Shaving down hypotheses about the relative success of the 1L curriculum

Larry Kramer thinks that the first year of law school "works." Doug Berman is skeptical. He fears, with reason, that the "tightly scripted" 1L curriculum "works well only for the rare souls (i.e., most folks who become law professors) who really enjoy figuring out the puzzles of the common law and the legal histories behind modern legal realities." As between the Kramer hypothesis and Doug Berman's alternative, I'll side with Doug. Law professors should never, ever forget that the vast majority of their students lead post-graduation lives that bear almost no resemblance to the secular priesthood that is academia. This is true even at Yale.

Meanwhile, Orin Kerr, despite "agree[ing] with with a great deal of what Larry says," believes that Stanford's dean "is overlooking something important: j-o-b-s." To wit:

By a month into their second year, many students (and almost all at a school like Stanford) are going to have lined up summer jobs at law firms. As long as they don't act like freaks over the summer, they will get full-time job offers. As a result, the rat race is effectively over for many students the moment they accept their summer positions; they pay less attention than before because, well, they can.

Gee. It must be nice to be so professionally secure with so little effort. Again: we must avoid falling into the trap of giving too much credit when people with tenure undertake to evaluate the professional prospects of people without tenure. We need an explanation that covers the substantial population of law students who don't have j-o-b-s lined up after a year at Stanford and a summer on a law firm cruise ship. Last time I checked, these students in theory can, and in practice often do, stumble through their second and third years of law school with no genuine engagement.

Inspired in part by Douglas Litowitz's cautionary tale, The Destruction of Young Lawyers, I'd like to offer a hypothesis that is as sobering as it is simple. Suppose that the 1L curriculum did absolutely nothing right. That is an extreme assumption, but extreme assumptions can help us sharpen our focus. This utterly inept first-year curriculum may nevertheless succeed in engaging law students' attention because . . . well, they're paying attention as 1Ls. Given the fatuousness of this horrifyingly bad curriculum, students then play out the string just to survive the second and third years of law school. Dead cats, so they say, seem to rebound after market crashes. The apparent success of the first-year law school curriculum may be comparably illusory. It wins by default because 1Ls -- unlike their 2L and 3L counterparts -- haven't had their spirits crushed.

Not Even Cake

A few days ago yet another Harvard underachiever scoffed at a colleague who suggested interviewing promising candidates from The University of Minnesota Law School and the University of Texas Law School. Those who went to public schools did not have their feelings hurt but considered the source.

That incident made me think about the flip side of Moneylaw. Much has been written about the positives of a Moneylaw approach but little attention has been paid to the damage done by what I regard as the opposite approach – Faculty Capture. (I am aware that Moneylaw groups could and maybe have captured some law schools but my definition of Faculty Capture means operating a law school largely to benefit incumbent faculty.)

Yet on a day-by-day basis the cruelties that occur when a law school is captured by those for whom Moneylaw is frightening are astounding. Here are some examples:

1. A student from a foreign country for whom English is not even a second or fifth language approaches the teacher for help understanding some complex material. The stress the student is feeling is obvious. His enrollment was not an inexpensive thing -- for him at least. You might ask what he is doing here. Well, a small group of faculty members decided to start a program for foreign students to come and study American law. What did this mean for the quality of the school or the fortunes of those enrolling? No one knows and after several years, no one has checked. What did it mean for those who created the program? Travel at the school’s expense spreading the news of the Program, a better office, a secretary. And, most importantly, lowered expectations as far as teaching and scholarship.

(Think of it this way. Tony LaRussa has tenure as coach of the Cards. No one can fire him, no matter what. He is not that interested in winning games but has grown fond of Indian cuisine. The team will not let him hire a chef so he puts the Indian chef at third base with promises that this will open up many opportunities. So the chef catches a few line drives in the throat. That’s okay; Tony is getting the food he likes.)

