Category: Law School

1

The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.

Taking Human Capital Theory Seriously: Simkovic on “The Knowledge Tax”

Graduate professional education in the US is facing a financing squeeze. Some argue that those learning to become doctors, nurses, engineers, lawyers, and the like should get no help from the federal government, because they tend to earn higher incomes than average. Others question that premise, arguing that past results of grad degrees are no guarantee of future performance. They believe that an impending wave of defaults on federal student loans will raise the cost of federal credit programs.

Nevertheless, each side argues for policy with convergent outcomes. The “grad students will be rich” camp argues for curtailing federal loans, since they believe professionals can handle the higher interest rates on the private market. The “grad students will be poor” camp wants to raise the rates on federal student loans, to build up the already hefty surpluses the government is now making, to prepare for the putative future defaults. In the eyes of both, graduate students are the undeserving recipients of government largesse.

I’m not convinced by either: the “too rich” camp fails to value professional services properly, and the “too poor” camp is relying on controversial accounting techniques. But until I read Mike Simkovic’s recent paper “The Knowledge Tax,” I’d never thought of an even more fundamental distortion at work here: tax policy. Simkovic lays out the problem with characteristic clarity, considering a hypothetical college graduate deciding on (1) attending medical school and practicing medicine; or (2) purchasing a small vacant building and converting it into rental apartments:
Read More

0

Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

Read More

3

Is Using USNews Ranking in Making Hiring Decisions Discriminatory?

That’s what Drexel 3L William Hanrahan claims in a newly filed complaint against Dechert LLP.  According to Hanrahan, though he ranks #4 in Drexel’s class, Dechert (and other large firms) hire disproportionately from higher ranked schools, and consequently refused to hire him.  Why is that a problem? Well, here’s what the complaint says:

screenshotHanrahan, who suffers from “Asperger’s Syndrome, an Autism Spectrum Disorder, and a concomitant non-verbal learning disability,” also argues that Drexel accepted more students than other local schools with disabilities, and that refusal to hire from Drexel tends to disproportionately screen out non-disabled candidates.

I’m not an expert in this area of the law, but I thought the complaint provided an interesting set of facts for discussion. My uninformed view is that the chain of causation (disability –> lower LSAT –> lower-ranked school –> fewer job offers) isn’t incredible, but that it’s hard to imagine a judge forcing firms to discount rankings (which, after all, aren’t entirely or even mostly based on student credentials) when making hiring decisions.

 

2

Meat Market Ruminations

So, to all of those who are braving the Marriott today: welcome to the first step of a profession that can be personally satisfying, enriching, and challenging.  I thought I would capture a few thoughts about faculty hiring.
First, it is quite true that faculty hiring has become a bit of a pro-am conflagration, where many of the candidates that appear in the market show up with numerous significant publications and significant teaching experience to add to their already impressive credentials.  This is neither a bad thing nor a good thing, but rather a point in time where the hiring market has been unable to absorb many of those candidates in prior years into permanent tenure track position.  (We are all hoping for a turn around).  The outcome is that there are far more VAPS, Fellows, and other non-traditional academic positions that have been filled over the years, where people sit in waiting for a tenure track position. I would not be honest if I did not admit that they have a significant advantage over people who are coming out of law practice.   The presence of mentors on the host institution’s faculty, daily advice about the meat market and how to approach it, as well as time to think about how to make the best impression in a thirty minute screen are just advantages in an already competitive market.

However, even the best placed people blow it from time to time.  I recall overhearing from the hallway in the Marriott (the interview room I was going in left the room door cracked) someone in front of me say to the interview team “How do you handle teaching students who are significantly less intellectually equipped than you?”  I remember thinking — that was your one question. I don’t know what happened in that person’s case, but I can’t imagine they got the call back.  No one (and I mean NO ONE) wants to hear from someone on the outside that their students are less than adequate.  Sure we might talk about how they disappoint us in various ways.  But we never want to hear an outsider (much less someone we are interviewing to join our community) start that relationship by criticizing a major component of who we are.   Inferring that the students you propose to work with are anything other than thoughtful, astute and prepared to wow everyone they come into contact with comes off as arrogant and uninformed — after all, you probably haven’t even met a student from that school yet.

Second, personality matters way more than you think in these processes.  If you are someone that the faculty thinks it would like to have around on a daily basis, have big ideas about your area of expertise (whether its property, torts, or legal writing) and seem to be a serious, productive, and positive person, you are in the conversation.  The fact that you made it in the room signals that something on your CV made the committee think that there is something about this person that they would like to find out more about.   The best you can do is be yourself and play to your strengths.   I remember talking with someone who has become a good friend since I started teaching who had interviewed me at the Marriott several years ago.   That evening we ended up in a social setting and had a great conversation.  Since that time that person has told me that the person at the bar is someone they would have loved to get to know — the one that showed up in the room — the super serious, trying too hard candidate, not so much.  On this side, I completely see what he meant.

