Do not ask for whom the bellwether tolls . . .

Posted on May 8, 2012 by Frank

Washington University (St. Louis) has become the first “highly ranked traditional law school” to offer a fully online LL.M. degree program that will qualify students to sit for the bar exam in a dozen U.S. states.  The Wash U program is aimed at foreign lawyers, who can become experts in U.S. law without the pesky necessity of coming to the U.S. for a legal education.  Other schools, like Florida Coastal and Alabama, offer online degrees, but Inside Higher Education notes that Wash U’s ”decision to create a fully online program might be seen as a bellwether for  evolving views on online teaching and learning within a notoriously staid  segment of higher education.”  Foreign lawyers can already practice law without the LSAT or the J.D. in many states, so long as they have a U.S. LL.M.  Now they can get that over the Internet.

So the justification for not approving online J.D. degrees is . . . what, exactly?

The money quote from Dean Kent Syverud — as distinguished a “traditional law school” leader as you’ll find, ought to send chills through the folks who think that keeping our heads in the sand is a practical option:

I think if we can deliver legal instruction online to people at a level of  quality that mimics what we’re able to do in the classroom … [then] it’s going  to be a change agent over the coming years, even if people don’t want it to be . . . .  And the best schools are going to face that, and are going to make  what they do better in all their degree programs and instruction, and everybody  else is going to be left behind.

If I say something that online education can be as good as the in-person kind, I understand why people might ignore me.  But you ignore Kent Syverud at your peril.

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Going back to the Langdell law school model

Posted on May 7, 2012 by Frank

Over at Concurring Opinions, Frank Bowman, who I’m happy to say teaches at my alma mater, has a good post about legal education, well worth reading.  Jeff Lipshaw at Legal Whiteboard has some thoughts of his own on the subject.

I have nothing much to add to Professor Bowman’s piece, and don’t have the answers to the questions Jeff raises.  But I do want to address one point that Professor Bowman raises.  He makes and almost immediately dismisses this point:

One could fairly argue that law schools should never have gotten into the skills training business in the first place.  What was good enough for Langdell should be good enough for us. Teach ‘em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice.

Yet that is an option.  The reason Langdell’s approach was so effective is that nobody had to go to law school to join the bar.  Only students with the resources to pay for three years of university education and forego three years of earning a living at legal practice took the Harvard (or any other law school) curriculum.  They presumably found the three years rewarding in preparing them for the leadership roles in the Boston and New York bars to which they aspired.  The Langdell approach is only bad if we add two things to it:  (1) all potential lawyers must do it, and (2) it alone is enough training to permit one to practice law.

Note that if we get rid of those last two wrinkes — both which have been added since Langdell’s time — the great Socratic law school that disdains teaching the nuts and bolts of routine practice makes perfect sense.  Once we get rid of the idea that law school is both necessary and sufficient for law practice, we can turn legal education back to its core values:  tenure, scholarhship, and faculty governance.

Posted in Law schools | 2 Comments

Defending Elizabeth Warren, undermining diversity

Posted on May 4, 2012 by Frank

I’ve always admired Elizabeth Warren, if for no other reason than she graduated from a middling state law school and yet managed to make her way to the faculty of the world’s most storied law school.  (Last time I checked, a few years ago, she seemed to be the only member of the faculty whose J.D. came from a non-elite American law school.)  She’s a terrific scholar and, by all accounts, a wonderful teacher.  Though I disagree with her about how competent the government is to do certain things, like drafting standard contract terms for private parties, she’s always been on a list of my “most admired” academics.

She still is, even with the brouhaha over her self-identification as “Native American.”  I don’t want to either defend her or knock her; I once had an extremely white Jewish colleague from Ohio who listed himself as “Hispanic” because he was born in Nicaragua.  (Details changed slightly to avoid identification.)  We’re in a business in which inflated CVs and puff pieces on law school web sites are a currency of the realm.  There, but for the grace of God, go many of us.

