Legal Ethics Forum

Welcome to the LEF Symposium on Legal Education's Response to the Economic Realities Facing the Profession

From Monday, Feb. 6 to Wednesday, Feb. 8, scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students. We hope that a robust exchange will be sparked as readers weigh in with comments. Our goal is to inspire a meaningful conversation about how we can better serve and prepare our students in light of the economic realities they face. Please be sure to check back often! 

Contributors include:

Rakesh Anand (Syracuse) Considering todays' economic times
Anita Bernstein (Brooklyn) Downturn awareness in class and American law professors as the 99%, fortunate division
Hannah Brenner (Michigan State) Economic realities and gender (in)equality in the legal profession
Ray Campbell (Peking STL) Back to the future: cost control Chinese style and The end of law schools
Paul Campos (Colorado) Do law faculty have an obligation to address the employment crisis in the classroom?
Michael P. Downey (Washington U./St. Louis U.) Gazing upon Medusa? No just making law firm practice transparent to law students and Responding to the structural break requires real change
David Hricik (Mercer) We can't teach skills with subject matter relevant to modern law practice?
Lucy Jewel (John Marshall Atlanta) Rogerian rhetoric and law school cred and Rogerian rhetoric and law school cred part II
Daniel Martin Katz (Michigan State) Training students for the technology-infused law practice of the 21st Century
Renee Newman Knake (Michigan State) Cultivating learners who will invent the future of law practice
Judith Maute (Oklahoma) Law school responsibilities, higher yet for public schools
Jim Milles (SUNY Buffalo)The sick elephant in the room and Unbundling, turf battles, and the decline of law as an information profession
Michele Benedetto Neitz (Golden Gate) Professional responsibility and substance abuse: teaching students how to handle the pressures of law
Richard Painter (Minnesota)It’s time for the ABA to deregulate law schools
Russ Pearce (Fordham) Why Occam’s Razor cuts in favor of making law an undergraduate degree and Two of three Carnegie Reports support the undergraduate law degree
Laurel Rigertas (Northern Illinois) The three year J.D. - Does one-size-fits-all legal education still make sense?
Cassandra Burke Robertson (Case Western) After the student loan arms race: the disruption of hierarchy
Rita Shackel (Sydney) The technological trek - translating economies of legal education into the terrain of professional competencies
Mitchell Simon (New Hampshire) The difficult choices of tuition dependent schools
John Steele (Santa Clara) Developing competence
John Varghese (Government Law College, India) Social dimensions of legal education
Brad Wendel (Cornell) Law schools have a research mission too

Does President Obama’s Super PAC violate the Hatch Act and Insider Trading Laws?

The President’s Super PAC is in full swing.  Some cabinet members and White House staff will speak at political fundraisers around the country.  Not much of this is new, but it still raises serious concerns:

First, featuring high ranking Administration officials at fundraisers is a common practice but treads dangerously close to violating the Hatch Act.  Government officials may not participate in partisan political events in their official capacity.  They participate in a personal capacity only.  Official titles may not be used in advertising and promotion materials.   Also, government officials cannot solicit donations at a fundraiser; they can speak to the donors, but they can’t ask for money or thank people for giving money. 

Second, there is a great risk of insider trading if nonpublic government information is discussed at any of these events.  Because the participants (some of them are hedge funds and other investors) pay to go, they could be charged with insider trading if they trade on material nonpublic information learned at a fundraiser.  This would be an enormous embarrassment to the President as he signs the STOCK Act into law.  The White House should insist that only publicly available government information can be discussed at Super PAC events (government officials may not attend these events in their official capacity so they should not discuss nonpublic government information anyway).

At a hearing this past June, I urged the House Oversight Committee to amend the Hatch Act to prohibit partisan political activity by high ranking Administration officials.  I was particularly concerned about their involvement in fundraisers:

http://www.youtube.com/watch?v=u7vvfGr6--A

http://democrats.oversight.house.gov/images/stories/FULLCOM/621%20hatch%20act/Prof.%20Painter%20Testimony.pdf

See also

http://www.nytimes.com/2010/06/14/opinion/14painter.html

No legislation has been introduced to address the problem.  Democrats probably don’t want to handicap the President in the election, and Republicans probably don’t want to prevent a future Republican president from doing the same thing.  And some observers might think it hypocritical for the legislative branch to curtail political fundraising by the executive branch.

In January 2011 the President closed the White House Office of Political Affairs (OPA) and moved his political people to Chicago.  The President’s Chicago team, however, is now recruiting cabinet members and West Wing staff to engage in the same political activity that used to be orchestrated by the White House OPA.  I don’t blame the President for playing by the rules as they are, rather than as they should be, but he should make sure that everyone on his team plays by the rules and support long overdue changes to the rules.

House votes 417-2 to pass STOCK Act without the Senate’s ill-advised political intelligence provision

The House of Representatives has voted to pass the Stop Insider Trading on Congressional Knowledge (STOCK) Act.   As I explained in an earlier post here, this bill is an important step forward in government ethics. 

Still, I am concerned that the bill does not do enough to stop selective disclosure (“leaks”) of confidential government information by government employees to hedge funds, securities analysts, and other participants in securities markets.  I am also concerned with the civil liberties implications of a provision in the Senate bill that would require the registration of “political intelligence” firms that gather nonpublic government information for use in investment decisions.   “Political intelligence” is a very difficult term to define and citizens should not have to register before gathering information about their government.   The real solution to the selective disclosure problem is to regulate the conduct of government officials who selectively leak nonpublic information without good reason.   The government should impose a fair disclosure regime on itself that is similar to the regime that the SEC has already imposed in Regulation FD on private companies.   Requiring registration of a poorly defined subset of private actors is no substitute for requiring sound ethics on the part of government officials who create this problem to begin with.

The House of Representatives bill does not have the “political intelligence” registration provision and orders a study of specific proposals to address the broader issue of selective disclosure.

One of the problems with the “political intelligence” provision in the Senate bill is that it is not narrowly tailored to capture only non-public information.   Most political intelligence consultants gather and package together pieces of public information that citizens have a right to know from their government.    For example, the political intelligence firm knows which Members of Congress are working on which bills and in general who has the power to push through or kill a bill.  This is generally available information.  Then the political intelligence firm supplements this information by asking questions of Members and their staff that citizens ordinarily have a right to ask of Congress:   whether Congressman X has reservations about bill Y, or whether a staff member thinks that bill Y will be called up for a vote before or after the February recess.    Much of this information is public in the sense that citizens who want it can get it, but it may not be widely known to traders in securities markets.    A person should not have to register before asking government officials such questions simply because that same person has the sophistication and broad knowledge about government to make answers to the questions meaningful.

The political intelligence provision also is not limited to use of “political intelligence” in securities trading but also applies to any investment decision.   Yet a business person clearly should be permitted to call, or ask someone else to call, a Member of Congress and ask if the Member thinks health care reform will have a carve out for small businesses.  And the business person has the right to make an investment decision in his business based on what he hears.  Another business person has the right to ask a Member if he thinks military base X will or won't be closed, and use that information to decide whether to invest in a new store in location a or b. 

This amendment thus takes information that the public is entitled to know in a democracy and makes it harder to access by imposing burdens on those who seek it, and it does so without even achieving the desired goal.   The registration requirement doesn't even provide real time information to Members and staff about who they are talking to and why.   And of course, many people engaged in the political intelligence business will find a way not to register.   Washington DC lawyers will be in the vanguard of this evasive effort, both for themselves and their clients.

Once again, the real answer is for government to regulate itself and the way it disseminates information.   Making as much information as possible public would be a good start (a Member should to the extent possible discuss his views on potential legislation with all of his constituents on his web site and his constituents should ask that he do so).   Care should be taken when nonpublic information is disclosed (no private briefings for hedge funds and no discussion of nonpublic information with anyone at a political fundraiser are two of many rules that government could impose on itself).    

But meanwhile the public should be nosing around the government as much as possible, and people should be free to act on what they find out.  If someone is lucky enough to find some nuggets of information and make money by starting or closing a small business, or perhaps even making a securities trade that otherwise complies with insider trading laws, that person is not the wrongdoer.   If we don’t like the fact that some people get certain information early, we should turn our attention back to the government official who gave it to them.

My previous post is here:

http://www.legalethicsforum.com/blog/2012/02/senate-adds-flawed-political-intelligence-amendment-to-insider-trading-bill.html

And coverage of this issue on Minnesota Public Radio here:

http://minnesota.publicradio.org/display/web/2012/02/09/house-stock-act/

 

 

Law firm's challenge to Model Rule 5.4 is thwarted in NY case

From the New York Law Journal:  "Southern District Judge Lewis A. Kaplan  said on Feb. 7 that he would either dismiss for lack of standing a challenge by Jacoby & Meyers to a state ban on law firms accepting equity investors, or he would abstain from hearing the matter."  Jacoby & Meyers has similar litigation pending in New Jersey and Connecticut federal district courts.

Unbundling, turf battles, and the decline of law as an information profession

Jim Milles 

Like Cassandra Burke Robertson, I had another life before becoming a law professor full-time. Working as a law librarian for 25 years at three different law schools gave me a different perspective, within the system of legal education while not fully part of it. This post reflects that personal perspective, and expresses my sense of changes in the legal profession as filtered through my experience of the changing profession of librarianship.

The legal profession is, among other things, an information profession. Lawyers, as members of one of the three paradigmatic “learned professions” (the others being medicine and divinity), base their claim to professional status on the possession of “advanced, or complex, or esoteric, or arcane knowledge” or “formally rational abstract utilitarian knowledge.” The legal profession is facing increasing competition from other professions and semi-professions (from accountants and business consultants to paralegals and e-discovery vendors), the growing reluctance of clients to pay exorbitant legal fees and increased scrutiny of fees by corporate counsel, and the ready availability of legal information and services online.

Like other information professions such as librarianship and journalism, law is under siege because of the increasing opportunities for disintermediation, and is engaged in a fight over turf. Law libraries are a good example of this struggle. Almost 15 years ago Richard Danner wrote in “Redefining a Profession” about the pressures faced by law librarianship as a profession, competing for resources with IT (information technology) professionals over the authority to mediate and control access to information in law schools. The competition has only become fiercer in recent  years, as most law libraries have faced massive budget cuts and the transfer of former library space to faculty office, administrative, and classroom space. The pressures arising from the current tuition and student debt crisis are intensifying the demands to cut, and even eliminate, law libraries.

To be sure, librarians and their supporters like to proclaim that “they will always need libraries and librarians.” But librarians struggle to articulate what it is that they provide that remains essential in a world of Google Books, Google Scholar, and instantaneous access to an enormous wealth of high quality online information, especially when the economics of practice lead lawyers to change from legal information maximizers to satisficers.

As for journalism, we are all familiar with the decline of newspapers: from one perspective, see the blog Newspaper Death Watch; from another, see the Public Editor of The New York Times asking “for reader input on whether and when New York Times news reporters should challenge ‘facts’ that are asserted by newsmakers they write about.”

One of the key insights in Richard Susskind’s book The End of Lawyers is that the current form of the practice of law is not eternal.

Responding to the structural break requires real change

Michael P. Downey 

In my prior post, I discussed how recent economic turbulence has altered what I teach and how I teach it. Now I will share how my experience, work with students, and personal observations lead me to believe that the legal academy has not embraced the tough solutions that this economy demands. In his December 2008 McKinsey Quarterly article “Strategy in a ‘structural break,’” UCLA management school Professor Robert Rumelt opines that we were experiencing a structural break.  Rumelt explains that such a break “denotes the moment in time-series data when trends and the patterns of associations among variables change.” Rumelt cautions, “The wrong way forward in a structural break during hard times is to try more of the same. The break and the hard times are sure indications that an old pattern has already been pushed to its limits and is destroying value.”

Of perhaps greatest relevance to the legal services industry, Rumelt voices exasperation over the cost of management structures that our present system requires “companies to spend at least $300,000 a year in wages, benefits, support personnel, and systems to enable one educated person to do his or her job,” warning that such a system “could be unsustainable in a less luxuriant world.”

The $300,000 per year Rumelt references almost perfectly tracks the compensation, benefits, and overhead costs that I allocate to an associate in my Introduction to Law Firm Practice class materials and in my book of the same title. This is the law practice that many now law school professors experienced, and that (as noted, in part due to OCI’s influence) some law students expect: practice at a very large firm, often with little client contact and no real feel for how the firm operated as a business. Yet law students are finding the decreases in new associate hiring have substantially diminished the opportunities for such employment.

Yet many law schools continue to educate students the same way. Students are charged high prices to learn legal thinking and legal philosophy, not what they actually need to succeed in court, in a business transaction, in a law firm, or in another legal practice or setting.