My last piece of advice relates to after the meat market.  Whether you land the job you want, a fellowship or just return to practice, find someone on the inside (preferably on your faculty that you are working with) to be a mentor.  Everyone can learn something from someone else.  It doesn’t matter if you are a Ph.D. that is several years older, the people in your new institution offer insights into the process and the views of faculty governance that you don’t have access to.

In short — Have fun.  Good luck.  Be you (unless you are someone that is imminently unlikable — then be someone else).

Enter Privacy Profession 01
2

Advice on How to Enter the Privacy Profession

Over at LinkedIn, I have a long post with advice for how law students can enter into the privacy profession.   I hope that this post can serve as a useful guide to students who want to pursue careers in privacy.

The privacy law field is growing dramatically, and demand for privacy lawyers is high.  I think that many in the academy who don’t follow privacy law, cyberlaw, or law and technology might not realize what’s going on in the field.  The field is booming.

The International Association of Privacy Professionals (IAPP), the field’s primary association, has been growing by about 30% each year.  It now has more than 17,000 members.  And this is only a subset of privacy professionals, as many privacy officials in healthcare aren’t members of IAPP and instead are members of the American Health Information Management Association (AHIMA) or the Health Care Compliance Association (HCCA).

There remains a bottleneck at the entry point to the field, but that can be overcome.  Once in the club, the opportunities are plentiful and there’s the ability to rise quickly.   I’ve been trying to push for solutions to make entry into the field easier, and this is an ongoing project of mine.

If you have students who are interested in entering the privacy law profession, please share my post with them.  I hope it will help.

0

Three Ideas to Improve Law Reviews (as Institutions)

Above all else, el al. must be destroyed.

Above all else, el al. must be destroyed.

This year, I’ve been tapped to be one of Temple Law Review’s faculty advisors.  I’m excited – the position will give me a platform to blather on to an even-more-captive audience on paramount importance  of avoiding use of et al.

Quite apart from that Cato-ian quest, the advising position has caused me to think a bit harder about some advice I’ve written on this blog to law review editors. While I once believed that law review editors could successfully strategize to maximize their W&L impact factors, I no longer think this is possible. I never was convinced it was a good idea on its merits.  Most law reviews–i.e., those outside of the top 20, variously defined–lack market power to reliably choose articles very likely to be cited. Therefore, strategies directed at W&L Impact, or citations otherwise measured, are unlikely to bear fruit. Neither the article-selection nor the article-citation markets are efficient: no one board can move the needle sufficiently to make it worthwhile. Worse, article selection strategies are going to make the people on boards feel terrible, because they are generally only tactical–reading only expedited submissions, looking at letterhead as a proxy for quality, applying short fuses on offers, focusing on random areas of law in an attempt to be counter-trend. But everyone is doing that now.  It’s like law review glossy publications seeking to bump USNWR reputation scores. The game is rigged. The only alternative is not to play.

So what should you do? I’ve already suggested how boards can escape the citation rat race by opening up the fire hose and closing their eyes.  Now I’ll go further – what can the board to do improve the law review as an institution, not merely as an article selection and publication machine.  Here are three concrete ideas:

Read More

0

Coming Soon: Law School Tuition $11,000

coquillette While today’s Harvard Law students are about to pay the hoary institution as much as $54,580 in annual tuition, a new law school designed on the original Harvard Law model plans to charge $11,000.  I have just received an offer to join its faculty and find the model intriguing.

Designed by the renowned legal historian, Dan Coquillette, once Dean of Boston College and former colleague of mine, the new school will have no administrators but rather an automated system, no books but a digital library, and two faculty members who will teach three courses per semester to a class of thirty-five students.  There will be no ABA accreditation and the school will have to compete on the apprenticeship model.

Dan’s idea arises from his research for his magisterial history of Harvard Law School, where Dan has long been the Charles Warren Visiting Professor of American Legal History.  Called “On the Battlefield of Merit,” Harvard University Press will publish this multi-volume history, volume one telling of how apprenticeship competition nearly  destroyed the infant law school.

In Harvard Law’s golden age, there were just two faculty members, Joseph Story and Simon Greenleaf, who taught all the courses. With a faculty-student ratio of 17.5:1, Story also published a treatise a year.

As Dan explained in his appointment offer to me:

The students of the Story-Greenleaf School read like a Who’s Who of the New Republic, and they uniformly praised their Law School experience, particularly the close mentoring and inspiration they got from their two teachers.  Of course, Story and Greenleaf knew every student in the School. The physical plant was terrible; the Library, open to Harvard Square, often lost more books a year then it gained; and the only nonacdemic employee was a janitor who spoke Latin.  The students did not care, as long as there was Story at one end of a log, and a student at the other.

If we replicated that School exactly, setting faculty salaries at today’s levels and including all overhead, student tuition would be 20% of what they pay now. I am ready when you are.

I believe that this offer is non-transferable but, hey, you never know.

BC Book Club

Annual Book Author Party, BCLS Faculty (2004): Zyg Plater, Frank Garcia, Dan Coquillette, Jim Repetti, Paul McDaniel, Larry Cunningham, Bob Bloom, David Wirth, John Garvey.