But I think Warren’s defenders are, from a tactical perspective, taking exactly the wrong tack.  What they apparently fail to understand is that affirmative action is still a deeply divisive subject in America.  Such public support as it enjoys rests on the notion that it benefits those who have felt the true sting of racism, poverty, and lack of opportunity in their lives.  To the extent that it is viewed as a way of bringing all Americans to the table, it gets supported.  To the extent that it is viewed as a tool to benefit a privileged class at the expense of poor whites, it provokes outrage.

That’s what is going on here.  One of the whitest, richest, and most privileged women in America calling herself a “Native American” for “diversity” purposes is exactly the sort of thing that makes a mockery of everything law schools have been battling for.  The University of Texas is about to pay a million dollars to have my old friend Maureen Mahoney of Latham & Watkins defend its use of race in admissions.  Everyone agrees that law schools take race into account not only for admissions but for hiring.  The vast majority of us in legal academia support that.  But the very idea that someone like Professor Warren adds “diversity” to a law school because one of her great-great-grandparents was a Native American is so patently ludicrious that it makes a mockery of the whole effort.

Those of us in the legal community (trained as lawyers) may be able to keep separate the idea that (a) diversity is so important we must take race into account in making decisions, but (b) we actually don’t put any weight on diversity so the race you listed probably didn’t affect our decision.  Both of these may well, in this situation, be true.  But it’s tough to expect ordinary Americans who haven’t been through 3 years of the Socratic Method to be able to parse things like that.  It sounds absurd on its face.

So I would hope the partisans of affirmative action would take a strong stand that it was wrong for Harvard to claim her as “Native American.”  Whatever motivations Professor Warren may have had for so describing herself in the AALS Directory, Harvard’s motivation was clear.  And it trivializes the whole goal of meaningful diversity in law schools.  Coming down hard on perceived abuses of the system is exactly the way to assure ordinary taxpaying Americans that diversity is important and our efforts to promote it are serious.

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“If you want to help lawyers serve the poor, don’t charge $45,000 a year for law school.”

Posted on May 4, 2012 by Frank

That’s the comment from “James” in response to an ABA Journal Weekly story about New York’s new “pro bono” requirement for would-be attorneys.  I couldn’t agree more.  There are lots of people who could use lawyers if those lawyers could make a decent living (and pay off their debts) at reasonable rates.

Some of the other comments:

“Has any lawyer out there ever considered that Judges should NOT have control of your profession?” — Citizen1

Well, yes.  The fact that the government requires lawyers to have a government license to appear in front of government employees while representing people involved in disputes with the government has always struck me as a little odd.

“While I do believe that there is value in law students being required to go out and actually experience practicing before being licensed as attorneys, the fact that the government is seeking free labor that will likely result in a permanent loss of certain public-sector entry-level positions has not gone unnoticed.” – Esq. 

Actually, I hadn’t thought of this, but it’s a good point.   Why pay people when you can make them work for free?

“A law license is no more a privilege than a house or a boat or anything else you earn. A court ought not be able to attach its own pet social concerns as a condition to practicing law.” — SlipKid

Maybe we should require everyone who applies for an OTR truck driver’s license to do 50 hours of free work hauling stuff to food banks as a condition of getting the “privilege” to drive a truck.

Not sure that pro bono assistance of unlicensed, inexperienced lawyers is that much of a benefit.  Practicing on the poor?  The obligation to do pro bono work should be shouldered by someone who has a license and experience. — Douglas J. Monahan

Wouldn’t it be better to have graduates of less expensive unaccredited schools who specialize in helping poor people provide these services, rather than mandating unmotivated law students to do it as a condition of getting their ticket punched?

As various commentators point out, supervising 500,000 of “pro bono” hours given by utterly inexperienced lawyers every year is going to be expensive.  Somebody is going to have to pay for that.  If it’s the law schools, it means that new lawyers will spend even more for their degrees, which will make them even less able to work for poor people.  My school has a mandatory “pro bono” requirement for graduation.  It costs money to run.  It may be money well spent, but it’s not free.

