August 26, 2014
ASU's annual "Aspiring Law Profs" conference...
...is coming up!
April 16, 2014
Chemerinsky & Menkel-Meadow opine in yesterday's NY Times...
...that things aren't as awful as the various charlatans and other law-school haters claim, and, predictably (given the social psychology), the charlatans and haters go crazy. I won't link to the hysterical reactions (they are easy enough to find with Google), but they boil down to one complaint: Chemerinsky & Menkel-Meadow cited NALP data without treating it as bogus (e.g., that JD Advantage jobs are really jobs [actually many of them are, but never mind]). That's true, they linked to the NALP data, but they didn't spend the rest of their piece debunking that data based on speculation, skepticism, and occasionally other actual evidence. This has certainly been a standing problem in the debate about American legal education, as when serious data analysis showed that legal education was a sound economic investment for the vast majority of students, and critics refused to believe that was true, though without any contrary evidence or analysis. So we can all agree that we should be more careful about how we present data and its import.
That being said, my main disagreement with Chemerinsky & Menkel-Meadow is about the necessity of three years of legal education, as I've said before: two years could work, and work very well for many students. In reality, the biggest obstacle to reducing costs in legal education, however, is unnoted in their op-ed: it remains the lax tenure standards and the unwillingness of universities to terminate tenured faculty for cause, i.e., when they manifestly do not do their job.
Imagine, for example, a law school that pays a six figure salary (closing in on 200K) to someone with almost no legal experience and an M.A. in literature who teaches the same couple of substantive courses year in and year out, courses in which he has no experience, whose teaching evaluations are consistently below average, who hasn't written any serious legal scholarship in years, who is regarded as a joke by his colleagues at his own school and in the academy at large, and who mostly spends his time insulting, defaming, and blackmailing colleagues who do their jobs. It endangers the institution of tenure when universities do not initiate proceedings to terminate malevolent charlatans like this. Many law schools, as we've noted before, are offering financial inducements to "buy out" senior faculty, most of whom are not charlatans. Real cost reduction, however, will require universities to move against the charlatans and the de facto retired in their midst, even those who have tried to insulate themselves from termination for cause by setting up frivolous retaliation claims.
UPDATE: More thoughts on reforming legal education from Michael Madison (Pitt).
April 10, 2014
Lots of students are applying to law school late in the season
Anyone following Al Brophy's reports on the LSAC data will notice that, while applications are still down from last year, they are down a bit less with each subsequent report. That's consistent with anecdotal reports from colleagues who teach undergraduates who report being asked to write letters of recommendation later and later in the season than just a few years ago. One surmises that at least part of what is happening is that (1) students waivering about going to law school are realizing that they don't have other tangible professional plans, (2) students are realizing their chances of getting good admissions offers--either in terms of the caliber of the school and/or the cost--are much better this year than just a few years ago. Along with this indicator, I suspect the decline in applications is about to bottom out. It will still take a couple more years, though, for most law schools to begin hiring new faculty again given the dramatic decline in applications and enrollments of the last few years.
April 02, 2014
The law clerk hiring process: an interview with Judge Ambro of the 3rd Circuit
March 07, 2014
Rookie hiring in 2013
A complete report. Interesting. Only 125 positions filled last year, though I expect that will be double the number filled this year. This means we can also revise the placement rate, based on the number of candidates from each school on the market last year.
1. Univeristy of Virginia (57%, 4 total)
1. Yale University (57%, 21 total)
3. University of Chicago (50%, 6 total)
4. Duke University (46%, 6 total)
5. New York University (42%, 13 total)
6. University of Michigan, Ann Arbor (39%, 5 total)
7. Harvard University (32%, 18 total)
8. University of California, Berkeley (25%, 5 total)
8. University of California, Los Angeles (25%, 2 total)
10. Cornell University (21%, 3 total)
10. Northwestern University (21%, 3 total)
12. University of Texas, Austin (18%, 2 total)
13. Columbia University (17%, 3 total)
13. Georgetown University (17%, 3 total)
13. Stanford University (17%, 2 total)
February 10, 2014
Harry Arthurs (Osgoode) on the impossibility of producing "practice-ready" lawyers
Arthurs, former Dean of Osgoode and one of Canada's most eminent legal scholars, gives a talk well worth watching by anyone genuinely interested in what reform of legal education can and cannot do.
UPDATE: Steve Diamond (Santa Clara) comments, and also provides a link to the manuscript version of the talk.
January 31, 2014
Signs of the times: Albany Law School declares financial crisis...
