Law Career Blog

To Everything there is a Season

2009-01-31T16:49:00.000-08:00

Obviously it has been a while since I have posted on this blog. Why is that? I suppose it is because I have accomplished much of what I wanted to with Law Career Blog as a solo blog. I felt I had important things to say on teaching and classroom etiquette; on law career decisions; on law firm practice; on mentoring, and more. And I have said many of them, so there you have it.

I am very pleased, though, that my posts continue to draw strong traffic month after month, year after year. What I have said here remains relevant, I think--but that does not mean I need to always rehash the same ground, all in the name of having new posts just for the sake of it.

So for now, my existing posts stand for what they are, and I am proud of them. Call me the Antiblogger, I suppose: I am blogging by not blogging.

In any event, the following is a list of posts that have generated the most interest from readers, some posts on subjects I think are particularly important, and some that are just fun. Enjoy!

Posts on Law School in General:

In a series of posts, I argued that if we want law schools to truly provide the academic and practical education that students (and employers) expect and demand, we should consider adding a fourth year to the law school curriculum. Not surprisingly, my proposal was universally condemned. Check out the comments.

See Is the Third Year of Law School a Waste of Time and Money? and Is Law School Itself a Waste of Time?

I think that too often, law students don't step back and think about law school and their future careers in a broader perspective. That's understandable given the workload in law school, but it's still unfortunate. My friend and colleague Gene Theroux visited Mississippi College School of Law once to speak to students about his storied career--he opened the first western law firm offices in China and the Soviet Union--and he had wonderful advice for them. Ostensibly the talk was about globalization, but the heart of his message was to follow your heart and practice law the right way and for the right reasons. Sometimes we need to put our cynicism aside and hear things like what he said that day.

See Theroux Part Deux

Posts on LL.M. Degrees:

This trilogy of posts is perhaps the most popular series of posts on this blog--which proves that good things really do come in threes. Lots of discussion in the comments. See The Pros and Cons of LL.M.s, LL.M. Redux and LL.M.s Part 3.

Posts on Law School Exams, Teaching, and Class Strategies

Bainbridge v. Bowman. I wrote a law review article entitled The Comparative and Absolute Advantages of Junior Law Faculty: Implications for Teaching and the Future of American Law Schools--a piece I am quite proud of. In it, I use traditional neoclassical trade theory to analyze the advantages of junior and senior law faculty and make some recommendations regarding law school teaching. Professor Stephen Bainbridge of UCLA saw it, and he absolutely hated it. This posts includes our dialogue.

How to Improve your Law School Exams Grades. This wasn't a terribly controversial post--or so I thought until I received scathing comments two years after I posted it. Some fun back and forth on that one. Maybe I should've retitled the post Bowman v. Someone Very Angry.

Law School Orientation Advice. Pretty self-explanatory. My own favorite piece of advice: Don't spill a plate of food on your law school dean at the welcome reception. I actually did that--but lucky for me, I still graduated.

Computer-Free Week and Computer-Free Week, Part 2. There is a good deal of concern in the legal academy about computer use in the classroom. Is it beneficial? Is it harmful or disruptive? So one time I asked students not to use computers for one week to see what would happen. The results were pretty interesting, and as a teacher I found the feedback via the comments very useful. Perhaps the most interesting result was that student comments revealed just how prevalent the consumer mentality is among students--namely, I paid my tuition, so I can do what I want in class.

The Dilbertic Method. I definitely like this post about parallels between Dilbert's boss and the Socratic method. If you want to see the Dilbert cartoon I am talking about, you have to click the link in the article and then enter in the cartoon's run date on the Dilbert site.

Posts on Law Firms:

Much of the attraction to, and frustration with, big law firms has to do with the money they pay their associates. So I wrote some pieces on that subject--something I have firsthand knowledge about.

See Of Law Firm Culture and Compensation Schemes, The Problem of Law Firm Salary Distributions, and Big Firm Economics 101.

In another post, I wrote about associate pay and stress levels. In light of the recent savage downturn in the employment market, this post is perhaps more relevant than ever. See Why Associates Have More Stress than Partners.

On Interview and Job Strategies and Techniques

Job Interview Do's and Don't's. The name of the post says it all.

What NOT to do as a Summer Associate. You'd be surprised what some people do. Don't be one of them.

Posts on Movies:

Finally, I have had some fun with movies on this blog, and for some reason they were always movies starring George Clooney. First, I blogged about Syriana--see Syriana Misrepresents International Lawyers.

Then I wrote a whole slew of posts on Michael Clayton--a movie that had a lot to say about what it is (and is not) like to be a lawyer. I was interviewed by the Chicago Tribune about the Michael Clayton series of posts. See the following (not too originally entitled) posts:

Clooney v. Clayton, which is my review of the movie

Clooney v. Clayton, Part 2, about hyperbole in legal dramas

Clooney v. Clayton, Part 3, on whether there is such a thing as a law firm "fixer"

Clooney v. Clayton, Part 4, on the perverse incentive/reward structure of law practice

Clooney v. Clayton, Part 5, on how law practice affects your family life

Clooney v. Clayton, Part 6, regarding legal ethics

Clooney v. Clayton--Again, regarding my Chicago Tribune Interview

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So for now, that is where things stand. I hope you enjoy reading these posts as much as I enjoyed writing them.

Greg

The Most Important Day of Class

2008-08-25T21:42:00.000-07:00

Last week was my first week of classes for the 2008-2009 academic year, and I was all ready to write a post called "The Most Important Day of Class." The whole premise was that the first day of class is the most important day of class for the whole term. But I didn't write that post, because I decided I was wrong.

The first day of class is not the most important day of class. The second day is.

Here's what I mean. The first day is important, because on that day the prof is likely to explain what the course is intended to be like. You're also likely to be treated to a lecture on why the course is the most important course you will ever take in law school, and perhaps your whole life. I'm exaggerating, but not overly so. This is called selling the course--and it happens not only in electives, but also in mandatory courses. I certainly do it. I think it helps students see where the course fits in the grand scheme of things, and it gives them a sense of what I think of the subject and why I am teaching it. And I do hope it generates a little excitement to get us all through the drier parts of the course. (And if you are in law school, you know some of it is dry.)

But that first class is often an anomoly. It's on the second day that students are more likely to get their first glimpse of a more average class--no calling of the roll, no grand views of the law. Instead, it's on to theory, doctrine, and the briefing of cases.

So for those of you in law school, pay close attention in those early days. And mark your calendars for class #2.

The Benefits of Senior, Junior, and Adjunct Law Faculty

2008-08-10T16:08:00.000-07:00

There was an interesting post on the Law Librarian Blog this week concerning the benefits of senior, junior, and adjunct faculty in the classroom. The post can be linked to here. This is a subject that interests me greatly, and readers will remember that I recently wrote a law review article (in the BYU Education and Law Journal) about junior faculty teaching. You can link to my full article here, and to my previous blog posts on the article here and here. The latter post includes an exchange with UCLA law professor Stephen Bainbridge.

The long and short of it is that this Law Librarian Blog post reviews some of the current scholarship on law faculty teaching by senior, junior, and adjunct professors and provides some interesting commentary on this scholarship. Most interesting, perhaps, is the blog's observation that there seems to be little academic literature on the benefits of senior faculty teaching. Personally, I think this is because the common wisdom in the legal academy is that senior faculty are better teachers all around, so why write about it? I disagree with this view, however--and if you are interested in seeing why, look at my BYU article.

Bainbridge v. Bowman

2008-08-03T07:14:00.000-07:00

My law review article on junior law faculty, The Comparative and Absolute Advantages of Junior Law Faculty: Implications for Teaching and the Future of American Law Schools, 2008 BYU Educ. & L.J. 171, was commented on recently by Professor Stephen Bainbridge of UCLA School of Law. It's fair to say he did not like it--his post on the article can be linked to here and reads, in its entirety, as follows:

Via Paul Caron, I learned of Gregory Bowman’s article The Comparative and Absolute Advantages of Junior Law Faculty: Implications for Teaching and the Future of American Law Schools, 2008 BYU Educ. & L.J. 171, in which Bowman argues:

In the ongoing debate about how to improve law school teaching, there is a general consensus that law schools should do more to train junior faculty members how to teach. While this may be the case, this consensus inadvertently leads to an implicit assumption that is not true—that in all facets of law teaching, junior faculty are at a disadvantage compared to senior faculty. In fact, there are aspects of law teaching for which junior faculty can be better suited than their senior colleagues. This Article reviews scholarship concerning law teaching and identifies three teaching factors that generally favor junior law faculty: generational proximity to the law school student body; recency of law practice experience as junior practitioners; and lower susceptibility to the problem of conceptual condensation - extreme depth of subject matter knowledge that makes it difficult to see subjects from the students’ perspective.

This Article employs the economic concepts of (a) economies of scale or productive efficiency and (b) absolute and comparative advantage to suggest how these junior faculty advantages could be harnessed to improve law school teaching. With respect to productive efficiency, it is suggested that greater intra-faculty dialogue can increase a law faculty’s output of effective teaching. Currently, senior faculty members often provide assistance or advice to junior faculty in areas of senior faculty expertise or advantage—such as depth of knowledge in a course’s subject matter—but this is largely a one-way flow of information. However, if junior faculty were also to provide insight and advice to senior faculty regarding areas of junior faculty advantage, the quality of law school teaching might be significantly enhanced. Junior-senior faculty dialogue might be promoted through a variety of means, including faculty workshops and even perhaps teaching reviews of senior faculty by junior faculty.

With respect to the concepts of absolute and comparative advantage, this Article suggests that law school teaching could be improved through the specialization of teaching functions. Instead of professors individually teaching separate courses, professors might coordinate their teaching (that is, team-teach) across a number of courses in the law school curriculum, as a means to more effectively harness the respective strengths (and minimize the respective weaknesses) of junior and senior faculty in the classroom. Through the leveraging of junior faculty advantages, overall law school teaching might be significantly improved. This Article concludes by discussing the implications of these recommendations for law school culture in general and for the legal profession as a whole.

The trouble is that I don’t buy any of the alleged advantages Bowman says junior teachers possess. As for “generational proximity to the law school student body,” it often translates into difficulty for the young teacher to gain respect from the students. Anyway, it seems more relevant to dating than teaching. As for “recency of law practice experience as junior practitioners,” most law professors (at elite schools, anyway) come into practice with only a few years of practice experience. Being bottom man on a deal or litigation team fora couple of years doesn’t translate into meaningful knowledge. At best, it gives you a few war stories. Personally, I’ve learned a lot more that I use in the classroom from consulting than I ever did in practice. Since sniors likely have more consulting opportunities than juniors, this is at best a wash. Finally, as for “lower susceptibility to the problem of conceptual condensation - extreme depth of subject matter knowledge that makes it difficult to see subjects from the students’ perspective,” I’d rather know too much then too little. When I was just starting out, I lived in dread of the student question for which I had no answer. Today, it almost never happens.

* * * *

Needless to say, I disagree with his critique, and I commented on his post as follows:

Thanks very much for the post about my BYU article. I appreciate your comments, and I have some thoughts in response.

First, with respect to generational proximity, you note that this “often translates into difficulty for the young teacher to gain respect from the students.” I agree with you. But this does not mean that understanding student mindsets better—due to generational proximity—is not an advantage. We accept the notion of generation gaps in our society, so why would this not have an effect in the classroom? As law professors, we are trying to reach an adult population of students who at times are disinclined to accept our views and the large workloads we impose in class. If junior professors understand student mindsets better, won’t that help counter that? I am not at all suggesting that more senior professors cannot do this just as well; rather, what I am saying is that as professors become more generationally distant from their students, it may take more active effort for them to stay closely tuned to student mindsets. And that is a comparative disadvantage—more input needed for the same output. In the article I discuss how this particular junior faculty advantage might be leveraged to improve law school teaching.

Your second criticism concerns the value of junior professors’ recent law practice experience. You point out, rightly, that “most law professors (at elite schools, anyway) come into [teaching] with only a few years of practice experience.” But I disagree with your judgment that that “being bottom man on a deal or litigation team doesn’t translate into meaningful knowledge.” For one thing, I learned a lot in my first two years as a corporate lawyer. For another, what will all of our students be when they get out of law school? Junior lawyers of one sort or another. So can’t junior practitioner experience help professors contextualize class material in a way that is relevant and accessible to students? And if a junior professor has done that very type of work within the past 5 years, rather than 20 or 30 years ago, won’t that resonate more with students? Again, this is not to ignore the many benefits of seniority or experience, and it is not to say that more senior faculty can’t work to keep their fingers on the pulse of modern junior associate practice. But they will have to work at it, and not come to it more naturally, as junior faculty often will do.

Third, regarding conceptual condensation, you simply note that you’d “rather know too much than too little.” I absolutely agree. Touting professorial ignorance as a virtue would be flat out dangerous, and I expressly disavow that in my article. But my point is not what we know as professors—the point is how effectively we convey that knowledge to our students. Knowing the answers to all student questions is a very different thing from being able to see issues from the level of student neophytes. I think many students have had professors in law school who were clearly brilliant but were hard to follow in class. And that was not because the students were all stupid. It was in many cases because professors were talking on a higher plane of knowledge than their students. Again, I am in no way saying that senior professors, with more depth of knowledge, cannot communicate effectively in the classroom. But I am saying that they are more likely than junior professors to take mental shortcuts that are clear to them but not to their students, and that they therefore will have to put more effort into guarding against that than junior faculty.

My article is, of necessity, dealing with generalities. But the one-way flow of information and feedback from senior faculty to junior faculty is a widespread characteristic of American law schools, and there is a casual dismissiveness of what junior faculty may have to offer in the classroom. If junior faculty as a whole bring particular teaching skills or strengths to the table—and I think they do—then we do ourselves and our students a grave disservice by ignoring this.

Thanks very much again for your post and your feedback.

* * * *

You be the judge--what do you, the reader, think?

Revenge of the Temps

2008-05-16T21:42:00.000-07:00

In February 2008, I wrote a post about temps entitled Attorneys Suitable for Everyday Use. It was one of the posts I was particularly pleased with at the time--and I was pleased to receive a very interesting comment on that post earlier this week. The full comment is as follows. My comments are interposed in brackets.

Begin Comment:

I quit my associate job a few years ago and have been temping ever since.

I love it and hope the pattern continues.

I work 3-4 months out of the year and then spend the rest of the time out of the US (where the local wage is much lower -- preferably by a factor of 3 or 4 times cheaper) doing what I want to do (e.g., ski instructor, language study, intensive yoga retreats in India, or hanging out on a beach enjoying life. [I had a number of friends in Europe who lived like this and loved it. Their philosophy was, "why work like a dog to retire early in your 50s and live on the beach, when you can do it right now? You might be dead before 50 for all you know.] In effect, legal temping has allowed me to do now what the average associate is planning to do when they retire at 40 or 50. [News flash: No one retires from law practice at 40. You may change careers, but you don't retire. And virtually no one retires at 50--and certainly no one I know.]

Moreover, every time I come back the temp salaries are higher and the market becomes more specialized. This is great for me, now I can make more money in a shorter period of time. [Law temping is certainly more lucrative than the teaching and table-waiting jobs my Eurofriends did in between their stints leaving in cheaper locales.] Additionally, the firms generally offer full time positions (litigation assistants) to temp attorneys who perform well. So, when I decide to go back to a career, I can get a job as a litigation assistant and then after a year or so, get an associate position at a mid-sized firm. Or, if I decide to go [and] open a law firm with a partner, temping allows one of the partners to work and fund the firm while the other one takes care of the clients. [The only downside with this approach to going back to a firm is that it is harder to get into blue-chip law firms from temping positions--although I have in fact seen it done. But if you don't want to do that to begin with, that's not really a downside, is it?]

Also, even though the salaries are lower than what an associate would make, you have to figure the associate is paying huge amount of taxes. By temping 3-4 months out of the year, I pay a lot less in taxes. [This point actually does not make much sense to me--you're still keeping more of the money, right? But I suppose the point is valid from a Laffer Curve perspective.]

I'm very happy as a temp attorney and hope the legal temping trend will continue. [I love happy endings, especially when they concern legal careers. Too often we end up griping about law careers--me included. It's nice to hear a happy story from a satisfied and fulfilled attorney. Thanks for sharing your story.]

A House Divided

2008-05-14T20:25:00.000-07:00

The timeworn saying is that "Truth is stranger than fiction." That's certainly true in the case of this house, which I drive past every day on my (wonderfully short) commute from my house to Mississippi College School of Law, where I teach. There it is, a house divided: one side painted blue, the other side painted red. What a wonderful image! It represents our national state of affairs quite nicely. I wonder what Abe Lincoln would think of it.

It gets better, too. The house is not painted just any shade of blue and red. It sports a very untraditional (shall we say liberal?) shade of electric blue, and a rather staid and conservative shade of brick red.

And, of course, the red side of the house is on the right.

I absolutely love this house. I keep waiting for someone to figure all of this out and paint the whole duplex some bland shade of brown. I sure hope that never happens.

And it gets even better: the cars in the carports match the house. Not in color, but rather in make and model. In the blue/left/liberal carport (which you can see in the picture), a Mercedes sedan is parked. In the red/right/conservative carport (which is obscured by the tree trunk), a Ford Escort is parked. I am not kidding or making this up. The cars are there every day.

So this little duplex is our nation in a nutshell. Which makes me wonder: if we did paint the house the same color, or at least colors that coordinate better than electric blue and brick red, would we get along better as a nation? It would be nice to think so--and as much as I love this house, I'd paint it in a heartbeat for a little more political conciliation and cooperation between Democrats and Republicans, and between red states and blue states.

More on the College Cost Reduction and Access Act

2008-05-08T10:25:00.000-07:00

So after a very busy April and de facto blog holiday (blogiday?), I'm back to posting. Among other things, I will be taking a group of law students to Seoul, Korea to study this summer. That will be a lot of fun and the source of posts over the summer. But today's topic is something I have posted on in the past: law school debt and the College.

In September 2007 I blogged about the College Cost Reduction and Access Act (CCRA), which has been hailed in many quarters as "the single largest investment in higher education since the GI Bill." There's been a lot written about it; a good place to start, I suppose, is my September post, which gives a summary and links to some other very useful information online.

And then there's the recent post on the CCRA by nonprofit lawyer and blogger Fannie, who runs the blog Fannie's Room. Her comments on the CCRA are great (and more than a little frustrating. Anyone interested in the CCRA and student debt loads definitely needs to check it out.

More posts soon.

2009 U.S. News Law School Rankings--Peer Reputational Rankings

2008-03-31T21:06:00.000-07:00

Yesterday I posted about the 2009 U.S. News & World Report rankings for law schools. Paul Caron at TaxProf Blog has posted a complete list of schools ranked only by their academic peer reputation. The results--located here--are extremely interesting, since rankings by peer reputation vary (sometimes significantly) from overall rankings. Remember that peer reputation is one of the most heavily weighted factors in the U.S. News rankings, so this particular variable matters a great deal.

In particular, check out the comments to Caron's post. A difference of one-tenth of a point can mean a huge move up or down with respect to ranking within this variable.

2009 U.S. News Law School Rankings

2008-03-30T06:53:00.000-07:00

U.S. News & World Report has published its annual rankings of law schools, but the ABA Journal reports that bloggers (again) beat U.S. News to the punch with leaked rankings. The U.S. News rankings can be linked to here; an ABA Journal article on the rankings (and links to the leakers) is online here.

Much is made annually of the rankings. Many observers are critical, and some say they do not matter. But for better or worse, they do, since many current and potential students, current and potential faculty members, and current and potential donors pay attention to them.

My view is that the rankings can matter far less at the top than they do at the bottom. Harvard is not #1. Does that deter people from going to Harvard? No. NYU and Columbia traded places this year. So what? They are in the top of the top. A slip from the top 10 to the top 30 can be a crisis, but that happens not too often, I think. And as Theodore Seto has pointed out in his article Understanding the U.S. News Law School Rankings (available on SSRN here--I highly recommend it), much of what affects a law school's rankings is outside that school's control.

I also think that what matters more than year-to-year shifts are mid- or long-term trends. A school may misreport and fall from tier 2 to tier 3, or may have a temporary spike due to a new building, or some such thing that has a short-term impact for good or ill. But what really matters is a school's position over a period of years. It's like global warming in that sense. What matters is not the weather in any given year. What matters is climate change over a period of years. "Climate" can be defined as the "average of weather." Perhaps a law school's "real" ranking for U.S. News purposes can be defined as its average ranking over a period of years. So that in any given year, a school like George Mason's rise in the rankings might not mean much--but its climb in the rankings over the past decade and more is decidedly significant.

There's one other thing about these U.S. News rankings that is extremely interesting compared to years past: the online version can be used to rank schools in ALL tiers. In years past the 3rd and 4th tiers were listed alphabetically only. But now, schools in the lower tiers apparently can be ranked. And in my opinion that is where the rankings can really matter, and perhaps be the difference between life and death of a school, or good fundraising versus tuition-dependence, or strong recruiting versus weak recruiting (of both faculty and students). If you are #1, or #3, or #9, yes, that matters. But it matters much more, I think, whether your school is in the 3rd or 4th tier--and where in that tier. If you are in the 4th tier, you'd much, much prefer to be at the top than at the bottom. At the top, you can claim to be "on the cusp" of a move up. But at the bottom, or in the middle, that's a much harder argument to make.

Mississippi Secunda and the Lateral Market of Doom

2008-03-22T14:53:00.000-07:00

My friend and soon-to-be ex-Mississippian Paul Secunda has written an excellent article on negotiating the vagaries (treacheries?) of the law school lateral hiring market. The article is available on SSRN here. I highly recommend it as general reading for pretty much anyone interested in how law schools work--students, professor wannabees, current profs, and so on.

As Paul points out in the article, there has been a good deal of commentary on the entry-level hiring market for law faculty, but there is a paucity of literature on the lateral hiring market (the market for law profs who move from one school to another). So Paul, who is in the process of moving from the University of Mississippi School of Law to Marquette University Law School, has bravely set out to rectify that.

Personally, I think the article is great for a number of reasons. First, as already stated, it is a great resource. Second, it is an easy and fun read--not a common characteristic of scholarly writing. Third, while the advice is focused specifically on the law school lateral hiring market, some of the advice translates well to any interviewing scenario. Especially helpful, I think, is Paul's point that many of the variables in the hiring process are beyond the interviewee's control. Understand that, accept it, and focus instead on the factors you can control. That likely will increase your chances of success, and it certainly will reduce your stress level a good bit.

And finally, the article is a perfect example of how blogging can directly promote scholarship: parts of the article appeared as a series of blog posts by Paul on Concurring Opinions (see his first of eleven posts here). After all, novels by Dickens first appeared in serialized form, so why not law review articles? Dickens might even have been a blogger were he alive today--although perhaps not a law prof.

Law is Cool

2008-03-09T20:13:00.000-07:00

I've added a new student blog to my blog roll. Law is Cool features a whole slew of law students from law schools in Canada, and it has a nice, eclectic blend of posts. Check out the March 8, 2008 post called Virtual Genocide in the U.S. No, it's not a political screed--just funny.

Most interesting to me are the podcasts. Check out Podcast Episode #7. It features Law is Cool bloggers commiserating about their workload, stress, and general level of exhaustion. Which I find very heartening. If these folks were having an easier time of it in Canada, I think U.S. law schools might be in trouble--there might be a mass transfer of U.S. law students to Canadian schools. (Actually, I'll bet many Americans would like the U.S. to export thousands of future lawyers to Canada.) I know that when I was a law student, I would've been tempted by the lure of kinder, gentler law schools in the Great White North. But fortunately--I mean, alas--that is not the case.

New NALP Interview Guidelines

2008-03-02T10:43:00.000-08:00

The New York Lawyer has a report about revisions NALP has made to its "Principles and Standards for Law Placement and Recruitment Activities." The guidelines, while not binding, are followed by most firms. One big change is that instead of listing a deadline by which students must accept or decline summer offers (formerly October 15), the revised guidelines now give students 45 days to accept or decline an offer. Driving the change was the fact that many firms (and schools) were starting their interview processes earlier--with the result that offers were being held open up to four months. That's a long time. The article can be accessed here (you may need to register with the New York Lawyer to read the article, but registration is free). NALP's revised guidelines are posted online here. Both are worth reading.

The New York Lawyer article is (as usual) a piece of very good reporting. But I do take issue with the first sentence: "Starting next fall, law students will need to think fast when choosing which offer to accept for a summer associate job, due to a change in timing guidelines." 45 days? Think fast? Hmmm. Hardly my definition of an "exploding offer." I' ve received exploding offers before, and they were nothing like 45 days in length. That's 6 1/2 weeks! Good sensationalism, though. Draws you in and makes you read. Worked on me.

And it is an interesting--and needed--change to hiring practices. This will make it easier for firms to know how many slots they have left for summer hiring, since they won't need to hold slots open for a bunch of "maybe" candidates who are sitting on offers for a long time. That actually should help other students, since firms will know, on a rolling basis, who is accepting and who is declining, and spots will open up more quickly. So it seems like a good balance between giving students sufficient time to make up their minds--more than sufficient, really--and allowing firms to have some sense of definiteness regarding the size of their summer classes.