Among the people we know won’t be paying for this are Judge Lippman and his court system.  But I’m sure they’ll feel good about it.

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ABA considers making LSAT voluntary

Posted on May 4, 2012 by Frank

The American Bar Association is apparently the only accrediting body in the U.S. that requires prospective students to take a standardized exam for admission.  That may change, as the Standards Review Committee of the Section on Legal Education and Admission to the Bar has just voted to pass on a proposal that would remove the requirement that all law students take the Law School Admission Test.

It’s a great move, and a sign that the Powers That Be at the ABA see what’s coming to the practice of law much more clearly than we see it in law schools.  What is isn’t — despite some of the rhetoric you may hear — is a new opportunity for bottom-tier law schools to suddenly bring in lots of unqualified folks.  The fact is that they can already bring in lots of unqualified folks if they want to.  The ABA requires students to take the LSAT, but it doesn’t require anyone to actually use it in making admissions decisions.  Most law schools already admit at least some students with low LSAT scores.

Given that the LSAT correlates with law school performance and law school performance correlates with bar passage — which is a much more important factor at bottom-tier than at top-tier schools, where nobody worries if a quarter of your graduates (as just happend at U Texas) flunk the bar.  At my school we’re wringing our hands because our bar passage rate was something like 8% below that of one of the nation’s premier public law schools, whose student body’s LSAT performance is at least a standard deviation superior to ours.  We bottom-tier schools can’t afford to bring in students who flunk the bar.  So we will certainly keep using the LSAT.

What it does mean is that schools or other groups are now free to develop alternative measures that might work better than (or more cheaply than) the LSAT.  It’s well-known that the LSAT systematically discriminates against certain minority groups and those (such as immigrants) with limited dexterity in English.  What’s less understood is that (at least when I was chairing an admissions committee a few years ago) LSAT score accounted for about 25% of the differences in student performance.  That means that other, unmeasured factors, are responsible for 75% of student success.  What are those other factors?  We actually don’t know.  But it would be really helpful to find out.

Maybe schools can try to develop alternative standards that can take into account those alternatives.  I suspect is is the schools in the bottom tier that will lead this effort, because their goal is to find those 75% of the students who LSAT do not predict their bar passage and ultimate success in practice.

 

Posted in Law schools, Legal profession, Signs of the Apocalypse | 2 Comments

Lawyers and mandatory “pro bono”

Posted on May 3, 2012 by Frank

A colleage whom I like and respect takes a very different view of New York’s new mandatory pro bono requirement for bar appicants than I did yesterday.  In the course of our email exchange, he made this point:

I have long believed that all lawyers – including law professors – should provide pro bono service to those unable to pay.  This is obviously reflected in every state’s ethics code, although most lawyers treat these provisions as merely aspirational, and the vast majority of lawyers do not approach even a fraction of this number.  I view this as highly problematic and not only for moral reasons.  Part of being part of a largely self-regulating profession is to refrain from engaging in activities that reflect poorly on the profession but also to engage in activities that will help improve and maintain the image of the profession.  Pro bono is obviously an example of the latter, but, like many things, most will choose to not participate in it unless they have some exposure to it early on.

This is a serious argument, but it’s one with which I fundamentally disagree.  First, and least important, we are not a self-regulated profession.  We are a government-regulated profession, same as barbers, plumbers, physicians, home remodelers, private detectives, truck drivers, airline pilots, and so forth.  We are given licenses by a governmental body, and without that license we are forbidden to practice our profession and are subject to fines and even imprisonment for doing so.  When the State of New York requires a license and sets the standards for obtaining that license, it is a government license, whichever branch of the government issues it.