So what can and should law schools do? I offer three points in this manifesto. First, law schools must prepare students to be better able to provide legal services to clients. This includes clinical education courses. But it also includes the contents of substantive classes. When I was a law student, there were two Property professors. One taught only the mental gymnastics of thinking like a lawyer. The other taught real property law. While there may be a place – even a need – for both classes, particularly in the first year of law school, schools must make sure that graduates receive a substantial dose of course that will help them practice. Schools should also send a clear message that a  legal philosophy education will best prepare students to be legal philosophers, not lawyers.

Second, law schools should help students better understand the operation of law firms. Most law school graduates still enter private practice. If these lawyers understand how law firms generate clients or profits, they will be better prepared to practice, whether they are running their own firm or trying to survive and succeed as a junior lawyer at someone else’s law firm. Even graduates who do not expect to enter private practice can benefit from a basic understanding of law firm operations and economics, particularly considering the number of lawyers whose careers take unanticipated detours.

In addition, practical learning in legal ethics is critical. I started teaching trust accounting in my legal ethics courses after hearing a Colorado disciplinary counsel discuss that recent graduates were facing an increasing number of bar investigations when they overdrew their trust accounts. Considering that the economy is pushing many lawyers to smaller firms or solo practices, knowledge of trust accounting can be crucial, particularly when mishandling client funds may result in prompt, catastrophic discipline.

Third, law schools need to take some responsibility for students’ economic situations. For years, law schools have increased tuition at rates much faster than inflation, knowing law students could obtain (often federally funded) education loans to pay the increases. The result is that, through consolidation, lawyers today will likely be paying off their own student loans as their kids entered college. The recent economic downturn makes this even more probable.

Addressing such issues in part means working to ensure that at or shortly after graduation law students are more capable of practicing law, and practicing it successfully. Thus, this point ties back to my prior two points. But law schools can and should do more.  Law schools need to examine how they can reduce the economic burden on students, including reducing the cost of legal education. This may include tuition reductions, offering alternative payment arrangements, and loan repayment programs (which are too limited if they reach only pro bono lawyers, and ignore that many other graduates face huge economic struggles in trying to live and repay loans. I don’t have perfect solutions. I leave that for the more knowledgeable legal educators in this Symposium.

Finally, law schools can and should provide accurate information for applicants and students about job prospects upon graduation. Having worked hard to make law firms more transparent, I commend those pushing for greater transparency in the law school application process as well. Only then can people make intelligent choices about whether they want to be lawyers, as well as where they will try to be lawyers. 

Rogerian rhetoric and law school cred – part II

Lucy Jewel

In my last post, I suggested that law schools employ Rogerian rhetoric to engage debate on the current crisis in legal education.  Rogerian rhetoric holds that the advocate fully and completely state the opposing view and only then move forward to consider the counter view.  So the question is – how do we apply a Rogerian structure to the question of whether there is still value in the J.D., given troubling tuition costs, employment numbers, and starting salaries?  For purposes of this argument, let’s consider a J.D. from a low-tier school, which can be expected to have the worst rate of return for its graduates.  At a minimum, Rogerian rhetoric mandates that we not obfuscate our graduates’ employment and salary data.  We would have to start by expounding on the following, with complete accuracy:

• The law graduate may only have a 50% chance of not finding a full-time job as a lawyer;
• If the graduate does find a law job, there is a strong likelihood that the job will only pay in the range of mid five-figures [$45,000 - $65,000].
• The graduate will likely be carrying an enormous amount of student loan debt.
• If the graduate elects income based repayment options for his/her student loans, the graduate is likely to remain on a modest fixed income for the next twenty-five years of his/her life.
• As Dean Jim Chen has cogently pointed out, coming out of this mix, many law school graduates will not be in an optimal financial place.

With all that said, let’s focus on why someone would want to go to law school, with full knowledge of the above risks.  I’ve been mulling these ideas around for quite some time, in part, to justify my existence as a fourth-tier law professor (where I primarily teach practice skills).  I’ve also been perturbed by the strains of elitism running through this debate (justify your existence, lowly fourth tier law schools!) and the idea that law professors, accumulating our own cultural capital as we write and blog our way to more prominence, are the expert arbiters on whether law school is a good investment.  None of this is to discount there are deeply compelling narratives as to why one should not attend law school.  But I’m curious to explore the counter position, if there is one.

One thing to consider is cultural capital, i.e. the non-economic value, that a law degree affords.  Social mobility has long been associated with obtaining a law degree, and obviously, the argument that a law degree will help move one up in society’s structure is a difficult one to make given the financial hole one must dig in order to obtain the degree.  But there is more to the story of social mobility than just economics.  Some law students, the first in their family to obtain a JD, may see the opportunity to practice law as an important cultural marker in their community.  The cultural cache of a law degree might mean something, even if the newly minted JD can only find full-time work in a non-legal job and must enter the profession via a part-time solo-practice.

Meaningful autonomy is the other reason I can think of as to why someone would take a huge risk to obtain a J.D. with little guarantee of job security in return.   Practicing law, even if it is only part-time and even if it includes tasks that have long been designated as unchallenging and low-level (drafting wills, preparing bankruptcy petitions, family law, criminal defense) still requires the outlay of substantive knowledge, rhetorical skill, and counseling ability, as the attorney seeks to help others maneuver through the legal system. 

As professors, let’s not impose our own hyper-snobbery on the rest of the world.  For all the professional elitism about rank of law school and type of law practice, most lay-people, especially in underserved communities, view being a lawyer as being a lawyer.  It doesn’t matter what school one graduated from or what type of law one practices.  Moreover, as Professors Dinovitzer and Garth have reported, lawyer satisfaction rates among lawyers who graduate from less-elite schools (more likely to represent individual clients) remain higher than those legal professionals that graduate from elite schools (more likely to land a corporate law-firm job).  (The authors then posit that these differential outcomes in lawyer satisfaction are a manifestation of how our professional hierarchy replicates itself, an analysis that remains valid, but which may need updating, as the Great Recession and its after-effects have re-aligned our professional hierarchy).  Nonetheless, I think the data on lawyer satisfaction should give law professors pause before we project our own values and risk-aversion scales onto everyone who contemplates a career in law. 

Why do people make seemingly irrational economic choices?  Why, for instance, do throngs of people move to New York City, to be musicians, writers, or actors, when NYC is hardly an incubator of financial security or success in these endeavors?  Yes, we must accept that job security is no longer a reason for obtaining a law degree.  In addition, the argument that “one can do anything with a law degree” does not work these days (if it ever did).  The Rogerian line of reasoning may not continue to draw 40,000-plus new law students into our classrooms each year, but my predication is that the JD will continue to retain cultural value that defies pure economic reason. 

Two of three Carnegie Reports support the undergraduate law degree

Russ Pearce

When defending graduate legal education, many assume that it requires deference as the traditional American approach.  To the contrary, the requirement of an undergraduate degree before law school admission did not become standard until the 1960s.[1]  And while much of the push for making law a graduate degree came from the belief that lawyers needed liberal arts training, more bigoted sentiments found their way into the debates. 

In 1929, Henry Drinker, later the author of a leading treatise on legal ethics, argued that the American Bar Association should require two years of college before law school.  He explained why “a two year college course preliminary to the three year course of the law school [is] calculated to produce a better type of lawyer.” As “Chairman of the Committee of the Grievances of the Law Association of Philadelphia,” he had observed that lawyers “that came up out of the gutter and were catapulted into the law, have done the worst things and did not know they were doing wrong.”  In particular, “of the men who came before us who had been guilty of professional abuses, an extraordinarily large proportion were Russian Jew boys.”  What these lawyers lacked was what Drinker learned in college – not “book learning,” but “the American spirit of fair play.”[2]

Two Carnegie Reports provided the intellectual foundation for those who resisted efforts to require undergraduate education.  In contrast to the 2007 Carnegie Report that sought to reform graduate legal education, the 1921 and 1928 reports authored by Alfred Z. Reed recognized that different levels of legal training were appropriate for different segments of the market for legal services. 

The end of law schools

Ray Campbell

Law school as most of us know it is doomed.  Law school is doomed not because law schools fail to prepare students to become lawyers, but precisely because law schools, however badly and however anachronistically, train lawyers. Lawyers have been for centuries synonymous with the delivery of legal services, but that day is ending.

Already today, what might have been part of legal services are being delivered by non-lawyer organizations offering other important skill sets.  Tanina Rostain documented six years ago how companies that offer “corporate compliance” or “risk management” or “document production” or even “litigation consulting” already serve corporate general counsel, doing tasks once done by law firms.  The displacement will not just happen at the high end of the market where corporations assemble their own teams. In the future, aided by software and tightly defined business processes, paraprofessionals will also encroach on what has been lawyers’ turf, just as nurse practitioners have supplanted primary care physicians in many settings.

To the extent society is concerned about, and willing to support, educational training for those engaged in legal services, the time has come to think about very different kinds of training and, most likely, very different types of educational institutions. As with any other industry, the $230 billion plus US legal services industry exists because it meets needs of consumers. Clients come to lawyers because they have a job that needs to be done.

Professionals, unlike retail merchants or manufacturers, do not fill consumer needs by selling products to which they have added some kind of value. They pursue a different business model than that of the value chain, one that has been called by Clayton Christensen and others the “solution shop,” or, to distinguish it from a “value chain” business, a “value shop.” Professionals diagnose and solve problems – often vaguely defined problems of uncertain scope – by bringing to bear a specialized skill set or technology accessible to them but not to the general public. Problem solvers of this type include not just lawyers, but doctors, police detectives, and management consultants, to name a few.

The nature of the special skills and technology play a critical role in this model. The skills must be sufficient to solve the client’s problem, and they must be skills or a technology not generally available outside the profession. Typically, the people employed by solution shops have specialized training, which is further enhanced as they gain experience on the job.

Legal services are in crisis because the technology imparted by law schools no longer meets the needs of consumers. Put differently, today’s law schools deliver a set of skills and a body of knowledge not sufficient to meet the needs of consumers.  As Herbert Kritzer has argued, we need to rethink “law workers.”

What’s wrong with the skill set law schools give lawyers?

American law professors as the 99%, fortunate division

Anita Bernstein

Greetings from Day 3 of the Symposium!   My co-bloggers, writing about how the global recession has altered legal education, have brought us insights from outside the United States and from outside the American tenure track.   This post is here to add narrowness.  I am looking at my own cohort, law teachers working fulltime in U.S. law schools.

We are the 99%.  

At least technically, in the sense of having low enough income.   Exceptions noted, law-professor earnings typically deliver less than $506,000, or $344,000, or a regionally adjusted lower figure into a household each year.  Spousal pay, inherited wealth, or income from practice doubtless carries some of us into the 1%.  I’m not privy to the cohort’s tax returns.  But it’s safe to estimate that most of us live down here in 99-ville.  

You might think our 99% status is only technical.  Surely we don’t look 99%ish.  We’re at the high end of the range.  We have no right to form a collective bargaining unit.  Our fellow 99%ers probably feel little kinship with us as workers. 

The main separation between us and other workers?  Job security.  Anxiety about wage income—becoming unemployed or underemployed, or living one paycheck away from crisis—is a 99% trait that American tenure-track law professors can understand, but don’t really share.  Yet our job security is actually central to our 99-percenthood, I think. 

Job security is a priority for all workers except the very rich.  We tenured and tenure-eligible teachers still enjoy--and might figure out how to share--what the labor movement fought to win.    

Living the dream of labor heroes like Samuel Gompers and Mother Jones, law professors lack plutocratic wealth yet work under conditions that honor our desires, deliberations, and identities.  Inside our schools we have a vote, opportunities to speak frankly without risking our livelihood,  the rule of law (as expressed in faculty handbooks and university regulations), and--I wish I had a better synonym--something like brotherhood:  the chance to nurture and grow in a community of peers.  Freedoms are written into our job description.  Other 99%ers might understandably think that workplace dignity died a long time ago, even before Ronald Reagan gleefully killed a union as one of his first official acts as President.   Our daily lives testify to the contrary.    

“From everyone who has been given much, much will be demanded,” the Book of Luke declares; “and from the one who has been entrusted with much, much more will be asked.”  Our relative wealth compels us to pay high taxes (as my old friend, the superstar law prof and confessed 1% member Ian Ayres, argued last December); our status as teachers, scholars, and institutional citizens gives us duties at work.  Extraordinary job security is a source of more obligations.  

We are tasked with governance.   To govern means to speak up for academic freedom, ask questions of administrators who make announcements, and protest any abuses or wrong choices that we observe.  We ought to insist on a voice in budgets, and pay particular attention to expenditures that advance the education of our students. 

And thinking more directly about Legal Education’s Response to the Economic Realities Facing the Profession, I’d underscore “realities.”  Because we law professors govern, and because our voice is crucial enough to be protected by enhanced job security, our judgments about realities warrant attention. 

Realities in our world include proposals with financial implications.  (Is there another kind of proposal?)  Faculty members notoriously heap demands on administrators with decisionmaking power.   The strained economy gives these managers a reason to say no.   No might be the right answer; it could also be wrong.   