Interviewing Techniques Talk

2008-02-15T16:01:00.001-08:00

I recently gave a talk at Mississippi College School of Law on interviewing techniques. The video is available online here. It's been broken into chapters for ease of viewing; it also can be viewed in its entirety if you prefer. I've used these techniques myself on the legal job market, and I really do believe they make a big difference.

Previously I posted similar advice on this blog in written form. That post, Job Interview Do's and Don't's, can be found here.

As always, I appreciate any comments, suggestions, and/or war stories from your interviewing experiences that you may have, and I am sure other readers will too.

Second (Life) Opinions Revisited

2008-02-11T20:18:00.000-08:00

In November, I posted about UK law firm Simpson Millar, which has set up shop in the online gaming world "Second Life." I just received an interesting comment on that post--and since some time has passed since then, and since it's an interesting issue, I thought it was worth pointing out again. You can link to my earlier post here.

The subtext of all this is that Simpson Millar is working multiple PR angles in creative ways. Second Life, yes, but also podcasts and blogs. SM is not the only law firm doing that, of course--but that perhaps makes the point an even stronger one. With more and more ways to raise your firm's profile and attract and serve clients, modern law firm practice is a brave new (virtual) world.

Partner Pay

2008-02-08T19:41:00.000-08:00

In my last post, Attorneys Suitable for Everyday Use, I wrote about the growing prevalence of contract attorneys at U.S. law firms. It's my position that the use of such temp workers is part of a larger trend at major U.S. firms. That is, it appears to me that law firm employment at all levels--including equity partner, non-equity partner/of counsel, and associate positions--is becoming less financially lucrative than it has been for the past two decades.

An article in the February 5, 2008, ABA Journal backs this view up. The article reports that at the law firm of Greenberg Traurig, equity partner compensation is being frozen for the time being. In one sense, this is nothing new: as part owners of the firm, equity partners reap the rewards of huge profits when they occur, but they bear the risk of shortfalls. On the other hand, the fact that clients are increasingly conscious of legal costs means firms are increasingly constrained in terms of raising billing rates or billing their clients for more hours. The fact that mid-sized regional firms can increasingly compete with national firms in many areas of practice (e.g., corporate M&A, major projects, litigation, even international trade law) puts further downward pressure on fees. And as I said in my previous post, one way to reduce costs (and thus maintain profit margins) is to use cheaper lawyers. Enter the contract attorney.

This ABA Journal article is just one piece of evidence, and it can be dangerous to reason from the specific (Greenberg Traurig's decision) to the general (the legal market at large). But this piece of evidence does support my view that the times they are a-changing. And it is my belief that similar decisions are being made at other U.S. law firms--they're just not making headlines.

Attorneys Suitable for Everyday Use

2008-02-07T21:18:00.000-08:00

Over at JDWired, blogger Joe Miller has a post about a contract attorney survey he recently conducted via his blog. For the uninitiated, a contract attorney is not a lawyer who practices contract law. Rather, it's someone who is hired on a temporary basis to help with a particular project. Synonyms include "document review attorney" and "temp(orary) attorney." Contract attorney work is not all that glamorous, it pays less, and there is (by definition) not a lot of job security involved. But it's work, and in a tight job market that's something. I previously blogged about contract attorney work here.

The findings of Miller's survey are interesting. Here's the gist of his post and his findings.

(1) 44% of contract attorneys (responding to the survey) were minorities. By contrast, only 16.72% of the associates and 5.01% of the partners at the firms these contract attorneys were working at were minorities. That's disturbing.

(2) Almost all said that their staffing (temp) agencies provide no access to professional development programs. Not so good for the attorneys, and potentially bad for the agencies as well.

(3) About half said they had worked as contract attorneys for more than one year after graduating from law school, and that the work was their "primary source of income."

(4) Staffing agencies typically do not provide health care. And since contract attorneys are temps, they generally won't get healthcare through the firms they work for either.

Miller concludes that "[c]ontract attorneys are an untapped resource both for improving diversity and reducing skyrocketing client costs." He then notes that "[t]he ABA’s 1992 MacCrate Report urges the legal profession to invest in all lawyers. So far, we are not seeing that."

In a sense, what Miller's survey points out--to me anyway--is that the phenomenon of the contract attorney is part of a larger restructuring of the U.S. legal job market. That is:

(1) Partnership is becoming ever harder to get, with billable targets being raised. At the same time, it is perhaps getting less lucrative. So fewer people seem to be going that route--either by choice, or because they are denied full partnership.

(2) Non-equity partnership positions (and Of Counsel positions, which are much the same thing) are becoming more attractive long-term positions. They are attractive both for people who want to avoid the equity partner rat race as well as (by default) those do not win it. But many of these positions are also getting less lucrative, as firms restructure their non-equity partner/Of Counsel contracts.

(3) Associates at big law firms make scads of money, but the positions can be hard to get in this tight job market. There's ever-increasing pressure to bill more hours, and there are reduced chances at partnership (see above), so people tend to rotate out of associate jobs after a few years.

(4) All of the above mean that contract attorneys may have a larger role to play in contemporary law firms. Contract attorneys are of course cheaper than any of the above. Firms can lower their bottom line by hiring contract attorneys to do the "lower end" legal work that needs to be done. (For insight into such work, see this post on My Attorney Blog.) And as Miller points out, not only can firms lower their own wage costs (read: increase their profits), but they also can bill these contract attorney out at lower rates--which will help keep these firms price-competitive vis à vis the competition. With an economy teetering on recession and legal work being not only outsourced but even offshored, this is no small consideration.

Recipe for a Blogroll

2008-02-05T18:40:00.000-08:00

I have added a few more student blogs to my blogroll. They are as follows:

Transnational Law Blog (http://transnationallawblog.typepad.com/) This blog features various students, recent grads and others blogging about transnational issues. The blog has a nice look and wonderfully diverse viewpoints.

Mississippi College International Law Society Blog (http://mcsolils.blogspot.com/) Yes, this is a plug for my law school's International Law Society. The ILS was started last year by students at the school, and I love the fact that they are blogging about various transnational matters.

Wish I Would Have Known (http://wishiwouldhaveknown.blogspot.com/) This is a group blog that provides "advice from law students on how they would do things over." If only Al Gore had invented the Internet before I went to law school, I could have benefited from their solid advice.

Butterflyfish
(http://butterflyfish1.blogspot.com/) This blog is by an anonymous 2L/mother. It has a nice tone to it. Fun to read, with a hint of poignancy.

So these are four nice blogs. How, exactly, do I choose students blogs for my blogroll? Not very scientifically--I either like a blog or I don't. These four blogs, I like.

Of course, there are other law student blogs out there, but often they disqualify themselves from consideration. This is Law Career Blog after all, not Bar Crawl Blog (although that certainly would be an interesting blog). Or Crude Humor Blog (although to everything there is a season). No, the student blogs I add to my blogroll have to do at least one of several things.

First, they have to relate information about the law school experience that is meaningful. Insights, suggestions, gripes, whatever.

Second, they have to have good writing and be at least somewhat reflective. I think that if you are going to read something like a law student blog, it should add to and enhance your knowledge of law school in some way. Maybe it's just me, but "Wow, that party was awesome" does not tell me a lot, other than that the party was awesome.

Third, it has to get a PG-13 rating or better. You don't make partner by being enormously crass (well, maybe you do at some firms, but not the imaginary one where I'm Managing Partner). So über-crass student blogs get nixed. And there are a lot of über-crass student blogs. Some of them are very smart, and more than a few are very funny. But one of the most successful partners I ever worked for never, ever uttered a dirty word, not even h___ or d___. Seriously. Never. He was a very busy man, and he never crossed the G rating threshold with his vocabulary. And it was not because he was a prude or sanctimonious. He actually had quite the wicked sense of humor. The impression he gave--the implicit message I got from him, anyway--was that it was far more clever, and funny, and intelligent, to be creative and eloquent with your speech and humor than it was to be gutter-crude. That's not a bad message: crassness can never help you in your career, but it can certainly hurt you. So crass blogs are out, and clever/witty/thoughtful blogs are in.

Finally, I must of course disclaim any responsibility for future content on these blogs. Who knows? One or more of these bloggers might someday curse me to oblivion in a crass, obscenity-laden post. Although based on their blogs' content so far, I kind of doubt it.

Michael Clayton--Again

2008-01-31T21:54:00.000-08:00

Recently, I wrote a series of posts on the movie Michael Clayton. Six posts, to be exact. I thought the movie highlighted a number of important themes regarding the practice of law, and the posts were fun to write. They were:

Clooney v. Clayton--a review of the movie
Clooney v. Clayton, Part 2--about hyperbole in legal dramas
Clooney v. Clayton, Part 3--on whether there is such a thing as a law firm "fixer"
Clooney v. Clayton, Part 4--about the perverse incentive/reward structure of law practice
Clooney v. Clayton, Part 5--on how law practice affects your family life
Clooney v. Clayton, Part 6--regarding legal ethics

After the movie was nominated for seven academy awards recently, I was interviewed by the Chicago Tribune regarding post #3. The question posed was this: Is there such a thing as a law firm fixer? Answer: No, I don't think so. The Trib article can be linked to here.

Interestingly, an argument can be made that law firm fixers are economically justified in some cases. (For a good argument along these lines, see one of the comments made to post #3 above.) But I still think that the opportunity costs of having such a fixer are much greater than the benefits. Having another lawyer billing lots of money on big projects for years and years is far more profitable than having that person sit around waiting on calls to bail out clients.

But who knows. Maybe some day a fixer will show up at my door to tell me I am wrong. Until then, though, getting quoted in the Trib was a lot of fun.

Sinking and Swimming

2008-01-29T20:14:00.000-08:00

There is a good deal of discussion these days about the “death of mentoring” in law practice. I have blogged about this subject previously (see here and here). Discussions about mentoring generally assume that while there used to be mentoring, there there’s not much anymore—with the effect being that associates are left to sink or swim on their own in practice.

That would be bad enough. But a recent article in the NY Lawyer points out that not only are associates often thrown into the deep end of the law practice pool, without any real mentoring or assistance, but that sometimes mentors actively try to try to sink associate careers. (Note: You need to register in order to view NY Lawyer articles, but registration is free.)

This sort of sacrificial phenomenon is not new. It is human nature for people to take credit and pass blame. To analogize to economic wage theory, one might say that in the employment context, credit is sticky downward (in that it tends not to flow down the chain of command from supervisors to underlings), while blame is sticky upward.

So if all of this is nothing new, why was this article written, and why does it resonate with readers? A cynical answer is that news topics, like history, tend to repeat. And in fact the NY Lawyer article itself is a reprint from Texas Lawyer and is also reprinted in the ABA Journal.) A more satisfactory explain, however, is that the economics of modern law firms—especially large ones—tend to mask this age-old problem. Perhaps we implicitly assume that since associates can make partners a lot of money, they are less likely to be sabotaged. And maybe that assumption is flawed. So this is a topic worth exploring more.

Law Firm Economics 101

I have blogged about the economics of modern law firms before (see for example here, here and here). There is a lot of money to be made in the modern practice of law, at least at large law firms. At the right firm, in the right market, in the right practice area, lawyers can become very, very rich by working very, very hard. And we more or less have bought into the notion of the “sweat shop” law firm. (By “bought in” I certainly do not mean “approve of”; rather, I mean that this conception of the large law firm is generally accepted as a standard one by many observers.)

The idea is that there is a pyramid structure to most law firms, with multiple associates for each partner. En route to partnership many associates will be weeded out, either through self-selection or by the firm, so that at the top of the pyramid we generally find a small number of partners who reap the benefits of a large number of toiling associates. If you do the math, it becomes apparent that partners at the top of the heap can do quite well compensation-wise. And with a steady stream of newly-minted law school graduates coming into practice, new lawyers can be worked very hard until they burn out, and then be replaced. This is neither a pretty nor happy model, but from the perspective of senior partners it works well financially.

The Phenomenon of "De-Mentoring"

So we can complain about this system, and we can bemoan the lack of mentoring at law firms. But why on earth would a law firm partner actively work to skewer a junior associate? Why would the partner steal the junior associate’s business, or pass blame, or take credit for the junior associate’s work? Don't partners make more money if associates are left alone to work hard, instead of actively impeded? Doesn’t it behoove partners to let some of the associates win the game? After all, if there is no chance of upward mobility, there is little incentive for associates to buy into the system.

There are many answers to these questions, and the answers will vary somewhat from firm to firm. But I have two general observation about such “de-mentoring.”

First, law firm partnership is not Shangri-La(w). The perception of some associates is that once you achieve partnership, your new address is “123 Easy Street.” Not so. One former colleague of mine described making partner as a twelve year-long pie-eating contest in which the prize for winning is a lifetime supply of pie. That’s a very apt description. Partners in big law firms work very, very hard, and they typically are expected to bill and bring in a lot of new business even after making partner. Those who do not are at the very least politically marginalized in their firms, and at most are forced to retire or resign.

So what if you are a senior partner who cannot keep up with the workload, for whatever reason? You do whatever is needed. The law firm may benefit more from rewarding hardy survivalist associates—but you benefit from surviving yourself, even at the expense of the firm and some associates. And since modern law firms, with their revolving door of junior associates, tend to discourage long-term working relationships and encourage (by default) an “us versus them” mentality amongst colleagues, too often there is little to prevent such behavior.

Second, how do you winnow the wheat from the chaff when there is no chaff? Large, blue chip firms attract an enormous number of highly talented and ambitious young associates. A process of natural selection, via survival of the fittest, is not a good way to weed out associates when all of them are fit. (Figuratively fit, of course—who has time to go to the gym when practicing law?)

So while there are surely instances of overt backstabbing or betrayal (see above), I think a more common event is the use of a minor mistake—or even ordinary performance (instead of extraordinary performance)—as a pretext for distinguishing between two equally qualified and deserving associates who are working pretty much equally as hard. In some cases, partners might even create artificial distinctions between associates—such as by talking down one associate’s work—in order to justify such an artificial choice.

These factors go to show that the interests of partners and associates often diverge, and that this can have an effect in the mentoring context. In fact, the labor-versus-management dynamic and the endless hours worked by associates suggest very strongly that the Marxist critique of capitalism is quite relevant in this context. (For excellent discussions of this very topic, see posts by David Luban at Balkanization and by Paul Secunda at Workplace Prof Blog.) For now though, it is simply important to bear in mind that when you are a junior associate, the worst your mentor can do is not just to ignore you. Rather, the worst is that your mentor might actively de-mentor you.

Law Exam Mistakes and Interviewing Mistakes

2008-01-24T14:54:00.000-08:00

Yesterday I gave a talk on interview techniques to the 1L class at my law school. Hopefully I soon will be able to post a podcast of the event on this blog. In any event, I've discussed the points I covered in that talk in a previous post on this blog. I've interviewed in some very tough job markets over the years, and my advice has served me well.

As I was giving the talk yesterday, it struck me that some of my interviewing advice is relevant to the subject of law school exams and grades. Specifically, law students often internalize their exam performance and equate exam performance with self-worth, at least to an extent. Or they equate exam performance with their potential as lawyers. Those are mistakes, of course, but I see them happen all the time. And having been through the law school experience myself, I understand that saying "don't do that" is much easier said than done.

The point I want to make here, though, is that grades are final (except for clerical errors, which are pretty uncommon). And that point gets me back to the subject of interviewing. Much of my advice about the interviewing process rests on the premise that you should focus on the elements of the interview process that you can control, not those you can't. That may seem obvious, but I see far too many people expend a lot of time and energy worrying about whether they are going to get a particular offer. Yet interviewees never have actual control over whether they get offers! Instead, what they do have control over is how they approach the process, and how they interview. Focusing on what you can control means you are more likely to improve your interviewing performance, and also are more likely to reduce stress and obsessive attention paid to aspects of the interview process that are outside your control.

In the exam context, then, let those grades you just received go--good, bad, or otherwise. You can't change them. Focus now on what you can control: what you can learn from what you did right and wrong on those exams, and how you can improve your performance in the future. And next semester, worry about what you can do to improve your exam performance--which you can control--and not about what grade the professors give you, which you cannot. In other words, worrying about the process, and not about the end result, is a way to improve both your law school grades and your interviewing skills.

Law School Exam Mistakes

2008-01-22T20:43:00.000-08:00

Now that law students across the country have started classes again, it's worth revisiting the subject of law school exams. Specifically, I want to discuss common mistakes that students make on law school essay exams. I have posted on this subject before, and some of my previous posts on the subject are the folllowing:

Exam-Taking Advice
Reflections on Law School Exams
More Information on Law School Exams

Each of these posts contains additional links to other entries on this and other blog sites that you may find useful. And then there's this little classic from 2006 on the now-defunct Blawg Wisdom, which I think is very insightful.

Here are my thoughts after grading this fall's batch of exams.

1. Time management is key. It is better to competently answer all exam questions than to ace some questions and shortchange others. Your total score will be higher if you manage your time.

2. Taking a few minutes to think about how to tackle an essay question is time well spent. Take a few minutes to figure out both what you need to talk about and how best to organize your answer. And then write a quick little outline. Students who do this almost always do better on exams. They stay on point--which leads to better answers. And the outline is both (a) a way to make sure you don't forget to discuss a point you intended to discuss, and (b) a way to demonstrate to your prof that you are organized and have thought your answer through. Don't underestimate the latter point: an outline certainly cannot hurt in this regard, and it may help.

3. Law student DNA is encoded with an almost irresistible urge to not follow the advice in point #2. You know the feeling--you know your prof said to think first and write second, but you can't resist just plunging in. I know the feeling too--I have been there. But resist it with all your might.

4. The most common mistake of students who understand exam questions is to summarize the law, but not fully apply it to the fact pattern in question. The result? The answer is evidence that the student clearly understood the law, but it is not clear evidence that the student knew how to apply it. And the final score is lower as a result.

5. Another common mistake of students is to jump to the conclusion without explaining how they got there. This is, in essence, the converse of #4--applying the law, but not explaining it very clearly. This too lowers your score.

6. No essay exam answer is perfect. Exams are stressful situations, after all, and the fact patterns of essay questions are typically fairly complex. Your time is extremely limited too, except for take-home exams, and often those have page limits. So you simply can't say everything. So don't expect to. By identifying the primary issues, discussing the relevant law, and applying it, you stand a very good chance at getting a very good grade.

Law Firm Partnership: What's in a Name?

2008-01-20T21:54:00.000-08:00

I received a comment to my last post that was way off point, but which had two virtues: one, the commenter admitted it was off topic; and two, it was on an interesting subject that is important for law students to understand. So I have made this question the subject of today's post.

Here was the commenter's question:

While off topic, I heard something that is law career material--Is it true that once you make partner you have to pay your own benefits?

The short answer is "Yes." Once you are a full partner at a law firm, you pay your own benefits. But short answers are boring, and the reasons behind this answer are quite interesting. So let me explain.

When you are a law firm partner, you are a part-owner of the firm. That's true regardless of how the firm is structured--be it a regular partnership or something else (limited liability partnership, limited liability company, corporation, etc.). Law firms are structured in all different ways, and in fact calling law firms "partnerships" is increasingly inaccurate, as many (including my old firms) restructure for liability purposes. So the term "partner" is often used solely for the sake of convention. In fact, some firms even forgo the term and call their partners "shareholders."

When you work at a company, who pays your benefits? The owners, that's who. So as a law firm partner, you pay your own benefits. Bear in mind, however, that you also reap the rewards of high profits when times are good. Of course, you also share the risks/losses when times are bad--and this sharing of loss is one of the reasons that many larger firms have restructured as non-partnership entities that allow for limitation of liabilities. Remember that general partnerships are pass-through entities, so that all risks pass, jointly and severally, to the partners. That means that if a true partnership law firm goes belly up, the associates get fired--but the partners can lose everything. I know people who have experienced that.

Another very interesting thing to bear in mind about law firm partnership is that a lot of people who carry the title "partner" are not really partners or owners of the firm. This is the phenomenon of the two-tier partnership. These people are held out to the public as "partners," and they do partner-level work, but they do not (yet) own a stake in the firm. Instead, they have employment contracts with the firm (unlike associates, who are "at will" employees).

Cynical readers might think that the two-tier partnership structure is a way to lengthen the track to partnership. They might also view it as a way for a firm to get all of the benefits of calling non-equity (non-owner) attorneys "partners" so they can charge their clients more, but not have to pay those lawyers full partner rates. In my opinion, those cynics are exactly right. It is no accident or coincidence that as the practice of law became much more profitable in the 1980s and 1990s, partnership became harder to get at many firms. During my years in practice I saw things change dramatically. Partnership tracks became longer, and the requirements to make full partner became more and more onerous. So onerous, in fact, that more and more non-equity partners (read: partners who are not really partners) are opting to stay that way. They are, in other words, lawyers with long-term contracts with their firms, and they do excellent work and get paid very well. But they are not partners. (Which means, of course, that they do not have to pay their own benefits.) Personally, I think that if law firms could do it, we'd be seeing "three-tier" partnership tracks.

So my advice to any law student on the job market--in any job market, big or small--is to ask, during interviews, about the firm's partnership structure. Pick your moment carefully. Perhaps you shouldn't ask during a screening interview, when you are gunning for the call-back interview at the firm's office. But if the moment seems right during the call-back, ask. Be polite and genuinely curious--after all, you want to work there, so you want to know how the place works, right? And if the answer contains descriptions like "two-tier partnership" or "non-equity partners" or the like, you'll know you are dealing with a firm with a protracted partnership track that has two steps. In many markets, that is the industry standard. Whether that is a good thing or a bad thing, however, is probably the subject of a separate post.

Potpourri Part 2

2008-01-12T12:37:00.000-08:00

As a follow-up to my last two posts (here and here), my latest law review article, The Comparative and Absolute Advantages of Junior Law Faculty in the Classroom: Implications for Teaching and the Future of American Law Schools, was recently used as a discussion piece at a junior faculty forum held at Stetson University College of Law. That forum essentially was a pan-Florida conference on the role of junior faculty in law schools. Professor Joe Morrissey of Stetson asked whether my law review article could be used as a discussion piece at the forum. I of course was highly honored and said yes.

Professor Morrissey is active in the Association of American Law Schools' (AALS) Section on New Law Professors, and he wrote about the Stetson forum and my article in the section's annual newsletter. I have posted the newsletter article online here, with the permission of Professor Morrissey and the section. You can can link to my full law review article here.

It perhaps smacks of blatant self-promotion (I generally prefer my self-promotion to be subtle), but I was really pleased that my article was used at the Stetson junior faculty forum. My friend and fellow blogger Professor Paul Secunda of the University of Mississippi School of Law (who is moving to Marquette University Law School in the fall) has said that a virtue of legal scholarship is that it often seeks to solve problems of practical and social relevance. I agree with him, and what I find gratifying about the use of my law review article at Stetson is that perhaps the article might make a difference for some teachers in the classroom--and thus for law schools in general, and their students, and their future clients. Idealistic and quixotic, I know, but no one ever makes a difference by dreaming small.

Potpourri

2008-01-11T08:06:00.000-08:00

There has been so much going on with the start of the new semester that it raises a problem: what to talk about? Like studies about consumers who, faced with a plethora of choices tend to freeze and make no choice, I find myself bombarded with an embarrassment of riches in terms of blogworthy topics. So much interesting stuff to blog about, so little time.

So here are two subjects that have been on my mind this week. One is a follow-up to my last post; the other is new.

AALS Panel on Junior Faculty, January 4, 2008. In my last post I blogged about a panel I was on at the Association of American Law Schools' Annual Meeting in New York City, for which I presented an article entitled The Comparative and Absolute Advantages of Junior Law Faculty in the Classroom: Implications for Teaching and the Future of American Law Schools. As the article's name implies, it is a fusion of my interest in international trade theory and my interest in/dedication to quality teaching. The paper can be accessed online from my Social Science Research Network (SSRN) page here. (You may need to register for SSRN if you have not used it before, but registration is free.) The panel went well--no hecklers, and there was good feedback. I am looking forward to the article being published this year in the BYU Education and Law Journal.

Good Lookin' Lawyers. The ABA Journal and Legal Blog Watch have reported on a study which concludes that good-looking lawyers make more money, on average, than those considered less good looking. This sounds like one of those "master of the obvious" studies, doesn't it? In a separate study, the FDA has concluded, after five years of intensive research, that the color of most oranges is . . . wait for it . . . orange.

But on a more serious note, it is disturbing that looks should matter in a skills-based profession like the law. I do not care what my doctor looks like; I care about whether she or he is competent. (Although come to think of it, having a healthy-looking doctor is somewhat reassuring, I suppose). It's especially disturbing that looks should matter in a profession that conducts so much of its business via e-mail and telephone.

Perhaps law firm hiring committees do not have entirely the same set of interests as their clients. Maybe their hiring decisions are based in part on their own visual preferences, instead of the best interests of their clients. Or perhaps it's subconscious on their part, and all other factors being relatively equal, looks tip the scale between two similar candidates. Or maybe there is a subconscious effect on the candidates' side as well: maybe better looks breed more confidence, and thus better interview results. Or maybe all three. I am not an expert in psychology, but it does seem likely that these factors play a part.

If we accept the fact that appearance matters to us, and I think that's largely incontrovertible, perhaps the question is whether anything should be done about it. Is this something that simply "is what it is," or should law firms, and law schools, take steps to try and counter this bias in favor of people perceived to be more attractive?