2. A number of students get to the middle of their third year with average grades (B+ or so) and they have no job offers. The School starts a new program – a specialization that takes an extra semester. Students sign up thinking this will mean a better chance of finding jobs. They are wrong and the School knows it. The cost to them is high. What is in it for the capturers? An office, the title of “Director,” lowered expectations as far as teaching and research, and travel opportunities to conferences devoted to the specialization.

(So maybe this is not a line drive to the throat. Maybe it is more like selling diet plans to Mick Jagger or Nicole Richie.)

3. Everyone reading this has experienced this one. A student comes up after class – probably near the end of the term – and asks THE question. Sadly, the question is the one that communicates to you that the student has no clue and that he or she is not going to get one between now and the exam, if ever. Further conversation reveals that the student had a pretty good job before law school. Then loans were taken out, his or her spouse is working, and the kids are in daycare in order to realize the law school dream. You wonder, first: is there anything I can do soften the crash? Then you wonder why the student was admitted. Was it because you admit 300 students every year no matter what? Or, was this particular student important – even if only as a token – to the law school?

(Line drive to the throat? Can there be a slow line drive to the throat that results in pain that lasts for years?)

4. A faculty member meets a warm and friendly lawyer from Prague and falls in love. Obviously, this means a great deal of travel and expense unless, unless. . . . Yes, by golly, the Law School, which is in a small American town in a state with no connection whatsoever to Prague or the Czech Republic, for the benefit of mankind, could set up a Program in Prague. And who would be the perfect director? – no need for a search in this case. The Czech students pay their tuition to listen to lectures in English that most do not understand and at the end they get a certificate that, well, is suitable for framing. And the capturers get many trips to Prague with stops in between and, most importantly, a sense of being oh-so cosmopolitan.

(Line drive to the throat? Hardly. A paper cut? Who cares when you are helping the world?)

Moneylaw can cause disappointment. But the victims of a captured law school seem more vulnerable and the cuts to them go deeper.

Incognito

Happy Halloween. This is a brief post about disguises, though neither as scandalous as the New York Times' recent examination of women's Halloween costumes nor as sublime as Judge Noonan's Persons and Masks of the Law. Instead, I ask a simpler question: Professor, who are you in disguise?

With the rise of empirical legal studies and other interdisciplinary approaches in the legal academy, many teachers of law have suddenly acquired a professional incentive to engage in a Walter Mitty-like quest for some identity, any identity, that distinguishes them from every other holder of an unadorned J.D. I count myself among those members of the legal academy who lack official sanction in the form of a "real" doctorate. In other words, I have to fake it. But, hey, it's Halloween. It's time to play dress-up.

If you need some excuse to engage in this exercise, remember that it's the week of the annual recruiting combine. It's not a bad idea at all to ask faculty candidates about their intellectual role models, both within the law and outside it.

I suggested a little while ago that Leibniz might make a good role model. There is no shame in wearing Leibniz's mask, since he did go to law school and managed despite that to ensure that his life wasn't a bankrupt evil waste. But I now wonder whether I'd rather dress as Rasmus Rask for Halloween. He worked on laws, after all, albeit of the sort that no court or legislature could ever dictate. And Rask recognized -- and rationalized -- patterns in speech that now allow us to glimpse the very "atoms of language," the intellectual building blocks by which we assemble that greatest of human accomplishments, spoken language.

So. Now that I've told you my Halloween plans, you tell me. What's your disguise?

Editor's note: Posted simultaneously at Jurisdynamics and at MoneyLaw.

In Praise of Incivility: Priss and Circumstance, . . . and Neville Chamberlain

Obviously, a Moneylaw approach to administering a law school scares the hell out of people, especially if they are comfortable being a Devil Ray, Royal, or Rocky. But it's also likely to worry those at higher-ranked schools when the conversation turns to ignoring credentials and other symbols of institutional authority, conducting serious and substantive post-tenure reviews, or auditing pet programs.