Like labor unions in the for-profit sector, we ought to be open to voluntary sacrifice in bad times, for the good of our institutions.  But we 99%ers ought to respond actively and with energy when we’re told about detriments like frozen salaries, cuts in travel and other supports, or refusals to hire new colleagues.  Same for big-ticket new schemes, which may look like goodies but come at the expense of something else.  

We’re in a fiduciary relation with our schools, I think.  Fiduciaries know that both spending and refusing to spend money can be parlous choices.  Let’s grow up and make the judgment calls that are ours.  We have “been entrusted with much” responsibility, as well as much privilege and good fortune.       

Social dimensions of legal education

John Varghese

Like any system of education, the purpose of legal education is to inculcate value system in the students, in addition to imparting knowledge and skills. If we define the purpose of legal education is to create good lawyers, the question who is a good lawyer would come immediately: Is a good lawyer one who is a good orator, or one who is skilled in legal drafting, or one who has a strong foundation in legal reasoning? A good lawyer is like the “good” neighbour as propounded by Jesus Christ- one who is good for you in bad times; one who is inwardly ethical, helping and caring, regardless of the image the world has for such person.

Cicero more or less defined a “good lawyer” when he said that Sulpicius was not less a master of law than of justice (non minus juris consultus quam justitiae). This shows that even from very early days, a true breed of lawyer was seen as one who is striving always to be in command of all the learning of the law, but striving no less earnestly to make the law fit the equality of justice and the ethical demand of righteousness. See John Maxcy Zane, The Story of the Law [1927].

  The foundations of creating a good lawyer should start from the law school. The Carnegie Report pointed to the needs of ethical foundations in legal education.

The three year J.D. – Does one-size-fits-all legal education still make sense?

Laurel Rigertas

Periodically there are discussions about whether a three-year program of legal education is still necessary, or whether a two-year program would be sufficient.  See here.  These discussions, however, contemplate a change to the length of legal education for all Juris Doctorate programs.  The legal profession should consider whether a range of degrees should be available.  Such a range could include the three-year J.D. based on a general program of legal education, in addition to specialized degrees based on one or two years of legal education.  This approach would, of course, require approval by the state supreme courts because they would ultimately have to grant limited licenses so that individuals with specialized degrees could independently practice law within their license’s specialty without committing the unauthorized practice of law.  Such a stratification of the legal profession is an unexplored option that may be worth considering for many reasons in today’s marketplace.

As an initial matter, the legal profession is not meeting the needs of population.  Today, while many law school graduates are unemployed or underemployed, the legal needs of individuals in today’s troubled economy has risen sharply.  And yet, this over-supply of lawyers and under-served population cannot meet in the marketplace because the cost of legal services is unaffordable to so many individuals.  While household income has decreased 5% since 1999 (see here), lawyers’ average billing rates increased 7.7% in 2007, 4.3 percent in 2006 and 2.5% in 2009.  To make matters worse in the marketplace, the cost of legal education increased 317% between 1989 to 2009.  Law students frequently take out six figure loans and then need to find employment with salaries high enough to repay those loans.  The jobs that pay salaries high enough to repay these loans are rarely the jobs that serve the needs of low- and middle- income individuals; they are usually the jobs that serve wealthy individuals and commercial interests.  In the end, individual consumers are priced out of the marketplace and have to rely increasingly on government funded or subsidized legal services at a time when funding for these types of services is suffering severe pressure and cuts.  The cost of legal services in the marketplace needs to be driven down. 

This leads me back to my original thought. 

Economic realities and gender (in)equality in the legal profession

Hannah Brenner

The contemporary economic realities facing the legal profession affect multiple constituencies including most obviously, lawyers and clients. Critical analysis of the breadth of these issues, however, would not be complete, however, without significant attention directed at the site of preparing future lawyers for practice.  Often, discussions of the legal profession begin at the place where lawyers enter the world of practice, ignoring law schools as part of this continuum. Many thanks to Renee Newman Knake and the Legal Ethics Forum for addressing these issues vis a vis this innovative symposium.

The impact of the current economic realities is even more complex when considered alongside the existing gender (in)equality in the legal profession, yet little attention is paid to these issues in tandem. Despite significant progress toward eliminating explicit gender bias, women lawyers continue to face barriers and obstacles to their advancement.  The result is a profession in which female lawyers are under-represented in positions of leadership and power and under-compensated for performing the same work as their male counterparts.

Professional Responsibility and substance abuse: teaching students how to handle the pressures of lawyering in a difficult economy

Michele Benedetto Neitz

Substance abuse is a controversial topic in the legal profession.  Although law firm culture is changing, some lawyers still rely on happy hours and martini lunches as an informal way to meet clients.  Unfortunately, many violations of state bar disciplinary codes can be traced to alcoholism and drug abuse.  For this reason, and to prepare students for the realities of legal practice, I began teaching the topic of substance abuse in my Professional Responsibility class in 2007. 

In the midst of the Great Recession, alcohol and drug abuse is skyrocketing among lawyers.  Lawyer Assistance Programs throughout the country are reporting higher demands for their services since the recession began.  In addition to the ordinary stresses of life as lawyers, our current students and recent graduates are facing increasingly burdensome student loans and reduced job opportunities.  These pressures, and the direct link between rising stress and rising substance abuse in the legal profession, combine to make substance abuse a relevant and important subject for PR classes during this recession.

This is not an easy topic for law professors.  Substance abuse is a personal matter for many lawyers and law students.  According to a 2009 survey of Professional Responsibility Courses at American Law Schools, 22.9% of PR professors do not teach substance abuse issues in their classes, and only 7.3% spent more than two class hours on the topic.  (Survey here.)  Law professors justifiably do not want to be perceived as “preaching” to their students, and they are concerned about discussing moral or social issues in a law school classroom.  Perhaps more importantly, many of us are not trained in substance abuse or mental health counseling.  How can PR classes provide a forum for these issues without engaging students and professors in an uncomfortable dialogue outside of a professor’s expertise?

Gazing upon Medusa? No, just making law firm practice transparent to law students

Michael P. Downey

I had an odd perch to watch as the recent legal economy tsunami struck the U.S. legal education system. In 2007, while a partner at an AmLaw200  firm, I accepted an invitation and in January 2008 first taught a class titled Introduction to Law Firm Practice at Washington University School of Law. Drawing upon my own graduate education in law firm management (at George Washington University’s Law Firm Management program) and almost a decade of private law practice, I taught approximately 70 law students about the business of private law practices: how law firms are structured, make money, compensate lawyers and staff, and develop business.

The initial class members were  enthusiastic, even though I was writing the course materials almost simultaneously with their taking the course. Virtually every student had interviewed with law firms. Many had already worked at law firms. And most anticipated that, if they wanted to work at a law firm, they would be able to secure such employment before or shortly after graduation.

The next January, and every January since, I have taught a new crop of approximately 70 Washington University law students about the business of law practice. The goal is to “draw back the curtain,” to show students how firms really operate.

I use a lot of real data. Unfortunately,  due to availability, the data tends to be more focused on larger firms. I also use a lot of information from law firm consultants, those people who teach lawyers what is happening at their own firms. I sometimes tease that I am a member of the “Hildebrandt School” of law firm management because several of my most influential GWU Law Firm Practice professors and mentors – Jim Jones, Carl Leonard, and Bill Robinson – were then Hildebrandt consultants, I learned and now teach students Hildebrandt thinking and models, including that  law firms’ practices can be placed somewhere on a value pyramid; that there are five levers to law firm profitability (R-U-L-E-S, or rates, utilization, leverage, expenses, and speed); and that the key to firm’s ultimate success is strategic understanding and alignment.

The classes are big and bustling. Every year there is a waitlist. And, at the end of each class, each student submits a “Reflective Journal” in which they write about and reflect upon the contents of the class. These journals provide me with a (sometimes admittedly obscured) window into what students are really thinking. Considering that my class is often the first – or only – class where students discuss recent economic realities in depth, I pause to share three of these insights.

Law school responsibilities, higher yet for public schools

Judith Maute 

At present, there are about 200 ABA accredited law schools, including 40% which receive some amount of public support.  A school’s status as private or public makes a great difference in many ways, especially cost, debt load and responsibility to the public funding source and its taxpayers.  National Jurist recently listed 60 “best value” schools that provide affordable education with solid bar passage rates and good job prospects. See here.  Of the schools listed, all but three are public.  My school, the University of Oklahoma, is listed in the second highest category, graded A-.  We strive to keep tuition affordable so our graduates’ futures are not mortgaged by large student loans;   The 14 law schools now being sued for alleged inaccurate employment reports are all private. It is not surprising that debt-ridden graduates from some lower tier schools are angry enough to sue because they can’t get jobs that pay enough to pay their student loan debt and provide a modest standard of living.  By contrast, average student debt loads at public law schools tend to be much less than those at private schools; while they still worry, they are not among the most vocal complainers.  As beneficiaries of the public purse, state-supported schools, faculty and their graduates have special responsibility to give back to the community, in public service, pro bono/low bono service and competent service offered to the general public at reasonable prices.

All law schools should help their students avoid unnecessary student loans and teach them how to take advantage of new loan repayment possibilities. They must teach students about financial literacy and debt management early and often, particularly to the millennial generation unaccustomed to deferred gratification.  Stories abound of student using educational loan proceeds for pleasure trips, expensive housing, fine dining, new cars, and expensive drinks – caffeinated or alcoholic.  If students want to live like lawyers when they graduate and get a job, they must live like students while in school.  Undergraduate and graduate schools should arrange for knowledgeable student loan experts to educate them on how to minimize debt and burdensome payment plans.  Georgetown Professor Philip Schrag and Heather Jarvis played key roles in the research, drafting and enactment of the College Cost Reduction and Access Act of 2007, signed by President George W. Bush Sept. 27, 2007.  In October 2011 President Obama announced an initiative to accelerate the effective date of a 2010 law to provide even lower interest rates to those with qualifying federal loans.  Some responsible administrator at every school should study now Philip’s January 17, 2012 memo on what schools can do this semester to be ready for their students to benefit immediately from new Department of Education regulations that will come out in April 2012.  Prior administrative work must be done now for students to obtain those benefits.   A recent work Philip co-authored that succinctly traces the various federal efforts to make higher education affordable and for guidance on loan repayment assistance programs (LRAPs).  Heather, formerly of Equal Justice Works, started a consulting business to teach students who must borrow for school how to manage their finances and repay their debts without mortgaging their lives to 25 years of loan repayments.  Access Group and Graduate Leverage also do this kind of consulting. 

Public schools know well of the decrease in government support over the last twenty years.  Regardless, I believe that public schools owe a special duty to the governmental entities that allocate public resources, and to the taxpayers who make that support possible. 

Training students for the technology infused law practice of the 21st Century

Daniel Martin Katz

Quantitative Legal Prediction is the Next Frontier of the Industry
Later this week at Emory Law’s Symposium on Legal Practice in a Changing World, I will be discussing the next great frontier of our business - Quantitative Legal Prediction – here is the basic idea:

Human generated prediction is one the hallmarks of the legal services industry. That was the past but this will not define the future. The race for the future of this industry is in developing 'soft' artificial intelligence processes that leverage the data/information streams being used by "expert reasoners" (i.e. lawyers at all price points) to mimic their underlying decision processes but do so with the benefit of large scale datasets (if you do not think this is possible see IBM Watson - coming soon to your laptop in some version via Moore's Law). In much the way computation and large-scale data analytics changed an industry such as finance (or since it has been popularized - baseball – see Moneyball), it will (it already has) change the legal services industry at all price points (high end and the retail level).

On the high end of the market, sophisticated law firms, general counsels and even the future retail legal industry are (will be) interested in two forms of prediction:

(1) How much will this matter cost? Law firms will want to know this so they can do matter pricing (if they are forced to do so) and GC's want to know this so they can control their legal spend. In particular, both Law Firms & GC's are in a epic struggle to manage the global legal supply chain. GC's are getting lots of help doing intelligent procurement from their procurement divisions and/or are hiring vendors such as TyMetrix and leveraging insights from documents such as the Real Rate Report.

(2) What is the likelihood of success or the ultimate projected exposure in the particular matter? This second class of prediction is usually done through instruments such as the classic client memo, mental models (ancedote, gut, instinct) that are honed using a variety of data stream – most notably on the job experience. As I discuss in my presentation slides linked to below - this is ready for a significant reset:

Quantitative Legal Prediction - Legal Tech 2012 - Professor Daniel Martin Katz

View more presentations from Daniel Katz

 

Toward the MIT School of Law

In light of the technology infuse world where we are likely heading - the training is simply not good enough. The skills that students are going to need to be competitive -- technology, computational data analytics, finance, informatics, economics, accounting, human computer interaction, supply chain mgmt, etc. are in limited supply (particularly the technology and high end data analytics). To make our students competitive (hopefully thereby restore the Return on Investment associated with the JD) will require legal education to move away from its significant liberal arts / humanities bent and look more like polytechnic research and teaching operation – or what I have called in other related work "THE MIT SCHOOL OF LAW"

Listen I do not expect every school to adopt this approach. When it comes to real reform the legal academy is pretty damn conservative. Although, I have nothing against the humanities but this is no longer a humanities age (other than this). It is an age of technology. Law school needs to transition from its liberal arts predisposition to a polytechnic research and teaching operation (you know one with peer review and grant $$). From both a scholarship and training perspective, it is time to get serious about science, computation, data analytics and technology.