Second, I find it fatally easy myself to decide that (a) something good needs to be done, and therefore (b) you should be the one to do it.  Judge Lippman runs one of the most complex and expensive court systems in the history of the planet — one so complex that ordinary people are priced out of it.  I suspect it’s much easier for him to compel other people to provide free services to those forced to work their way through a system run primarily for the benefit of judges and court employees, than it is to reform the system to allow people to dispense with some categories of legal services and allow others to get it from reasonably priced providers.  We in the law schools are famous for this — faced with students who have far too much debt to allow them to succeed in ordinary law practice, we don’t choose to figure out how to slash costs, we argue that the government or somebody else should figure out how to make their debt go away.

Third, I’m dubious about the closing point, which is the “unless I make you eat broccoli as a child you’ll never eat it as an adult” argument that all parents wrestle with.  I know others disgree, but I tend to believe that making people do things more often gives them an aversion to it than otherwise.  I’m part of the generation that grew up standing at attention during the Pledge of Allegience, reciting the “under God,” getting stuffed full of the patriotism of the 1950s and early 1960s on the theory that “we must teach our children how great America is and how important our freedoms are.”  It’s pretty easy to see how that turned out — maybe the most cynical, self-absorbed, corrupt, and least patriotic generation in U.S. history.

People do all sorts of rewarding things without being compelled by the government to do them.  Almost by definition, if the government has to make you do it, it’s something you’d rather not do in the first place.

Fourth, I’m always dubious about the idea that there’s something particularly noble about working for those who can’t pay you.  I like to use the example of a soup kitchen.  It’s a wonderful thing, people volunteering their time to help serve the soup to the homeless.  But who are the most important people in that process?  It’s the farmers, the food processors, the distributors, and the truckers (all of whom make a living) who make the food possible in the first place.  It makes you feel good to work a day at the soup kitchen.  It’s much more valuable to society that you work hard as part of the economic system that makes the soup possible.  Charity is a great thing.  My Church teaches it as one of the cardinal virtues.  But charity compelled by force isn’t charity, it’s simply taxation.  I don’t think there’s any correlation between increasing taxation to fund welfare programs and increasing the amount of voluntary contributions to welfare programs.

Fifth, and finally, I don’t see why the fact that the government requires me to have a license requires me to care one way or another about the image of my licensed trade.  I have an economic interest in doing so, to be sure — though more of an interest in having you do it — but why does the fact that I have a license to drive an 18-wheeler across state lines mean I have some social obligation to help ensure that truck drivers are held in high regard?  I’m proud of being a lawyer, and think it’s the greatest of the secular professions, but if doing what I legitimately believe a client deserves brings the profession some disrepute, I’m sorry, but I can’t see how that should weigh on me.  As a lawyer, I don’t represent other lawyers, I represent clients.

A long response to a fairly short point.

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Fixing the NBA draft

Posted on May 3, 2012 by Frank

A little off-subject here, but over at Prawfsblawg David Schleicher (Geo. Mason) is raising the question of what can be done to fix a glaring problem with the current National Basketball League draft: teams tanking games to increase their chances of getting a lottery pick.  Professor Schleicher offers three suggestions, but all of them simply add another and more complex wrinkle to a failed regulatory system.  The answer, at least to this former (independent pro baseball) team owner who’s been through drafts, is simple.  A hard salary cap and no draft.

Successful teams get there with good players.  Good players have to get paid more to stay.  If they stay, they take up a larger share of  the team’s salary cap.  And the team can’t afford to hire the most talented (and most expensive) rookies.  Meanwhile, the bad teams have hardly anyone worth keeping, so they have lots of money.  Why shouldn’t the Charlotte Bobcats, if they want to get rid of the rest of their expensive players, able to sign Anthony Davis of Kentucky and Andre Drummond of Connecticut and maybe the best point guard on the board?  That would be a heck of a nucleus.  Even with a roster filled out with cheap role-players, that’s a pretty good team in a couple of years.

After all, a couple of years ago Miami, by prudent management, found itself in a position where it had enough room under the salary cap to re-sign Dwayne Wade and add LeBron James and Chris Bosh.  If teams can do that in free agency, why not in the draft?  If we assume (in some parallel universe, admittedly) that the Bobcats are a well-run franchise, why must they be held to only one of the players they want?