Let’s face facts. Most law faculties are clubs. Once you’re in, it’s for life and as a tenured colleague on my faculty recently told an untenured colleague, “it’s not enough to be colleagues, you really need to at least act like you are a friend.” (Civility-speak for "kiss butt kid or you are out of here.")

Appeals to civility are critical as means of perpetuating the club and heading off a Moneylaw approach. Civility standards are, after all, invariably “drafted” to protect the positions and status of those in power.

In the prissy world of law professors-- the world of the velvet mob -- it’s nice to think civility is about respect and the form of discourse. That is a fantasy. It is just as likely to be about disrespect and anti-intellectualism. When questions of civility are raised, it is rarely about form. Instead, it is a means of defining the topics of discourse and even the positions expressed. It does this in two ways. An unpopular view expressed civilly can be ignored because no one in the club need pay any attention. The same view expressed loudly and aggressively is obviously to be ignored since it comes from a person who is behaving unacceptably.

If the quietly expressed view seems to be gaining traction at all, the response will be "I am offended!!” or “That is inappropriate”(the latest most overused word which actually means "I do not like what I am hearing"). Those charges, along with the threat of being labeled a racist, are brick wall discourse stoppers exactly at the point at which the discourse gets interesting -- most likely when something substantive is said that could have an actual impact on the club.

Let me give an example. At my school for years faculty had family members in their classes and generally the family members got A’s. It was evidently an accepted benefit of being a club member. (Think of it as a discounted green fee at the country club.) Trying to begin a conversation about whether this was a good practice – no matter how politely -- could quickly be met with “I am offended, you are accusing me of being dishonest.” Eventually, agitation embarrassed the faculty to take action and forbid the practice but appeals to civility retarded the action for several years.

Now think about the prospects for having a civil conversation about whether tenured faculty have been sufficiently productive or whether a program should be discontinued. It this really going to be carried on in carefully measured tones with appeals to reason? Or, is the very topic likely to raise the hackles of those threatened to the point that there are “friends” and “enemies” and “offense” is taken? Those threatened will be the first to raise the shield of civility. Behind that shield are some very nasty goings-on and the velvet-gloved mob. Civility is like a giant thumb on the scale in favor of the status quo.

And now for those unschooled in civility here are some translations:

1.The civil version: Your analysis is incredibly astute and I had a small concern about one little passage and I am only worried that someone else might bring it up.

Actual meaning: I don’t think your analysis is correct.

2. The civil version: You are one of our most productive people. Lately I find myself uncomfortable with what I must have done that is preventing you from doing what you love -- scholarship.

Actual meaning: One article every two years is not enough for someone making that much money.

3.The civil version: Do you think we really have a chance at hiring your son in law? Wow, being on the faculty with someone as productive as you could really put some pressure on him.

Actual meaning: I think it is a bad idea to hire your son in law until we have conducted a search for the best candidate.

Some advice for dean search committees

I've been writing and blogging about the USNWR rankings (see Ratings, Not Rankings and Eating Our Cake and Having It, Too) and about how people tend to confuse the ranking of a school with the qualifications of individuals at that school. That confusion muddies the waters for potential students, for faculty candidates, and even for dean candidates. Several of my friends are currently involved in dean searches--either on the committee end or the candidate end--and I thought I'd weigh in on some issues for the search committees to consider. So, for what it's worth, here's my advice:

1. No dean's skills can fit every school's most pressing needs. The search committee, the law school, and the university need to think HARD about the most important next priorities for the school, because different candidates have different strengths, and different schools have different priorities. Does the school have some internal rifts (with faculty, with the central administration) that need to be addressed? Does it need to reach out to external communities? Does it need a large infusion of funds? Does it need encouragement to rethink its curriculum or to increase its scholarly productivity? Does it need to make a "splash" to become better known?

Schools grow in stages, and no dean can come in and "fix" everything all at once. In fact, deans can't "fix" anything by themselves. The whole community needs to pitch in. (That's part of the point of the Indiana Law Journal piece mentioned above.) Try to figure out the school's likely next move (its most pressing need), and look for dean candidates with a skill set that will match that need.