I have argued that the arbitrage opportunity in the market for legal education is for an institution(s) the move toward an “MIT School of Law.” In other words, an MIT style institution would do just fine in the market for legal education (in the long run perhaps better than HYS?).

If you are an employer – hiring a lawyer for the 21st Century – please ask yourself this question: do you want a student from an MIT Style institution or some sort of liberal arts school? Of course, the market will ultimately decide this question — but I would place my bet with an MIT style legal institution.

Yes there is going to be math (technology as well) on the exam

This is the reality of our industry and it is already underway. Technology is going to reduce the total number of lawyers needed and recast the set tasks associated with those who remain in the practice of law. Law is a mature industry and the total number of jobs is not likely to grow over the coming years.

As I have previously argued “the return on investment (ROI) of a J.D. is waning and reform is needed before the system collapses (via the reform in student loan market). The ROI is not really within the control of any particular institution. What institutions control is the curriculum and it is fair to say that the curriculum offered at most institutions is in need of a serious reboot.”

Here is the implication for legal education – stop exclusively training your students for primary sector of the legal services market that has essentially experienced ~0% net job growth since 2000 and try to help your students compete for the law jobs of the 21^st Century – you know the ones that have experienced more than 90+% net job growth since 2000.

This means that who you hire to teach might need to be different. Different criteria simply need to be privileged.

In other words, if you want to help your students - it is time to start training them for the technology infused law jobs of the 21^st Century. This starts by jettisoning the general technophobia and anti-quantitative culture present in many law schools. The fact that the culture of law school all but celebrates the "I did not go to law school to do math pathology" is at the heart of the problem.

The task for legal education is to ensure our students have the training necessary to be competitive in the legal employment marketplace. The training we offer is simply insufficient for the current reality. To command the salary of today - in the not too distant future - our students are going to have to be able to do much much more.

In short, welcome to law’s information revolution - revolution already in progress and as I like to say in all of these forums - yes there is going to be math (and technology) on the exam.

   

Law schools have a research mission too

Brad Wendel

I posted something here in November after the New York Times quoted me as attributing “trade school anxiety” or some such thing to the legal academy.  In response, a practicing lawyer said something fairly typical:  Teach some damn law, and stop hiring Ph.D.’s.  I don’t disagree at all that most law school courses, most of the time, should be about the law, broadly understood to include not only specific substantive content but also analytical and rhetorical techniques, an appreciation for the historical, economic, and normative context of the law, and so on.  I think this actually happens.  Most of my colleagues at Cornell, most of the time, teach the sorts of things that practicing lawyers need to know.  Stories about seminars in law and butterfly collecting, or a law and economics zealot teaching an entire torts class without once mentioning the elements of negligence, are likely either apocryphal or the result of the availability heuristic and confirmation bias.  Everyone is so sensitized to the (non-)issue of theoretical bullshit being fed to law students that we invariably notice only instances that support our claim that something has gone awry in legal education. 

It is undeniable, however, that the emphasis in recent years on interdisciplinary scholarship (all those pointy-heads with Ph.D.’s) has affected the market for law professors, so far fewer scholars get hired who intend to produce “pure” legal analysis, as compared with the situation 25 years ago.  But is this a problem?

Imagine you are the Law Czar and can make any change you like to the legal regulation of some industry.  Rather than having to work through the byzantine political process of the ABA and state courts, you can restructure the legal profession in any way you see fit.  In particular, you can reduce the number of years required to obtain a J.D.; restore the LL.B. and make law and undergraduate course of study as is now the case in the U.K., Australia, and New Zealand; or even eliminate educational prerequisites altogether and really kick it old-school by allowing lawyers to serve apprenticeships with practicing lawyers.  Maybe we could recognize all of these approaches at once, and let the market sort things out.  A limited experiment along these lines is taking place right now in Australia, where the University of Melbourne has converted its law program to a U.S.-style graduate curriculum leading to a J.D., while other Australian law schools remain undergraduate.  Or we could have a market competition between apprenticeships and formal training, as happens today in the culinary world.  If you want to be a restaurant chef you can attend the CIA or you can work your way up through the ranks in the kitchen of a good restaurant, the way Bocuse, Robuchon, Ducasse, and the other greats did.  (Some executive chefs and restaurateurs won’t hire culinary school graduates; others prefer them.)  There is no formal educational requirement to become an investment banker – you just have to go to the right school, be in the right fraternity, and have halfway decent quantitative skills.  Some states still allow lawyers to serve an apprenticeship and “read for the bar” although very few would-be lawyers choose that route.  As the Melbourne example shows, a prominent, powerful institution can play the role of norm entrepreneur or opinion-maker by choosing to strike out in a new direction on its own.  There is presumably nothing stopping a law school in the U.S. from trying to compete by doing better than its peer schools at offering practically oriented training.  My former employer, Washington and Lee, has implemented an innovative practice-oriented curriculum in the third year.  Presumably some students choose W&L over peer schools, and some employers recruit at W&L, because of the perceived advantage of focused practical training.  

All of which leads to the question: What would be lost by severing the connection with graduate education?  the current research mission of the legal academy?  with the university in general? 

Cultivating learners who will invent the future of law practice

Renee Newman Knake

I think about the economic realities facing our law students a lot. Constantly. This concern fuels my teaching, especially in my Professional Responsibility class. I used to stress to my students the importance of choosing a rewarding and meaningful position when embarking on one’s legal career. Now I find myself forced to tell students to take whatever job they can find, that they can worry about the rewarding-meaningful stuff later. But I refuse to believe this is the best legal education can do for our students—to tell them to ride it out. Which is why, together with my colleague and friend Dan Katz, I have been working on new curriculum here at Michigan State designed to help students capitalize on the disruption that the economy has wrought on the profession. For example, in June we will launch our 21^st Century Law Practice Program in London, a partnership with faculty at the University of Westminster Law School. You can read more about this first-of-its-kind program here, but a key component is equipping students to practice law in ways that we cannot predict or even imagine—ways that technological innovation and business realities will inspire and demand. I don’t mean to suggest we will solve all that ails legal education with this endeavor (and I don't think that all components of legal education should be replaced by a program like this--Rakesh Anand's earlier post is well-taken), but I would like to suggest that our program is a concrete response toward helping our students create their own rewarding and meaningful careers in the law. Another new course that Dan and I will offer next year is Entrepreneurial Lawyering, and I’ve started the syllabus with two quotes we educators might want to keep in mind:

“In times of change, learners inherit the earth, while the learned find themselves beautifully equipped to deal with a world that no longer exists.” Eric Hoffer

“The best way to predict the future is to invent it.” Alan Kay

Legal education has prided itself over the years in producing members of a learned profession. In this time of change, however, we need to also focus on cultivating learners and inventors.

Considering today’s economic times

Rakesh K. Anand

In America, law is at the center of political life.  We govern ourselves as a community through law.  Acknowledging this state of affairs, it follows that legal education is, or at least should be understood as, political education of a certain type.  This understanding of the nature of legal education informs how I teach Professional Responsibility (as well as my other courses) and how I understand the relationship between that course and the extant economic situation in the United States.  It also informs how I think about the manner in which law schools should, at a broad level, react to the current state of economic affairs.  

For this on-line symposium, I would like to address each of these subject-matters, albeit necessarily in a limited fashion.  Specifically, I will discuss my approach to teaching Professional Responsibility and the single most important role that the present economic circumstances play in that course, which is as a point of departure for questioning the social status quo.  I will also discuss a central aspect of my thoughts on how law schools should respond to the existing economic environment, namely that they should resist any urge to significantly restructure themselves along lines of market relevancy.

Building from the understanding that legal education is a type of political education, I organize my Professional Responsibility course around four facts.  First, lawyers are men and women of action.   Second, they are individuals with power.  Third, lawyers are required, at times, to provide leadership, understood in the narrow concrete sense of problem-solving, managing a situation, managing people, etc. (i.e., leadership in a particular context to effect a positive end result, as opposed to a more “dramatic” sense that has less relevance for students).  Fourth, different generations engage the world differently (and, more specifically, a not insignificant difference exists between the psychology of the Baby Boomers and that of Generations X and Y).

Against this backdrop, my Professional Responsibility course begins with a basic question: “How should one practice law?”  Or, as I often put it to my students, “What does it mean to be a lawyer?”  

We can't teach skills with subject matter relevant to modern practice?

David Hricik 

I am an unusual academic, in that I practiced for 14 years before coming to teach full time in 2002.  I’ve been there and done it – multi-national firms, medium firms, partner in a small one.  Along the way, I’ve mentored students from law schools ranked from number one on down to very near the bottom.  While they obviously differed, apart from students who went to Baylor, almost none of them were remotely prepared to practice law.

            When I became a professor, I had no real idea about why this was so.  Law school had been 15 years earlier, a lifetime ago.  Once I began to teach, however, I soon had a theory, I think a good one, as to why students are woefully prepared:  we waste their time.

            Let me give you some examples.

 I taught property.  The first time I taught it, I spent a fair amount of time on future interests, the rule against perpetuities, and related law.  Then, I thought:  I’d never seen any of this stuff in practice.  So, I asked graduates in the family law and estate planning areas, and learned that virtually none of what we teach them matters. 

            Wait, you say, reading those little blurbs and noticing whether or not there is a comma, and understanding whether it’s a reversion or a remainder builds a valuable skill set.  I’m not sure about that, but let me give you the benefit of the doubt.  Why can’t that same skill set – close reading skills presumably – be taught through reading commercial leases, real estate documents, or the like? 

            In contracts, we spend enormous time on consideration.  I recall litigating consideration once, and so it has some relevance, but performance, breach, and remedies are far more often litigated, and the skill of closely reading contracts is, obviously, a central skill for writing, negotiating, and litigating contracts.  Can’t we teach the skills about reading cases while focusing on issues that are actually  frequently litigated in this century?

            I could go on.  I will.

It's time for the ABA to deregulate law schools

Richard Painter

For many law students there are too few jobs available that pay enough to cover the cost of law school.  There are also too few lawyers who are willing to work for what most Americans can afford to pay.

Put these two facts together, and it is clear that the problem is not that we have too many lawyers.   We don’t have enough lawyers who charge modest fees.   We also don’t have enough law schools that lawyers who will earn modest fees can afford to go to.

The one-size fits all approach to legal education that is reinforced by ABA accreditation standards – and to a lesser extent by other organizations such as the AALS – perpetuates this problem.   The system works very well for clients who can afford to pay the high fees of heavily indebted lawyers.  It does not work so well for everyone else.

The ABA can instead expand access to legal services by encouraging some law schools to develop a different business model that provides a high quality legal education at a lower cost.  Clients’ needs and resources differ, lawyers differ and law schools should differ as well.

There are many areas where there should be more flexibility in ABA accreditation standards.  I will discuss here only one of them:  the faculty, which is for many law schools the single largest expense.  The principal role of the law professor in the school is to teach.  Part of being a good law teacher is active participation in the legal profession, whether as a scholar, as a lawyer or a judge, as a government official or in some other capacity.  I have not seen credible evidence, however, that one of these categories of professional endeavors outside the classroom makes for better law teachers than the others.  They each improve our teaching in different ways.   

One of these endeavors outside the classroom – legal scholarship – must be subsidized by the law school.   Unlike medical research and some other areas of scientific work, there is very little outside funding for legal research.   Law schools have to pick up the slack by paying professors more.  In return these professors agree to limit their outside practice of law (no more than one day a week in most law schools).   A professor’s substantial commitment to legal research may even require absence from the classroom some semesters, which requires the law school to hire more professors to teach the courses.  And then there are the other expenses that go along with research – visiting speakers, travel, research assistants, technology, etc.

Other professional endeavors outside the classroom – practicing law, consulting, judicial or government employment – are different.  

The sick elephant in the room

Jim Milles

I am grateful to Renee for the opportunity to contribute to this discussion with such a distinguished group of law professors, and to work through some of the nagging concerns I have been feeling as I prepare for spring classes.

To me, it is undeniable that legal education is in a crisis; the only real dispute is over its scope and how to respond. This crisis is a complex one with multiple dimensions. One of the elements of this crisis is that the various stakeholders--among them law students, big law firms, law professors, law school deans, and client/consumers--have approached it from multiple directions, asking very different questions, and proposing very different, mutually contradictory, solutions.