1

The [Law School] Adjunct Problem

Adjunct-ActionAmerican higher education, under pressure on all fronts, has squeezed adjuncts. Adjuncts, in turn, have protested in a variety of public fora, and now seek government regulation to ameliorate the conditions of their employment. In general terms, the problem is this: universities have high fixed labor costs (TT faculty), weak manager oversight – and consequently spiraling costs, and increasing student demand for expensive facilities. Their ability to raise prices is constrained (at least more than it used to be.)  The result is that adjuncts, who typically aren’t organized and who have little job security, can be treated like workers in the rest of the economy – i.e., terribly so long as market conditions permit.  At a variety of schools – including mine – unionization movements are afoot.

One wrinkle concerns the “fate” of law school adjuncts. Law schools typically employ adjuncts to teach cutting edge areas in practice, and those adjuncts are almost always otherwise employed as full-time lawyers and judges. Those lawyers and judges provide students with opportunities to understand developments in practice that no full-time instructor could deliver (whether or not that instructor ever writes a law review article). They also can be sources for leads on jobs, and can model professionalism.  The networking and professional development street runs in both directions.  For many law school adjuncts, association with the school brings significant professional benefits, which are more likely to motivate taking the gig than the relative pittance adjuncts are paid. Lawyers routinely highlight their law school teaching expertise in advertising – “Teaches criminal advocacy at X…”, “Professor teaching ERISA at Y….”  (I can’t prove that clients care about this kind of puffing, but the prevalence of claims in the market suggests they might.) Adjuncts also can use the experience to deepen their knowledge of a field, thus improving their skills.  Or, as Eric Goldman once commented, “There are lots of good reasons to be an adjunct, but the pay is definitely not one of them.”

Now, like university adjuncts more generally, law school adjuncts can feel like second-class citizens. They are rarely if ever even mildly integrated into the faculty.  They usually teach in the evening (when their practices permit them to).  They don’t have offices on campus.  And teaching takes more time than many of them have to give. With that all said, mandating that law school adjuncts be treated like teachers in the rest of the university – and given higher benefits and salary –  is profoundly foolish and unwise.  I realize that that is very easy for me to say.  But  I have heard that at many schools, university-wide adjunct policies designed to make adjuncts’ lives better – some, of course, prompted by unionization – have had perverse effects when applied to law school adjunct faculty.   Law schools are already stretched thin, and there already is a secular trend against adjunct teaching given the reduced numbers of students.  When lumped in with & bumped up with the rest of the university’s adjuncts, law schools respond by employing many fewer adjuncts.

And even in a better law school market, law school adjuncts really are differently situated than their undergraduate counterparts.  Treating them like oppressed graduate students will harm law students, law schools, and lawyers alike.

0

The World Dan Markel Created

dan markelThere have been such moving tributes to Dan Markel posted online that I wondered what I could add that hasn’t already been said about him. I didn’t know Dan as closely as many others, but I was fortunate to get to know him back in 2005. He was, as so many have said, one with a genuine passion for ideas.  Within the first few minutes of meeting him, Dan had already invited me to write some guest posts on his new blog, PrawfsBlawg.  I  barely knew him, but he was already cajoling me to blog as if he had known me for years.

I took him up on his offer.  As I began blogging on his site, he kept on encouraging me and sharing ideas with me.  “What do you think about this?”  “What do you think about that?” “You should write about this.”  Dan never eased in to anything, he didn’t gradually build speed.  You met him, and you’d find yourself instantly on a moving train.

I really loved blogging and stuck around PrawfsBlawg for quite a while before moving here to Concurring Opinions.  I thus owe my entry into the blogosphere to Dan.  Through Dan, and the people he brought to PrawfsBlawg, I met quite a lot of friends along the way.  When I think of the great people that Dan brought into my life — either directly or indirectly — it is quite an amazing list.

Dan had an intensity about nearly everything, especially ideas.  Typically, such intensity can push others away, but Dan’s intensity was paired with an exuberance and warmth.  I was not as closely in touch with Dan in recent years.  But whenever I saw Dan, he had a way of making me feel like we had been friends forever without any gaps.  And it was genuine — Dan really cared about people.

One of the refrains from the tributes to Dan is that he worked tirelessly to build a community.  His achievement here is something that is worth underscoring because it is so extraordinary.  The community Dan fostered was not merely a gathering of people.  It existed not just in meetings but in cyberspace too.  It encompassed junior law professors and senior ones.  It extended to scholars in a multitude of fields.  Dan’s community was one of friendship as well as one of ideas.   He was serious about academic engagement.

And what he created grew exponentially.  Our blog spun off of PrawfsBlawg, and other blogs have spun off of our blog.  Many blogs about law owe their origin in some way to Dan.   Many people were brought together because of Dan, spawning numerous co-authored works and lasting friendships.

The amount of friendships, collaborations, discussions, ideas,  and events that Dan played a role in creating is staggering.   Dan created more than just a community — he created a world.