...and is threatening to fire faculty, including possibly tenured faculty. It is not clear, however, that there really is a financial crisis there (follow the link to the Albany AAUP website). Albany did, however, suffer an S&P downgrade last year. Any firings of tenured faculty are likely to result in costly lawsuits, given the evidence in the public domain.
Note that Albany Law School is a freestanding law school, and is not part of the State University of New York system. It is also one of four law schools in "upstate" New York (the others are Syracuse, SUNY-Buffalo and Cornell, though Cornell is not sending graduates primarily into the upstate markets). The New York City area is served by Columbia, NYU, Fordham, Cardozo, Brooklyn, NYLS, St. John's, Hofstra, Pace, Touro, Seton Hall, and Rutgers-Newark (not to mention the many schools farther from New York that send large numbers of graduates there).
January 22, 2014
Submitting to law reviews: what you need to know
Professors Rostron & Levit (both UMKC) have updated their very helpful guide!
January 07, 2014
Ellmann v. Leiter on the proposed clinical/experiential learning requirement
Following a post a few weeks back about a proposed ABA requirement for 15 required hours of "experiential" learning, I had an interesting e-mail exchange with Stephen Ellmann, who is Professor of Law and Director of the Office of Clinical and Experiential Learning at New York Law School. I encouraged him to write up his thoughts on this issue, so that we might have a kind of public dialogue about these issues. I post my reply to Professor Ellmann below, and I have opened comments for Prof. Ellmann to reply and for other readers to weigh in.
Remarks of Stephen Ellmann:
After Brian posted about the decision, by the Council of the ABA’s Section of Legal Education and Admission to the Bar, to circulate for comment a Clinical Legal Education Association proposal to require all law students to take 15 credits of experiential courses, he and I exchanged e-mails, and he proposed that we continue this discussion here. I thank him for this opportunity, and look forward to the discussion.
It is certainly possible to debate some of the details of this proposal, but my purpose here is to defend its central proposition: that all law students should receive significant training in the practice of law before they graduate. This is one of those propositions that almost seems not to need defense: who would imagine a professional school that did not give its graduates training in how to practice their future profession?
One might accept this proposition as I’ve stated it, and respond that regular law school classes are an engagement with practice. There is some force to this point. Socratic classrooms are much more engaged, I believe, than lectures. Langdell, as I understand it, aimed to teach students the skill of legal reasoning - and I certainly agree that's a practice skill.
But there are two major problems with the "regular coursework as engagement with practice" argument. First, the traditional study of legal reasoning is an engagement only with a fraction of the skills a lawyer needs. It includes no interviewing, no counseling, no trial skills (except a measure of advocacy training gained by some students from the give-and-take of class discussion), no negotiation - and actually not much training in legal research nor, in many courses, more than a final exam's worth of training in the many challenges of legal writing. Second, the sad truth is that the charm of this method wears off. Two years of Socratic dialogue does not make the third year of it more profoundly rewarding. Instead, it evidently leaves our students often deeply disengaged, as Mitu Gulati, Richard Sander & Robert Sockloskie have shown.
I think that clinical legal educators have demonstrated over the past forty years that the other skills of legal practice are also, like legal reasoning and legal doctrine, susceptible of scholarly study and capable of being taught. Experiential courses, including clinics, externships and simulation classes, aim to do just that and so to add crucial depth to the practice preparation that law schools provide.
One might accept the value of experiential learning too, and respond that law schools actually already do give students the experiential learning they need, by means other than course work. A commenter quoted in Brian’s post went so far as to argue that two summer jobs are “not dissimilar” to medical school clinical rotations. That position I think is untenable. Not only is medical school clinical rotation much more extensive than two summers' worth of clerkship, but in addition medical school rotations are part of school - structured academic instruction - and summer jobs, as valuable as they surely are, aren't school.
One might also accept all this, but respond that the choice of what courses to take should belong to the students themselves. Certainly choice is important. But we teach in law schools, and it’s built in from the start in our schools that most of the courses students take must be law courses – rather than, say, political science or humanities. Even within the domain of law courses, many or most schools restrict student choice significantly – notably by prescribing most or all of the first-year curriculum and sometimes parts of the upper-year curriculum as well. I think the question is not whether we will limit students’ choices, but how much and for what reasons. And on that score, I wonder whether part of the sense that 15 credits of experiential learning is too much might arise from a perception of “skills” as a single subject, rather than as a very wide range of different competencies that get used in different ways in different settings. We routinely allocate 60 credits or more to teaching “doctrine” and the skill of legal reasoning; it does not seem too much to allocate 15 to other skills of practice. Within those 15 credits, I’d certainly hope that law schools will offer their students a substantial range of courses from which to choose.