It is routine to illustrate complex problems with the parable of the blind men and the elephant, but the typical function of this parable is to demonstrate that each party has a partial view, and that by working together a more complete view would be possible. I picture the current crisis in legal education a little differently, with a greater sense of urgency, and lament the effort wasted in arguments that miss crucial points. Imagine several blind physicians called in to examine one, very sick elephant. One physician examines the ear of the elephant and pronounces “This animal has an infected ear. It must be treated immediately! Medication and rest are essential.” Another physician feels the side and proclaims “This animal is overweight. It must immediately begin exercising more.” A third palpates the leg and declares “This animal has muscular atrophy. It needs slow and careful physical therapy.” Then the three physicians proceed to ignore the elephant and argue among themselves over which medical condition is worst and which treatment must be given priority.

Similarly, current critiques of legal education tend to identify at least three areas of dysfunction. They are not completely separable problems, but they have much less in common than is usually presumed. Discussions that confuse these problems are likely to be unproductive and generate pointless arguments.

(1) Lawyers in large law firms complain that law school fails to prepare students to practice law. Many law students fear that the lawyers are right. One response is to call for various reforms such as increased clinical and practical skills training. Defenders of legal education argue that critics are repeating old criticisms and are unaware of how law school has changed. They point out that law schools have been offering such skills training for years, and that expanding this kind of education is likely to be even more expensive, requiring smaller classes and more faculty with expertise that can only be gained through long years of practice. Others note that, for generations, law firms preferred to do their own training; elite schools served largely to select elite law students for large law firm employers. Now that large firm clients are less willing to pay inflated fees for first-year associates to do document review and bring in money for the partners, law firms are less willing to invest in the training that they have traditionally done.

(2) Law students and recent graduates complain that law school tuition debt is out of control, and fear that they will never get law jobs that will enable them to pay off their debt, especially in view of what many believe is a long-term restructuring of the legal profession. Bill Henderson and Rachel Zahorsky, among others, argue that current law school tuition levels are unsustainable, and predict an eventual law school crash.

(3) A third well-known problem, but one that is less often tied to the current legal education crisis, is the widespread dissatisfaction among lawyers and the prevalence of depression, substance abuse, and other problems.

Law professors and deans have been slow to face up to their ethical responsibilities in the face of these problems.

(1) My sense is that both defenders and critics of the current methods of legal education make valid points, but that the various stakeholders are also, and inevitably, biased by their own interests. Big law firms complain that law schools don’t teach enough of the skills that their corporate clients demand. Clinical faculty argue for more clinical opportunities for students and higher status for clinicians. Writing and research faculty argue that the most crucial skill is the legal analysis that they uniquely teach. Faculty scholars argue for a broader conception of “practice-ready” skills that includes a theoretical grounding that prepares students for a lengthy career.

What makes finding solutions difficult is that all of these arguments are correct. Few law schools have undertaken the hard, self-critical work to address what is sometimes known in the law library profession as “The Carl Yirka question”: “What should law libraries [or law schools] stop doing in order to address higher priority initiatives?” Few law schools can even answer coherently the most basic question: “Why are we here?” One does not have to be an anti-intellectual to question whether law schools properly balance the demands of scholarship and teaching. Even adopting a more “consumer-oriented” attitude toward legal education begs the question (and I am using that phrase correctly here): who is the consumer of legal education--is it the student, who almost inevitably graduates without the skills necessary to open a solo or small firm practice, or the large law firms, who consume the lawyer-shaped widgets we produce, and complain if they do not meet specifications? I am unwilling to adopt  a solution that grants too  much to the instrumental demands of big law, and treats law students less as autonomous individuals and more as products.

(2) As Cassandra Robertson (here) and others in this forum have noted, It is likely that law schools will experience contraction. Some will close; many will experience shrinking admissions. So far, however, we law professors have been largely unscathed. Perhaps our travel funds have been somewhat reduced; perhaps we don’t have quite the freedom we’re accustomed to with regard to our favorite boutique seminars. At the same time, some law schools are considering reducing tenured faculty teaching loads from 12 to 9 credit hours per year, while students ask where their tuition is going. And if law schools will shrink, we should question whether it is responsible to continue hiring tenure-track faculty as though all is business as usual. Law schools are making lifetime commitments to increasing faculty numbers when the future is too uncertain to predict.

I have heard little discussion of the likely impact of law school restructuring on our students. Calls for reform from within the law schools rarely have reducing costs among their primary goals. At the same time, it seems clear that improvements in teaching methods and curricula will ultimately be of little value if our new and improved law graduates are still unable to find jobs.

(3) Finally, Paul Horwitz has written a series of excellent blog posts on Teaching Legal Ethics in a Legal Recession (and here and here). Many of us who teach professional responsibility attempt to prepare students for the inevitable stresses of practice. Are we doing them a disservice? Could we--should we--do more to not only inform students of the risks, but help them develop life skills to become happy, healthy, and successful lawyers?

For law schools whose tuition remains relatively low, a focus on small firms and solo practice may be increasingly viable. It is sometimes glibly suggested that law graduates unable to find big firm jobs could simply hang up a shingle, but doing so without the necessary skills is a recipe for disaster. Some schools could choose to offer a specialized set of third-year courses designed to give students the skills they would need to open a solo practice. Such courses would be similar to the new third-year curriculum at Washington & Lee, but would include law office management and ethics with a focus on the sorts of issues that tend to plague solo and small firm lawyers like financing, misappropriation of client funds, neglect of client matters, and stress management. No single solution will work for every student or every law school. For those law schools below the top 25 or so, individualized responses will be needed; not every law school will survive.

Why Occam’s Razor cuts in favor of making law an undergraduate degree

Russ Pearce 

The principle of Occam’s Razor, named for the philosopher and theologian William of Ockham, suggests that "simpler explanations are, other things being equal, generally better than more complex ones."  How do we apply Occam’s razor to the current debate regarding the future of legal education?

The current criticism of graduate legal education in the United States falls roughly into three categories:  it places undue financial burdens on students, fails to prepare them adequately to practice law, and no longer tracks many of them into legal work.

Here’s the problem.  These three challenges appear insolubly complex in the context of graduate legal education.  To decrease the cost of legal education, law schools would have to dramatically reduce faculty salaries, cut the number of faculty, and slash support services, such as libraries and career planning.  On the other hand, better preparing students to practice law requires spending more money because of the smaller classes required to provide skills training and the need to hire additional faculty who are qualified to provide that training.  Last, the number of jobs providing legal services seems inevitably limited in light of foreseeable developments in the market for legal services, especially given the salaries law graduates need in order to repay the high costs of graduate legal education. 

Here’s the Occam’s Razor solution.  In a recent Wall Street Journal op-ed, Northwestern Law School Professor John O. McGinnis and Chicago lawyer Russell D. Mangas recently proposed that the United States should allow undergraduate law degrees that include two years of legal study, with “[a] one year apprenticeship after graduation.”  They would keep the three year J.D. program for those who want it.

I would modify their proposal to track the United Kingdom model more closely.  Make the undergraduate degree the basic degree.  Provide a one year concentrated course for college graduates who want a basic law degree.  In addition, continue to provide graduate legal education for those who desire it and for those employers who would require it  -- but track the two year M.B.A. model more closely than the current J.D. program.

The technological trek - translating economies of legal education into the terrain of professional competencies

Rita Shackel

Undoubtedly one of the major forces that is today simultaneously driving changes in legal education and the legal profession is the impact of new technologies. New technologies have thrust the legal and educational marketplace into a data hungry cyber-era – first came emails, mobile and information technologies, next the advent of the internet and of course more recently cloud computing has entered the field. These new technologies signal new horizons, limitless possibilities and tend towards a culture that inculcates ravenous aspirations for remotely accessible services and products that are constantly expanding and developing their reach and application.

Simultaneously we are also seeing the legal profession striving to adapt to an altered economy, an expansive global legal services market and the increased internationalisation of law.

On the other hand, in a mode tending towards contraction, we are seeing law schools tightening their purse strings as many universities move into the next wave of economic ‘rationalisation’. Consequently, some legal academics are increasingly feeling trepidatious about the risk that pedagogy in the law curriculum will inevitably have to accede to economic pressures and the realities of delivering highly profitable legal programs as a priority.

Thus the landscape that is unfolding before our eyes is one that demands: (i) increased efficiencies in the delivery of legal education just as much as it does in the delivery of legal services; (ii) deliverables in legal education and legal practice that are innovative and cutting-edge; and (iii) systems that provide increased connectivity for service providers, consumers and the marketplace more broadly.

Can all these demands at once be met – and if so, can such demands be met without compromising the quality of what we as legal educators and lawyers do and create?

Developing competence

John Steele

We’ve been asked to write “about the implications of economic pressures on the way we teach our students.” I’ll focus on teaching the PR course. We need to get realistic, teach about ethics within practice settings, and teach competence.

First, let’s get realistic. Unless we believe that the law of lawyering is an autonomous, formalistic system, we need to teach the law of lawyering as it arises in specific economic and bureaucratic settings. To do that, we need to understand, for example, the finances and administrative bureaucracy of private practice (70% of all lawyers), in-house corporate settings (10%), government lawyers (10%), legal aid offices, etc. Early in the semester, I present a lecture on how private practice works, including PPP (M x R x U x L), billable hours, profit contributions by associates of various competence levels, the number of hours one must be in the office to meet one’s billable hour goals, partnership decisions, the “classical tournament” and the “elastic tournament,” how having kids and doing childcare affects a legal career, etc. We also talk about practice groups, supervisors and subordinates, and other aspects of the bureaucratic setting in firms. We do the same thing, albeit with less detail, about the economics and bureaucracy of cause lawyering. (I use my own materials. I’m not aware of any textbook besides Michael Downey’s that even remotely facilitates that approach. Let me know in the comments if I’m wrong about that.) As the semester rolls forward, that initial coverage permits the student to understand the real world forces that shape any given ethics analysis. In addition, most hypos and examples should have enough facts to facilitate a discussion of those forces.

That discussion about the economics of lawyering inevitably leads to students to ask why law schools don’t do a better job of developing competence, which in turns leads to a discussion of the economics of law school. It’s an important discussion, one that I’ve had in my classes in up cycles and down cycles, since the late 90’s.That dicussion, which I'll address more in my second post, has been far more pointed in the last few years.

The difficult choices of tuition dependent schools

Mitchell Simon 

Since law schools vary significantly in terms of endowments and current approaches to curriculum, there will likely not be one response from the legal education community to the new economic realities facing the profession. I write, therefore, to address the impact I see on the segment of law schools about which I know the most—those predominantly tuition dependent schools, whose curriculum focuses on the practice of law and who prepare a significant percentage of their graduates for small and mid-sized firm practice. These schools will face some of the most difficult choices as we move to a future with a tighter job market, increasing debt loads (or the need to significantly cut tuition to make legal education a wise investment) and the commitment to meet the continuing problem of lack of access to lawyers for middle class individuals.

A number of the types of schools described above have responded relatively quickly to the Carnegie Report and the profession’s stated need to equip students with practice skills. Some of the approaches employed have been increased clinical opportunities, development of simulated practice course-- usually taught in small sections, and intensive upper-level writing programs, with most focused on practice, including transactional practice. The common feature in these innovations is that they tend to be resource intensive.

For example, in my school, we instituted the Daniel Webster Scholar Program to address these issues and to create what we, and the New Hampshire Supreme Court, believe to be a better alternative to the traditional bar exam. This program, which now serves 20 students, substitutes a two-year, intensive curriculum populated with many small, intensive seminars and practice-based projects for the Bar exam. The projects, which are compiled in practice portfolios and reviewed on an ongoing basis by members of our Bar Overseers, comprise a two- year bar exam. As one might guess, this is not an inexpensive program. Thus, despite its demonstrated effectiveness, the challenge of expanding the pedagogical approaches, if not the full program, to our student population is significant.

Similarly, we have implemented  a first-year, second-semester simulation course, called Fundamental of Law Practice, which is  taught in small sections with teaching assistants hired to act as the clients, witnesses and other players in the cases. The simulations need to be changed each year by the program director (a tenured faculty member), and the program needs to be fully staffed with adjunct and clinical faculty. Again, this is an expensive program, especially when compared to the model of a single teacher and a full classroom.

These courses, however, have helped turn out students who are trained in the analytical skills, ethical judgment and experience to be valuable to those firms without the resources to engage in full training programs. Our experience in New Hampshire is that these firms also provide a significant percentage of the pro bono services in the state.

If the downturn in legal jobs leads to a sustained reduction in applications to law schools, as seems to be the trend now, rural, tuition dependent schools will need to reduce class size to insure quality.

Downturn awareness in class

Anita Bernstein

Since 2008, an elephant has stretched in our Professional Responsibility classroom.  What if the jobs don’t come back?  Our course starts from the premise that a lawyer has lawyer’s work to do. 