And for those who may be wondering, I will not be writing an article on the comparative or absolute advantages of better-looking junior faculty in the classroom. Some areas of interdisciplinary study are better left untouched.

The Comparative and Absolute Advantages of Junior Law Faculty

2008-01-03T21:26:00.000-08:00

As I write this post I am sitting in my hotel room in New York, where I am attending the Association of American Law Schools (AALS) annual meeting. The theme of this year's meeting is "Reassessing Our Roles as Scholars and Educators in Light of Change." There certainly is a lot of change occurring at American law schools these days, and that topic is a key focus of this blog.

Because of my interest in this subject, I am speaking at the conference on a panel sponsored by the AALS Section on New Law Professors, entitled New Law Faculty as Catalysts for Change. The title of my piece is The Comparative and Absolute Advantages of Junior Law Faculty in the Classroom: Implications for Teaching and the Future of American Law Schools. The paper can be accessed online from my Social Science Research Network (SSRN) page here.

This piece is actually a blend of two areas of interest to me: international trade theory, and law school teaching theory and practice. My piece, as the name indicates, applies the concepts of comparative and absolute advantage to the subject of law school teaching, to see what they might tell us about how junior faculty can be used to improve law school teaching and how we might rethink law school teaching overall. Here's an abstract of the article:

In the ongoing debate about how to improve law school teaching, there is a general consensus that law schools should do more to train junior faculty members how to teach. While this may be the case, this consensus inadvertently leads to an implicit assumption that is not true—that in all facets of law teaching, junior faculty are at a disadvantage compared to senior faculty. In fact, there are aspects of law teaching for which junior faculty can be better suited than their senior colleagues. This Article reviews scholarship concerning law teaching and identifies three teaching factors that generally favor junior law faculty: generational proximity to the law school student body; recency of law practice experience as junior practitioners; and lower susceptibility to the problem of “conceptual condensation”—extreme depth of subject matter knowledge that makes it difficult to see subjects from the students’ perspective.

This Article employs the economic concepts of (a) economies of scale or productive efficiency and (b) absolute and comparative advantage to suggest how these junior faculty advantages could be harnessed to improve law school teaching. With respect to productive efficiency, it is suggested that greater intra-faculty dialogue can increase a law faculty’s output of effective teaching. Currently, senior faculty members often provide assistance or advice to junior faculty in areas of senior faculty expertise or advantage—such as depth of knowledge in a course’s subject matter—but this is largely a one-way flow of information. However, if junior faculty were also to provide insight and advice to senior faculty regarding areas of junior faculty advantage, the quality of law school teaching might be significantly enhanced. Junior-senior faculty dialogue might be promoted through a variety of means, including faculty workshops and even perhaps teaching reviews of senior faculty by junior faculty.

With respect to the concepts of absolute and comparative advantage, this Article suggests that law school teaching could be improved through the specialization of teaching functions. Instead of professors individually teaching separate courses, professors might coordinate their teaching (that is, team-teach) across a number of courses in the law school curriculum, as a means to more effectively harness the respective strengths (and minimize the respective weaknesses) of junior and senior faculty in the classroom. Through the leveraging of junior faculty advantages, overall law school teaching might be significantly improved. This Article concludes by discussing the implications of these recommendations for law school culture in general and for the legal profession as a whole.

(Note: If you are not already a user of SSRN you will need to register to use SSRN, but the registration is easy, and it's free. For those unfamiliar with SSRN, it's an online network through which scholars distribute and share up-to-the-minute research. It's a great and free resource for scholarship in the social sciences.)

Also on the panel with me are Emily Hughes of Washington University School of Law in St. Louis, Geoff Rapp of The University of Toledo College of Law, and Ben Madison of Regent Law School. Moderating the panel is Michael Schwartz of Washburn University School of Law. Having him as moderator is excellent, since he is a leading scholar in the area of law school teaching and an all-around good guy.

I will post more about the panel after it occurs. In the meantime, I welcome any thoughts or input about the article.

Making the Grade(s)

2007-12-28T21:05:00.000-08:00

Time sure flies. It's hard to believe it has been over two weeks since my last post, which is unusual. The reason, as anyone who is in or has been to law school might suspect, is that I have been neck-deep in final exams to grade. 278 essay questions from two classes, to be exact. But who's counting? Not me, since I just finished them.

At the end of every semester, I remember the adage that we professors teach for free, but get paid to grade. Grading is not fun. But it is, of course, very important. And it is, of course, my job. People's grades--and to some extent their professional futures--depend on my grading. So I take the task extremely seriously.

Yet I would be lying if I said that reading answers to the same essay questions over and over and over again is scintillating, because it's not. Still, the exercise holds its own sort of twisted appeal. For one thing, no two answers are exactly alike. The organization is different, the discussion is different, and the conclusions reached are different. That's no surprise, perhaps--and yet I am always struck by it. I tell my classes that often in the law the answer to a question is "It depends"--which gets a few chuckles and, I am afraid, a little eye-rolling too. People prefer clarity, and the study of law often does not provide that. There is rarely a clear-cut, unequivocal answer in the law, and there are always arguments to the contrary that can be made. Lawyers are advocates, after all.

What really strikes me during grading season, though, is that once in a while a student comes up with something unexpected in answering an essay question, and it works really well. The majority of the time, this sort of reaching is just that: reaching. It doesn't get a lot of points, since it typically veers the answer off target. (In economic terms, it's an opportunity cost.) Yet sometimes, an insight is made that is truly clever, and it demonstrates that the student understands the material at a deeper level. Reading answers like that are some of my favorite moments in teaching.

I should put a caveat here. I am NOT encouraging students to be wildly inventive in their exam answers. No, no, and no. The professor is not always trying to trick you. Identify the issues, summarize and apply the law, and reach your conclusion. You will always get more points for this than for answers that stray into wild flights of fancy. (Unless the class is a "Law and Creative Fiction" seminar, I suppose. It depends, right?) But if something strikes you as a point worth making that is not an obvious one, and you have time, then make it. It may be the nuanced observation that makes the difference between an A and a B. I had several such episodes during my exams in law school, and I got an A every time. If only it had happened on every exam . . . .

Interesting New Career Blog

2007-12-10T10:32:00.000-08:00

In my last post I talked about contract attorney career options and a blog called My Attorney Blog. This post is about another interesting new blog on the subject of alternative career options for lawyers. Making the Jump is a blog run by recent law school graduate Karen Eaton, and it is devoted to the subject of law career changes. So it is definitely up my alley, and so far Eaton has written some interesting posts. It's a blog I'll be keeping my eye on, and I have added it to my blogroll.

Contract Attorney Blog

2007-12-08T11:01:00.001-08:00

I recently became aware of a relatively new blog called My Attorney Blog. It's written by a contract attorney in Washington, D.C., and it provides an on-the-ground view of life as a contract attorney. As one post on the blog points out, there aren't many blogs written by contract attorneys for contract attorneys, so this is a nice resource on the subject. For those unfamiliar with the term "contract attorney," it means a lawyer who is hired on a per-project basis. When the project is done, the lawyer does not stay with the firm. In essence, it is temp work.

On the one hand, this might sound like not very attractive work, and it might not be your cup of tea. The work stream is unpredictable (see this post), and the work is not always terribly glamorous (see here). And a commonly asked (and unfair) question is, "why don't you get a real job?" (see here) So why might someone consider a career as a contract attorney--either as a stop-gap option, or as a more strategic career choice?

The value of the stop-gap option is pretty easy to figure out. Jobs are scarce, and food and rent cost money. But contract attorney work also can be a good strategic move, as well as a good move from a work-life balance point of view. You have the option (assuming you have the money) to say no to an unattractive project. If you want experience in a particular area of the law that uses contract attorneys on a regular basis--such as large-scale litigation--then contract attorney work is a way to gain such experience. Also, sometimes contract attorneys get hired permanently by the firms or companies that use them on a temp basis; I have friends who have successfully gone that route.

I also think that working as a contract attorney can be a way to break into an unfamiliar market. What if you recently graduated from a regional law school and want to move to an entirely different area of the country, but have few or no contacts there? Contract attorney work can enable you to make the move. You can pay the bills, get situated in your new location, and try to make some contacts. It might not be easy, but it is virtually impossible to make contacts when you are located thousands of miles away. It takes more than a little courage to make that sort of leap, and there is no guarantee of success--but if you don't make the leap, then failure is guaranteed.

I have added My Attorney Blog to my blogroll and recommend it as a good source of anecdotal insight into the contract attorney world.

Exam-Taking Advice

2007-11-30T08:42:00.001-08:00

Amazing though it may seem, at law schools around the country it is final exam time. With that in mind, I thought I would post some exam-taking advice. The exercise is largely the same each year, however, so rather than re-inventing the wheel, here are links to some previous advice on the subject.

Perhaps the place to start is with my post entitled Reflections on Law School Exams. It includes general advice and links to some of my prior exam-related posts. Another useful post on this blog is on The Pros and Cons of Exam Typing. Students--and professors--sometimes assume that typing an exam is always better than writing one. I don't agree--even though typed exams are by definition more legible (something I of course appreciate).

There is a lot of exam advice in the blogosphere, and it's easy to get overwhelmed by the sometimes conflicting advice given. But two additional sources (not from this blog) that I strongly recommend are the following:

Law School Exam-Taking Tips. This excellent post on Concurring Opinions by Professor Daniel Solove at George Washington University Law School covers a lot of useful ground. 1Ls (and 2Ls and 3Ls, for that matter) should take his advice to heart.

Bad Answers, Good Answers, and Terrific Answers. This very useful post on the Volokh Conspiracy is by Professor Orin Kerr, who is also at George Washington University Law School.

Law School Exam Advice from Pitt's Jurist website. The University of Pittsburgh's excellent Jurist website lists excellent links to information on taking law school exams. There's a lot of useful information here.

Good luck studying, and good luck on exams!

Clooney v. Clayton, Part 6

2007-11-27T19:18:00.001-08:00

This is my last post about the movie Michael Clayton. I've been devoting some of my recent posts to law practice-related themes and issues in the movie, and I have had a lot of fun with it. In fact, it is a movie I enjoy thinking about. I actually enjoy thinking about it more than I enjoyed watching it. For more comments in that vein, see my original review of the movie. My other posts about the movie have focused on Hollywood's distorted representation of big law firm practice (what a shock!), the mythical law firm "fixer" (lives with Bigfoot?), how law practice shapes people, and not always for the better, and how law practice can interfere with family life. Not happy subjects, I know—but an ordinary commute back and forth to a 14-hour-a-day job would not be that exciting to watch. The subject of this final movie post is the topic of legal ethics.

Specifically, is Michael Clayton's job as a "fixer" unethical?

The old Model Code of Professional Responsibility used the phrase "appearance of impropriety" in a variety of contexts. Canon 9's EC (Ethical Consideration) 9-6 provided as follows:

Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.

The newer Model Rules of Professional Conduct do not use the phrase "appearance of impropriety," but the rules' preamble does state, among other things, that "[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

There's nothing in either set of model rules about being a fixer. And there's nothing per se wrong with helping to get your firm's clients (and partners) out of trouble, is there? After all, when one of Clayton's law partners gets arrested, Clayton posts bond for him. He does not bust the guy out of jail, Rambo style.

On the other hand, the tone and tenor of the movie clearly suggest that Clayton's job is not honest, and that Clayton does not like what or who he has become. Does that make what he does unethical? If not, does that suggest that the legal ethics rules are too narrow in some way? Or are the legal ethics rules intended primarily to govern behavior, and not the subjective beliefs of law practitioners?

In any event, the movie clearly tells us what the "right thing to do is," but it does not tell us how Clayton feels about it.

The last scene of the movie is of Clayton, having just done the "right thing" (plot spoiler!), riding around in a cab. He's just turned his client over to the authorities--a client who has committed (and will continue to commit) the fairly heinous act of willfully marketing a lethal commercial product to the public. Presumably this violation of client confidentiality falls well within the scope of Model Rule 1.6(b)(1), which permits a lawyer to breach client confidentiality "to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . . ."

So Clayton turns the client in, and according to the movie that perhaps sets him morally "free." The last scene is a single shot that is several minutes long, during which the credits role, and the camera stays on Clooney, who does an excellent job of looking conflicted. He knows he has just done the right thing, but he is clearly having trouble feeling any emotions about it. Is that a symptom of modern law practice, at least at big firms?

Perhaps--in a highly exaggerated way. Lawyers sometimes represent clients whose positions give them pause. Is that wrong? What about advocating aggressively for those clients? Don't they deserve their day in court? But what if we do not like the outcome? Should lawyers simply not represent those clients? What is better?

I tell my classes that all too often the answer to legal questions is "it depends." That's technically true, I suppose, and I firmly believe that it is important for law students to understand that the law is generally not black and white in its application. And yet such grayness and ambiguity can lead to moral uncertainty. So that even when we clearly "do the right thing," we're not always clear how we should feel about it. Clooney's Michael Clayton embodies that in spades.

The Dilbertic Method

2007-11-25T20:52:00.000-08:00

The Socratic Method takes a lot of flak from law students and lawyers, many of whom regard it as some form of hazing/hiding the ball/rite of passage. Those are not entirely inaccurate criticisms--by which I mean to say that while I think the method has its place, I never much enjoyed it as a student. For that reason--and for the more important reason that mixing up teaching methods helps (I hope) keep class more interesting and is more conducive to learning--I do not rely on the Socratic Method all that heavily.

I am writing about the Socratic Method because of today's Dilbert comic strip. It was, yet again, about the pointy-haired boss. When I read today's strip (11/25/07, which is available in the Dilbert archives here), my first thought was, "Wow, I used to have a boss just like that." (And no, I am not telling you who it was.)

And then I started thinking about this Dilbert strip in the context of the law school classroom, and it got even better. And funnier. First you need to read the strip. And then you need to read on.

When Dilbert's boss says "I need you to do something, but I don't have time to explain it," that's akin to the feeling law students sometimes get when called on in class under the Socratic Method. That is, you read the cases, think you know where the material is going--and then you go to class, and BOOM, you have no idea what is going on. All kinds of ideas are being extrapolated from the text by the professor. And then you get called on socratically. You hear the words, but what do they mean? What's the answer? In fact, what's the question?

Then the professor asks some sort of leading question, which is intended to facilitate class discussion and critical thinking, but it smells and feels like a trap. Which is sort of like Dilbert's boss saying, "I'll give you just enough information to send you down the wrong path." Like I said, a trap.

Then the professor asks a follow-up question that reveals a potential flaw in your answer or argument. Like I said, a trap, and you have to think your way out of it, shooting from the hip all the while. Which is like Dilbert's boss then saying, "After you do it wrong I'll treat you like you're some sort of idiot . . . [and] then I'll put you through the embarrassment of undoing everything you did." You are faced with revising your answer, in front of the whole class. Not a lot of fun. It's a good skill, mind you--lawyers need to be able to think on their feet and argue their points (we are advocates, after all)--but it is often not fun.

And of course, the ultimate judgment on what students say and think is--grades. It is a common feeling for students to think that a course has been one big game of "hide the ball," and that final exams, especially in the first year, are a crapshoot. Only after you have taken them do you get the chance to figure out if you guessed right or not.

So, Dilbert is funny. Ha ha. But law school is serious business. A lot of what this strip suggests, in the Socratic context, is that law school classes would be better with less hiding of the ball, more engaging teaching, more frequent testing (whether actually for grades or mock exams,) and a lot of other changes. I've actually written an article about it, which I will be posting about soon. In the meantime, we can learn how to improve law schools from Dilbert.

Clooney v. Clayton, Part 5

2007-11-20T21:28:00.000-08:00

The Thanksgiving Holiday is again upon us. It is a time for family and for being thankful for what is truly important in our lives. And that subject brings to mind yet another theme from the movie Michael Clayton that I want to talk about. For those of you who have been following this blog recently, I have been writing posts about this film, with each post dedicated to one of the movie's law practice-related issues or themes. Previous posts in this series have provided a general review of the movie, as well as discussions of the movie's hyperbolic representation of big firm law practice, the myth of law firm "fixers", and the nature of law firm partners. Today, the subject is lawyers and family. And my point is this:

In this movie, Michael Clayton ignores his son.

Boy, this one hurt. Clayton is divorced (obviously--most lawyers in movies are divorced, right?), and the little time he spends with his son is spent not really paying attention to him. He drives the boy from point A to point B, and while his son talks Clayton says "Uh-huh" a lot. His son wants to discuss this really cool book he's been reading, and Clayton's response is "Uh-huh." Which does not mean that he does not love his son--he does. There is one scene in the film that drives that point poignantly home, as the two ride along in Clayton's car, and for once Clayton really tries to talk to the boy. But for the rest of the movie, the responsibilities of Clayton's job distract him at virtually all times from other, more important things like his son.

That phenomenon is not reserved for lawyers, of course, but it is an all too common phenomenon for practicing attorneys, and even a fair number of law professors too. In this respect, the movie does not engage in hyperbole at all. (See my previous point about hyperbole here.) Lack of real focus on family matters is a theme worth thinking about at any time, but perhaps especially during the Thanksgiving holiday.

Clooney v. Clayton, Part 4

2007-11-19T11:05:00.000-08:00

This post is the fourth installment of my series discussing law practice issues raised by the movie Michael Clayton. My three previous posts in this series are located here (#1, which also reviews the movie), here (#2), and here (#3). In my prior posts I talked about the exaggerated, hyperbolic nature of the movie's plot and about how law firm "fixers" are like the Boogeyman: sort of scary, but not real. Today's topic is the terrifying subject of senior law firm partners--which, unlike the Boogeyman, are both scary and real.

Specifically, my point is that law firm partners are sometimes like "white tigers": they are fierce and elegant, but would have difficulty surviving outside their contained environment.

That observation (by a previous colleague of mine) is a wickedly accurate bit of profundity, and this movie illustrates it well. Senior partners are highly trained and very successful at what they do. But too often the distorted incentive-reward structures of law firms can result in skills sets, and even personality traits, that might not be rewarded in other, more natural settings.

Exhibit A in the movie is the junior partner, Barry Grissom, played by Michael O'Keefe. Barry is an arrogant jerk. Clayton does not like him, and Barry does not like Clayton. Sydney Pollack's senior partner Marty Bach does not like Barry either. But Barry bills and collects a lot of hours, and he successfully manages and retains paying clients, and that is ultimately what counts. Would he survive in another environment that depended more on interpersonal skills? One would hope not.

Even more intriguing is Exhibit B, Marty Bach. Pollack plays him with a great deal of ambguity, and to me that makes this character both the most realistic and most compelling one in the entire movie. Obviously he is a highly successful senior partner, with a lot of money, a lot of power, and an enviable lifestyle. That much is clear. What is less clear is how his mind works. How has he managed to achieve such success without cracking, like Tom Wilkinson's character Arthur Edens does? Marty professes to care for Michael Clayton and be a true mentor for him, but is Marty really a mentor and protector? Is Marty even in touch with his own internal tensions? Has he come to terms with them, or does he just bury them (as people often do) under a mountain of work?

One of the most disturbing scenes in the movie for me was that of Arthur Edens' wake (sorry, plot spoiler): Marty speaks of Arthur's death with sadness in one breath, and then in the next acknowledges that the firm has "caught a break" because of the death, since Arthur can't do anything more to harm the firm. How does Marty manage to balance the two poles of his thinking? Is the compassion just an act? Or can he somehow segregate compassion from business? And if the latter, then what affect does that have on his psyche?

The question I do not want to ask, let alone answer, is this: if I were in practice for 40 years at a big firm, like Marty Bach, how would I strike this balance? Could I do it at all, or at what cost?

I think it is important to ask ourselves such questions. If we make conscious choices about our career paths, then we generally can live with them. But if we do not make conscious choices, sometimes we cannot. Practicing law, with a firm or otherwise, can be a marvelous career path. But I would hate for anyone to make this career path choice--or any career path choice--without thinking about and assessing the costs and benefits involved.

Sounds Like the Law

2007-11-14T16:23:00.000-08:00

I heard a story on NPR's Morning Edition today that has to be blogged about. Boston University Law Professor Mark Pettit sings in his Contracts class. What's more, his songs are parodies of pop songs, and they are about the cases he teaches in Contracts. I suppose the experience of being in his class, when he sings, must be like learning the law from Weird Al Yankovic.

There is a good bit of scholarly literature on the subject of humor in education, and how humor improves learning. For a list of some scholarly articles on the subject (all of which are presumably not funny), see here.

Pettit is admirably shameless. People remember something when they laugh about it, and words set to music or in poetry are easier to remember. And as the NPR piece demonstrates, Pettit has engaged students both in and outside the classroom: they pay attention in class, they think about the subject of Contracts outside of class, and they write lyrics for Pettit to perform. That's what's called active learning, and it improves the quality of education. And it makes the experience more fun.

Maybe I should have a Contracts lymerick contest next semester. Or for that matter, why not now? So here are are two lymericks-in-progress for my next class, on the subjects of (a) Leonard v. Pepsico (the video referred to in the case is located here) and (b) Empro Manufacturing Co. v. Ball-Co Manufacturing, Inc., 870 F.2d 423 (7th Cir. 1989) (I can't find a free link to the case). Those who have nothing better to do--and those who do have something better to do but would rather do this--can complete the lymericks and post as comments. Feel free, of course, to revise the lymericks as needed. And it goes without saying, but I will say it anyway: keep it clean!

Re PepsiCo:

PepsiCo did firmly reject
Leonard's claim for a Harrier Jet
[Fill in the rest?]

Re Empro:

When its letter of intent was rejected
Empro said "contracts must be respected"
[Fill in the rest?]

Clooney v. Clayton, Part 3

2007-11-12T21:56:00.000-08:00

This post is my third installment about law career issues raised by the movie Michael Clayton. My two previous posts in this series are located here (#1) and here (#2). See #1 for my review of the movie. Today's subject of choice is George Clooney's role as a "fixer" in his law firm. And my point about this fixer role is this:

I think the law firm "Fixer" is like the Boogeyman: disconcerting and a bit scary, but also not real.

I practiced in a big law firm for a number of years. I never, ever heard of--let alone met--a law firm "fixer." I don't think they exist. And if they do, then like the Loch Ness Monster they probably want to stay hidden.

Think about it: the math just does not add up. There certainly are people in law firms who are good at fixing problems, but that does not mean problem-fixing rises to the level of a practice area, like complex litigation or corporate mergers and acquisitions. In fact, large firms are so driven by the billable hour that lawyers who do not bill most of their time would have a hard time surviving, let along thriving. Plus, in my experience, clients are not a bad set of people, and they get in trouble no more often than a firm's own lawyers. So is a full-time "fixer" really needed? I doubt it. If a law firm needs a fixer, surely it has bigger problems, like criminal indictments against its partners and the like.

However, Clayton's job as a fixer fits well into the hyperbolic landscape of the film. (See my previous post on this point.) Clayton is trapped in his job: the firm does not have to make him partner because he is stuck--he can't readily move to another firm--but the partners do not want him to leave because of all the secrets he knows. So while it does not comport with the facts of law practice, the role of fixer works within the confines of this movie, and it helps to move the plot along.

On second thought, though, perhaps solving problems is a separate law practice specialty. Except the people who specialize in it are not called "fixers"--they are called "management." The problems they grapple with, however, are things like how to staff a case, who to promote, how to fire someone, etc. Not sexy Hollywood stuff. Unlike Clooney the Boogeyman.

Trudeau v. Socrates

2007-11-11T20:52:00.000-08:00

A few moments ago an anonymous commenter posted the following comment on my previous post entitled Second (Life) Opinions, in which I talked about both laptop bans in class and the impact of the game Second Life on the practice of law:

"Maybe Trudeau will give you permission to post today's Sunday Doonesbury on your site ... laptops vs. the Socratic Method ..."

I hadn't seen the strip (don't get it in my local paper; don't read it online), so thanks to Ms. or Mr. Anonymous for the reference. The strip is really funny. The Doonesbury strip in question (11/11/2007) can be found here (click the archives link).

Second (Life) Opinions

2007-11-09T08:54:00.000-08:00

I'm in the midst of a series of posts on the movie Michael Clayton (here and here), but two news items from the ABA Journal warrant a detour.

Item #1: Professor Kibosh and the Evil Laptop. First, on the ever-popular (or not) subject of laptop bans in classrooms, there is an article in the ABA Journal concerning the increasing popularity of laptop bans in law school classrooms. I've blogged about the subject numerous times; look for my posts labeled by the "computer" category. And of course every time I suggest that a ban might be justified in some circumstances, I get angry reader comments.

I am undecided on the subject, and my current position on the matter is that if I can't decide whether a ban is desirable or not, then I should just leave matters be. Perhaps I should let students vote on the matter? I don't know. But this article points out yet more perils of laptop use: IM harassment in class and obscene videos.

Virtual Law Practice. This article really, really interests me. Apparently at least one law firm is setting up shop in the online 3D gaming world of "Second Life." As Craig Jones of the UK's Simpson Millar explains, "Many of our clients have injuries which can make it difficult for them to meet us at our offices. Others are too busy. Second Life is a way of 'seeing' your legal representative and receiving advice without coming to our office."