The situation is even worse when you add that the draft limits the amount of money that these top draft picks will get.  By providing that each can either sign with the single club that drafts him or forego the NBA, the system transfers wealth from the Anthony Davises and Andre Drummonds to players who are already in the league.

Simply allow each team to spend the same amount on whatever they want.  Well-run teams will be good, poorly run teams will be bad.  No one will ever have the incentive to tank a game.

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New York adds “pro bono” requirement for bar admission

Posted on May 2, 2012 by Frank

New York Court of Appeals Chief Judge Jonathan Lippmann used a Law Day lunch yesterday to announce that the Empire State would now require 50 hours of pro bono legal practice from applicants before they are admitted to the New York bar.

My first reaction is that mandatory “pro bono” is rapidly turning into a euphemism for ”forced labor.”  Paul Campos, though, has nailed the practical and theoretical problems with the proposal in Clueless baby boomer judge orders poor lawyers to subsidize rich ones.  No one delivers a well-deserved screed better than Professor Campos.

UPDATE:  Over at Prawfsblawg, Jeremy Sheff (St. John’s) has a more sober, but similarly negative take on the issue.

Posted in Legal profession, Signs of the Apocalypse | 2 Comments

Judges want more money, less criticism from ignorant citizens

Posted on May 2, 2012 by Frank

That’s the upshot of a new report from DRI The Voice of the Defense Bar, released yesterday as part of the May 1 “Law Day” testifivites.  The recession is really hurting American courts, so taxpayers (who presumably aren’t hurting as much as the judges and their employees) should really start kicking in more to keep the courts fully funded.  Especially when there’s lots of expensive new court security measures that need to be taken to protect judges and employees from irate citizens.

Moreover, people who don’t think that judges always decide cases purely on the legal merits and don’t abuse their offices to achieve political outcomes are not only ignorant but dangerous.  (Some of them even go so far as to quote Thomas Jefferson, which just shows you.)  Judges are only enforcing the laws, not making them up (wink, wink), and so unhappy citizens should just shut the hell up and do what they’re told.  Specifically, they should most certainly not vote to throw judges out because they have twisted the law, or give money to those who want to throw judges out, because running political campaigns against judges is un-American.  What do we think this is, a representative democracy?  How can a democratic government survive without a group of government employees who are completely shielded from accountability?

Meanwhile, the extra money frightened judges need for court security (the highest priority of the judicial system) means that you as a citizen will only get even less responsive system.  (Yes, the report does make this connection.)  You’re going to get really safe judges, but unless you decide to pay more you’re going to have them doing less and less for you.

You have to wonder what kind of marketing genius thinks that this kind of thing is going to impress anyone who doesn’t make a living off of the judicial system?

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Shrinking the law school class

Posted on May 1, 2012 by Frank

The University of California’s Hastings College of Law is cutting back on its 1L class this year.  The school (whose in-state tuition is now apparently a staggering $46,575 a year) will

This may be motivated by concern for students, or by a desire to keep Hastings’s LSAT scores high, or both.  But it’s a good move.  The glut of lawyers isn’t down here at the fourth tier, it’s at the top.  If, for example, all of the law schools in U.S. News’s “unranked” list were to close, the effects on Harvard and Yale grads would be minimal.  Those aren’t the folks lining up to take jobs as prosecutors in Palo Pinto County, immigration lawyers in Laredo, or family lawyers in Abilene.  We’d still have the same group of whining top-tier grads sitting in Boston and New York and claiming there are “no jobs.”  Representing folks with DUIs and drug possession charges in Palestine, Texas, is not what an elite law school grad thinks of as “a job.”

Meanwhile, shutting down the unranked law schools would have a devastating effect on the 99 percent of the population that is not planning on being reprpresented by Sullivan & Cromwell.

So Hastings has taken a big step, one that the elite schools should follow.  Cutting down class sizes substantially would increase the chances your grads will get jobs, without doing harm to anyone else.

 

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