Traditional professional responsibility education has paid little attention to the possibility of unemployment.   The ABA’s first set of disciplinary rules, the Model Code of Professional Responsibility (1969-1983), contained nine Canons that all presume opportunities to render service.  A lawyer, said the Model Code, has the time and income to engage in various virtuous behaviors.

The Model Code of Professional Responsibility, successor to the Code, drops clearer hints that a lawyer might struggle to make a living.  Article 1, on the client-lawyer relationship, acknowledges the possibility of wanting to buy someone else’s practice.  Article 5, on law firms, recognizes the temptation to practice law without being admitted in a particular jurisdiction, to take orders from nonlawyer-pipers who feel entitled to call the tune, and to prepare agreements limiting a fellow lawyer’s right to practice.  Article 7 condemns a handful of business-getting devices favored by hungry practitioners.  Overt recognitions of economic strain for lawyers make the Rules more realistic than the Code: but still they conceive of a lawyer as a practitioner, employed and making enough money to live. 

Most law school graduates take up work in the practice of law, and so our teaching them the law of lawyering continues to make sense.  We offer professional education suited to students who by and large do join our profession.   It behooves us, however, to bring downturn awareness into our classroom, acknowledging a reality from which we as law professors enjoy partial shelter.

When we overemphasize problems that do burden lawyers but are, in the scheme of things, nice to have—May I represent Client Z when I’m collecting fees from Client X, who holds conflicting interests?  How much may I charge a prospective client willing to pay me whatever I ask?  How do I talk about my past work when I’m accepting a job offer and need to reveal conflicts?  If my prospective client is really keen to retain me, may it, with my help, waive its right to sue me for malpractice?  Should my corporate client ‘lawyer up’ its internal investigation so as to generate the shield of attorney-client privilege?  Where do I deposit this large check? —we risk alienating an audience preoccupied with finding work and repaying loans; we may appear insensitive.  If in 2012 I omit downturn awareness in class, then I can’t blame a student for thinking of me as insulated and clueless.  Tenured into oblivion, not looking at the elephant.

Here are a few awareness suggestions to consider for a Professional Responsibility class.  They find a midpoint between hopeless gloom (“It’s Great Depression II!  You think you’ll find sustained work as a lawyer?  Right!”) and piggish indifference (“Downturn?  I’ve got my old syllabus and my old lecture notes.  The world didn’t change for me and I don’t care that it’s changed for you.”).  I’ve tried to include both substance and procedure:

• If you invite occasional guest speakers, consider a young sole practitioner willing to reveal some numbers (hourly fees, overhead amounts) and talk about the pragmatics of opening an office.  Last time I did so, one student thanked me for bringing in someone so “relatable.”  You may have taught such young lawyers.  If not, you can meet them in bar groups.

• Your discussion of several Model Rules can include a downturn perspective.  For example:

Rule 1.5:  Let’s say you are opening your own office, alone or perhaps with a couple of classmates.  How will you figure out how much to charge for your work [in this economy]?  What are the advantages and disadvantages of a contingent fee?  An hourly fee?  Billing for an entire matter rather than the hour? 

Rules 1.9 and 1.10:  Former-client conflicts and imputation can be presented with reference to a law firm choosing between a senior or junior lawyer.  The junior lawyer probably arrives with fewer conflicts; the senior one has more experience.  This framework notes scarcity without harping on it.

Rule 1.15:  Which stresses might motivate a lawyer to dip into her client trust account?  What rationalizations might appeal to her?  How might a lawyer guard against the desire to spend (or “borrow”) this money? 

Rule 5.7:  You might ask, What kind of side business might you want to start or join?  Would this activity fall under “law-related services” (Rule 5.7(b))?   How does the state of the economy affect your choice?

• Ethics 20/20.  Established to review lawyer regulation “in the context of technology and global legal practice developments,” the ABA’s initiative can occupy part of a class.  Ethics 20/20 offers students a chance to talk about innovations in the practice of law that make oblique reference to the economy.  It’s at the center of professional responsibility: opportunities and perils.

• Social networks meet the practice of law.  In both my classroom and my bar work I’ve noticed that this topic holds considerable interest.  It relates to Ethics 20/20 but can be introduced in class independent of ABA efforts.  Mentioning media like LinkedIn and Facebook adverts to the downturn while offering enough unrelated content to avoid immersion (immiseration?) in it.

• Don’t forget the good news.  Downturn awareness should be offset with upbeat material about the past and future, I think.  You could ask your students to find it: they can complete a brief assignment called something like “One thing I admire about the American legal profession” with the help of search engines.  Even those in your class who are buying three years of shelter from the job market have joined an occupation that professes ideals.

 

Rogerian rhetoric and law school cred

Lucy Jewel

In terms of public relations, legal education has had a terrible couple of years.  The anti-law school blogging movement has grown into a forceful genre, with recent grads and tenured lawprofs making a strong case against law school. Once we add in the articles from N.Y. Times reporter David Segal and several class action lawsuits filed against law schools (alleging consumer deception), we have a deafening crescendo of anti law school sentiment, that resonates both emotionally and logically.  Exacerbating legal education’s PR problems are its exponential tuition, fueled by the unchecked availability of student loan funds, a scarcity of decently-paying law jobs, and the ABA’s inability to support innovation in the face of structural changes in the profession.

To fight back in this PR battle, some law school leaders continue to extol the enduring value of a law degree, even if graduates are unable to find employment in the legal field.  Others show little interest in the debate, suggesting that the complaints amount to unfounded whining.  One law school has sued its anonymous blogger critics, alleging defamation and interference with their business relations (relations with potential students).

Law school is bad, or it is good.  The debate has devolved into a Manichean dichotomy.  Dichotomies are, unfortunately, a hallmark rhetorical device that we see in everything from politics to advertising.  The dichotomous approach lends itself to ignoring or de-emphasizing the merits of the other side’s argument.  When law schools employ the dichotomous approach in defending themselves against this deluge of criticism, there is a loss of credibility.  The PR problem stems in part from the perception the law schools have not stayed true to the ideals of professional empathy, ethical debate, and logical advocacy. 

Credibility, or cred, refers to a concept of authentic ethos, of being true to one’s ideals.  In the independent music world, credibility or “cred” is the standard for any respectable act.  A lack of cred relegates you to the contemptible category of poser.  So the question is – in this environment, can law schools, particularly non-elite law schools, gain back their cred? 

If I were giving public relations advice to law schools in this embattled environment, my advice would be to ditch the dichotomous approach and employ a Rogerian approach to the problem.  Rogerian rhetoric, named after pioneering psychotherapist Carl R. Rogers, holds that an advocate should begin by stating his/her opponent’s argument “as accurately, completely, and sensitively, as [she/he] can, taking care not to judge it.” The advocate then explores areas of agreement with the other side’s position, and then, moves on with his/her counter position.  Rogerian rhetoric is appealing because it is grounded in a therapeutic vision of ethical and truthful communication.  This style of rhetoric is not about staking one’s place in a two-sided tug-of-war, but depends on the advocate’s ability to build up credibility and then move on to explore different contexts.

By listening and giving credence to the many legitimate complaints about legal education, law schools could reestablish credibility with younger members of the profession or aspiring members of the profession, and then seek to persuade this audience that there is still some value left in an American JD degree.  Paul Horwitz recently wrote about taking a similar approach on the first day of his legal ethics class. By starting his class with a discussion of the bleak legal job market and criticisms of law schools for dishonestly representing their employment statistics, the class was able to move forward and consider ethical issues in the legal profession.  In this way, Professor Horwitz was able to establish a foundation of credibility from which to consider legal ethics.  I think, if law schools want to remedy their reputational issues, they would be wise to consider this approach.

Back to the future: cost control Chinese style

Ray Campbell

As an American style law school in China, Peking University’s School of Transnational Law in Shenzhen, China, faces special financial challenges.  American tuition levels would be unaffordable for all but the wealthiest Chinese.  Student loans come from the private sector, not the government, and typically must be repaid or rolled over shortly after graduation. While western firms in and near China can pay associate salaries comparable to the US or Great Britain, Chinese mainland law firms and corporations offer much, much lower starting salaries.  Scholarship aid, compared to well-endowed American schools, is hard to find. All of this means that we must keep tuition levels as low as possible, all without compromising our mission of offering a world class western legal education in China.

While our revenue is held to Chinese levels, not all of our expenses are.  Western tenure track faculty salaries must be competitive with US levels in order to compete in the hiring marketplace. Books and online databases sometimes come with a lower price tag, but not always. Travel expenses to the US and Europe cost far more than travel within a region.

We do have some financial advantages. The city of Shenzhen and Peking University provide and maintain our building, including our purpose built law school designed by Kohn Pedersen Fox due to be completed next year.  Our staff, who more than match typical US support staff in credentials and dedication, are paid on a much lower scale than their western counterparts.  The obvious benefits of spending time in China allow us to attract at comparatively low cost highly credentialed recent law graduates to teach legal research and writing.  The lure of China and the chance to participate in our special experiment also allow us to attract remarkably prominent American and European scholars as visitors, without incurring the full market cost or benefits load that would be required in the US.

Even so, our model requires us to focus fanatically on costs so we deliver a world class education at a price point affordable to Chinese national students. At roughly $10,000 per year, our annual tuition comes in several times higher than typical Chinese university tuition, but below almost all US law schools. (Room and board, with four students typically sharing a small suite, adds about another $1,500).

Do law faculty have an obligation to address the employment crisis in the classroom?

Paul Campos

What if any ethical obligations do law faculty have, in our capacity as classroom teachers, to address the employment and debt crisis our graduates face?  In the past few months I’ve been approached by four students  attending the law school where I teach, each of whom wanted to discuss (in the context of an office meeting rather than a classroom discussion) whether or not they should remain in law school.   In addition I’ve gotten emails from several other students attending other law schools, asking the same question.

In each case I’ve tried to give my opinion candidly and straightforwardly, while taking into account their various individual circumstances, and especially the considerable limits of my knowledge in regard to both themselves and those circumstances.    That is all well and good, but what about students who are struggling with the same issue, yet aren’t assertive (or desperate) enough to broach the topic with a faculty member, even one who they have reason to believe will not judge them for having doubts about their current career path?

I struggled with this question at the beginning of this semester, when I began to teach the first-year required Property course.   Few moments in life tend to be as predictably dismal as the first day of the second semester of law school, at least for the vast majority of students who, for perhaps the first time in their lives, find themselves making mediocre or worse grades. 

The current crisis in the employment market for law graduates is naturally making the traditional angst and depression that marks this moment quite a bit worse.  This, to echo a metaphor employed by Jim Milles in one of his posts, is the several thousand-pound elephant in every law school classroom at the moment, whether the faculty member in that room chooses to acknowledge it or not.

On the first day of class, after an introductory lecture, I decided to gently prod that elephant in a rather oblique way, by making clear to the students that I understood many of them might have concerns about their futures, and in particular about the extent to which law school was still a choice that made sense for them.  I indicated I was always open to discussing such matters, in a confidential and non-judgmental manner, and that indeed a willingness to do so was part of the requirements of my job.

This, it seems to me, is something that we ought to be explicit about with our students.  Many of them understandably get the impression that expressing doubts about continuing their legal education is something that law schools, as self-interested institutions, discourage them from doing.  But the fact of the matter is that, given the economic realities of the broader situation, it’s impossible to avoid the conclusion that the first-year dropout rate ought to be much higher than it currently is.

A much bolder approach than the one I’ve taken would be to discuss your own law school’s actual placement statistics in the context of a regular class session.   Many law schools are still not providing their prospective and current students with anything close to transparent employment and salary data.  Even schools that do put something like useful data up on their web sites do not necessarily do so in a way that will encourage prospective and current students to interpret that data accurately.

For instance, I wonder if it would be appropriate for me (this is not a rhetorical device; I sincerely wonder about the answer to this question) to make clear to my first years, 50% of whom are in the bottom half of their class after one sixth of their law school grades have been registered, that a close look at the employment and salary statistics for my law school’s 2010 class reveals that 93 of 183 graduates had a full time long-term position requiring a law degree nine months after graduation, and that we had been able to identify only 36 of those graduates who had a salary of $56,000 or more.

After the student loan arms race: the disruption of hierarchy

Cassandra Burke Robertson

I am grateful to Renee Knake for organizing this online symposium and for including me as a participant. In a former life before I went to law school and entered legal academia, I was a state budget analyst. Perhaps as a result, the financial realities of funding legal education have become something of a preoccupation of mine, and I am thrilled to see the financial issues—especially funding mechanisms and financial outcomes for graduates—getting more attention.

In this post, I will take a look at the current state of student debt—and in particular, how the student-loan-fueled arms race relates to the law school prestige hierarchy. I conclude that changing the student loan system (a prospect some say is inevitable) will disrupt the traditional prestige hierarchy in some significant ways.

People are beginning to realize the impact of rapidly growing student loans on students and graduates. The Occupy Wall Street movement has brought significant attention to the student debt problem, and the legal world has taken note of recent grads whose extreme debt loads prevented them from passing the bar’s character and fitness evaluation.  But what institutional effect do these loans have on legal education itself? 