So in other words, this is real legal advice, provided in avatar-to-avatar format. How very fascinating, and it raises interesting questions. In a very large sense, this is no different, substantively, from communicating with clients by e-mail or phone. But what if avatars can one day be programmed to provide advice independently (provided, of course, that a fee is paid)? Is that different somehow than having general legal memos available for download for a fee? Is it different from the practice of having canned legal advice that is modified, around the edges, for a client, and then charging the client for it? Could a law firm establish a subsidiary company to provide general "legal" (and perhaps strategic) player advice pertaining solely within the Second Life world? Law firms set up subsidiaries quite often to provide business and personal services-related advice, so why not in this context?

Also, what if a law school set up shop in Second Life? Is this a viable means for long distance (or e-commuting) education? Would this run into trouble with the ABA? Stanford law professor Lawrence Lessig and Judge Richard Posner have in fact made appearances on Second Life, so the intersection of legal academia and the online world is not farfetched by any means. I don't play Second Life right now (but boy, it intrigues me), so for all I know there is already a law school in the game.

And perhaps most interestingly, what if an avatar-professor decided to prohibit her avatar-students from using simulated laptops in her Second Life classroom?

Makes my (non-simulated) brain hurt.

**Photo credit: Steve Garfield**

Clooney v. Clayton, Part 2

2007-11-08T17:02:00.000-08:00

Several days ago I wrote a review of the movie Michael Clayton. In that post (which can be found here), I promised to write a series of sequel posts on law practice issues raised by the movie. This is the first of those sequel posts. Today's topic is none other than cinematic hyperbole.

Specifically, the basic thesis of this post is that the movie is all about HYPERBOLE!

OK, so that statement itself is hyperbolic. But in an important sense, the movie is indeed hyperbolic and filled with archtypes. Which is to say that it is a typical movie. At its core, the film is about a guy who is in a big law firm, who feels trapped in his job, is good at it but no longer has any passion for it, has perhaps backed into his career specialty, and is desperate to get out. In my opinion, that is the story of thousands of lawyers nationwide. To be quite honest, it was, in a way, my story a few years ago.

When experienced on the personal level, this sort of feeling is incredibly compelling, and there is more than a little anguish involved. And I am sure that in virtually every screening of this film there has been at least one lawyer sitting in the audience who knew exactly how Clayton felt. I suspect that some of this blog's readers do, too. But for the rest of the audience, being paid big bucks and not being happy just isn't that compelling of a story. And to be fair, who would want to go see a melodrama in which the protagonist sits at a desk for 14 hours a day? If I wanted that sort of entertainment, I could get it for free at any big law firm.

So in Michael Clayton, the story is far sexier. Clayton is not just a lawyer. He's a "fixer" who does the firm's dirty work. And he's not a partner, so he is at the beck and call of the firm's big dogs. And he's in debt, and apparently to shady financiers. And he has a gambling problem of some sort. And he'd be a lot happier if he were a prosecutor, like he used to be, making a lot less money. And to top it all off, there's murder, and a car bombing too.

All of which is to say that Michael Clayton does not represent a typical day at the office. But the exaggerations are intended, as they usually are, to amp things up in a way that makes the story more accessible, and perhaps even more understandable, to the general public. Again, in this sense the movie is no different than many other movies and TV shows. Who wants to watch a medical drama in which the doctors mostly scrub their hands and dictate reports? What about a cop show in which firearms are never drawn? Or science fiction with no aliens?

In this sense, then, Michael Clayton is best viewed as an accurate identifier of the broad theme of entrapment that pervades US big law firm culture. Here is a guy who is good at what he does but wants out, and does not know quite how to achieve the exit. The details of his predicament, as exciting as they are, are little more than window dressing for this all too common dilemma.

Clooney v. Clayton

2007-11-02T13:17:00.000-07:00

When I started Law Career Blog, I made a solemn pledge to myself: I would review every movie in which the law and George Clooney played major parts. I started with a review of Syriana in 2005, which is located here. (The excellent Good Night and Good Luck just missed the cut; it came out right before I started this blog.) And then I stumbled, perhaps, when I did not review The Good German or Ocean's Thirteen. (It might have something to do with not having seen them yet--but they are in my Netflix queue. So much for timeliness.)

So I suppose I should recast my solemn pledge: I will review every movie in which the law and George Clooney play major roles, and about which I have something to say. That's a promise I can keep. And Clooney's latest, Michael Clayton, certainly gives me a lot to talk about.

So much, in fact, that instead of posting a single review, I will write a series of posts about the movie. This first post will be a general review; the posts that follow will focus in greater detail on various themes or issues in the movie that I found interesting.

My Review of Michael Clayton

In Michael Clayton, Clooney plays a lawyer at a big New York law firm who specializes in being a "fixer"--a lawyer who solves messy problems for his law firm. This means that his area of practice specialization is not a particular subject area per se. Rather, it consists of the skill of resolving awkward problems in a quiet, covert (but not necessarily unlawful) fashion. While it's a living, it's not a particularly rewarding one. And then Clayton discovers (for reasons I will not go into) that the firms' biggest client has been involved in a very serious, very illegal, very deadly cover-up. Clayton is thus faced with a choice: does he help the firm, or does he reveal the client's wrongdoing? Add to this the fact that Clayton (a) is not actually a partner in the firm (he is "of counsel" to the firm, with a contract that might or might not be renewed), (b) was originally a prosecutor (i.e., used to "do the right thing," but now works for the big evil law firm), and (c) is heavily in debt because he invested, not too wisely, in a restaurant that went belly-up, and you have the makings of classic drama. Does Clayton do what he needs to do to survive, regardless of what is right? Or does he perhaps sacrifice himself in the name of justice?

If this sounds like a somewhat conventional thriller, well, that is exactly how it struck me. Which is not to say it's a bad movie. It's not. It's actually quite good in many ways. It captures some of the feel of law practice at a big firm, and it features excellent performances by Tom Wilkinson as a bipolar attorney, Tilda Swinton as an evil (and perhaps slightly incompetent) in-house lawyer, Sydney Pollack as a corner office partner (my favorite character in the film), and Michael O'Keefe as a jerk of a junior partner (my second favorite character in the film). (All bios are available through IMBD's website for the film.)

On the other hand, the whole movie seemed less than the sum of its excellent parts--very good, but not great, as if it were trying to be more than it is. Which is not uncommon for serious-minded movies. After all, when someone is making a "message" movie, will people go see it if the message is "Gee, this is something you perhaps should think about?" Or are they more likely to see it if the message/issues cut directly to the heart and soul of society? Such as, say, the rule of law and how money and power might be above the law? Look at the movie poster for Michael Clayton and you have your obvious answer: the poster trumpets that "The Truth can be Adjusted," not that "Working for a Law Firm can be Not So Fun Sometimes." So in this manner, the movie overreaches a bit. (More on this in a subsequent post.)

Yet despite this--on the third hand, I suppose--I have been thinking about the movie a lot since I saw it. And that means that it struck some chords deep within me, despite my inherent cynicism. These chords will be the subjects of my posts over the next several days. Please stay tuned.

The Mississippi Innocence Project, Part 2

2007-10-23T19:17:00.000-07:00

Following up on my post yesterday, here is a link to an article in the Jackson Clarion-Ledger about last night's Mississippi Innocence Project fundraiser. The article provides additional information about the dinner and the Innocence Project, and it reports that John Grisham and Scott Turow will be speaking on Wednesday, October 24, at my alma mater, Northwestern University School of Law in Chicago. (See link to event notice here.) It's also worth noting that my former Professor Larry Marshall, now at Stanford, was also involved (along with Scott Turow) in the Jeanine Nicarico case (see my previous post). Marshall served as counsel for defendant Rolando Cruz.

With high profile scholars, practitioners and celebrities involved in the Innocence Project nationwide, and with dedicated personnel and supporters on the ground here in Mississippi, I sincerely hope that leverage can be brought to bear in Mississippi on the subject of wrongful convictions. Historically, the subject has not been a high profile issue here.

For a striking recent image from Mississippi's sole maximum security prison, Parchman Penitentiary, see this link. For more information about Parchman, which is a work farm, see here. Parchman is where wrongfully convicted Cedric Willis (see my last post) served time.

The Mississippi Innocence Project

2007-10-22T20:04:00.000-07:00

Tonight I attended the inaugural fundraising dinner for the newly-established Mississippi Innocence Project. Originally a branch of the Innocence Project in New Orleans, the MIP is now housed at the University of Mississippi School of Law in Oxford, Mississippi. (The national Innocence Project's website is located here.) I have not had much time to reflect on the event as of yet, so this post is essentially a recounting of my observations from the evening. Not a news report per se, but also not an opinion piece. Something in between, I suppose.

I attended the dinner for two reasons. First, as I have stated before on this blog, I am the faculty adviser for the Mississippi College School of Law's student-run Public Interest Law Group (PILG). Second, I attended because Mississippi is badly in need of public interest law support. It's a poor state with a relatively high crime rate and a wide gulf between the haves and the have-nots. So organizations like the MIP need support and assistance from entities like PILG and my law school.

Tonight's keynote speakers were Mississippi author John Grisham and Chicago author Scott Turow. They were eloquent, witty and passionate, which is no surprise--but the evening's most moving speakers were Dennis Fritz of Oklahoma and Cedric Willis of Mississippi, two men wrongfully convicted of separate crimes. Fritz and Willis each served 12 years in prison before being exonerated and released. Willis's mother also was there, sitting at a table near me.

Grisham and Turow related how they became involved in Innocence Project activities--Grisham through his writing and Turow through his law practice. Grisham's 2004 nonfiction book The Innocent Man details the story of one man's wrongful conviction. Turow, who continues to practice with the Chicago law firm of Sonnenschein, Nath & Rosenthal, represented defendant Alejandro Hernandez in the infamous Jeanine Nicarico case. Grisham and Turow spoke of wrongful convictions and the dangers of certain types of scientific evidence (junk science), eyewitness testimony, and use of informants for testimony. Nothing new there, perhaps, but after all the purpose of the evening was not to present cutting-edge testimony, but rather to raise money and garner support for the cause. And given that there was a crowd of about 500 paying guests, that goal was accomplished. Not bad for an organization that is only 2 months old.

I was particularly struck by the contrast between Willis and Fritz. Willis, who is now about 32, was 19 when he was arrested and convicted. His overwhelming emotion on display was joy--joy at being free, at being proven right, at seeing something like the Innocence Project take hold in his home state. Fritz was a more conflicted figure, with compassion, anger, and sorrow on display, sometimes all at once. And who could blame him, really. It does make you ask yourself how you might react to--and indeed how you might survive--12 years of incarceration. It is one thing to hear about wrongful convictions, or to concede the logic that a system based on reasonable doubt can make egregrious errors. It is quite another to meet people who have been wrongfully convicted and hear their stories.

For me, one occurrence put tonight's event in perfect perspective: I said hello to Scott Turow and had no idea who he was. Didn't recognize him. Now, I know what Scott Turow looks like. I've seen the man before, and I have seen his picture scores of times. And I went to law school in Chicago, where he is a bit of a celebrity. To be fair, he had a beard tonight, which he did not use to have. (Check out his website, on which he is cleanshaven.) But still. There I am, holding the door for famous author Scott Turow, and instead of introducing myself and trying to make a connection I just say, "Hey, how's it going?"

So much for my big moment. And so much for eyewitness testimony.

Computer-Free Week, Part 2

2007-10-14T13:34:00.000-07:00

I have received some very interesting comments in response to my recent Computer-Free Week post. (Look for them at the end of that post.) The general gist of most of the comments is that some people find it disconcerting not to be able to take notes by computer in class. Some are not used to writing by hand in class and feel lost without their computers. So they think computer bans generally are a bad idea.

I sympathize with that view. A lot, actually—notwithstanding that I am the one who did not allow computers in class last week. Which is why this week in my class we will start with a recap of last week’s materials.

I also have sympathy for (and agree with, in many ways) the libertarian view of computers in the classroom—that what a student wants to do is largely the student’s decision, and if the decision hurts that student’s performance and/or grade, then that is that student’s problem. Yet I do not agree when such libertarianism interferes with other students’ learning by distracting them, or by reducing the quality of classroom discussion (which is part of the educational process). And I believe both sorts of interference occur regularly.

But let's sidestep that issue for a moment and just talk about computer use that does not interfere with others’ learning. In other words, let's assume, for sake of argument, that computer use only hurts (or helps) those who engage in it, without harming others in the class. What then?

One of the commenters to my previous post made the very astute observation that professors sometimes have an “I must save them from themselves” attitude toward their students, especially in 1L classes. This is often characterized as misguided paternalism, and things like computer bans and other rules are derided as autocratic. I concede that this may well be the case, but I also think that sometimes such guidance, paternalistic though it may be, is justified and even desirable.

Think of it this way: the professors are there to teach, and even the most junior professors have more practical and academic experience in the law than their students. Maybe, just maybe, some of the paternalism is warranted. Maybe sometimes students do need to be "saved from themselves," as negative as the connotation of that phrase may be. And if I have a choice between erring on the side of being too blunt (or even paternalistic) in the classroom versus not making a very important point, I'll choose the former error over the latter.

That same commenter also made the following very interesting statement that is worth discussing further:

“If I am made to come to class by the ABA (and subsequently the school) and choose to spend my time unproductively, my $2300 per class buys me that right. If I don't want to participate or think "fantasy" football statistics are more interesting, the only person hurt in the long run is me. And that is what most would call an adult decision.”

Hmm. On the one hand, I do understand and to an extent sympathize with this statement. And let me very clearly state (at the risk of sounding paternalistic, I suppose) that I very much appreciate both the substantive nature and professional tone of that comment. Seriously--read the whole comment at the end of my previous post. This blog is, after all, a dialogue, and I appreciate well-drafted and well thought-through input. I learn from it. But on the other hand I disagree with this statement fairly strongly, and from a number of angles. Here's why.

Neither the ABA nor your law school makes you come to law school. Yes, there are ground rules if you choose to attend a law school and be a lawyer, and class attendance is generally one of them. But law school is not junior high; you are not legally obligated to be there.

Law school is not a consumer product. There is a “consumerist” mentality common amongst current higher education students, and it is troubling to many in the teaching profession. Having said that, many in higher education also take this view--and schools certainly compete for students--but that is problematic too (and a good subject for a future post).

According to the consumerist student view, colleges and universities are largely institutions of credentialization, not of learning. I think many students subconsciously buy into this presumption without thinking too much about it, because in a way it is very attractive. A consumerist student naturally seeks to do the minimum necessary to obtain the degree. While I think efficiency is valuable—and I think the workload in law school helps teach efficiency to an extent—if a student is only (or primarily) looking for a degree, that serves to disengage the student from the educational process. A student might say, Well, I will come to class because I am required to, but I am not going to pay much attention if it does not engage me more than the Internet. But of course, the Internet is always going to be more interesting than, say, subject matter jurisdiction, or expectancy interest, or proximate cause.

The result is less attention paid, and less learned, and a lesser lawyer on the outflow end of the educational pipe. On the one hand, what was not deeply learned may have no negative impact. On the other hand, you never know when knowledge will come in handy. I was constantly amazed in practice by how arcane points from class ended up being a relevant way to make myself stand out from the pack—be it in researching an issue, writing a memo, or talking with clients at a cocktail party. Arcane knowledge can be a great conversation piece; you never know what people are going to be interested in.

Law school is not primarily entertainment. This is closely related to the previous point. Material that is technical, and sometimes boring—like economics, or accounting, or contract law—does not compete well with other distractions, as I already have said. The appropriate standard for deciding whether to pay attention in class is not necessarily whether the material is more interesting than your e-mail account, fantasy football, online shopping, or a crossword puzzle. I am not saying that teachers have a license to be boring; indeed, they have an obligation to teaching engagingly. I am also not suggesting that teachers should ban computers because the class material is hard. What I am saying is that “Class v. Internet” is a comparison of apples to oranges. And while it may seem objective on the surface, the result is preordained.

Your tuition buys you the right to do whatever you want in class, at least as long as you don’t distract others. I have a strong libertarian bent, and generally speaking I agree that if someone chooses not to pay attention in my class that is less of a concern than if she or he is distracting others. But the proper characterization is that this student has the power to do what she or he wants, not the right. Your qualifications and tuition dollars buy you the privilege of attending law school to obtain an education and a degree—which is a very different thing than buying the right to come to class and discretely do whatever you like.

Plus, in my class the syllabus expressly prohibits non-class use of computers in class. So it's part of the contract you have agreed to, if you will. So in that sense too, it's a power, not a right.

I will end with two observations. First, current educational research suggests that there is a difference between multitaskers in class (with computers) and those without computers. Repetitive tasks and memorization can be accomplished well when multitasking. But deep cognitive thinking appears to be hampered by computerized multitasking. A student surfing the web during class may simultaneously win the online fantasy football league and memorize the basics of restitution in contract law, but that student is less likely to see and grasp the subtle connections between, say, expectation damages, specific performance, and service contracts. Not that this alone justifies a computer ban in class. But it does suggest that the libertarian computer user in class is taking a greater risk than might be supposed.

Second, my week-long computer holiday in class was an experiment that I think was useful on several levels, notwithstanding that it probably cost me some popularity or goodwill points with some students. For any readers in my class—any readers anywhere, for that matter—bear in mind that teaching is a creative process. (And not a popularity contest.) If there is no experimentation, teaching is stagnant and does not grow or improve. There will be people who think the ban was helpful, some who think the ban was not, and others who are indifferent. That’s fine, and in fact good—there should be dialogue on these subjects, because there is no easy or absolute answer. But there are multiple viewpoints to be considered and weighed.

Just like in my classes. And just like on this blog, as the comments to my posts so helpfully show.

Of Globalism and Localism

2007-10-12T22:13:00.000-07:00

This past week was an interesting one for me--a study in contrasts. In my 1L class we had a computer-free week, which was something different (and not necessarily popular--more on that in my next post). Outside the classroom, I participated in two very different events that struck deep chords in me, and they are the subjects of this post.

The first event took place the evening of Thursday, October 11, 2007, at the Loyola University New Orleans College of Law. I spoke there as part of a panel of international law and international trade practitioners and scholars. The panel addressed the subject of international law career options. Other members of the panel included Loyola NO alumns and other practitioners, including Tom Morante of Jones Walker in Miami, as well as Professor Günther Handl of Tulane University Law School and Professor Larry Catá Backer of Penn State's Dickinson School of Law (currently visiting at Tulane). (Check out Professor Catá Backer's excellent blog, Law at the End of the Day, and his "About Me" page.) This panel, entitled Jus Gentium ("the law of nations"), was hosted by Loyola NO's newly re-formed student International Law Society (the society fell by the wayside after Hurricane Katrina).

As I listened to questions posed by the very diverse and accomplished students in the audience, and to the answers and comments from other members of the panel, I was struck by how extraordinarily complex, nuanced and rich the field of international law practice is. I know this, of course, and yet I still find myself moved by it. The feeling flashed me back to occasions in my law practice when I would be struck unexpectedly--and quite hard--by how rarified the intellectual atmosphere was where I worked.

The second event took place the very next night in Jackson, Mississippi. It was the Mississippi Center for Justice's 2007 Champions of Justice Dinner, and I was in attendance as the faculty adviser for Mississippi College School of Law's student Public Interest Law Group. The dinner drew public interest attorneys and supporters from all over Mississippi, and indeed the nation; from public interest organizations involved in Mississippi (much of it being post-Katrina relief work); from law schools (including Mississippi College School of Law and the University of Mississippi School of Law); and from law firms. The dinner was in honor of two strong contributors to public interest and social justice in Mississippi:

Professor Deborah H. Bell of the University of Mississippi School of Law, who runs that school's well-respected Civil Legal Clinic. The clinic has been particularly active since Hurricane Katrina, and Professor Bell was honored for her many contributions to public interest law in the state.
Hon. Rueben V. Anderson, who was the first African-American to graduate from the University of Mississippi School of Law and was Mississippi's first African-American Supreme Court justice. The program for the dinner aptly noted that while Justice Anderson "has been called a witness to history, [ ] his true role has been as a maker of history."

The dinner also featured an excellent slide show on the aftermath of Hurricane Katrina and the many legal and personal challenges faced by the storm's survivors on the coast and elsewhere.

I think the Champions of Justice Dinner was moving for everyone, but for me the contrast between the themes of this event and the Loyola NO forum could not have been starker. On Thursday, I was discussing the richness and complexity of international legal practice. On Friday I was talking about people who need help getting legal representation to obtain enough food stamps. Quite the contrast.

Obviously, the contrast between these two events is a good reminder of why it is so important for lawyers to do some public service work, no matter what they do in practice. It keeps us grounded, and it gives us better perspective on the law and our legal practices. But it also served to remind me, again, of the importance of doing things in your career that you believe in.

I believe in the richness and the potential of international law. Globalization has its perils, but it also has its enormous upsides, and we are in need of responsible, dedicated lawyers who believe in what they are doing, and why. It's global service, if you will, and if that sounds quixotic or overly idealistic, so be it.

I also believe in the importance of local service. There are many, many people who need our help as lawyers, and there are many ways to get involved. And even for overly busy people, it is quite possible that taking on even more obligations of this sort can be a way to soothe the soul, not aggravate it. A way to meaningfully give back of our talents.

So for me, the global and local activities I am involved in are the best of two very different worlds. They are a study in contrasts, but when juxtaposed as they were last week, they fit together quite well.

Computer-Free Week

2007-10-10T18:37:00.000-07:00

Yesterday I promised I would post about my "Computer-Free Week" experiment in my 1L Contracts class. The week is not over, so perhaps I am a bit premature in posting on this subject--but on the other hand I am not reporting final results, only first impressions and links to other information on the subject.

Links to Other Information

The Association of American Law Schools' (AALS) Section on Teaching Methods is sponsoring a discussion panel at the AALS Annual Meeting in January 2008 entitled "Laptops in the Classroom: Attractions or Distractions?". Which, of course, ties in directly to my Contracts laptop holiday. I will be at the conference and plan on attending that session.

Other, current discussion of the issue is available online. Here are a few good sources. Thanks to Professor James B. Levy of the Nova Southeastern University's Shepard Broad Law Center for bringing these to my attention.

1. An interview in October 2007 on National Public Radio with Professor Daniel T. Coyne of the Chicago-Kent College of Law, in which Professor Coyne argues in favor of laptop bans.

You would think this sort of position would make him highly unpopular with students--but in 2007 he was named "Faculty Member of the Year" by the Chicago-Kent Student Bar Association.

2. An April 2007 Washington Post op ed by Professor David D. Cole of the Georgetown University Law Center, entitled "Laptops vs. Learning" (great title).

Very interestingly, Cole banned laptops in his 1L class, and then took an anonymous survey of his students to get their views on the ban. 80% said they were more engaged in a no-laptop class, and 70% said they supported the ban. That's very interesting--and it makes me wonder what the results of such a survey might be in my class if I were to implement a long-term ban. I strong recommend his piece; he lays out very well the primary criticisms of computer bans and why he largely rejects these criticisms. These criticisms are, in fact, the very types of arguments that have been made in comments to my previous blog posts on this subject, which are as follows:

Computers in Class
Computer Bans
More on Computer Bans
Multitasking in the Classroom
Multicommenting on Multitasking
Computer Bans Hitting the Mainstream?

3. A similar interview by Professor Cole on NPR in April 2007, in which he basically takes the same line.

This interview goes into greater detail on this same subject. There are also comments from callers that are interesting. One particularly relevant point Cole makes (concedes?) in response to one caller is that not all classes are alike. Cole is largely concerned with how computers might impair classroom discussion--but in a lecture class, that's not an issue. So in some classes, computers might not be liabilities. And I suppose that computers might actually be beneficial in some classes, depending on what the class is and how it is structured (say, a seminar on "Technology and the Law").

My Impressions Regarding My Computer-Free Week

It's too early to tell, really. One class does not a trend make. But class was awfully quiet earlier this week. Perhaps exhaustion and burnout are starting to set in. Perhaps it's because the class material is getting harder (which it is). Perhaps a laptop ban would make no difference. I do not know. What does seem clear is that a longer experiment than one week would be needed to get a feel for a ban's impact. And frankly, in the first semester of law school, and with a generation of computer-wired students, I'm reluctant to ban computers for the sake of an experiment.

Of course, if people are using their computers for non-class activities and distracting other students, that is another story entirely . . . .

Law Career Blog and its Target Audience

2007-10-09T21:17:00.000-07:00

Self-promotion is not something that always comes naturally to me, and this post smacks of patting my own back. But it involves something I am very pleased about, so bear with me.

One of the blogs on my blogroll is Adams Drafting, on which Ken Adams blogs about "modern and effective contract drafting." I teach Contracts, and I think his blog is a very good source of practical advice on recent developments in contract law. It also has a strong intellectual edge, and I like that.

On October 7, 2007, Ken wrote a post entitled My, Uh, Nine Favorite Law Blogs. (Kudos to him for resisting the round number of ten.) I'm very happy to say that Law Career Blog made the list. Ken explained that he reads my blog because he is "acutely aware of the difficulties that junior associates face when it comes to contract drafting. Perhaps as a result, I’ll happily read thoughtful discussion of issues facing law students and junior associates generally. And that’s what [Law Career Blog] offers."

I must say that I am quite flattered to be on his list. My target audience for Law Career Blog consists of law students, people thinking about attending law school, junior practitioners and people thinking about law career changes, and anyone generally concerned about any of these groups. So to my way of thinking, my inclusion on this list suggests that Law Career Blog is hitting its target audience, or at least not missing it entirely. And that is a victory worth celebrating.