2. Deans can have "vision" (and should), but the faculty is key to any execution of that vision. Try not to force the candidate to come up with a definitive vision for the school before the candidate has a chance to get to know that school. (Certainly, the "airport interview" stage is too soon.) Candidates can have tentative thoughts about the vision for a school while they're interviewing; but the dean that you're hiring needs to get to know the school before he or she can possibly form a sharper vision about the school and its direction. By the way, please don't put internal candidates at an interviewing disadvantage. Don't ask them questions that you're not asking external candidates--such as their vision for the school--until you reach the stage at which you're asking the external candidates that question. If they volunteer their vision at an earlier stage, of course, listen hard. That's one of the advantages of being an internal candidate: you do know the school well.

3. Unless your school absolutely, positively needs to hire a "name" to make a splash, take some risks. The skill set that every dean should have will include the ability to balance the wishes of multiple constituencies, to be comfortable relating to a wide variety of people in large group settings and one-on-one, to be skilled at fundraising, to lead AND to manage (those are different skills, and few deans will be equally skilled at both, but a dean does need to be able to do both), to understand budgets, and to lead by example in terms of a work ethic. It's certainly a big plus if the dean is a skilled teacher and a respected scholar--especially because a smart dean candidate will bargain for tenure as part of the contract. But committees and faculties that focus more on the dean's "faculty" attributes than on the dean's "deaning" talents will be missing some very good candidates. Yes, the dean must blend with the faculty in terms of his or her teaching and research talents, but deaning is managerial by nature. Deaning involves a learned set of skills--skills that many wonderful professors don't have and aren't that interested in pursuing.

Paul Caron and I have had a really nice dialogue about whether deans should continue to teach and write while they're busy being the dean. It sure helps to have a dean who's not afraid of stepping down and who doesn't need to stay dean from a fear that he or she can't do anything else. There are some times when a dean must step down. Take a look at Kent Syverud's new article in the most recent Journal of Legal Education: How Deans (and Presidents) Should Quit. It's just superb.

Back to the point. TAKE SOME RISKS. Don't look only at sitting or former deans. Take a look at associate deans, clinic directors, legal writing directors, and heads of academic programs and centers--these folks have track records in many of the same job requirements. Take a look at professors who ran businesses in their "prior" lives. Don't spend so much time caring about the candidate's rankings (e.g., where the dean candidate currently works, where the candidate went to undergrad or law school). This is one time that you need to pay more attention to the individual than to any proxy variables for predicting quality. Rankings only address the proxy variables.

Some schools have been very, very successful at hiring a dean who worked outside the academy because of specific needs those schools have. BE CREATIVE, especially in reaching out to the initial pool of candidates. (And it should go without saying, but I'll say it anyway: professors of color and women have had extra demands on their free time through their years in the academy--typically, too many committee assignments compared to their colleagues, significantly higher mentoring of students and, often, more speaking engagements--so read their CVs with a deeper understanding of the many unwritten demands on their time.)

Broaden your search pool by asking deans at schools you admire for their suggestions. Some schools do very well by hiring consultants or search firms; other schools don't. Ask your colleagues to nominate candidates. REACH OUT.

4. Ask useful questions and get useful references. The best predictor of future behavior is past behavior. Ask each candidate for specific examples of past behavior as that behavior relates to the person's vision, planning, budgeting, fundraising, constituent-balancing, etc. experiences. ASK HARD QUESTIONS. Don't be afraid to give hypotheticals to the candidate. Ask the candidate about what he or she learned from prior failures. (Failures are much better teachers than successes, but you knew that already.) Without outing a candidate (ESPECIALLY a sitting dean candidate), find out when you can ask people who aren't listed as references about the candidate. But beware of (a) mobbing behavior and (b) anonymous blogs. Then be as specific with the "cold-call" references as you were with the candidate. Follow up the reference's comments with requests for specific examples that back up those comments. And everyone in the process--dean candidates, search committees, law school community members, provosts--need to ask the traditional question that lawyers ask their witnesses as they're preparing them for testimony: "What should I have asked you that I haven't asked already?"