To understand the institutional effect, we have to look at some of the factors that have brought us to where we are now:

(1)   Students can take out the full cost of attendance in federal student loans. This means that at least for law school, the days of private loans are gone (and this is new; even 5-6 years ago, law students generally relied on private loans to some degree). The cost of attendance includes both tuition and living expenses. If a school raises tuition, a student can take out a larger loan to meet the increased tuition. There are no restrictions on how much can be taken out by a student beyond the cost-of-attendance limit; as Paul Campos has pointed out, “This means that most law students can borrow the full cost of law school tuition and living expenses from the federal government . . . no matter how high that cost may be.” Loans for living expenses will vary widely depending on the relative cost of living in the area.

(2)   Historically, law school applicants have been much more prestige-conscious than price-conscious. A recent article by Richard Sander and Jane Yakowitz found that “when students are deciding between schools of even modestly different levels of eliteness, ranking tends to drive decisions,” even though school rank was a relatively weak predictor of students’ career success. This emphasis on prestige has made law school choice fairly price-inelastic; higher-ranked schools could raise tuition without losing a corresponding number of students.

(3)   The US News rankings reward higher tuition levels by including a metric for "Expenditures Per Student,” which includes financial aid spent on students. So a school that raises tuition and raises financial aid at the same time does better in the rankings; it brings in more money to raise its expenditure per student. Law school constituents—students, faculty, and alumni—all uniformly want to see their school do well in the rankings, and all constituents are likely to be upset about even relatively minor declines. Nominal tuition has become quite different from the rates actually paid by students out of pocket.

(4)   At the same time, direct subsidies for state schools have declined, leaving those schools ever-more-dependent on the indirect subsidy provided by federal student loans.

(5)   Law school student loan debt is high and is growing fast. Average law school debt per graduate was close to $100,000 in 2010, and in the aggregate, as Matt Leichter has noted, “ABA law school graduates took on $3.6 billion in student loans, a sum that increased from $3.1 billion in 2008.” If current trends continue, “[a]ccording to the Office of Management and Budget, the U.S. will issue a grand total of $1.216 trillion in direct loans to all forms of higher education between FY 2011 and FY 2020” of which $54.3 billion (4.5%) “will be new law school loans.”

(6)   Finally, the government’s new Income Based Repayment program makes applicants even less price sensitive than before by capping student loan payments at 15% (soon to be capped at 10%) of the graduate’s discretionary income for either 10 or 20 years, depending on whether the student goes into public service or works in the private sector. The remainder is forgiven, though the private-sector program carries a potential tax impact. As a recent Forbes article pointed out, “Even individuals earning $150,000 can achieve savings if they managed to rack up $100,000 or more in federal student loans by attending graduate or professional school.”  Once the debt is high enough that the loan is subject to forgiveness (examples and estimates here), students’ monthly payments will not increase no matter what their debt level is. As a result, once the student’s debt level is high enough, there is no economic incentive to avoid further increases because payments will be capped at the same level—and students are well aware of that. The combination of unlimited lending and capped repayment is not unique to law; it affects all graduate programs, including medical school and dental school. The IBR program is not without risk, however; as Bill Henderson and Rachel Zahorsky have noted, “the Congressional Budget Office may have underestimated the extent to which students will be eligible for the federal Income-Based Repayment plan.” If so, IBR could potentially be subject to future budget cuts.

I believe that these factors are the prime drivers behind the rapid escalation of law-school student loan debt. And I agree with Bill Henderson and Brian Tamanaha that the trend cannot continue forever. But what happens when the system breaks? Tamanaha suggests that eventually lending limits will be put into place. An annual cap on student federal-loan eligibility would not be difficult to administer. Undergraduates already face such limits; it is only the Grad Plus program that makes law school and other graduate loans available for the full cost of attendance. The government also already has a mechanism it could use evaluate potential loan limits: the gainful employment metric proposed for for-profit colleges (and soon to be extended to nonprofit programs), which would require either that (1) in a given year, 35% of graduates are able to pay the interest on their debt plus at least $1 of principal; (2) the average graduate’s loan burden, on a ten-year repayment schedule, does not exceed 30 percent of his or her discretionary income; or (3) the average graduate’s yearly debt-service obligation (again on a ten-year payment schedule) does not exceed 12 percent of his or her total earnings.

The frequent assumption is that such limits would only affect law schools at the low end of the prestige hierarchy and the lowest-ranked schools would have to close. I suspect, however, that limiting student loans would actually disrupt the current prestige hierarchy in significant ways. With lending limits, students would be forced to become more price sensitive, giving a rankings advantage to schools that either (1) have managed to keep tuition costs down; (2) are located in low-cost-of-living areas; or (3) are associated with states or universities willing and able to support legal education. Schools without any of those characteristics will be the most disadvantaged. Looking at the last page of the US News Rankings, there is a big difference between the University of South Dakota ($11,208 per year in state) and the University of the District of Columbia ($8,850 a year in state) versus Touro ($41,070 a year) or Thomas Jefferson ($38,700); this disparity means lending limits would not affect low-ranked schools equally, by any means. And indeed all the law schools, regardless of current rank, would likely find that traditional assumptions of prestige cannot hold steady in the face of loan limits: once applicants are forced to become more price sensitive, schools’ LSAT and GPA averages will adjust as students with high credentials more often choose lower-priced schools. Interestingly, looking at the first page of the US News rankings, there is not a huge tuition differential among the most prestigious schools. But beyond the most elite, tuition and average debt vary significantly and are less correlated with ranking than many people realize. With greater price sensitivity, there is likely to be a more significant correlation between cost and rank.

What does this mean for the future?

First, schools must take a hard look at their own loan dependence and should make contingency plans for the future. Schools must plan how to fund quality legal education in the event that loans become less available, and schools should also plan for ways to minimize the student loan burden even in the current era of unlimited lending. This may mean making some hard choices: some of the most effective innovations in legal education are also among the most costly, as Michael Lewyn notes in a recent comment on The Faculty Lounge. A school’s dependence on student loans can be roughly gauged by this chart, which shows the average indebtedness per 2010 graduate, along with an estimate of the percent of students taking out loans (students at schools on page 5 and after are below the national median in law school indebtedness). If a school’s average debt burden is $145,621 per student ($48,540 per year), what would the school’s budget look like if federal lending were capped at $40,000 per student per year? What if it were capped at $30,000 per year?

Second, schools, professors, and bar admissions committees should all be aware of the loan burdens faced by new graduates. Income Based Repayment can help ease the burden for many. Nonetheless, we should not ask students to take on a large debt burden without also providing transparent data about the monetary costs and benefits of that investment decision—and we should be mindful of the fact that law students are in fact making a very significant investment.

Finally, we should all step away from the current US News rankings. Brian Leiter and others have already pointed out many flaws in the current rankings. If the rankings are likely to look radically different in the future—and I think they are—then we certainly shouldn’t base current policy choices on the rankings as they look now. As my own law school’s dean has pointed out, applicants should look at the real value of what a law school has to offer: what are the areas where a law school’s program excels, regardless of ranking? The true strengths of individual law schools have often been overlooked in favor of attention to the school’s overall ranking, but such an approach is shortsighted. The decision to invest in a law school education is not just a monetary decision, and the benefits measured in the cost-benefit equation are not just monetary gains; educational value matters. Law schools that invest in improving their ranking without also improving their educational value shortchange themselves, shortchange their students, and make an unwise investment. When we develop law school programs, we must do so with an eye toward lasting value to the students.

How Quinn Emanuel bills

The Lawyer takes a look at Quinn Emanuel's billing techniques, which show a lot of self-confidence and a lot of PPP. (h/t: John Flood)

"Orleans Parish public defenders' office in crisis: An editorial"

Nola.com: Budget cuts imperil the PD office in Orleans Parish.  (h/t: Law of Criminal Defense)

Ninth Circuit on implied JDA's in criminal defense (US v. Gonzalez)

US v. Gonzalez (below) is a recent Ninth Circuit case arising out of separate convicions of a husband an wife for insurance fraud. The wife's habeas petition alleges ineffective assistance of counsel due to her lawyer's failure to call her husband to testify. The government sought to depose the husband, who then asserted the existence of an express or implied JDA. For a short opinon, it covers a lot of basic issues and might be useful in PR classes on conflicts in criminal practice. It's also a reminder that if you rely upon an implied or oral JDA, the District Court may have the final word on when your JDA ended and what it covered. (And it's a stark reminder that if trash your clunker to get insurance money, using fire to do the job will earn you an extra ten years in jail.) From the summary:

It appears that for at least part of the proceedings, Gonzalez and Paiz were part of a JDA, either express or implied. However, it also appears possible that at some point that arrangement ended, such as when Gonzalez decided to pursue his own self-serving defense and blame Paiz for the crime rather than pursuing a jointly beneficial defense strategy. Therefore, we remand to the district court for an in camera evidentiary hearing to determine if and when the JDA ended, and when the communication at issue here (what Gonzalez would ultimately testify to at Paiz’s trial) was made.

Download US v Gonzalez

Nancy Brinker, a Hero for Breast Cancer Victims, Acknowledges a Mistake and Moves On

I have written repeatedly on these pages about the rising partisanship in our society, particularly the politicization of our courts and nominations of judges to courts.  Now it seems we are politicizing breast cancer.   Fortunately, amidst all of this noise, the Susan G. Komen Foundation’s leaders have done what many public servants and private citizens rarely do:  they have honestly acknowledged an error and moved on with their fight for the cause they believe in.  We all know that it is difficult to admit to an incident of bad judgment and back down from an untenable position (as lawyers we are sometimes inclined to argue our way around the obvious before we give in).  The speed with which this controversy was resolved illustrates another path which is better for everyone concerned.

The Susan G. Komen Foundation allowed a House of Representatives investigation of Planned Parenthood to be grounds for revoking Foundation grants for breast cancer screening.  That decision was ill informed and badly handled from a communications vantage point, and thankfully that decision has been reversed.   A few social conservatives are now upset and are threatening to further politicize the fight against breast cancer, an issue that should have nothing to do with partisan politics.

While I was in the White House, I worked with Komen Foundation C.E.O. Nancy Brinker on her financial disclosure, ethics agreement and other issues connected with her appointment as Chief of Protocol of the United States (she had previously served as Ambassador to Hungary).  Her integrity and dedication were unsurpassed by anyone I met in government.   She was not interested in personal advancement; she wanted to serve in government if she could make the world a better place by doing so.  Also, at the time it was very clear that she would not accept any political office that compromised her ability to continue her fight against breast cancer.  She lost her sister, Susan G. Komen, to the disease and she is determined to fight it and win.  The notion that Ambassador Brinker would compromise the mission of the Komen Foundation for any political purpose is absurd.

The tragedy of this past week was the potential breakdown of what had been a very fruitful relationship between two organizations, and the acrimony that has followed.  Hopefully, now that this situation is resolved, we can get back to work addressing issues we agree upon.  Saving the lives of mothers, wives and daughters threatened by breast cancer should be one of them. 

Senate Adds Flawed Political Intelligence Amendment to Insider Trading Bill

The Stop Insider Trading on Congressional Knowledge Act (STOCK Act) passed the Senate today, but only after the Senate approved an amendment by Senator Chuck Grassley that would require firms that gather so called “political intelligence” to register under the Lobbying Disclosure Act (LDA). 

http://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=38833

As explained below this amendment was ill advised. 

The principal purpose of the bill was to clarify what is probably already the law – that Members of Congress and their staff cannot legally use nonpublic information they learn in the course of their government employment for trading in securities markets.  The same insider trading laws that apply to everyone else also apply to them.

There is, however, another more difficult problem that Senator Grassley’s amendment purports to solve:   some hedge funds and other investment firms learn nonpublic government information before the rest of the investing public.  Sometimes this is done through “political intelligence” firms that arrange meetings and conference calls with government officials and use other techniques to obtain nonpublic information which is then made available to clients for a fee.   As I told the Wall Street Journal last year, gathering and selling confidential government information is a very good business model, if you can get away with it.  This isn’t fair and something should be done about it.

The Grassley amendment responds to this problem by requiring firms that gather political intelligence to register under the LDA.   The problems with this approach are many.  First, persons who do not fit the definition of a “political intelligence” firm in the statute will not be required to register and will continue to gather nonpublic government information and use it for securities trading.   Second, a definition of a “political intelligence” firm will need to be exceedingly broad if it hopes to include a significant portion of the persons and entities that use nonpublic government information for securities trading.  Drafting such a definition is nearly impossible.  Third, a broad definition of “political intelligence” firm that is coupled with a registration requirement imposes an undue burden on persons who seek to gather information about what their government is doing, a critical function in any democratic society.