In other news related to contracts, I have declared a "computer-free week" in my Contracts class--something I have blogged about previously and considered doing. I plan to post tomorrow on that subject.

College Cost Reduction and Access Act, Part 3

2007-10-01T19:27:00.000-07:00

On September 27, 2007, President Bush signed the College Cost Reduction and Access Act into law. I previously blogged about this very significant piece of legislation here and here. Several additional points come to mind about this legislation, so I am setting them out here.

First, the act does seem to address the problem of spiraling higher education costs in a fairly head-on manner. I should note that as Kiplinger's Personal Magazine reported in an article on 9/28/07, the act is being funded, at least in part, by reductions in federal subsidies to student loan companies. So that puts some of the bill sponsors' statements about this being "no-cost" legislation in better (and somewhat more accurate) perspective. (See my previous posts for more regarding that point.)

Second, while I think this act is a welcome development, it is worth pointing out that being in favor of education is sort of like being in favor of Mom and apple pie. People generally are not against education per se. So that explains much about the bill: popular subject + big problem = grand legislative solution. That's not a criticism; it's just an observation. Hopefully the impact of this new law will be positive and it will help many in need of student debt assistance. An Associated Press article that ran nationwide on 9/30/07 highlights the problem quite well.

Third, as astonishing as it may seem to people outside academia, tuition costs at most universities do not cover the cost of education. Does that help explain the rapidly rising cost of higher education in recent years? I think in large part it does. True, state colleges and universities receive state subsidies--but in many cases those subsidies have been reduced in recent years. Also, both private and public universities look to private donors for donations to build up their endowments, and those monies are used to fund school programs. And, of course, colleges and universities also obtain state and federal grant money for many of their programs.

But the fact remains that tuition increases are sometimes hard to resist. For example, what happens when a school has little endowment--or even rich endowments but still needs more capital? Neither situation is uncommon. If students are willing to pay more, and if the school is able to charge more (many states limit or cap public institution tuition rates by statute), then there is strong temptation for schools to raise tuition rates or tack on special fees. And it's a really tough choice, I think, because the students pay either way: either schools raise tuition, and students bear the brunt of it, or schools do not, and therefore cannot fund many much-needed educational programs. To give just one example, higher educational literature puts a great deal of focus on the importance of "active" learning (as opposed to passive lectures in big halls)--but active learning is often more expensive. So sometimes the choice might boil down to providing better and more costly education versus controlling costs at the expense of educational quality. Again, either way, it's the students who pay.

I fully realize, of course, that more money does not in all cases equal better education. Yet sometimes it does. And as schools offer more innovative programs like clinics and externships, focus on reducing faculty-student ratios, and invest in technology to make the classroom more interactive, someone has to foot the bill. The College Cost Reduction and Access Act hopefully means that students will foot less of it over time. But if it does not completely solve the problem--and I don't think it will--then we are back to the question of who pays. If rich donors come forth voluntarily, that's great, but there will be some institutions left out in the cold. If we decide to federally subsidize higher education that might be great too, but it also likely would be fraught with problems.

Like any good (bad?) law professor, I am doing a far better job of posing questions and framing issues than I am of offering answers. For me, at least right now, the answers are unclear. What is clear, however, is that in today's information economy, education is of paramount importance for the nation's economic well-being. Reducing the debt burden of students is an investment worth making.

PS: Education is a service, and I blogged about the rapidly rising cost of services last year in two posts on the subject of Baumol's Cost Disease (here and here). Those discussions are relevant to this topic too for those who are interested. The gist of Baumol's Cost Disease is that the cost of services often rises faster than the overall rate of inflation, because while we can automate many processes or make them more efficient--and thus hold the price (and rate of inflation) down--it's harder to automate certain services like teaching. Which from a purely self-interested point of view is not necessarily a bad thing.

"Must Sue TV"

2007-09-27T21:08:00.000-07:00

Today's post is about the blog That's What She Said, on which blogger and attorney Julie Elgar discusses legal/HR issues raised by episodes of the US TV show The Office. Specifically, Elgar assigns a litigation value to various actions that occur on the show. I blogged about her blog briefly in a previous post.

Tonight (9/27/07) was the season premiere, which means that tomorrow morning (Friday) Elgar will post a blog entry about the episode. It's very interesting to see the show dissected for legal liability purposes. And the truth is that there are a lot of idiot bosses out there, so it's not a hypothetical exercise. One boss I know ordered his employees not to conjugate in the hallways. Seriously. In the same office, an internal office memo from the boss explained that security was being improved at the front door by installing a "security intercom buzzard." Again, no joke. Dilbert bosses are alive and well. So the idea of treating the scenarios on The Office as if they were real is a legitimate exercise. And fun, which is the most important thing.

I have added That's What She Said to my blogroll for those who are interested in checking it out on a regular basis.

Law Firm Salary Distributions, Part 2

2007-09-24T22:19:00.000-07:00

The Wall Street Journal's Law Blog had a good post today entitled The Dark Side of the Legal Job Market. It concerns law firm salaries and the disparity between the top of the class and the rest of the class--and also between top schools and regional schools. The gist is that the top grads get great salaries, but the rest don't--and that when this is combined with mounting student debt loads, it's a structural tension that will have to be resolved in one way or another. In other words, the message is that things can't go on as they are now, and that changes may be substantial.

I blogged about law grad salary disparities in another recent post. As I discussed in that post, these figures have interesting implications for the future of law schools beyond mere graduate salary distributions.

When reading the WSJ Law Blog post above, bear in mind that it blends two points that are actually distinct:

1. Grads of top law schools tend to get more of the "Big Law" (read: Big Money) jobs.

2. Top grads at any law school tend to get more Big Law jobs than their classmates with lower class rank.

In other words, if you go to a national school, you have improved your odds of landing the big paycheck, but you have not guaranteed it. Conversely, if you go to a regional school, fewer people from your school will land these big jobs. But some will. These are obvious points, perhaps, but I think they are worth making, since the WSJ article jumps between the two without distinguishing them.

The Pros and Cons of Typing Exams

2007-09-20T07:42:00.000-07:00

Over at CALI's Pre-Law Blog, Austin Groothius has a post you should read, if for no other reason than the title. His post discusses my recent comments on another student blog post at The Legal Scoop entitled "Typing Your Way to an 'A.' " I have a few more thoughts on both the Legal Scoop post and Pre-Law Blog post, which I set forth here.

First, here's what I said in my recent post:

[The Legal Scoop's recent post, "Typing Your Way to an 'A,' "] discusses the importance of typing to law school success. I'd add that a long exam answer is no guarantee of a good answer if you do not know what you are doing, but it may help avoid a complete meltdown if you can at least randomly hit important points. If you know what you are doing, however, being able to flesh out your answer in great detail certainly does help.

Comment #1:

What Pre-Law Blog Says: Groothius agrees with the Legal Scoop post, and says that "arguing that a law student should even consider hand-writing an exam over typing when typing is an option is a silly argument unless that individual student is a poor typer. . . . [S]ubconciously, professors prefer typed exams to handwritten."

What I Think: When text is neat and easy to read (whether hand written or typed), that does ease the professor's burden. And it's also perhaps true that text in print looks "smarter" or more professional than handwritten text, which I suppose helps on some level. By way of analogy, I will say that I always think my law review articles look a lot smarter in their final, formatted form than they do in ordinary MS Word format or on Lexis or Westlaw. So in that sense, I agree with Groothius.

Yet in my experience, some people write better by hand than by typing. And by "write," I really mean "effectively present their thoughts." Are you the kind of person who processes what you think better on paper, or on a computer screen? That's an important question to ask yourself. Try taking some sample exams by computer and others by hand writing your answers. Does one feel more natural or comfortable to you? If one way seems clearly better to you, then use that approach.

I tell my students that they should take exams however they are most comfortable doing it--either writing or typing. As much as I like the legibility of typed exams, that should not trump the important considerations of comfort and effectiveness of presentation and organization of your answers.

It's also worth pointing out that in the last several semesters, grades for people who have typed their exams in my (anonymously graded) classes have been virtually identical to grades for people who have hand written their exams. The point, I suppose, is that typing is not a guaranteed way to a better grade.

Comment #2:

What Pre-Law Blog Says: Groothius suggests that if you are a bad typist, then you should consider taking a typing course of some sort.

What I Think: I absolutely agree. Even if you hand write your exams in law school, some day you hope to practice law or do something else in the professional world. Which will entail typing. And the faster you are, the better off you are.

College Cost Reduction and Access Act, Part 2

2007-09-18T21:07:00.000-07:00

Last week I posted about the College Cost Reduction and Access Act (my previous post is available here). In that post I referred to a "soon-to-be-available article" by Professor Philip Schrag of the Georgetown University Law Center that would give a very good, technical analysis of the act. He has just posted his article online here. I recommend it for anyone wanting to understand this act better. Another summary of the act, by the National Association of Student Financial Administrators, is available online here.

A Few Law Student Blogs

2007-09-16T21:12:00.001-07:00

The new law school academic year has been in swing for several weeks now, and that means (at least in my own estimation) that it is time to report on law student blogs.

Law student blogs are a double-edged sword. On the one hand, they are great fun, and can offer wonderful insight into the modern student mind. I just finished writing a law review article that centers on the subject of law professor "fade" or obsolesence, and a large part of that fade is due to disconnects (often generational, but not always) between profs and students. (Watch for a separate post about my article soon.) So student blogs are great, in that they shine light into the gap between students and profs.

But student blogs are also problematic. First, it's always dangerous to reason from the specific (a student blog) to the general (all students)--although perhaps less dangerous than not seeking any insight into the student mind. Second, blogs are like lawyers: there are too many of them, but never enough good ones. Student blogs are no exception (and neither are law prof blogs, I suppose). Too many student blogs end up being either exercises in venting or posturing, or blogs with no posts.

But there are some gems. I always enjoy reading Shelley's Case, and Shelley has reciprocated with some of the best comments on my blog. CALI's Pre-Law Blog does a good job of providing student-oriented advice. The Frugal Law Student has one of the best schticks on the web, in my opinion--the blog is basically about ways Mr. Frugal Law Student is trying to "mitigate [his] crippling law school debt" by doing things like freezing his credit cards in ice. One post concerns how to save money by not washing your clothes. These days the blog is visually very slick, but I miss the old look: it used to look like a preformatted blog, but with a little graph at the top showing his current negative net worth. The whole idea of a prefab blog design fit pretty well with the idea of a frugal law student. The new format looks like he paid someone (which he says he didn't), or spent time designing his blog that would have been better spent freezing his money. But you can't stop progress, I suppose.

There are a few others worth mentioning, including these:

T Sinister. T Sinister (a left-handed fellow named Trevor) is a student at Harvard Law School, and his posts are usually quite good. He strives for funny, and often gets there, but sometimes he is serious too, perhaps somewhat by accident. A good recent post is "What I Wish I Had Known About Law School At The Start of My 1L Year." It's excellent advice.

Luis Villa's Blog. Not exactly the most original name for a blog, but he gets points for truth in adverstising, I suppose. He has a very good recent post about blogging and how to deal with it when interviewing for law jobs.

The Legal Scoop. There's a bit of everything here, as one might expect from a group blog. But that's a good thing. A good recent post is "Typing Your Way to an 'A,' " which discusses the importance of typing to law school success. I'd add that a long exam answer is no guarantee of a good answer if you do not know what you are doing, but it may help avoid a complete meltdown if you can at least randomly hit important points. If you know what you are doing, however, being able to flesh out your answer in great detail certainly does help.

Some new blogs are bound to crop up as the school year progresses, and I will try to keep an eye out for them.

College Cost Reduction and Access Act

2007-09-10T20:52:00.000-07:00

Last week, Congress passed the College Cost Reduction and Access Act, which President Bush has indicated he will sign. It has been hailed by the House of Representative's Education and Labor Committee as "the single largest investment in higher education since the GI Bill." Interestingly, a separate press release from that committee explains that this "investment" actually comes "at no new cost to taxpayers." A cynical soul might point out that this is not so much an "investment" as is it a "cost reallocation," but I suppose the larger (and more important) question is whether the act will be beneficial.

As with much legislation passed by Congress, the act is long and contains numerous provisions. Text of the full bill is available here (click on "Text of Legislation," then choose option #6--the version "Enrolled as Agreed to or Passed by Both House and Senate"). For purposes of this post, I will focus on two provisions that might affect law students and recent law graduates.

Section 203: A High Debt/Low Income Provision

Section 203 of the act would limit loan repayments to 15% of "discretionary income," as that term is defined in the act. Without getting into a great deal of detail or math, the point is that monthly payments on student loans, which by the end of law school can rival a mortgage, will be capped, with the cap level depending in large part on the loan holder's discretionary income. So if you want (or have) to take a lower paying job, then your loan repayments cannot eat up all of your income.

On the one hand, this means that payment schedules might be stretched out for a long, long time--just like if you were to make the minimum payment on existing credit card debt. On the other hand, at least it helps manage cash flow. And on the third hand (there's no limit to the number of hands when discussing legal issues), any remaining principle is forgiven after 25 years.

That third hand provision is astounding, in a good way. I wonder exactly on whom such costs will fall, and how that jibes with the Edlabor Committee's claim that the legislation imposes no new costs on taxpayers. It certainly imposes a cost on somebody. But as worded, this section looks like it will operate as both a protector of loan recipients' cash flows/discretionary income, and also as a loan reduction provision.

Section 401: Accelerated Debt Forgiveness for People in "Public Service Jobs"

Section 401 allows people who intend to work for 10 years or more in a "public service" job to obtain debt forgiveness after 10 years, instead of 25. For someone who has funded expensive college and law school educations with student loans, that is an enormous write-off. There are of course technical requirements and limitations, which I do not want to go into here. But it is worth setting forth the definition of "public service job" in full. It is quite broad.

PUBLIC SERVICE JOB- The term `public service job' means--

(i) a full-time job in emergency management, government, military service, public safety, law enforcement, public health, public education (including early childhood education), social work in a public child or family service agency, public interest law services (including prosecution or public defense or legal advocacy in low-income communities at a nonprofit organization), public child care, public service for individuals with disabilities, public service for the elderly, public library sciences, school-based library sciences and other school-based services, or at an organization that is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code; or

(ii) teaching as a full-time faculty member at a Tribal College or University as defined in section 316(b) and other faculty teaching in high-needs areas, as determined by the Secretary.

So clearly, a lot of jobs, including jobs in the public interest legal sector, are covered. There are many law schools in the U.S., including my school, that have started offering Loan Repayment Assistance Programs, or LRAPs, which are intended to help graduates who pursue low-paying public interest sector jobs. These programs should stay in place (at least I hope they do). And perhaps the College Cost Reduction and Access Act might be best viewed as a great big federal LRAP program--one that is not limited to law graduates. Which is a good thing.

Of course, being a professor of Administrative Law, I will be very interested to see the regulations that are promulgated pursuant to this statute, and exactly how the act's provisions play out at the regulatory level. As any lawyer or law student knows, the devil is in the details.

NOTE: For more details concerning the act, I refer you to a soon-to-be-available article by Professor Philip Schrag of the Georgetown University Law Center. Professor Schrag currently serves as Vice-Chair of the Committee on Government Relations and Student Financial Aid, which is part of ABA's Section of Legal Education and Admission to the Bar. He has been very involved in this area, and he has drafted an excellent technical analysis of the act, which will be posted online at the Social Science Research Network (SSRN) and also will be published in the Hofstra Law Review in the fall of 2007. (I have an advance copy that he has requested not be made available online, and it's very good.)

ADDITIONAL NOTE, SEPT. 18, 2007: Since the original date of this post, Professor Schrag has posted his article online here.

The Problem of Law Firm Salary Distributions

2007-09-07T18:10:00.000-07:00

In a recent post I discussed concerns over the latest big law firm salary hikes and concurrent slowdowns in the legal job market. On the heels of this, the Empirical Legal Studies blog (elsblog) has a post about NALP salary data for first-year lawyers. The results are fascinating, and they comport with a lot of the comments received on this blog by readers--namely, that lower end legal salaries stay relatively static, while upper end salaries grow faster than inflation. So in a sense, the salary problem is two-fold: the upper end may grow fast and result in layoffs in a downturn, while the lower end suffers from a lack of growth that makes repayment of debt--and pursuit of careers at the lower paying end of the spectrum (including but not limited to many public interest and government jobs)--not very feasible.

The elsblog post, which is by Bill Henderson, is excellent. Make sure you read the reader comments. Henderson's comparison of the law school market to ordinary markets is quite insightful. He is right that institutional actors in the law school market--in which the economic utility pursued is often prestige--certainly will behave quite differently than institutional actors in a market in which monetary profit is the goal. In fact, I might add that the law school market can be broken down into several separate smaller markets--namely, (a) the nonprofit national schools, (b) regional nonprofit schools, and (c) proprietary schools. Each of these should have different business models. In fact, it is pretty clear to me, based on my anecdotal experiences talking with administrators from these different types of schools, that what they seek to maximize is indeed different, and that they thus behave very, very differently.

Henderson's post also is a good (if indirect) reminder that law schools are comprised of faculty who are rational actors, and that they will seek to maximize their utility--which is not always the same as maximizing societal utility. So the trick, then, is to design a system of incentives and rewards that result in law school actors' utility coinciding with a reasonable conception of public utility or welfare. That is admittedly difficult in any market, but perhaps especially so in a market in which many of the actors are well-entrenched (read: tenured).

Many of the comments in the past on this blog have bemoaned this very fact. The irony, perhaps, is that applying academic tools to the subject of law schools identifies these very same problems. Which is not to say that I doubted previous commenters. But it is to say that if law professors and other academicians pride themselves on using scholarship to identify problems and search for solutions (which is much of what legal scholarship tries to do), then it's entirely appropriate to turn these tools on ourselves.

Many scholars have already done that. A search on Google Scholar for "law school teaching," for example, turns up scads of law review articles on the subject. But it's interesting that a single set of data on law school salaries leads off in so many interesting directions.

Hurricane Katrina Second Anniversary

2007-08-29T06:42:00.001-07:00

Today marks the second anniversary of Hurricane Katrina. That event justifies deviating from blogging about law career matters, and instead reflecting on what happened here in Mississippi on that day.

All day, I inevitably will engage in the same sort of compare-and-contrast thinking as millions of other people. Today it is sunny and warm; two years ago it was raining cats and dogs, and the wind gusts were picking up. Like today, people two years ago here in Jackson, MS (which is three hours inland and was still shut down by the storm) are going about their business--but their business today is business. Two years ago their business was buying water, canned food, batteries and ice. Tonight I will take a hot shower in a cool house; two years ago it was the other way around. (At least we had water; many did not.)

New Orleans received most of the national media coverage, and certainly most of the long-term flooding, but Mississippi was hit hard too and suffered enormously from the storm surge of ocean water. Even six months after the storm, the coast had the feel, to me, of Omaha Beach at Normandy after the D-Day invasion: wreckage everywhere, structures looking like they had been bombed flat, and heavy equipment sitting around. No bodies in sight--but there were the emergency rescue spray-painted symbols on house doors indicating that some had been found inside during the search for survivors. Two years after the storm, more progress has been made--streets are clear, beaches have been cleaned, some businesses are back open, and some residents who left are back--but much, much more progress is needed.

The Gulf Coast's population is about 25% down as of right now, I believe, and not likely to come back anytime soon. Katrina worked irreversible change on the coast, and we will be living with the aftermath for years to come.

For Hurricane Katrina photos and local news coverage, see the following links:

Clarion-Ledger, Jackson MS, Aug. 29, 2007: Katrina: Two Years Later (Aug. 29,2007) (local news coverage)
Law Career Blog, Jan. 29, 2007: Mississippi 5 Months After Hurricane Katrina (links to photos)
Beyond Katrina blog, Hurricane Katrina 2nd Anniversary (lots of coverage and photos)
Hurricane Katrina--Biloxi Beach (Flickr photo set)

Economic Slowdowns and Associate Salaries

2007-08-26T20:52:00.000-07:00

There has been a good deal of talk lately about associate salaries at big firms, and how they continue to go up and up. Most recently, the rumor was that after first-year associate salaries at national firms hit $160,000 this summer, they might hit $190,000 by the end of summer.

But now, things seem to have ground to a halt. Above the Law reports that, in the midst of all this bubble talk, the bottom has dropped out of the corporate law market. Many lawyers at big firms now have nothing to do.

This, of course, is really no surprise. After all, the economy is slowing, or at least teetering, and there is a good deal of concern over the mortgage market and its effect on the economy. The Fed is taking proactive action to avoid recession. Why, in such uncertain times, would companies enter into high-flying deals or initial public offerings? Many wouldn't, of course. Which means that busy, busy corporate departments are no longer so busy.

There are several points worth making here. First, this is certainly not the first time this has happened. In the early 1990s, for example, corporate associates at my first law firm played football in the hallways because there was nothing else to do. No kidding. Like stock market volatility, such market swings have happened before, and they will happen again.

Second, law firm wages are generally sticky downward. So, absent some sort of collective bargaining by associates to reduce associate pay, associate salaries probably will stay where they are. They will not go up, but they won't go down, either. (Bonuses, however, certainly will be reduced or eliminated.) That means some people will be sacked.

On the other hand--and I suppose this is my third point--while associates historically have not voted to reduce their salaries, large salary increases in recent years have led some big firms to implement two associate tracks--one with higher hours and pay, and one with fewer hours and pay, plus a longer track to partnership. It's also worth pointing out that the latter "quality of life" tracks have developed largely at the request of associates. So it might be that some firms would "allow" associates to choose which track they want, as a means to actually reduce salaries. Not much of a choice, but better than outright firings. In such a case, however, I would not expect "official" salaries to drop--just the de facto ones.

Fourth, once things do turn around, law firms will lag in hiring badly needed associates. In recent decades, firms have been very cautious about hiring new associates at the beginning of an economic recovery. Once bitten, twice shy, I suppose. So that means associates at that time will be absolutely swamped with work, even moreso than usual. No more playing football in the halls--but at least there will be more job security.

Fifth, don't forget that the law market is diverse, not uniform. Litigators are probably still very busy, and bankruptcy lawyers may be very busy soon. International trade lawyers are pretty much always busy these days. So not everyone will experience job insecurity or intramural sports in the halls. But since corporate law practices tend to be the primary drivers of industry-wide salary changes, further big salary bumps are likely on hold for at least the near future.

Finally, I fully realize that these pay raise and layoff trends are in the big U.S. markets right now, like NYC, DC, and LA, and not Charlotte, NC or Jackson, MS. But there is a trickle-down effect, and what happens in the bigger markets, if it is pervasive and long-lasting enough, will eventually cause changes in regional markets too. So whether you are a lawyer (or law student) in a big market or not, watch what's going on, because this may just affect you.

Computer Bans Hitting the Mainstream?

2007-08-22T19:34:00.000-07:00

I was gratified recently to see an article about laptop bans in college classrooms hit the mainstream--which in this case means my computer's MSN homepage. The article, Laptops: A College Essential, But for Class?, can be linked to here.

Regular readers of this blog know that computer (mis)use in class is a subject of strong interest for me. Recent posts on this topic include the following:

Multicommenting on Multitasking
Multitasking in the Classroom
More on Computer Bans
Computer Bans
Computers in Class

These posts (which are in reverse chronological order) pretty much lay out my thinking on the subject to date.

Why do I find this subject so intriguing? I've been accused of being more concerned with preventing people from "computer doodling" than with being interesting and engaging in front of the class--a cheap shot to be sure, but this is the Internet after all, the domain of the anonymous jab. No, what really draws me to the subject is the fact that I am of two minds about computer use in class. Namely:

Computers are good in class, because they can be used to make class more engaging. In that sense they are at worst a fancy chalkboard for professors, and at best an interactive learning tool.

When computers work this way, they can really liven up class. Students can do instant research and contribute to the discussion.

Computers are bad in class, because of the many siren songs they sing (like Internet access, e-mail, IM, movies on DVD, games, etc.).

I often take my laptop to faculty meetings, and I hear these songs myself (but heroically resist them).
I have actually received e-mails from students that they sent while sitting in class. Which sort of boggles my mind--especially since they told me that in their e-mails! On the one hand, at least they weren't sitting in my class at the time--but since my goal is not to interfere with my colleagues' lectures, that doesn't make me feel much better.

Computers are good in class, because some people take notes better with computers than by hand.

Computers are bad in class, because people do more transcribing of lectures and less listening and engaging in class discussion. I teach at a law school, not a stenography school.

Computers are good in class, because students can IM each other to keep up with the lecture and help each other out when called on.

Computers are bad in class for the same reason.

Computers are bad in class, because when people misuse them, say to watch a movie or surf the web, it is distracting to other students. It is one thing for a student to be distracted by choice, but entirely another for that student to distract others against their will.

What's interesting to me about the MSN piece is that it demonstrates that the subject has gained enough traction to be considered a mainstream issue. Which makes me feel good, since I think about it a lot.

All in all, I have decided to let things lie this year, or at least this fall, given that my views on the matter are in conflict. So computers are allowed in my classes, and many people are using them (hopefully for class purposes). But I do plan to declare "computer free" days and see how that affects class. Whatever happens, it is almost certain that I will be blogging on this subject again sometime soon.