One last point on the question of “how much?” Bob Kuehn has compiled figures on the “practice-based and clinical education” requirements in a range of other professions: architecture, dentistry, medicine, nursing, pharmacy, social work, and veterinary. Each of these requires at least one quarter of students’ training to be in clinical settings; some require one third and, last but not least, medicine requires one half (and that doesn’t include the years of supervised post-graduate clinical training that follow receiving the M.D.) The CLEA proposal is that approximately one-sixth of law students’ training be in experiential courses. It seems to me that the burden is on those who disagree with this proposal to explain why law students, unlike their peers in other professions, do not need this level of experiential preparation for the work they will soon be doing.
Reply by Brian Leiter:
Stephen states very well the value of experiential learning in law school, and on that point, I have no dispute with him. The only question concerns what should be required. Most law schools already require most of one of the three years of study. Although there is variation in what is and is not required in that first year (Chicago does not require constitutional law, Yale does not require property), it is apparent that almost all law schools require all students to take, in some form or other, the basic private law subjects (contracts, torts, property), substantive criminal law, civil procedure (the rules of court procedure outside the criminal context), and basic legal research and writing at the start of their education. I have my own doubts about that particular mix of requirements, but I have no doubts (and I do not think Stephen does either) that some doctrinal requirements in the first year, along with the crucial legal research and writing, are the crucial foundations. (I can recall entering practice roughly 25 years ago and finding that the knowledge and skills I needed most often came from first-year contracts, civil procedure, and legal research and writing. My impression, in the form of lots of anecdata, is that my experience was not anomalous.) The first-year requirements, whatever their precise mix, help students learn how to read judicial opinions, teach them core rules that govern our private and public interactions, expose them to reasoning by analogy, model and demand some dialectical engagement, and teach them how to research legal issues.
Stephen and I are, I take it, in agreement about the value of those requirements, so the only question in debate is how much else should be required?
The candidates for more requirements are always numerous. Here, in no paritcular order, are some subjects I've heard passionate arguments for as requirements: Accounting, Evidence, Statistics for Lawyers, Constitutional Law, Legislation, International Law, and, yes, Jurisprudence. (In Oxford, but also in many European and South American countries that I have visited, Jurisprudence is a required course; since it is typically an undergraduate degree, 18- or 19-year-olds are often required to read Kelsen, which, personally, I think should give rise to an action in tort.)
I teach two of those subjects, and with respect to one (Jurisprudence), I would strongly oppose a requirement, even though I think it is undoubtedly the most important and profound subject in the curriculum (at least as I teach it!), but I also am quite confident that many excellent students graduate law school without taking it and go on to distinguished legal careers in the private and public sectors. And so, too, with Evidence: certainly it has the virtue of being a bar exam subject, and no doubt that is why almost all students take it. But the reality is that many lawyers--tax lawyers, regulatory lawyers, estate lawyers--have no need to understand the Hearsay Rule and its three dozen exceptions.
As a general pedagogical matter, I favor choice. I also think law schools and law professors have an obligation to provide guidance, since even after the first year, law students still need a lot of guidance. But substantive guidance is one thing and more requirements is another. And there is no reason to mandate as a blanket requirement 15 hours of experiential learning.
Law schools differ, in their student bodies, in their employment outcomes. Law students differ, in their personal and professional goals, and in their intellectual interests. There should be a very strong presumption against any proposal of the form that, "200 law schools, and 40,000 law students all must do X." I have written letters of recommendation for and advised many students have gone on to the most competitive federal appellate court clerkships in the United States, both when I was at Texas and since moving to Chicago in 2008. The judges often tell the students they hire in their second year what they expect them to do during their remaining time in law school. Not once have I heard of a circuit court judge who demanded that the student take more "experiential learning" courses. To the contrary, they want their clerks to take Federal Courts, Administrative Law, sometimes Criminal Procedure, sometimes Securities Regulation (it often depends on the circuit): in other words, they want their students to have deeper and broader knowledge of legal doctrine.
So, too, with the former students who have gone on to the leading private law firms, both the Cravaths and Skaddens, as well as the Bartlit Becks and Susman Godfreys of the world. What these employers want to know is: how smart is this student? how good is her writing? In twenty years, no hiring partner ever asked me, "How many experiential courses did this student take?"
I have taught fabulous students over the last twenty years, and there is no reason legal education should be designed around them and their employers. But there is also no reason legal education should be designed without regard for them. Forcing most of these students do to fifteen hours of experiential classes would not have made any of them, I venture, worse, but it would not have given most of them any real benefit. Some of them would have been forced to drop some of the advanced commercial law classes, or the advanced procedure classes they might have taken. Those doing JD/PhDs--and, yes, they are students too!--would have had to take classes that would have contributed nothing to their academic work and careers.