5. Remember that everyone has baggage. Sitting deans have made enemies. So have associate deans and program heads. Internal candidates have special problems with baggage, because everyone's viewing those candidates through the lens of how they "grew up" in that particular law school community. Take a look at How We Talk Can Change the Way We Work: Seven Languages for Transformation, by Robert Kegan and Lisa Laskow Lahey. That book has good advice for changing the way you think about your colleagues. Bottom line here: cut your internal and external candidates some slack. People who make decisions will have enemies, and you don't want a dean who can't make decisions.

6. Dean candidates are human. They need rest breaks, food breaks, and restroom breaks. Sometimes, the two- and three-day interview schedules don't allow for those breaks. I used to call this the dean-interview diet: schools show you food but don't give you time to eat any of it. A good reason for these tight schedules is to mimic the dean's schedule in real life. Just don't get carried away.

7. Pay attention to your HR and affirmative action training. As much as you can, keep the experiences the same for all candidates, and don't ask the illegal questions. Your candidates are learning as much about you as you are about them, and they'll take their impressions of you with them whether or not they get the nod for the job.

8. Pay attention to what the candidates aren't saying as much as what they are saying. I really like Malcolm Gladwell's book Blink. Get a feel for your initial reaction to each candidate. You're probably picking up some unspoken, unconscious information that the candidate is projecting, including how much the candidate believes in what he or she is saying during the interview. But don't take this advice too far, especially when you're interviewing non-traditional candidates--and, yes, particularly when you're interviewing candidates of color, women, and GLBT candidates. Any discomfort that you might be feeling might just be a reflection of your lack of familiarity with people in one or more of those groups and not a signal that the candidate is a poor fit for your school.

9. If you want your school to change, you have to be willing to do things differently. I've visited with chairs of dean search committees who have asked me for recommendations for candidates and who want their schools to change in some significant way with the new dean. If the school isn't willing to change the way it (insert your school's pressing need here) rewards research, interacts with the legal community, balances teaching loads, creates new programs, etc., then what it really wants is 180 degrees different from what it says it wants. Unless the school is willing to do things differently, it really wants just to stay the same, and it wants to be able to blame the incoming dean for the fact that it will stay the same.

Many law schools, though, really don't need to change; they just need to tweak some things. If you don't want your school to change dramatically, tell your candidates that. There are some wonderful candidates whose strengths include changing only at the margins, not at the core. There are also some wonderful candidates who are only interested in serving at schools that want to make big changes. Get the right dean for your school.

10. Remember that the dean's role is a service role. Beware the candidate who doesn't love (and I mean LOVE) helping other people achieve their goals. That's the bottom-line job of a dean. Great deans give their communities support in all sorts of invisible ways. They sacrifice a great deal of their own careers in the process. (See my draft of Not Quite 'Them', Not Quite 'Us'. I'd still love your comments on this draft, which I'm in the process of revising.) Mind you, every dean candidate has to have a healthy ego, because he or she has to be able to get up, make decisions, and deal with the consequences of those decisions. Only someone with a healthy ego will have the confidence to risk making decisions, day after day. But if you get even a whiff in the interview that the candidate's ego is out of control, or that he or she wants to be the dean because it's "glamorous" or profitable, that's a huge red flag. Being a dean has its perks, and some of those perks are due to the types of things that deans get to do. (Jeff and I got to fly in NASA's actual shuttle simulator, and I got to throw out the first pitch at a Nebraska baseball game. Yes, I threw overhand.) Some of those perks involve salary, housing, parking spaces, superb support staff, etc. But trust me, being a dean is at the very least a 6-day-a-week job. Deans are on-call all the time. Being a dean is supremely hard work. You want your dean to be the dean because she believes that she can help the school achieve some of its goals. (Not to beat a dead horse, but that's why you want a dean whose talents fit the school's needs.)