Advice to 1Ls at the Start of the School Year

2007-08-20T20:58:00.000-07:00

Well, after a busy summer and a few technical difficulties with this blog, I am back. And just in time for the beginning of the school year.

Today thousands of law students had their first classes today, including at my school. For the 1Ls, it is the start of a strange, three-year odyssey. With that in mind, I have decided to point students, and especially new 1Ls, to some of my previous advice about law school. The following are of course not all of my posts about law school--nowhere close--but they are some of the most directly relevant to new 1Ls.

POSTS WITH GENERAL ADVICE FOR 1Ls

Some Advice for Incoming Law Students. This post includes my favorite piece of my own advice--don't read Scott Turow's novel One L until after you have finished your first year of law school. Even though law schools today are kindler and gentler than the law schools of the 1970s about which Turow wrote, there's enough commonality to scare you. So don't read it as a 1L.

PS: I'd give a link to a website about the book, but the best links are to booksellers' sites--and I of course don't want to help 1Ls buy the book. So no link.

More (and Still More) Advice for New Law Students. Pretty self-explanatory.

Law School Orientation Advice. My biggest piece of advice? Don't spill food on your law school's dean at orientation (which I actually did). My law school has already had its 1L orientation this year, so I am a bit late re-posting this advice. But I am happy to report that to my knowledge, no students spilled food on any dean or faculty member.

POSTS REGARDING CLASS PREPARATION AND PARTICIPATION

Getting Called on in Class. This is pretty much every new student's nightmare--so it makes a great blogging topic.

Figuring Out Your Law Professor. It's important to never forget that you are not just taking a particular subject. You are taking a particular professor--and you should adjust your approach to a course accordingly.

How to Brief a Case. The title says it all.

More Thoughts on How to Brief a Case. Ditto.

OTHER ADVICE

What's to Like About Law School? This post actually provides not advice, but rather perspective about the law school experience. The point of the post is that a lot of us (me included) spend a good deal of time hashing over what law schools get wrong. But law schools also get many things right, as the reader comments to this post illustrate.

Reflections on Law School Exams. Final exams aren't until December, but since that's everyone's ultimate goal, it's worth reading this now--and then re-reading it later in November, when exams are upon us.

So enjoy these posts, thanks for reading, and good luck with the start of the academic year!

The Associate Crisis

2007-07-10T06:55:00.000-07:00

Canada's Globe and Mail ran a story last week about skyrocketing US associate salaries and their effect on clients. Much of what the story has to say is not new, although it is interesting to see the same concerns being voiced from a Canadian perspective, and to see discussion of how these salary increases are spreading to other countries as well. Everything's global these days.

Several points the article makes are very good, and they tie into subjects of previous posts on this blog (relevant earlier posts are listed at the end of this post).

First, who foots the bill for associate pay increases? In direct terms, the clients do--but associates pay a hefty indirect cost in terms of additional demands on them, as well as the death of mentoring (as projects become more high-stakes). As the article notes, in-house counsel are more likely to say, "If a firm wants to give us a green, first-year attorney who charges out at $300 an hour, well, sorry. We'd rather have someone more senior who charges $525 an hour but can do the work in a third the time because they know what they're doing." Can you blame the clients? Of course not.

A significant side effect is that associates have less work to cut their chops on, and the senior people are busier doing that billable work, so there is a disincentive to mentor the juniors. And if a junior associate does get the work, there is far less margin for error, and often no safety net.

I once was told by a senior partner that in the "old days," meaning the 1970s, clients were far more willing to pay for junior associates to accompany/assist senior attorneys on projects for that client, because (a) the billing rates were not as high, and (b) because those junior associates would be inheriting this client's business. In other words, the clients were paying to train their future lawyers, which made some economic sense. Yet in today's market, that's a more expensive proposition--and even more importantly, those junior attorneys are likely to jump ship to another firm before they ever inherit that business. In the 1970s, lawyers were far more likely to stay with a single firm for their career than today, when inter-firm mobility is the norm.

Plus, clients are less loyal to their law firms than they used to be, and with good reason. There's more competition out there from firms who can do the work, and there's more opportunity to shop around (and even play law firms off one another). So, why would a company pay to train a very expensive junior associate who is unlikely to ever be in charge of the company's work? Rhetorical question, of course.

Second, we are seeing "a fundamental shift in the traditional law firm paradigm." According to the Globe and Mail article, Susan Hackett of the DC-based Association of Corporate Counsel believes that "general counsel will stick with long-standing advisers for bet-the-company work, but increasingly look to firms with lower cost structures for everything else." In other words, a multi-tier market for legal work is--indeed has--emerged. I experienced this first-hand in practice. Between the time I started law practice in the mid 1990s and when left for academia in the mid 2000s, my overall workload got much, much harder. This happened because clients pushed the easier work to smaller firms, and even in some cases to non-law firm consultants. And if these competitors could do the work for less, well, why not? So, we now have a legal market in the US in which many of the more standard areas of practice are experiencing growing competition (which hopefully keeps prices down to an extent), and only that work which is most difficult can be billed out at top rates.

The silver lining for top-end practitioners, of course, is that the work can be phenomenally interesting and challenging. I practiced international trade regulation in practice, and in my last several years of practice I confess to never being bored--and not just because I was overloaded with work. The issues and problems were fascinating, enormously challenging and intellectual. The easier work had melted away, and all that was left was a core of really tough projects. Once I was able to get myself inserted into the work stream (that is, once clients were willing to have me working on the project on a daily basis instead of a senior partner), that made things quite fun. Of course, I saw a number of associates who never got over that "no work" hurdle, and they fell by the wayside. And they were all smart people who could do the work.

I could go on and on about this subject, but I will stop here for now. Read the Globe and Mail article, and check out some of my previous posts related to this subject:

And as always, I look forward to any comments from readers.

Multicommenting on Multitasking

2007-06-29T17:43:00.000-07:00

This is not the most substantive post I have ever written, but for readers who did not read the comments on my last post, Multitasking in the Classroom, please check them out. That post was yet another one on the use and misuse of computers in the classroom. I recommend the comments for your reading pleasure.

I particularly liked these reader comments because they are opinionated, well-presented and argued, and civil. In another recent post, I lamented the prevalence of incivility in the blogosphere. I hold these comments out as excellent examples of civil debate--namely, how being professional and polite does not mean being nonsubstantive.

Multitasking in the Classroom

2007-06-22T21:26:00.000-07:00

There's an interesting article by law professor Catherine Ross Dunham in the Spring 2007 issue of The Law Teacher regarding the use of computers in law school classrooms. (Sadly, the article is not yet available on TLT's website, but check back later at the above link; it will be posted at some point.) I have blogged several times about the use (or banning) of computers in the classroom. Those previous posts can be linked to here, here, and here. I encourage you to glance at those posts for a little background on the subject if you are interested--and be sure to read the comments. It's a topic of no small discussion and debate within the legal academy.

In any event, Professor Dunham's article can be summarized as follows:

ONE: She confesses to having surfed the web in law school classes.

TWO: She went back to law school for an LLM last year (she received her JD a few years prior to that), and in her LLM classes she observed most students multitasking with computers in class--instant messaging, surfing the web, paying bills, gambling online--while also paying attention in class. In her opinion, it did not hurt their concentration, grades, or learning. She also claims it did not hurt the quality of class discussion.

THREE: She concludes that there is a generation gap between most professors, including relatively young ones, and their students.

FOUR: She thinks that "much of a law faculty's apprehension about laptops in the classroom relates to us, not [the students]."

Let me respond to these points in reverse order. As to point #4, I fully agree--much of it is about faculty perceptions, and in some cases it is also about faculty insecurities. And yet, that does not mean it is all about faculty perceptions or insecurities. A previous commenter suggested that I run an experiment in class, in which on some days I ban computer use and see what happens. That's something I am likely to do at some point--especially if a class seems filled with zombies, not law students.

Regarding point #3, ouch. She is right. I graduated from law school in 1994, and only one student in my 1L section (100 students) used a computer in class. I didn't have a computer with Windows until after I graduated from law school. And I neither own an iPod nor have plans to get one, which officially qualifies me as a neo-fogey. But again, her point goes to striving to understand our students. That may mean allowing computers in class. But then again, it may not. Which is a good segue into . . .

Point #2: I am sure modern students are better multitaskers than many professors, including those of a certain age like me (30s and 40s). Having said that, I multitasked quite well in law practice--you have to--but on the weekends I could get a "full day" of work done (what would take me a full weekday, including interruptions) in about 5 hours (that is, without interruptions). Not much multitasking efficiency in that.

And while I am at it, I do have to observe that just because students can do something does not mean they should be encouraged or permitted to do so. Little kids want to eat dessert for each meal, yet should we let them? They are better off, we generally think, being made to eat broccoli sometimes, even though they may want chicken nuggets and fries for any and all meals. In like fashion, would law students be better off in the long run (that is, be better lawyers) if we were to force them sometimes to "uni-task" in class on just a single matter--just as they are supposed to in client interviews, in court, and in depositions? They already know how to multitask, but I wonder if some of them know how not to.

And finally, as for point #1, I know the temptation is strong to surf or do other stuff in class. I sometimes take my computer to faculty meetings, so that I have have access to relevant files on my laptop during the meeting--and believe me, the temptation to work on other matters and check the news online is quite strong sometimes during those meetings. But I don't. It's disrespectful to my colleagues, and ultimately does not further the purpose of the meetings. The same can be said for non-class use of computers in the classroom.

My intuition tells me that my classes would run better--better interaction, better student concentration, fewer distractions to other students--if I were to ban computers. And yet Dunham has very good points. And at the end of the day, is such paternalism worth the effort? I don't have my mind made up on this one. The tension between anti-paternalism and concern over classroom dynamics is quite strong in my mind. But if I do make up my mind, I'll certainly post about it on this blog.

(In)Civility in the Blogosphere

2007-06-14T21:53:00.000-07:00

I have been thinking a good deal lately about the frequent lack of civility in the blogosphere. I am always surprised when I read a blog post or comment that is not so much an attempt at meaningful commentary as it is a smackdown, WWF-style. Perhaps it shouldn't surprise me. But it does.

I probably sound like an old fogey saying that, but there it is. I know why it happens, and I know that the Internet is a wonderful means of communication and interaction. And yet I still find myself taken aback by some of the downright nasty things that get said online.

Now, I generally can ignore all of this, and I do not view virtual sniping as some sort of Sign of the Times. I have a higher opinion of human nature than to think that people used to be civil, and then along came the Internet, and now all the youngsters have no taste or class. That kind of inter-generational tension is nothing new.

But when it started happening on this blog, that really gave me pause. It did not happen a lot, but it happened some. And then it happened more. And I have found it harder to ignore or overlook on this blog, because this is a blog about lawyering and law careers. And one of the key characteristics of a good lawyer is . . . civility.

So that's the great irony here: people behaving in an incivil manner on a blog devoted to a profession that should espouse civility. (Yes, I know the profession falls short--but that's all the more reason to champion the ideal, isn't it?) I could act as a traffic cop, of course, stepping in as necessary to remind people to tone it down, and deleting the occasional comment that goes too far. I guess that is what I am doing now. But my real point is that even if and when there is discussion on this blog, anonymous potshots do damage. They threaten to dilute the discussion. And perhaps even worse, they change the tenor of the discussion, and the blog as a whole.

For me, the greatest corrosive effect of negativity and sniping is that any comment that is edgy may be assumed to be a negative one. That's of course not true, but I myself have already fallen into that trap. Recently I read a very intelligent and well-done comment to a recent post on this blog--a comment that added a lot to the discussion in a very substantive way. But I incorrectly concluded that the reader also was taking a jab at me. Not true; read the comments. But at the time that's how I took it. I have to believe that I did so partly because I was primed to think that way.

That little event is a good example of what is happening on a much larger scale in the American legal profession. Lawyers often do not expect civility, so they do not give it. They assume that statements (by clients, by opposing counsel, by colleagues) are meant to be negative, when they might not be. And these assumptions are made because too many lawyers have been conditioned to play smackdown, instead of play nice.

I am of course not suggesting that lawyers should not be advocates or play hard ball when necessary. Of course they should. But there is a distinction between advocacy and civility, and it sometimes gets lost. If a lawyer (or lawyer-to-be) is going to go after opposing counsel, or someone in the legal blogosphere, I suggest that it be done with professionalism.

Fun Summer Reading Online

2007-06-11T19:29:00.000-07:00

Summer is (or at least it should be) a time to play outdoors, travel, and catch up on reading. So with that latter point in mind, today's post is about one of my new favorite law-related blogs, as well as another one I previously recommended that continues to provide insight and entertainment.

Law and Letters. This blog by aspiring law prof "Belle Lettre" is simply great fun to read, and insightful too. Not to mention the graphic design, which is another strong element. This aspiring law prof seems destined for a tenure-track position (I am in your corner, Belle); if so, I will be interested to see what happens with your blog.

For a fun post, check out her June 7, 2007 post entitled "Things I Won't Ever Blog About." She compares law school to the TV show Gilligan's Island, which is both a hoot and a shrewd observation.

Baby Barista. Very, very funny, and very, very British. It's the ongoing diary of a fictional pupil barrister. It features recurring characters and plotlines, so it's hard for me to recommend a single post. Just check it out and start scrolling down.

Scholarship Update

2007-06-06T07:48:00.000-07:00

I'm back from a brief blogging hiatus after finishing my grades, and summer is in full swing. Here's a quick update on what I have been doing in terms of research.

I have had a law review article and book review published this month. Both articles can be accessed via my faculty home page or my author page on the Social Science Research Network (SSRN). You have to register to use SSRN, but the site is free.

The law review article is entitled Thinking Outside the Border: Homeland Security and the Forward Deployment of the U.S. Border, 44 Houston Law Review 189 (2007). In it, I discuss U.S. cargo security programs and their extraterritorial application. The book review is entitled Seeing the Forest and the Trees: Reconceptualizing State and Government Succession, 51 New York Law School Law Review 403 (2007). It is a review of Professor Tai-Heng Cheng’s new book, State Succession and Commercial Obligations, which addresses the disconnect between state practice and international law doctrine concerning state and government succession. Both pieces explore issues concerning global interdependency and interconnectedness that are central to my research.

In addition, I am currently hard at work on a new law review article on U.S. export controls, entitled Winning the Battle but Losing the War? Reflections on Extraterritorial Jurisdiction in U.S. Export Control Laws. The thesis of this article is that the United States' application of its export control laws to foreign reexports of U.S. origin goods and technology (something that is quite controversial legally and politically) is legally justified but strategically imperfect, and that changes therefore need to be made. While the extraterritoriality of U.S. export controls was debated at length by scholars in the 1980s and early 1990s (with most commentators opining that such jurisdiction was impermissible), there has been less focus on the subject in recent years. In light of the rapid and continued growth in international trade and the birth of e-commerce, as well as changes to the post-Cold War and post-9/11 national security landscape, this is a subject worth revisiting. (Note: for background information concerning U.S. export controls, see my 2004 law review article entitled E-Mails, Servers and Software: U.S. Export Controls for the Modern Era, 35 Georgetown Journal of International Law 320 (2004)).

Later this month, I will be presenting this article as a work-in-progress at the American Association of Law Schools’ Midyear Conference on International Law in Vancouver, Canada. The theme of the conference is "What is Wrong with the Way We Teach and Write International Law?" As Professor Mark Drumbl points out on Prawfsblawg, "[t]he conference is for folks teaching and writing in international law to rethink what we're doing, and equally for folks teaching and writing outside of international law (whether as legal academics or as academics outside law entirely) to engage with the subject and discuss what could be done better." The conference promises to be very interesting, and I am pleased to be one of its presenters.

Goodbye, Albatross

2007-05-23T20:52:00.000-07:00

Well, my spring 2007 semester grades are done. Hurray! And the fact that I had 109 three-hour essay exams plus 14 research papers to grade explains a lot about why I have not posted much lately. Now that I am done, here are a few quick observations.

ONE: Never underestimate the importance of getting the facts right on a test. People who clearly know what they are doing with the law sometimes trip themselves up by getting the facts (which are given on the exam, mind you) totally wrong. I am perhaps softie in this regard--I remember what law school exams were like from the student perspective. And for that reason I tend to give tests with "evolving" fact patterns that center on the same set of characters. Less confusing, in my view. But getting the facts wrong can't help but affect your grade. And this is a big part of lawyering, after all. So to all you students out there: pay attention to the facts!

TWO: The difference in the quality of the 1L exams between the fall semester and spring semester is amazing. The class GPA in my Contracts II class went up substantially. And I curve my grades, mind you. The grades still went up. Not everyone will be happy, of course, but the average showed a good deal of improvement.

THREE: In my experience, the quality of a test, for grading purposes, has very little to do with whether it is straightforward (read: easy) or more subtle (read: hard). I gave a straightforward exam in the fall, and a more complex exam in the spring, since the 1Ls were by that time battle-hardened. And each time some people got it, and some did not. Some misunderstood the facts, and some did not. And some came up with some really creative answers--in a good way. I love to see that on an exam. In other words, you get a bell curve distribution of grades every time.

In closing, let me say that I think testing with essay exams is very, very important. Clients do not present you with multiple choice questions in practice. The bar exam does that, but at the end of the day we are teaching people how to be lawyers, not bar exam takers. (They of course have to pass the bar, so multiple choice exams have their place in law school.) But I would be interested to hear what readers think about this. What kind of exams do/did you prefer? Multiple choice? Short answer? Essay? Combinations thereof? Please comment and give me some input on this. Thanks!

3L Job Searches

2007-05-03T18:58:00.000-07:00

I recently was asked by a Law Career Blog reader if I have any job hunting advice for 3Ls and recent law grads. Here's the specific request I received:

I am a 3L . . . and I am in the unenviable (but not perhaps uncommon) position of being unemployed - still. As graduation and the bar approach, my stress level is rising to meteoric heights. . . . Is there any chance you could post something for 3Ls who are still looking for work? You know - something comforting, but realistic at the same time.

That's a very good topic to talk about. I have no easy answers. Here are some of my thoughts:

Keep your chin up. Law school does a number on a lot of students, who come in bright, eager and confident, and leave believing they are not as smart or as talented as they thought. Few things in academic life beat you down like continuously getting ranked against your peers in a pressure cooker atmosphere. And then you don't have a job at the end of it. You must be stupid, right?

Of course that's not right. The point is that you are just as smart--and a lot more educated--than you were when you got into law school. It's just a tough job market.

Be proactive. Keep working on the job hunt. Track down all possible leads. Use all possible connections. I know this is obvious, but it is surprising how many people do not do it. It's too much work; they're busy; perhaps they are a bit in denial; they don't want to appear desperate. Don't be ashamed of not having a job, but also don't be too proud to not do what it takes to rectify the situation.

Build your list of contacts. The job hunt is a great way to meet people who might help you in the future, even if they cannot now. Keep a contacts list. Send thank you notes. Go to functions where you might see them. If you convey the impression that you are professional and a potentially good hire, these contacts may lead you, directly or indirectly, to a job.

Remember that the worst that can happen if you seek a job is to be told "No." Which means you are no worse off than if you did not try. I don't mean you should be a pest, but I do mean that you should never let the fear of rejection keep you from applying for a job.

Be less picky. Are you only willing to work at a large firm with a well-established corporate or litigation practice? Think again. There is no shame in taking a job because you need a job. Now, there are some things you may simply be unwilling to do, and that's fine. Admirable. But if your concern is, "What will other people think?" or "Will it hurt my chances at future jobs?", then try the following exercise. First, pretend you are at an interview for your next job after the one you are trying to get right now. And the future employer asks you about your current job, and why you are leaving. What would you say? Think about it. If part of your answer is, "It was a good place to start," or "It was really great experience, but not what I want to do long term," what on earth is wrong with that? Any lawyer out there is going to understand that. We all have bills to pay, and we all know it is a tight job market.

On that same note, consider contract attorney positions. Contract attorneys are in essence temp lawyers who are hired by law firms for temporary demand. They typically are hired through a job placement service, and they get paid less than associates. But they get paid. And they get experience. And sometimes, if they do good work, they get hired as full-time attorneys by the firms where they are working. I have seen it happen, even at big firms. Also, if you are moving to an entirely new area of the country and have no contacts or job prospects, this is an option to consider.

Be more creative in your search. Law firms are not the only place you can practice law. Think about inhouse positions, although the good ones can be hard to find. Think about public interest law--there are public interest fellowships available through organizations such as Equal Justice Works that allow you to gain some experience, even if public interest work is not your long term goal. I submit that the experience will make you a more well-rounded and empathetic lawyer. And what about non-legal positions? If you are thinking about business law, and there is a company who needs a non-legal position filled, why not look into it? You may not qualify, but then again, you might. And it might be very good experience, too.

Keep trying for judicial clerkships and internships. There are many, many judicial clerkships out there--not just for federal judges and state supreme court justices. State appellate judge and circuit judge clerkships can be excellent opportunities to gain experience, pay the bills, and add a strong reference to your resume. And they give you more time to get inserted into the legal market and keep making new connections and looking for that post-clerkship job.

Consider an LL.M. or MBA. It's a bit late in the game to think about this now, at the end of your law school career, but perhaps you can work for a year, and then go back. If you want to go into business law, or into business management, a JD-MBA combination is superb. And an LL.M. from a school more highly ranked than the law school from which you received your JD is a good way to make yourself more marketable too, especially if you are wanting to practice in a particular specialty. An LL.M. in tax is very valuable, and an LL.M. in intellectual property law, environmental law, or international trade/international business can be very useful too. (Link to my previous posts on LL.M.s here, here and here.) Such an LL.M. might even help you relocate to another, more lucrative job market. I know people who have done that quite successfully.

Remember that your first job does not = your career. In an article for the March 2007 National Jurist ("Don't be Scared by Unemployment"), Tony Waller, who is the University of Illinois College of Law's dean of career planning and professional development, advises that "your career is like a line, and not a dot." (Note: quote is of the article, not of Waller.) That's an apt analogy.

And finally . . . I want to end with the same advice I started with: Keep your chin up. You will have a hard time making a positive impression on the job market if you have a hangdog demeanor and attitude.

Good luck, and happy hunting!

Swamped

2007-04-24T13:21:00.000-07:00

Apologies for not posting more lately; the graphic says it all. April is always a busy, busy month at law schools, and not just for students preparing for exams. Having said that, I would rather grade them than take them.

I have a number of posts on the way, including exam-taking advice ('tis the season) and advice for 3Ls still searching for jobs (at the request of a student at a law school on the East Coast). But in the meantime, please check out a recent article from the Chronicle of Higher Education called "Don't Give it Your Best." It's not about law school, but it is about the travails of finding a higher education teaching job, and the balance to be struck between classroom teaching and research. And it's a bit depressing. There's an awful lot I could say about it--such as regarding the tensions between interests of students versus teachers versus schools, what schools reward financially (hint: not always teaching or student support), and what helps you land that teaching job--but I will save it for another time when the swamp has been at least partially drained. Until then, any comments or thoughts from readers about this article are much appreciated.

Theroux Part Deux

2007-04-04T20:39:00.000-07:00

As I mentioned in my previous post, my former Baker & McKenzie colleague Eugene Theroux spoke at Mississippi College School of Law on Wednesday, April 3, 2007. Gene, who is currently Of Counsel with the firm, spoke to MCSOL students, faculty and staff about the globalization of law practice and his experiences over the years in international practice.

I have known Gene for about eight years now, and I admire and respect him professionally. More importantly, I have high regard for him personally. Both his personal and professional strengths were on full display during his visit to Mississippi. In no particular order, here were the main points I took away from his talk.

Point #1: Expect the unexpected. "I never intended to practice law," Theroux explained, "even after I decided to go to law school." In fact, he only decided to go to law school after working on the John F. Kennedy and Lyndon B. Johnson campaigns in 1960 and 1964. His undergraduate degree in art from the Pratt Institute, he concluded, might need supplementing with more practical skills, so he attended law school at Georgetown.

Point #2: Life is an adventure to be savored. Listening to Theroux talk is like learning history one anecdote at a time. He was involved in the 1968 Democratic National Convention in Chicago. He represented Ringling Brothers in its efforts to obtain circus acts from the People's Republic of China. He has represented fortune 500 companies such as PepsiCo and Wrigley in their efforts to gain market access to the PRC. He was retained by the PRC as counsel for one of the most important sovereign immunity cases of the twentieth century. He lived in India for four years while working for Baker & McKenzie. In other words, he has done a lot of fun and rewarding things during his years in practice. "What's important," Theroux told another group of (high school) students during his visit to Mississippi, "is to follow your bliss--to figure out what you enjoy" and work those interests into your career in some way.

By following his own advice and his own muse, and by combining his personal and professional interests, Theroux has carved a career path that is different from any other international lawyer I know--and I am an international lawyer myself, so I know have seen quite a few international career paths.

Point #3: Nice manners pay off. Theroux recounted that much of his success "has come from doing what my parents taught me: to say 'please' and 'thank you' and to write thank you notes to people." He recounted how he once dated a daughter of U.S. Representative T. Hale Boggs of Louisiana, and he became friends with Rep. Boggs himself. It was Boggs who in 1972 invited Theroux to participate in a trip to the PRC by Boggs and then-Rep. Gerald Ford, after President Nixon's visit to the PRC earlier that year had become public knowledge.