And then there is the reality that no law school in the United States that I am aware of is actually equipped to offering "experiential" learning adequate to the full range of careers lawyers actually pursue. Suppose a student wants to pursue a career in corporate and partnership tax. How many law schools offer meaningful "experiential" learning for that? Suppose some do; how many could realistically? Suppose a student wants to go into high-stakes M&A litigation. Which law schools offer meaningful experiential litigation to that end? How many could outside those in a few major cities? I have a relative who went to a top law school and works in a thriving field, health law, with a focus on regulatory compliance. Her most valuable "experiential" course in law school was contract drafting, and there was no clinical offering that would have been of any use to her; I've yet to see a law school that was different.
There is no question that law schools should be allowed to require the kinds of education Stephen describes, based on their judgment either that their students all need it or their judgment that students should come to them if that's what they offer. But I think it would be outrageous to demand that every student be saddled with another 15 hours of requirements based on the claim that some students might benefit from such courses.
I am utterly unmoved by what schools for dentists, animal doctors, nurses, etc. require. The comparison betrays a profound misunderstanding of the law. Oxford's H.L.A. Hart, the greatest legal philosopher of the last century, noted that you can not understand law and legal systems unless you realize that they centrally involve rules. His critics, like the late legal philosopher Ronald Dworkin, drew attention to the fact that how lawyers reason and argue about rules is just as important. Both Hart and Dworkin highlight the crucial fact about lawyering that distinguishes it from dentistry: law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons. That is why legal education, in both the United States and Europe and every other democracy I am aware of, emphasizes learning legal rules and legal reasoning. One needs a lot of knowledge to be a good dentist, to be sure, but a lot of good dentistry is not a matter of knowing rules and how to reason about them.
One theme in recent discussions about reforms to the ABA regulation of law schools--a theme to which I am sympathetic--is that we should permit more experimentation in models of legal education. Experimentation means that individual law schools should, of course, be permitted to mandate the requirements that Stephen envisions. But there is no reason to mandate that all law schools follow the same model.
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November 18, 2013
The Dental School Analogy
Dean Gershon (Mississippi) calls our attention to the mid-80s crisis in dental education, in which some of the schools that closed were at major private research universities. (For more on dental school closings, see also this article.) Dean Gershon writes:
What is interesting is that among the universities choosing to shut down their dental programs were prestigious schools like Georgetown and Emory. My understanding is that those universities determined that their dental schools no longer attracted the types of students they wanted to have at their institutions. Like law schools, the greatest decline in dental school applications occurred at the top end of standardized scores and undergraduate GPA’s. Emory and Georgetown were concerned that the students in their dental schools would not reflect the high credentials of students in their other programs, so they decided that it was better to close the doors, than to allow the dental school to “dumb down” the university.
The assumption seems to be that it will most likely be fourth-tier schools that will close, if law schools close. Based on what happened to dental schools in an almost identical atmosphere, I am not sure that assumption is correct.
A few thoughts on these striking observations. First, I am inclined to think that the most vulnerable schools are free-standing ones of relatively recent vintage, and those also happen to be overwhelmingly 4th-tier--but their "4th tier" status is not the primary explanation of their vulnerability, but rather one that just exacerbates their vulnerability to enrollment (and thus revenue) declines. Second, there were some five dozen dental schools in the United States when schools began closing; I do not know where Georgetown's and Emory's were in the dental school hierarchy at the time, but that would probably be relevant to thinking about the import of the analogy. Third, law schools, like medical schools, tend to have cross-disciplinary impact, in a way that dental schools (and veterinary schools) did not and do not (as best I can tell). For a research university to close a law school is to lose an academic unit that, in all likelihood, interacts with political science, economics, philosophy, history, and/or medicine. The number of leading research universities (excluding those with a STEM focus) without a law school is miniscule: Princeton, Johns Hopkins, Brown. Rightly or wrongly (mostly the former, but not always!), research universities have come to see a law school as a major part of their academic identity. (UC Irvine spent years trying to get a law school, and during the same time period, UC Riverside and UC San Diego were also exploring options to start one.)
It is striking that many (indeed, most) of the leading dental schools that remain are located at state research universities (far more so than with law, probably for the reasons noted already). But this also suggests something which I expect in the case of law: we will not see any state flagships closing their law schools (though many will no doubt contract a bit or a lot, depending on local economic conditions).