Assume a bank, a corporation, a private foundation, a labor union, a church or some other organization is interested in what government is doing that affects business or societal interests that are vital to the organization.  Assume the organization also invests in the securities markets.  If the organization hires a political consultant to gather information about government action the consultant would have to register.   While the Senate definition of “political intelligence” focuses on information gathered for the purpose of investment decisions, the political consultant may have no idea how the information will actually be used.  To be on the safe side, a political consultant or any other person who is hired to gather information about the government for any client will have to register if the client trades in the securities markets.   The client could be Warren Buffet, George Soros, or Michael Bloomberg, or it could be a person of more modest means who wants to participate both in our capital markets and in our democratic form of government.

The potential effect of such a regime on the balance of power between the government and its citizens is obvious.  Government officials don’t have to “register” to gather information about us, but if we trade in securities markets someone we hire to gather information about government will have to register.  This is not George Orwell’s 1984, but it is closer than many of us would want.      

The answer to selective disclosure (“leaks”) by government officials of nonpublic government information is not requiring people to register before they gather information about their government.  The answer is stricter rules for government employees who selectively disclose government information to persons outside the government without disclosing the same information publicly.  As I pointed out in a chapter on insider trading in my 2009 book on government ethics, selective disclosure by government officials needs to be regulated just as selective disclosure by officials in public companies is regulated by the SEC’s Regulation FD (“Fair Disclosure”).  Donna Nagy and I are presently writing an article on how the executive and legislative branches could adopt and adhere to a Regulation FD regime.  In short Congress should consider imposing on government some of the rules it imposes on the private sector, rather than trying to solve a problem in government ethics by enacting yet more regulation and a burdensome registration requirement for the private sector.

Senator Joseph Lieberman and many of his colleagues urged passage of a version of the STOCK Act that would have banned Members of Congress and their staff from insider trading and called for further study of the more complex problem of selective disclosure and a workable solution.   The quick solution embodied in Senator Grassley’s amendment does little to solve the problem and will likely create other problems the he and his Senate colleagues did not intend.

Variation on Vehicles in the Park

From today's NY Times Metropolitan Diary

The salesperson at the Urban Angler store suggested I take a fly rod across the street to Madison Square Park to make a few test casts before making my purchase. After several casts across the grass, I was approached by a uniformed park official.

“There’s no fishing here, sir.”

“You’re telling me,” I said with a smile. “I haven’t caught a thing.”

“Fishing is not allowed in the park,” said the earnest official.

“I am not fishing. There is no water here!”

“Well, if you don’t stop whatever you’re doing, I’ll have to write you a ticket.”

“A ticket for what?”

“For fishing.”

Firm Sues Anonymous Critic, Subpoenas Google

The Texas petition (complaint) is here.  Protecting a firm's reputation in the e-world is hard.

Join us Feb. 6-8 for the LEF Symposium on Legal Education’s Response to the Economic Realities Facing the Profession

Be sure to stop by the Legal Ethics Forum throughout the day from Monday, Feb. 6-Wednesday, Feb. 8 to join us for our online symposium:  Legal Education's Response to the Economic Realities Facing the Profession. Scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students.  We hope that a robust exchange will be sparked as readers weigh in with comments. Our goal is to inspire a meaningful conversation about how we can better serve and prepare our students in light of the economic realities they face.

Confirmed contributors include:

Rakesh Anand (Syracuse)

Anita Bernstein (Brooklyn)

Hannah Brenner (Michigan State)

Ray Campbell (Peking STL)

Paul Campos (Colorado)

Michael P. Downey (Washington U./St. Louis U.)

Paul Horwitz (Alabama)

David Hricik (Mercer)

Lucille Jewel (John Marshall Atlanta)

Renee Newman Knake (Michigan State)

Lisa Lerman (Catholic)

Judith Maute (Oklahoma)

Jim Milles (SUNY Buffalo)

Michele Benedetto Neitz (Golden Gate)

Russ Pearce (Fordham)

Laurel Rigertas (Northern Illinois)

Cassandra Burke Robertson (Case Western)

Rita Shackel (Sydney)

Mitchell Simon (New Hampshire)

John Steele (Santa Clara)

John Varghese (Government Law College, India)

Brad Wendel (Cornell)

Legal ethics odds and ends (January 30, 2012)

• The busy season of ethics CLE is nearly over. Get those credits before the deadline.

• Boston Legal Malpractice Lawyer: Summary judgment affirmed for lawyer in legal malpractice case where the lawyer had been retained by the settlement agent and not by the borrower.  No attorney client relationship; no malpractice claim.

• Hinshaw Culbertson: "The Supreme Court of Texas held that federal courts have exclusive jurisdiction over a legal malpractice claim arising out of underlying patent infringement litigation." My intuition had been that the state supreme courts would hold the opposite, setting up a showdown at the SCOTUS to see if the states or the Federal Circuit would prevail. I'd still bet on an eventual ruling that a legal malpractice case in an area of law that is exclusively federal is not within the exclusive jurisdiction of the federal courts.

• The Pennsylvania State Bar's list of most significant disciplinary cases of 2011. (h/t: Legal Skills Prof Blog)

• Michael Hatfield, "Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice." (h/t: Legal Profession Blog). Abstract: Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.

Greg Kelly, Ray Kelly, Cy Vance

Greg Kelly is the son of NYC Police Commissioner Ray Kelly. A woman has accused him of rape. The Police Department has referred the investigation to the office of Manhattan District Attorney Cy Vance. Vance's office does have investigators and would ordinarily prosecute any such charge if warranted.

Yet the D.A.'s office works closely with the Police Department and Ray Kelly and Vance must have a good working relationship to do their jobs well. 

Should Vance's office investigate Ray Kelly's son and decide whether to prosecute?

I don't think so. I think the matter should be referred to the State Attorney General (which can be done) or, second best, a prosecutor outside the city.

That does not mean that the D.A.'s office won't try to do a good job and may well do a good job. But I don't think, given the seriousness of the charge, that the office should investigate or prosecute the son of the Commissioner. The critical concern here is public confidence that the work is done with independence and objectivity. 

Bill Henderson and Andrew Morriss' new blog: The Legal Whiteboard

Inaugural post here.

LA Times Obit: "Gigi Gordon dies at 54; crusading criminal defense lawyer"

Gigi Gordon cast a long shadow on the law. "Gordon's commitment to sparing criminal defendants from trumped-up charges and rigged evidence led a Los Angeles judge to appoint her to represent more than 2,000 suspected victims of the Rampart corruption scandal in which police were accused of widespread abuses." (h/t" Patrick O'Donnell)

"Please trick the old lady . . . "

According to this Washington Post story, a DC judge declared a mistrial after the client requested a new lawyer and the inexperienced defense counsel had made numerous glaring errors, including sending the defense investigator an email saying, "Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.” According to the City Paper, the lawyer then discussed the mistrial on Facebook, where several of his friends "liked" the posting. The City Paper article also explores the way that a lawyer's web page may make literally true statements that could mislead the ordinary reader.

Legal ethics odds and ends (January 28, 2012)

• Cross-profession comparison from the WSJ Law Blog: a state-school graduate student in counseling had asked that she not be assigned to counsel a gay client and for that reason was expelled from the program. The Sixth Circuit has reinstated the student's suit, which claims that the expulsion was a denial of her free speech rights. The school views the issue as one about standards of professional conduct.

• ABA Journal: "A California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state."

 

Ron Rotunda lays out a case for Justice Kagan's recusal in the healthcare matter

Ron Rontunda's article lays out the case for the notion that Justice Kagan participated in the health care matter when she was Solicitor General. As before, I don't see that case as being made -- that she participated as counselor or adviser in that matter. I would have advised her not to send any of the mails that Rotunda cites, and would have advised her to be very clear with her staff about not sending emails to her about the health care case. She also apparently sat in a meeting where others discussed the case. So, there is some smoke but I don't see any fire yet. I'm curious about the emails that aren't being produced. Your thoughts may vary and please don't be shy to lay out your views politely in the comments.

[added later]

I wanted to recap the evidentiary grist for the various pro-recusal arguments I have heard or read:

1. There was a series of emails by and to Kagan which make short references to the healthcare litigation.

2. There was apparently a phone call after one of those emails, but we don't know what was said.

3. There are emails that have not been produced, on the grounds of privilege.

4. There was a meeting at which there apparently was discussion of the litigation. Kagan was present and did not leave the meeting while that discussion took place, but she says that she did not participate in that discussion.

5. Kagan apparently chose the person who would head-up the litigation in her stead.

6. Kagan had an email exchange when the health care statute passed. The email can be interpreted in different ways, but to me it does seem celebratory.

7. The fact that Kagan chose this matter for special treatment (i.e., being screened off so that she would be able to participate as a SCOTUS justice). Does that reflect an appropriate concern for the nation's need to avoid a possible 4-4 vote, or does it reflect a desire to protect the legacy of the administration?

Deadline looming for ILECV (International Legal Ethics Conference 5) call for papers

The ILEC IV at Stanford was a real treat and this year's ILEC V in Banff should be the same substantively, plus the physical beauty of Banff. (Anyone want to do some cycling up there?) The folks running the show -- Richard Devlin and our own Alice Woolley -- send this mesage:

The 5th ILEC will take place in Banff, Alberta on July 12-14 2012.  The deadline for the submission of proposals for papers or panels for the conference is January 31, 2012.   Proposals need not be elaborate – a brief abstract is sufficient.  

We have had many excellent papers and panels submitted so far, and we look forward to receiving more as we approach next week's deadline.

For more information about the conference, or about visiting the Banff/Calgary area, please visit our website at www.ucalgary.ca/ilec5 or contact myself or Richard Devlin (Richard.Devlin@dal.ca), conference co-chairs.

Alice Woolley  
--
Alice Woolley
Professor of Law and Director of Admissions
Faculty of Law, University of Calgary
2500 University Drive NW
Calgary, Alberta  T2N 1N4

40th Anniversary of Watergate

This Friday, January 27, 2012, Chapman Law Review is holding an all day symposium on "The 40th Anniversary of Watergate: A Commemoration of the Rule of Law."  There will be a webcast of the symposium on Chapman's website, http://www.chapman.edu/law/ (I will also be one of the presenters).

Interesting empirical article on the role of lawyers, race, and legal advice in personal bankruptcies

Article.  (h/t: Empirical Legal Studies Blog) Abstract:

We report on racially disparate uses of chapter 13 bankruptcy. Currently, approximately 1,500,000 bankruptcy petitions are filed each year, with about 30% of those petitions being chapter 13 cases. Although chapter 13 can offer some legal advantages for persons seeking to protect valuable assets such as a house or automobile, it generally offers less relief and costs more than the primary alternative available to consumers, chapter 7. The chief feature of a chapter 13 bankruptcy case is a plan under which the debtor must devote all of his or her disposable income to creditor repayment over a 3- to 5-year period. Chapter 7, in contrast, requires only that the debtor turn over all nonexempt assets, with over 90% of chapter 7 debtors having no assets to turn over.

This paper reports on two studies, one using data from actual bankruptcy cases and the other involving an experiment with a national random sample of bankruptcy attorneys. Because the court system does not collect racial data on bankruptcy filers, the first study uses data from the Consumer Bankruptcy Project. Even after controlling for financial, demographic, and legal factors that might favor a chapter 13 filing, African Americans are much more likely to file chapter 13, as compared to debtors of other races. The second study reports on an experimental vignette sent to a random sample of consumer bankruptcy attorneys who represented debtors. The attorneys were more likely to recommend chapter 13 when the hypothetical debtors were a couple named “Reggie & Latisha,” who attended an African Methodist Episcopal Church, as compared to a couple named “Todd & Allison,” who attended a United Methodist Church. Also, attorneys viewed “Reggie & Latisha” as having better values and being more competent when they expressed a preference for chapter 13 as compared to “Todd & Allison,” who were seen as having better values and being more competent when they wanted to file chapter 7, giving them a “fresh start.” Previous research and the results from the present experimental vignette study suggest consumer bankruptcy attorneys may be playing a very important, although likely unintentional, role in creating the racial disparity in chapter choice. Together, the two studies raise questions about the fairness of the bankruptcy system.

Legal ethics odds and ends (January 24, 2012)

• Lawfare: Fourth Circuit dismisses claims by Jose Padilla.

• ABA: Variations in the enactment of 3.8(g)-(h) regarding the prosecutor's duty to assist post-conviction relief.

• CNN: Supreme Court won't hear argument about Kagan's non-recusal in healthcare case.

• Leagle: Seventh Circuit reinstates malpractice claim. "Mary Bucksbaum Scanlan ("Scanlan") is a current beneficiary of several discretionary trusts. Scanlan brought claims of legal malpractice and breach of fiduciary duty against the trustee and her lawyers. The district court dismissed all of her claims with prejudice and ruled that Scanlan lacked Article III standing because she did not allege facts showing a likelihood that the trusts' corpus were insufficient to pay her discretionary distributions. We reverse and remand."

• Faculty Lounge: Is legal education like dental education? (That is, does it need some reinvention?)