers aligned or point out every new case, hypo and note, but if they wanted to wing it, that was up to them.  I assumed, and told them so, that buying the old edition would require them to make friends with someone with a new edition to get names of new cases, figure out what the readings were, etc.  I thought my tone reflected my opinion that the first year was already so hard (and so expensive), that setting up a new challenge for themselves to save a small fraction of its cost was unwise.

Is my opinion wrong?  (I have seen several students carrying obviously used textbooks, so my tone was obviously off.)  Is my cost-benefit calculus incorrect?  Could/should law professors do anything to make the cost-benefit less penalizing of the penultimate edition purchase?

So, according to Amazon, the brand-new edition of the Torts book is $198.  (This in itself blew me away.)  The last edition (new) is $150.  I would assume a used edition would be even less.  But let's start with a $50 savings.  Of course, law school is very expensive -- you may have heard about that.  So, to me the $50 savings seemed a little "penny wise, pound foolish."  But, if you could save $150-200 a semester or maybe $1000 or so total with used books, that's real money.  But would it decrease any of your grades?  The only way it could would be if you were missing something (a topic, a new rule given in a new case, a new statute) that ended up on the test.  This would be much more likely to happen in Securities Regulation than in Torts.  Other classes, I'm not sure.  Even then, a certain kind of student could pick up on the change in class and gather the case/statute from Westlaw.  Would the time required be worth the $50?  To me, if this extra work would take more than 4-5 hours or just stress me out, then the $50 wouldn't be worth it.

But, professors (or research assistants, or enterprising students) could create "cheatsheets" with page numbers, new case names, new statute numbers, etc.  Then students could purchase old editions with relative impunity.  A few years ago, it would have seemed fairly far-fetched to me that schools or faculty should entertain the thought.  But now, with the high cost of law school a topic of everyday conversation, I'm not so sure.

Of course, I'm sure textbook publishers, who have to make their own ends meet, would have different thoughts.

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