I would add that the equation is probably more along the lines of "nice manners plus a good brain pay off," but perhaps that's obvious.

Point #4: Develop contacts for the right reasons and it will pay off. Related to the subject of good manners was Theroux's admonition not to "pursue personal relationships with people for the wrong reasons." Too often, he noted, people are more interested in developing personal relationships based on whether the relationship might be politically or personally profitable. But Theroux emphasized that you never know what relationships might be beneficial professionally, and what ones might not be, so he suggested not to think in those terms. Instead, he advised that relationships should be developed for their own sake--as acquaintances and friendships to be enjoyed and maintained throughout the years. And when people you are genuinely interested in and concerned with come into positions of influence, who would they rather deal with: friends, or people who see them only as a contact? Rhetorical question, of course.

I suppose that in this age of overt contacts and connections, Theroux's approach might sound quaint. But it's also effective. Not only is Theroux universally well-regarded by other lawyers in Baker & McKenzie (the associates there loved him when I worked there, since he always expressed genuine interest in people), but he also firmly believes that much of his success over time has come from personal relationships that he fostered for their own sake, and not just for the sake of getting ahead.

This is related in some sense to many stories Theroux told during his visit about how predictions by him and others about the future of the PRC and other matters proved incorrect. That is, when you strategize based on the best information available, you are often dead wrong. So in developing your personal network of relationships, do it for its own sake--doing it "strategically" is likely to fail.

Point #5: So what does all of the above have to do with the "globalization of law"? The thrust of Theroux's talk was to illustrate, by his own example, how you can carve a career path that you like and are proud of, even if you don't know exactly what you want to do or where it might lead you. He noted that international opportunities have grown enormously, but his point was that there are, quite literally, as many career paths as there are lawyers. That's my long-winded way of saying that what Theroux had to say at MCSOL was ultimately broader than globalization or international matters, and thus more relevant to the students as a whole.

And that was reflected in the reaction of MCSOL students to his visit. One student called him "a kind, gentle spirit," which he most certainly is. Another characterized Theroux as "very cool, unassuming, interesting, etc. Absolutely the type of lawyer I'd like to be." That's the sort of thing I'd like carved on my tombstone. A third said it was inspiring to "hear of someone who found something they love by 'doing it their own way.' "

Perhaps those student comments are the greatest take-aways from Gene's visit to MCSOL, namely--

That when you are a nice person, it shows through. When you are not, that usually shows through too. So be nice.
That marching to your own beat is cool, because it's really hard to do, and very brave to boot. It's easier to be a worker bee who does things the way people tell you they should be done, but "easier" does not mean "better."
That you can be successful doing your own thing, and be an inspiration to others.

And, I should add, if we had more lawyers like Theroux, the legal profession (and society in general) would be a lot better off.

International Trade Lawyer Eugene Theroux to Visit Mississippi College School of Law

2007-04-02T09:40:00.000-07:00

Regular readers of this blog are aware that in addition to being interested in law career matters, I am also heavily involved in teaching and researching on international trade matters. It is my strongly held belief that the practice of law is becoming increasingly globalized, and that today's law graduates need to appreciate how international legal issues can affect all domestic practitioners, no matter what their law practice focuses on.

I started Mississippi College School of Law's International Speakers Series for that very reason. Through the series we have hosted visits to the law school by a variety of people, including U.S. Senator Thad Cochran, USAID lawyer Donna Wright, and former UK Solicitor General and Attorney General Sir Nicholas Lyell.

On April 3, 2007, we will host a visit to the law school by international trade lawyer Eugene Theroux. Theroux, who practices with the law firm of Baker & McKenzie, will discuss how globalization is changing the practice of law, and why international trade and international law really do matter for all of us. He is an acknowledged expert on Chinese, Russian and Indian law, and he opened the first western law offices in the People's Republic of China and the Soviet Union. In other words, he has had a storied career. He is a frequent lecturer on international law matters in both the U.S. and abroad, and we are looking forward to his visit.

This event is open to the public, so if you are in the vicinity of Jackson, Mississippi and are interested in attending, please do so. The event will take place in Room 251 of the law school from 11:30 a.m. to 12:30 p.m. Information the law school is available here; directions are available here.

Law Firm Salaries from the Client's Perspective

2007-04-01T17:45:00.000-07:00

Over at Legal Blog Watch, veteran law blogger Caroline Elefant recently blogged about associate salaries from the under-explored point of view of clients. It is common wisdom that any hikes in associate salaries generally get passed on to clients unless the clients push back or object. In other words, the assumption is that there generally is an inelastic demand curve for legal services--as prices go up, demand does not go down all that much.

Certainly that's not true in all cases, but it is not a bad place to start for purposes of discussion. Surely some types of legal projects--IPOs, white collar criminal defense cases and the like--are far less sensitive than others to the cost of services being provided (read: what attorneys charge). In fact, an assessment of what types of legal projects are more price-sensitive might be an extremely interesting and valuable empirical study.

But again, the generally accepted view is that the cost of associate raises gets passed on to clients. And I can say from my own anectodal experience that whenever large firm associate salaries go up, so do associate billing rates. Whether the same thing happens at mid-sized firms in regional markets might be another interesting empirical study.

But I digress. Elefant's post discusses in detail how the increase in associate salaries plays out in terms of cost to clients. Her post centers on an excellent discussion of the issue by Susan Hackett, who is general counsel of the Association of Corporate Counsel. Hackett's article on the subject can be found here. Both Elefant's post and Hackett's article are well worth reading.

My questions on the subject are as follows:

Will Hackett's solution--she suggests that companies push more legal work to midsized firms in regional markets--lead these smaller law firms to underprice, and thus undercut, the larger ones? She suggests that these smaller firms can do most work just as well as the really big firms, and for much less cost. Will this result in a market correction against escalating legal fees?

Or, will Hackett's solution just mean that the biggest firms end up with the hardest, most specialized work that other firms aren't as good at doing? If so, is that an undesirable outcome? Or might such segmentation of the market actually be preferable, in that big firms will be able to justify their very high billing rates for very difficult work?

This is a point on which my thinking is not yet congealed, and I can summon anecdotal experience from my own days in practice to support either view. Perhaps both are right to an extent. And perhaps that's the real point: perhaps we simply cannot answer these questions without meaningful data. Absent such data, maybe we are doomed to argue and talk past one another, using anecdotal evidence to support our views.

As I think about this further I will post again as appropriate--and of course, I welcome comments on the subject in the meantime.

2008 US News Law School Rankings Leaked

2007-03-29T13:43:00.000-07:00

The internet is abuzz right now with unofficial, leaked versions of the 2008 U.S. News & World Report Law School Rankings. The rankings are to be officially released on Friday, March 30, 2007. (The official U.S. News rankings site can be linked to here.) The leaked rankings are available on the Law School Discussion website, LLM Guide, and Concurring Opinions. Law School Discussion and LLM Guide have the full rankings--both the top 100 and the 3rd and 4th tiers. TaxProf Blog has a comparison of the 2007 and 2008 rankings here. Brian Leiter weighs in on the topic here, and on the Volokh Conspiracy Orin Kerr provides his views on rankings (note: the post was at 9:21 p.m. on March 27, 2007; you have to scroll down).

I've got my own views of the rankings, which I can opine on at some later date, but in the meantime, what do readers think of the rankings? I'd like to hear your views.

Also, for those who are interested, there is a growing body of legal academic literature on the subject of law school rankings (now there's an irony for you). For starters, try Theodore Seto, Understanding the U.S. News Law School Rankings (available on the Social Science Research Network here) and Alfred L. Brophy, The Emerging Importance of Law Review Rankings for Law School Rankings, 2003-2007 (available on SSRN here). For those who do not know, SSRN is a free service for finding scholarship, although you have to register for it (you can register at the SSRN homepage at http://www.ssrn.com/.

Clinical Experience in Law Schools

2007-03-27T21:31:00.000-07:00

Law.com has a recent post regarding clinical programs at law schools--namely, how some law schools are beefing them up substantially. Given that a lot of internet commentary bemoans the divide between legal education and legal practice (perceived and/or actual), and that law school clinics can be a very good way for law students to gain practical legal experience, the trend toward more clinical experience is generally seen as a good one. But given that clinics are time- and faculty/staff-intensive, and thus fairly costly, some law schools are not doing as much in the clinical arena as they might like.

I was particularly interested to see what my old Ethics law prof, Larry Marshall, is up to as Stanford Law School's clinical program director--namely, trying to raise $30 million to cover part of the budget for Stanford's 9 (soon to be 10) clinics that serve around 200 law students. That's quite an outlay.

I'm curious to hear readers' views regarding law school clinics. Has anyone participated in one? What did you like? Not like? Were they beneficial? For those in law practice, did clinical experiences in law school really help? Or are law school clinics at least partly just an effort by law schools to be trendy?

Anna Nicole Goes to Law School

2007-03-13T21:15:00.000-07:00

It's all over the blogosphere now: various law profs across the country are discussing Anna Nicole Smith's will in their classes, as a way of making the law more accessible, or at least more interesting in this age of pop culture. Her early death and poorly drafted will--and the ensuing legal battles over her young daughter and her burial--make this a case of truth truly being stranger than fiction.

You can start your own legal research of the subject with this AP article (reissued via MSNBC.com) and with blog posts on TaxProf Blog and Wills, Trusts & Estates Prof Blog. And don't forget this March 8 article from the Phoenix New Times, which reports that Smith may have had a secret love child in 2001. (A more concise, and less melodramatic, report appeared on March 12 in the New Zealand Herald.) How does that play into the mix?

Note that the media coverage of this law school trend seems positive. Should it be? Is this truly a case of making the law "come alive" through current events? (No decedent jokes, please.) Should her case be discussed in law school classes because students with computers are reading about it online anyway, instead of taking notes? Or is the fact that Smith's case is being discussed in law school classes somehow being used to legitimize the media frenzy surrounding her death?

I don't know, but I suspect some of you have opinions about it--please share them here.

Anonymous Coffeemaker

2007-03-08T07:02:00.000-08:00

I've been reading a new blog lately called BabyBarista, which blogger BabyBarista describes as "a fictional account of a pupil barrister undergoing the trials of pupillage at the English Bar." I lived in the UK for a time, and I love it. I heartily recommend it.

BabyBarista's blog is quintessentially British, in a very modern way: eloquently verbose, cutting, witty in the extreme. In the short time it's been online it has garnered significant readership. I see it as a UK counterpart to Jeremy Blachman's US-based Anonymous Lawyer. Like Anonymous Lawyer, BabyBarista's blog is populated by characters with clever nickames such as "Teflon" and "Worrier," so perhaps this similarity is intentional. However, it should be noted that BabyBarista's nicknames are characteristically British in their understatement--in stark contrast to Anonymous Lawyer's wonderfully blunt nicknames like "the Jerk," "the Bombshell," and the ever-classic "Young Guy Badly Hiding Your Impending Baldness." Should we be looking for a novel soon?

US readers should pay particular attention to the fact that BabyBarista's fictional challenges and travails are quite literally the same as those faced by lawyers on this side of the pond: billing by the hour, poor mentoring, working with abnormal people, intolerance and impatience, burnout, lack of idealism, etc. Perhaps it's comforting, since misery loves company. Then again, perhaps not.

Libel and Slander

2007-03-03T08:39:00.001-08:00

On Thursday, March 1, the law students at my law school held their annual "Libel Show." It was open season on 1L profs, including me. There was a skit called "Bowman's Bad Day," in which very brave (or foolish) 1L Leon Cameron channeled me giving a Contracts lecture. Clearly, next year's videographic team needs to get the camera and mike closer to the stage; much of what you hear is the sound of rowdy law students in the audience. But the gist of the skit is this: a self-important professor (where'd that come from, I wonder?) is teaching class hopped up on caffeine (got that one right), and he uses the purchase of a cup of coffee as an example of contract law in action (another bullseye). Of course, the barista gets the order wrong, and the prof goes ballistic.

OK, so I do wave my arms around a lot. And Mr. Cameron did an excellent job of imitating my speech patterns (sans curse words, of course). But here's the part that really struck me: how'd he know that I love cinammon? The coffee gag involves me ordering a cup of joe without any flavoring, and the barista puts cinammon in the coffee, and I go nuts. Now that's spooky. Did I mention my cinammon addiction in class? Or was this pure chance?

I suppose, perhaps, that it's like multiple choice exams: it's nice to know the answer, but once in a while you can get just as many points by being lucky.

Final question: if slander is defined as defamatory statements made in a fixed medium, and libel is defined as defamatory statements in a non-fixed representation (i.e., oral), then why is this show not called the Slander Show? Although I suppose that recording and posting the video on YouTube is slander.

Weekly Roundup--Feb. 28, 2007

2007-02-27T19:32:00.000-08:00

This week, my cutting edge, ad hoc survey of the blogosphere has uncovered the following gems.

A Jury of Their Subordinates. Law.com recently ran a piece on "upward reviews"--namely, associate reviews of partners. It's an interesting practice, and one that not enough law firms implement.

I have worked at firms that implemented upward reviews and firms that did not. At my first firm (Katten Muchin & Zavis--now KMZ Rosenman), the corporate department (of which I was a member) did upward reviews. There was a critical mass of associates to ensure that the reviews were anonymous. The reviews were candid and honest--sometimes brutally so. And therefore they were useful. But at my last firm (Baker & McKenzie), I never went through an upward review. The problem was not so much recalcitrant partners as it was that I worked in small departments. When you have three associates, there's no critical mass, and no anonymity. And that's too bad. Even when you have an excellent working relationship with someone, there are things you are reluctant to say in person, or that would be counter-productive if you did. Anonymous reviews can help remedy that.

More on Law School Curricular Reform. At the Law School Innovation blog, Gene Koo has a good post on skills education in law schools and why it is so important to emphasize this. Koo points out that firms and judges are increasingly trying to hire people with experience, instead of new grads. This is, of course, a way to avoid training costs.

It reminds me of when I was in high school and trying to get a job in fast food joints: each one wanted to know what experience I had in the fast food industry. And that meant I ended up getting my experience in a totally crappy pizza dive that used fake cheese. No joke. Fortunately, I worked my way up the chain (pun intended) to Pizza Hut.

Computers in the Classroom, Part XXVII. A post on CALIopolis suggests the "real" reason why law profs dislike computers in the classroom. The graphic says it all--absolutely classic and priceless, so definitely check it out. But I have to say from experience that what bugs me is not a student's laptop--it's the broad smile on a student's face while I am lecturing on something serious. Is there a disconnect there? Rhetorical question, of course.

Gluttons for Punishment. WSJ.com has a post about a forthcoming documentary on people taking the bar exam. I know the California bar exam is hard, but apparently one guy is taking it for the 42nd time. Ouch.

Law School "Family Day"

2007-02-27T18:32:00.000-08:00

Last Friday, Mississippi College School of Law (MCSOL) held its first "Family Day." Law students could invite family members to attend a luncheon and a "mock class"--actually two mock classes of one half hour each. The idea, of course, was to give family members a flavor of what law school is like, and also show them what some of the law profs at MCSOL are like. I taught a mock Contracts class on specific performance, and my colleague Debbie Challener taught a Civ Pro class on federal question jurisdiction. It was a fun event, and a good number of the students' parents and kids attended. I hope the family members had half as much fun as I did.

What struck about the mock class was that it truly had the vibe and energy of a 1L class on the first day of school. It's now late February, and student burnout is setting in hard. My Contracts class meets in a windowless auditorium, and I wonder whether the lack of natural light subdues things--class participation is tapering off fast. On the other hand, my International Law class meets in a classroom with long banks of windows, and the students in that class all seem to be mentally gazing out the window, if not physically doing so. Can't win for losing.

I remember this period of time vividly from my own 1L year. Burnout in the 1L year is a nearly universal experience. I really, really started disliking nearly all of my classmates in February or March: despite the fact that they were nice people, I resented being cooped up in a classroom with them 15 hours a week.

So back to the Family Day mock class: there was a positive charge in the air. There's little in law school teaching that beats a classroom filled with eager, excited people who are ready to learn. And there it was. On top of the benefit for the families and the school, I found it recharged my teaching batteries. That was an unexpected and wonderful gift.

Weekly Roundup--Feb. 19, 2007

2007-02-19T19:57:00.000-08:00

This is my second installment of noteworthy posts or events of the week. Highly unscientific, but hopefully highly interesting.

More (and More) on Taking Law School Exams. There were some substantive posts in the past week on law school exams and how (and how not) to take them. I posted on this subject recently too (see Reflections on Law School Exams and More Information on Exams).

In a recent post, Orin Kerr of the Volokh Conspiracy discusses in some detail what is (and is not) a good law school exam answer. He usefully illustrates his points with a little hypothetical--materials from a make-believe course, an exam question, and five sample exam answers. Make sure you check out the comments.

Daniel Solove at Concurring Opinions also offers his take on law school exams.

Note the commonalities in the advice posted by Kerr, Solove, me, and other law profs out there. If a lot of people (grading the exams) tell you the same thing, there's probably something to it . . . .

Blogs in the Classroom. On his blog, Stephen Bainbridge has posted about the use of blogs in teaching. He's using a course-focused blog to great effect--making his slides, handouts, audio of his actual class lectures, and related materials available online for anyone who wants to access them. That is an excellent idea, and Bainbridge can hold his head high if anyone ever accuses him of being an academic because he does not want to work hard. (Which someone does in a comment on another recent post of his, in which Bainbridge compares law practitioner salaries to law prof salaries.) He really could get away with not posting these materials, and yet he does it anyway. Kudos.

So why don't all professors do this? There are probably as many reasons as there are law profs, but I do note that Bainbridge has been teaching for a while, which has given him time to hone his materials.

Most interesting to me is the excerpt Bainbridge quotes from an interview of Professor Jack Balkin (of the blog Balkinization) about blogs opening up possibilities for law students to hear the views of law profs at other schools far more easily than, say, just a few years ago. I see this as very beneficial for students (check out the comments to Bainbridge's post), and also perhaps as raising the bar of accountability for law profs. Both of which are good things.

Big Firm Salaries. At Concurring Opinions, Scott Moss points out in a recent post that despite the media frenzy over recent (and previous) big law firm pay hikes for associates, the average increase over the past decade has been only 6.5% annually. That's better than the national average, but not huge. But the headline "Associates get Modest Pay Raises" won't sell many papers.

As a former soldier in the big firm trenches, I can say that the associates generally earn these raises, too.

Blog of the Week. This honor goes to the HRHero blog That's What She Said, on which blogger and HR attorney Julie Elgar discusses legal issues raised by the US version of the TV show "The Office." Neat concept for a blog.

More Information on Exams

2007-02-16T12:11:00.000-08:00

In a recent post I set out some thoughts about final exams and what students do well (and not so well) when preparing for and taking them. (See Reflections on Law School Exams, 2/8/2007.) In addition to my two cents, Pitt's Jurist site has an excellent compendium of advice regarding law school final exams. It includes advice from a variety of law profs and other commentators. It's a list worth checking out.

Weekly Roundup--Feb. 13, 2007

2007-02-13T18:39:00.000-08:00

This roundup is a first in a series of posts. The idea, as the name implies, is to give a quick rundown of interesting materials I have come across in the past week or so. Here goes.

Citing to Wikipedia. On Concurring Opinions, blogger Daniel Solove has a noteworthy piece called "When is it Appropriate to Cite to Wikipedia?" (Note to students: PLEASE READ!!) My favorite part is Brian Leiter's comment on the matter.

Side note: For a link to Wikipedia's Brian Leiter page, click here.

News from the Trenches. The ABA Journal just published the results of an online survey of law firm associates (or at least of people who claimed to be law firm associates). Of nearly 2400 respondents, almost 85% said they would be willing to trade some of their high salaries for lower billable hours. Not surprising. Neither is the general response by partners: get back to work.

They Really Mean it--Get Back to Work. The ABA Journal also reports that salary wars in NYC continue, with first-year associate pay reaching $160,000 in January 2007. So clearly, all associates need to keep their billable hours up to pay for the raise. (Dipping into partner profits to pay for raises is strangely unpopular at big firms.) And as reported in LegalTimes.com, the pay raises are rippling out to other cities as well.

Biting the Hand. . . . New York Law School's Professor Cameron Stracher wrote a recent Op-Ed for WSJ.com, in which he discussed the need for greater clinical education in American law schools. Part of his solution? Clinical rotations like in medical school. Nice idea to consider--although I wonder how useful watching a bunch of corporate attorneys drafting documents would be. Come to think of it, when I have had medical procedures done at teaching hospitals, I have wondered how useful the whole process was to med students in the room. Although since I didn't get charged any extra and since no one got hurt, it was at worst useless, and at best a learning experience.

Watch for more roundups soon.

Improving Law Schools

2007-02-09T08:33:00.000-08:00

The Carnegie Foundation for the Advancement of Teaching is finalizing a report entitled Educating Lawyers: Preparation for the Profession of Law. The full report will be available in March 2007, but there is a very useful 16 page summary of the report available right now for free. It can be accessed here. Thanks to my colleague Jeff Jackson for bringing the report to my attention.

Previous posts and comments on Law Career Blog pertain to the strengths and shortcomings of American legal education. (See, e.g., Is the Third Year of Law School a Waste of Time and Money? and Is Law School Itself a Waste of Time?) The summary and pending full Carnegie report address this topic too, and the summary makes for very interesting reading. One thematic commonality that runs through it is that "[t]he dramatic results of the first year of law school's emphasis on well-honed skills of legal analysis should be matched by similarly strong skill in serving clients and a solid ethical grounding."

In other words, this study concluded that the first year of law school provides a solid doctrinal underpinning for students, who learn legal analysis--how to "think like a lawyer." This educational experience needs to be matched, however, by similar efforts in the second and third year to educate students not only about doctrine, but also about legal practice. By so doing, law schools could teach students more and prepare them better for the practice of law.

I've posted on the question of whether the third (and even second) year of law school is a waste of time (see the above links; my answer = no), and there has been some excellent commentary from readers on the subject. The Carnegie report suggests, and I tend to agree, that the problem is not that law school is not beneficial or should be shortened, but rather that upper level courses should focus on developing skills that complement the doctrinally-focused skills of the 1L curriculum.

This conclusion and recommendation speaks directly to the common practitioner complaint that new law school grads don't know anything about practicing law. I often think such complainers mean that law school's focus on doctrine is wrong--too much theory, too little skills training--but the Carnegie report does a nice job of emphasizing that you need both.

I encourage anyone interested in the subject to read the Carnegie report summary and post any comments you might have here.

Reflections on Law School Exams

2007-02-08T07:21:00.000-08:00

I have had several readers ask for my post-exam thoughts about what students should and should not do on final exams. I have posted on this subject before, but since grades come out every semester it's worth writing about again. Hopefully I can shed some new light on the subject, at least from my perspective as a law exam grader. My previous posts on law school exams, by the way, are as follows.

How Law School Professors Write Exams

Last Minute Final Exam Advice

How to Improve Your Law School Exam Grades

More about Law School Grades

Exam Grades and Curves

So what else can I say? The views I expressed in my previous posts really have not changed, but here are some supplemental thoughts.

1. Know Your Audience, and Remember the Purpose of an Exam. For law school exams, your audience is your professor--someone who knows the subject better than you, but who nonetheless wants you to demonstrate your knowledge of the subject. You are not talking down to your audience if you demonstrate on the exam that you know, say, the basics of manifestation of mutual assent. If you don't explain in summary fashion what the law is, you risk a lower score.

2. Corollary to #1: Law School Exams Grade Performance, not Just Knowledge. On a law school exam--at least an essay exam--you are presented with a fact pattern. Your task is to identify what doctrinal rules are relevant and then apply them. Knowing the law is necessary for a good grade (you can't apply the law if you don't understand it), but it is not sufficient.

3. Another Corollary to #1: To Perform Better on Exams, Take Some Practice Exams. Let's say you got a lower grade than you wanted. Does that mean you didn't know the law? No, it means you did not perform on that particular exam, most likely by not applying the law as well as you might have. For future exams, practice applying the law. Get together with class mates you trust, draft sample exam questions for each other, and practice answering them. It is my opinion that the process of creating your own sample exams can be a highly educational process, because it forces you to really think about how the various legal rules and principles interact. Also try looking on the web for sample exams--although the casebooks used and the topics covered by those other professors will affect the usefulness of those exams.

Note: For anyone in my current Contracts class, I will be handing out some sample exams later in the semester. But I encourage you to craft your own sample questions too.

4. Organize Your Exam Answers. I saw a lot of exam answers this year that were not well-organized. I sympathize entirely with the urge to simply start writing--after all, there's not much time in a three-hour exam. But if you don't (a) think through how you want to organize your answer (which means you need to outline your answer before you start writing), and then (b) follow that template, you are bound to miss issues or at least give short shrift to some issues.

Here's the point: on average, you will score higher on an exam if you hit all (or at least most) of the issues adequately--as opposed to really nailing some and missing or underexploring others. If you outline that does leave you less time to write, but that is MORE than offset by the fact that you will spend less time spinning your wheels or restating something you have already covered.

5. Corollary to #4: Exam Length is not Always Related to Exam Score. There are 3 general lengths of exam answers: short, medium, and long. That sounds all too obvious, but it's worth pointing out, in order to highlight the relationship between exam answer length and exam answer score.

In my experience, writing less than around 1700 words on a 3 hour essay exam means that you run significant risk of not having enough words to discuss and analyze difficult legal rules and principles. So there is a strong corellation between short answers and lower exam scores.

Medium answers are, in my experience, anything between 2000 and 2700 words. (I guess that means 1700-2000 is a gray zone.) A 2000 word answer can be competent, but in the "medium" category longer answers generally translate into better scores.

Interestingly, however, for long answers--generally those above 3000 words--there is a very weak correlation between word count and score. And this gets me back to my point about organization. A well organized answer can cover more ground in fewer words than a long (but poorly organized) answer.

This means that sacrificing some length at the alter of organization is a wise trade-off.

6. Another Corollary to #4: Organizing Your Answer Helps Demonstrate to the Professor That You Know What You are Doing. The ability to identify relevant issues and then discuss them in organized fashion is a necessary skill for the practice of law. That's what you do in memos to clients, and that's what you do in briefs or other submissions to a court. Whenever I read a well organized answer, the message I get is "this person knows what s/he is doing." In contrast, a disorganized answer that flails about makes it difficult or impossible for me to tell whether the person knew the law, or simply got portions of the exam right by accident--and the result is a lower grade.

7. Yet Another Corollary to #4: Write an introduction for your answer. I may differ from other law profs on this point, but I see very little downside to writing a very brief introductory paragraph for your essay exam answer. It takes about 5 minutes--and all you do is concisely state what the issues raised in the question are and what you will be discussing in your answer. And then you follow that format throughout your answer.

This is another way to demonstrate to the prof that you know what you are doing. It also makes the exam easier to read, because the prof knows what's coming later in the answer. It is always easier to read something--an essay, magazine article, memo, anything--if the author first gives a roadmap. So even if an introduction does not garner you any direct points, it helps the grader follow what you are doing, and that should at least indirectly improve your score. (It's also a way to force yourself to be organized in your answer.) And as I said, even if it does not help, it really does not hurt much, since it only takes a few minutes to write an introduction.

8. Do not Try to be Clever or Original. Points for style and eloquence are nice, but generally you are better off focusing on getting the substance of your answer down, instead of being overly concerned with phraseology. So eschew grandioloquent prose for simple, straightforward language.

Of course you will use use legal terminology (e.g., tortfeasor, party-in-breach, etc.) to demonstrate your knowledge (and ability to apply) the law. Just don't get flowery.

* * * *

Those are just some of my thoughts. Any comments?

BAR/BRI Lawsuit

2007-01-30T14:17:00.000-08:00

There's an article in the January 26, 2007 issue of the ABA Journal E-Report on the status of Park v. Thomson Corp., No. 05 Civ. 2931 (SDNY 2005). Park is a class action suit against BAR/BRI. In short, the suit alleges that more than 300,000 students and lawyers were monopolistically overcharged about $1,000 apiece for BAR/BRI bar review courses. That's a lot of damages. The ABA Journal reports that the SDNY has denied a motion to dismiss the claims. A similar article appears on Law.com--which goes into more detail than the ABA Journal article. Particularly interesting to me is how Judge Learned Hand's classic "30/60/90 rule" from the Alcoa case is relevant here: that 30% market share presumptively is not a monopoly, that 60% may or may not be, and that 90% market share presumptively indicates a monopoly. In this case, BAR/BRI has 80 to 90% of the bar prep market.

As for blogging about this case, perhaps the experience of Law Prof Eric Goldman should wave me off. He blogged about this case a few months ago; look what happened to him. Maybe I should proclaim my ignorance too.

Scratch everything I just said in this post.

New Practitioner and Student Blogs

2007-01-28T10:33:00.000-08:00

I've found two new blogs that readers might be interested in checking out. One is The Online Lawyer. Blogger lawyer Nolelaw has described his blog as "somewhat unique in that I cover a number of different legal areas in my posts (from Contracts to Divorce to Lemon Laws to DUI) instead of focusing on one area in particular." Looking at the blog, he does indeed run the gamut, so it's an interesting example of small or solo practitioner outreach via blogging. One of his more popular posts, on the subject of Quitclaim Deeds, is located here.

The other blog is a student blog called loco delictis, which blogger frillgril describes as "a 1L's strange and unusual adventures in law school." Unusual with respect to the rest of society perhaps, but the value of this blog as I see it is that it is in fact representative of the modern law student experience. Which to me makes it not usual, although perhaps still strange. A recent post entitled Licking my Wounds is about grades (what else?)--make sure you read the comments.

On the subject of grades, I still owe readers a post about grades from my own post-exam point of view. I promise it's coming soon.

More on Computer Bans

2007-01-22T21:29:00.000-08:00

In one of my recent posts, Computer Bans, I discussed whether computers should be banned from law school classes. It's a topic that has interested me partly because of the strong feelings it brings out in people, partly because computers are in some sense a distraction in class (like it or not), and partly because computers have revolutionized learning and the classroom in phenomenally positive ways. So it's not an easy topic--lots of pluses and negatives cutting against one another. And it's an important topic, too, since it pertains to learning.

I received a very good anonymous comment in response to that post. The first part of the comment was as follows:

I find that using a computer is beneficial only because it is what I am more comfortable with. Banning laptops in a classroom, to me, would be like telling a right-handed student they could only write with their left hand. Though there may not be a significant difference between those who type and those who write by hand, I foresee a significant difference between those who originally wrote by hand and those who used to type, but due to a ban, now write by hand.

That's an excellent point. Is banning laptops like making righties write with their left hand? Are some people so dependent on taking notes by computer that banning computers truly impairs their ability to take notes? In many cases, I suspect not--which means that in many cases, I suspect the analogy does not hold all that well. On the other hand (ha!), I suspect the analogy may be a very good one for some students.

Perhaps the point is that while I might suspect this or that, it's hard to actually know. So let's assume for a moment that the left hand-write hand analogy does hold in some cases. Is the question then one of cost-benefit analysis? For example, if the diffuse benefit of improving classroom dynamics (which benefits the whole class) is great, does it outweigh the specific disadvantage imposed on a few in the class? Or do we want to take the position that even if you could measure this diffuse benefit versus concentrated harm, such concentrated harm is not justified?

I sound like an economist, I know. My point is that these things are hard to measure, and even if we could measure them, harming a few people a lot through a computer ban might just be unacceptable from a policy perspective. So maybe things should be left as they are.

In other words, the left hand-right hand argument is a compelling one, so thanks to this commentator for sharing it. It's a good example of powerful advocacy. And if the commentator had stopped right there, I might have simply conceded the point. But then comes the really fun part of the comment:

I do not understand why a professor would want to handicap students. Does a game of solitaire bruise your ego that badly? It seems that a student who engages in laptop activities that are not class related would perform poorly and the problem should correct itself. If not, then what is the problem? It may be the devilish sense of schadenfreude that law school has instilled, but please support the laptop revolution.

Hmm. Here, the comment misses the point. The point is not my (not so tender) ego. At least in my classes, a computer ban would not be about ME. It would be about the students, believe it or not. (And if you don't believe it, that won't bruise my ego.) Here's what I mean.

ONE: As a lawyer, you have to learn to pay attention, and sometimes even take notes on a legal pad (gasp!). Lawyers are professionals, and paying attention is a professional skill. So is asking students to do it in class such a bad idea? Yes, we all multitask, but are you really going to answer your phone, send an e-mail, shop online AND interview a client at the same time? No, you are going to just interview the client, and not always using a computer. So a computer ban might help model that behavior in law school--since the students are there to become lawyers. And with all the current criticism of how law schools are not practical (including comments on this blog), this would be a very practical approach to training people to focus, which is essential in law practice.

I concede that a ban for this reason would be paternalistic. But that alone does not mean it could not be beneficial.

TWO: Shopping during class, or watching movies during class, or IM'ing during class--doing anything non-class related during class--can be very distracting TO OTHER STUDENTS. I have had students (this academic year, mind you) tell me how distracting it is when people with computers do this in class. A computer ban would help those people.

THREE: I am not sure how well I am going to articulate this point, but here goes. If a teacher asks people in a class to not do something, and then people do it anyway, and the teacher then takes action to prohibit that behavor, why is the teacher the problem? Let me requote the comment: "I do not understand why a professor would want to handicap students. Does a game of solitaire bruise your ego that badly?" I would answer with a question of my own: If I tell students not to use computers in class for non-classroom activities, and then they do it, why is that somehow my shortcoming?" How would I be engaged in "taking pleasure in someone else's misfortune" (the definition of Schadenfreude) if I were to prohibit computers in class in that situation? All rhetorical questions, of course.

This third point of course ignores other possible benefits of computer bans, such as improved classroom discussion and closer attention to the lecture (as opposed to transcription of the lecture).

* * * *

The more I think about computer bans, the less sure I am that a computer ban is what I would want to do--even though it might have some benefits. It's a complicated issue, and the comments I have received on this blog have been very, very helpful for me, so please keep them coming.

Let me close by pointing out the irony in this case: if students didn't use computers in class for non-class activities, didn't distract others in class through this behavior, and didn't focus on transcription of lectures versus participating in class discussion, we wouldn't be having this discussion. In other words, I wonder whether the focus of criticisms and discussion should be less on professorial egos or shortcomings and more on the reasons why such bans have been implemented by some, and considered by others. That's why I find the "analogy of the hands" compelling, and discussions of ego off the mark.

New Student (to be) Blog

2007-01-20T22:20:00.000-08:00

I have found a new student blog--actually, a student-to-be blog. Reasonable Expectations is a blog on "a new mother's thoughts on parenthood, applying to law school and life in general." Which is an interesting, different angle on the law school experience. I'll be reading this one.

Computer Bans

2007-01-18T20:28:00.000-08:00

Recently I blogged about whether computers should be banned in law school classes. That post can be linked to here. Today I found another several articles on the subject. The articles involve Professor June Entman of the University of Memphis.

Anyone in my classes this semester will note that I currently allow laptops in class. I like computers. I like the flexibility, power, and portability that they provide students (and faculty, and lawyers). I'm not a dinosaur (yet). Yet they may have their downsides, especially in a classroom. Read the following articles describing Professor Entman's laptop ban and see what you think. They appeared in USA Today, OrinKerr.com (see also Kerr's original post on the matter, in which he did not support Entman), and Conglomerate.

I should note that this is not exactly breaking news--Entman's ban took place in the spring semester of 2006. But "not so recent" does not mean "not so relevant," so I am taking a detour from recent posts on exams to revisit the issue. Let me know if you have thoughts on the matter.

Answering my Mail

2007-01-03T06:48:00.000-08:00

So much for my recent holiday (blogiday). As always, there's a lot going on in the law career world, so where to start? Perhaps the best place to begin is by responding to some recent comments on this blog. Much of the purpose behind this blog, after all, is to address gaps--between law school and law practice, between profs and students, between law school education and law school academic success, and so on. And critical to that mission is two-way communication. So here goes.

Comment #1: Why I (Don't) Like Law Profs

This is a great comment, posted recently in response to my Blogiday post:

Law school professors really overrate themselves. At the end of the day, they are nothing more than liberal arts professors who just spend their lives writing law review articles that nobody reads and who develop "theories" that are rarely if ever, used in real world practice. Do you honestly feel like your teaching leads to any PRACTICAL outcome?

Ouch. Somebody is clearly goading me, so let me rise to the bait and respond in two different ways.

My first response is "Yes, I honestly do feel that my teaching leads to practical outcomes." Otherwise I would not do it. If I wanted a career path that was a scam, it would be a scam that made a lot more money.

Second, one of my favorite sayings is, "All generalizations are bad." (Think about it.) To suggest that all law profs are "liberal arts professors" engaged in useless pursuits lumps the good with the bad, both at law schools and in the liberal arts. The implication that some academicians don't impart value, and therefore all of them are useless, is a fallacy of logic. It also smacks of knee-jerk anti-intellectualism, whether intentional or not. That sounds harsh, perhaps, but don't forget that I practiced law for 9 years and served as a judicial clerk too. I have enjoyed both law practice and teaching, and from my first-hand experience I see significant value in both. I am in academia by choice, not by default.

My point is not that you should love all law profs and hold them in awe. Rather, my point is that some do impart value. How many, and how often, is the more appropriate point to debate.

Comment #2: Toxic Torts (and Contracts, and Crim Law, and . . .)

One reader pointed to a panel at the 2007 annual meeting of the Association of American Law Schools (AALS) titled aptly, if not succintly, "High risk/high stakes student problems: New approaches inside and outside the classroom for addressing substance abuse, gambling and other self-destructive student behaviors." That session (discussed in a recent article in Inside Higher Ed) addressed how law school's "mixture of lofty expectations and a high-stress environment" can lead to mental stress and substance abuse. It's an article worth reading, especially now that fall 2006 grades have been turned in at many schools.

Much of the problem is that students are officially or unofficially ranked against one another in law school. Most of them have been at the top of the curve their entire lives, from kindergarten on. Inevitably, however, there is a further shaking out in law school, and some people used to being at the top of the class no longer are. That is hard to deal with.

This is a topic I will return to later, but in the meantime, thanks to this reader for the link to this article.

Comment #3: Moral and Practical Law Schools

Another (or perhaps the same?) anonymous commenter points to another article in Inside Higher Ed on the subject of "moral and practical law schools." That's an interesting topic, since many people believe law schools are neither. It's a subject of interest to me, and I agree with this commenter that this is recommended reading for anyone interested in the subject.

* * * *

So now that I am caught up on my mail, in my next post I will provide some observations on exam-taking, since I just finished grading hundreds of essay exam questions. This won't be a gripe session. It will be an opportunity for me to set forth some thoughts on what works and does not work on law school essay exams.

Blogiday

2006-12-30T00:07:00.000-08:00

I have been on a blog holiday of sorts recently--taking time from blogging and other pursuits to grade a mountain of exams. And no, this is not a picture of my foot. Or my computer.

I am finally nearing the end of grading, though, so hopefully I will be back in the blog saddle very soon. Thanks for reading, and stay tuned.

Thin Line Between Love and Hate

2006-12-12T20:54:00.000-08:00

I have spent much of the past several days grading exams. The old joke is that law profs teach for free but get paid to grade--and it seems apt at this time of year. Now, before anyone takes me to task for being a whiny professor, let me say that I do not hate grading, and I take it very seriously. But that does not mean it is the most fun part of the job.

But it's certainly better than taking exams. Which gets me, at least tangentially, to a recent question posed by reader Shell of Shelley's Case. In a comment to a recent post, Shell asked: "I am curious as to what your least favorite and most favorite subjects were during law school."

Talk about flashing me back.

Favorites would include the following, in no particular order. This is a list of favorites, mind you, and not a list of courses that were necessarily most beneficial, either in a generalist practitioner sense or in the sense of being useful courses for specializing in a particular area of law. Come to think if it, those are good subjects for future blog posts in the spring, when course selection decisions are being made by law students nationwide.

But back to the question at hand--some of my favorites, in no particular order.

American Legal History. This course can be excellent for history lovers, and also for getting a broader perspective on the evolution of law in general and American legal developments in particular.
Administrative Law. This may be evidence of a character defect on my part, since many people do not like taking this class. Part of it was the prof I had (Gary Lawson, who is now at Boston U.), and part perhaps because I had very, very low expectations going in. But it was also just a fascinating course in many ways, and one I love teaching now.
Contracts. Perhaps this is more evidence of a character defect. But I loved the story of the rise and fall of formal contract theory, and how economic thought had influenced the law in this area. And it's another course I enjoy teaching.
Law and Economics. This is not a bar course, but the Law and Econ movement has had such a huge impact on the law in recent decades that I think students ignore it at their peril. And I was an economics major (undergrad and masters), so it was right up my alley. For those who think economic theory is not relevant to "real world" lawyering, can you say "policy argument"?
Civil Procedure. I honestly think I liked this course not so much for the subject as I did for the professor, Marty Redish, who was absolutely superb.
Property. Clearly I am a geek, since I seem to be mentioning far too many 1L courses. But I loved the evolution of the law in this area too.

Least Favorite courses: Actually, only 1 really comes to mind. The grand prize goes to:

Bankruptcy. Argh. I am not sure what it was about this course that I did not like, but I did not like it, Sam I Am. It had economic theory in spades, which I do generally like, and it was business-oriented, which should have made it interesting to me. It was also not my first experience with code courses, so that doesn't explain it. And the profs (there were 2, and they team-taught) were fine--I actually took them again for another course. But this course was just no fun at all. Far and away my least fun course.

All in all, part of what this list shows is that I actually enjoyed law school for the most part. And that the courses that have stuck with me over the years and influenced my thinking about the law were a combination of core (1L and bar) courses and other courses, and sometimes not the courses I would have expected. Which perhaps suggests (a) that the core courses are core courses for a reason, and (b) that students should not just blindly take what others tell them to take (i.e., the "bar courses" or the "fun courses.") But again, more on the subject of course selection in a later post.

And now, back to grading.

And in Other News . . .

2006-12-08T07:46:00.000-08:00

If you are a law student taking a break from studying for your exams, here are a few things worth checking out on the web. And if you are not a law student, please check them out anyway.

Exam Advice

At Shelley's Case, blogger Shell has useful advice on studying for exams from a student perspective. Shell's advice is always reflective and thoughtful.

Not Exactly Hell on Wheels

At the the Legal Underground, blogger Evan Schaeffer has posted a video in which he lectures on Civil Procedure while skiing. He claims in the video that he is the "first ever lawyer [to ski] while discussing the Federal Civil Rules of Civil Procedure"--at least to discuss it on tape. I am pretty sure he is right about that.

Note that Schaeffer, truly thinking like a lawyer, limits his claim to the Federal Rules of Civil Procedure. Perhaps lawyers in Colorado or Utah have covered their respective state rules while on the slopes? Or maybe someone has discussed criminal procedure rules on skis? But then again, Schaeffer's claim is not limited to someone on Alpine (downhill) skis, so he has beaten the telemarking, cross-country crowd to the punch. Which goes to show that a good lawyer knows when to qualify his claims, and also when not to.

Common Scents Advice

Over at Frugal Law Student, there is a post about ounce of prevention and sins of omission. For those who have not read the FLS, its tag line is "helping law students mitigate their crippling student loans since 2006."

My favorite advice in this particular post (which is by Mrs. FLS)? "Take care of your clothes," which translates to "don't wash your clothes more than you have to." Here's the best part:

"[W]henever I take off a shirt I smell the pits for odor. No odor, no washy. . . . And I don't wash my pants for a couple of weeks. They seriously don't smell." (emphasis added)

That's bold advice. Good advice, perhaps, but a bold statement nonetheless. The point is, many Americans do presume that if you wear it, it needs washed. In Mississippi during August, I dare say that presumption works very, very well. At least with my clothes it does. But what about in March?

To perhaps take this "thinking like a lawyer" thing too far, what happens if you have a cold and can't smell? Do you not wash if you can't smell it? Is the smell test primarily for the benefit of yourself, or others? Or would a "3 times and you're out" rule be better/safer?

Enough. Back to grading exams.

Adventures in Exam-Taking

2006-12-08T07:33:00.000-08:00

For those readers not at my law school, a fire alarm went off at the school yesterday--during my 1L Contracts final exam, no less. As if law school is not stressful enough. Fortunately it was a false alarm, and was not a prank, either. Once the alarm passed, everybody got extra time to get back in the groove of answering the exam.

Law school can be so all-consuming that your priorities get a bit skewed. When an alarm goes off, you are concerned about losing your work, not losing your skin. Or perhaps you begin to wonder whether a felony or a tort has been committed. How's that for "thinking like a lawyer"?

From my days in the practice of law, I can say that such skewing occurs there too, especially when you are billing by the hour. "That fire alarm took 0.4 hours of my day," people would say. And I have known attorneys to not evacuate a building because they were too busy. In fact, I believe I did that once or twice myself. Skewing indeed.

Even on 9/11 in DC, some people stayed in the office well after it became clear what was going on. That time, though, I did not.

'Tis the Season to be Graded

2006-11-29T14:53:00.000-08:00

Exam season is upon us yet again, which means that it is time to post advice on how to perform well on final exams, beyond just understanding the subject. I did a post a last semester that is worth reading; it is located here. It links to some other posts as well, on subjects like how law profs write exams and how to improve your grades in law school. Please check it out.

And for those who are obsessed with grades (which you shouldn't be--but more on that some other time), check out a post earlier this year about Justice Harry Blackmun's bad grades in law school.

What's to Like about Law School?

2006-11-27T07:11:00.000-08:00

A number of my recent posts have focused on law school classroom dynamics. (See Getting Called on in Class; Reading for Class; What are Your Thoughts About Law School?; and Computers in Class).) Much of my focus, and indeed the focus of comments posted by readers, inevitably has been critical, and sometimes outright negative. This is not uncommon: when people talk about law school, they almost invariably turn to complaints and criticisms. Perhaps that is just the nature of the beast. After all, legal education focuses heavily on critical thinking, so why shouldn't those skills be turned on the institution itself?

But of course, not everything about law school is a problem, or drudgery, or pain. Or is it? In the spirit of the recent Thanksgiving holiday, and in the interest of balance, I would be interested in hearing what you might actually like or appreciate about law school.

Getting Called on in Class

2006-11-15T20:47:00.000-08:00

This is being my blog, I of course think that everything I post about is interesting. (Modesty, where art thou?) Yet some subjects invariably generate more traction with readers.

My last post was one of those. If you have not read my post entitled "Reading for Class," please do, and please read the comments. It started out as an observation by me about how some students respond when called on, and from there--well, a lot of people had a lot to say. Which is absolutely great. Thanks to all who have commented.

Some of the comments addressed the pros and cons of how professors call on people in class. Different professors of course do it different ways. There is no one right way, but I suppose there are a number of wrong ways. So does anyone have any thoughts? Some points I'd like to see comments on are as follows (feel free to add others as you see fit):

Is it better to know that you are going to be called on in a particular class, or is a random method preferable?
Do you like the Socratic Method? Or, for that matter, do you really understand what it is? And if so, do you buy into learning from each other's comments and student-professor discussions in class? Why or why not?
What method of class participation or in-class commentary is your favorite? (Or perhaps more accurately stated, which method do you least dislike?)
Should class participation count toward your final grade?
Does it matter if everyone is called on in class?
Once you are called on, should you be off the hook for the rest of the semester?
What do you think of "group projects" or "group presentations" in class?

I am looking for a general sense of what law students across the country might think about the subject of class participation, especially now that the nation's 1L students have nearly a full semester under their belts. This is helpful--helps me keep my finger on the pulse, and all that. Teaching a law school class is not a popularity contest, so the point is not that law profs always should do whatever students like. But profs who do not have a sense of where their students are coming from risk losing touch with their students. And when that happens, it's really sad, both for the students and the profs. Both lose in the bargain.

So please let me know what you think. And thanks for reading.

Reading for Class

2006-11-12T21:20:00.000-08:00

Usually I do not post about specific events that happen in my classes, but today I'll make an exception. My point today is this: when the professor calls on a student to brief a case, the range of acceptable responses does not include "Oh, I read the case, but it was a few days ago and I don't remember it very well, but let's see . . . ."

I wish I had a dollar for every time I've heard this. I've heard it several times this semester. On the one hand, sure, fine. Everyone in law school is busy, right? And I think usually students are telling the truth--typically after a few minutes, memory kicks in and the student does fine. And to be even fairer, often one reason this response pops out of students' mouths is that they are worried about looking bad in front of the class and the professor. Having read but not remembered allows one to say (a) I read, so I am putting forth the effort, but (b) I'm not dense, just rusty about this case.

Yet my question is this: would this response cut it in practice? What if you are in court during oral argument? How might a judge react? What if you are giving a presentation to a client? How good will you look?

And my other question is this: could the professor get away with this statement in class?

I have said it before, and I will say it again: when you are a law student, think of law school as your career, because right now it is.

So here's what to do. First, isn't this one of the reasons to brief a case? Yes! So brief the cases, however you might do that. Second, just keep the excuses or apologies to a minimum, and do your best. That's what you would do in court, so that's what you should do in class. The silence may seem deafening as you race to come up to speed and answer the professor's question, but it's not. And again, it's good training.

I have to say in closing that I am really not upset when this happens in my classes. But I do wish students wouldn't do it.

The Pace of Law School Classes

2006-11-07T20:29:00.000-08:00

There's a nice post from the weekend over at Yayarolly Goes to Law School regarding the pacing of law school classes. You know what I am talking about--the professor who spends a lot of time on stuff early in the semester, and then in a panic covers skads of material in the last few weeks. Bad.

One of the easiest mistakes to make in teaching a law school class is to try and cover too much material. It is far better to try and cover fewer things well than to cover many things in cursory fashion. It goes back to the cliched (but true) statement about learning to "think like a lawyer." Surprisingly, however, sometimes students don't understand this, and feel cheated when you don't cover the whole book. (Kudos to Yayarolly for getting it.)

So here, in no particular order, are some of my thoughts on the matter:

I never liked it when a prof could not pace a class well. Fortunately, that rarely happened to me in law school.
Pacing a class well does not always = keeping a consistent pace. I typically move more slowly early in a course, and then speed up once we have first principles under our belts. In 1L classes this tendency is more pronounced.
All classes are different, and teaching is not a rote activity. So this also affects the pace in a semester.