I'm also happy to give free advice to dean candidates. (To get a feel for my background as a dean, see, e.g., Going from 'Us' to 'Them' in Sixty Seconds, Of Cat-Herders, Conductors, Tour Guides, and Fearless Leaders, 'Venn' and the Art of Shared Governance, and Decanal Haiku.)

Deaning is hard work, but it's also one of the most exhilarating jobs I've ever had. I was able to use my "lawyer" brain to solve problems in my favorite environment--the university setting. Even though I don't ever plan to become a dean again, I really did love the (overall) experience at each of the schools that I was privileged to serve. But because I don't want to be a dean again, I'm happy to be a "safe person" for candidates to contact. (And if you're the right person to succeed Dick Morgan as dean of UNLV when he retires next summer, apply!) Just remember: free advice is worth what you pay for it....

Wishing the schools and the candidates the best,
N.

And MORE Fuel for Nancy's Fire!

Over at Legal Profession Blog, I've commented on and linked to some additional data from the Wall Street Journal's special issue on the corporate recruiters' ranking of national and regional business schools, and particularly, the characteristics recruiters want to see in the students they hire.

Aha! It IS possible to have statistically significant rankings!

I've been traveling a lot during my sabbatical, mostly talking about Enron and related issues, and I picked up a copy of Business Week in the airport yesterday. The latest issue ranked the top B-schools. Business Week's rankings are calculated very differently from the rankings by U.S. News & World Report.


What does Business Week do differently? Well, for one thing, it surveys people with direct knowledge of the various schools. Check out this quote: "Through all of this, the ranking has centered on one thing: customer satisfaction. We measure this by surveying not just thousands of students but the corporate recruiters who hire them." And how does Business Week conduct its survey?

45% of total score: student satisfaction surveys.

• It sends out 50-question questionnaires to "16,565 Class of 2006 MBA graduates at 100 schools in North America, Europe, and Asia"--and gets an over-5o% response rate. The schools help Business Week contact the grads (except for Harvard and Wharton, but even for the graduates of those schools, Business Week was able to "reach 39% of the Class of 2006 at those two schools"). (This methodology reminds me of the Law School Survey of Student Engagement's methodology.)
• It uses a web-based survey instrument for ease of response.
• Its questionnaire covers such issues as teaching quality and career services.
• The responses (culled to eliminate responses from low-response rate schools) make up 50% of the "student satisfaction" score.
• The remaining half of the student satisfaction score comes from surveys of the class of 2002 (25% of student satisfaction score) and the class of 2004 (ditto).
• All of the responses from the students are then reviewed by psychometricians to ensure that the data aren't skewed.

45%: recruiter polls.

• Also a web-based survey.
• Over 50% response rate.
• Each company was allowed to fill out one survey, to reduce possible distortion of results.
• "Recruiters were asked to rate their top 20 schools according to the quality of a B-school's grads and their company's experience with MBAs past and present. Companies could only rate schools at which they have actively recruited--on campus or off--in recent years." (Emphasis added.)
• Each school's recruiter-poll score was divided by the number of companies recruiting at that school.
• Business Week followed the same weighting of 50% for input by recruiters about the class of 2006 recruits, 25% for input about the class of 2004 recruits, and 25% for input about the class of 2002 recruits.
• Once again, Business Week culled out the low-response-rate schools.

10%: intellectual capital.

"[W]e calculated each school's intellectual-capital rating by tallying faculty members' academic journal entries in 20 publications, from the Journal of Accounting Research to the Harvard Business Review. We also searched The New York Times, The Wall Street Journal, and BusinessWeek, adding points if a professor's book was reviewed there. The scores were then adjusted for faculty size. The final intellectual-capital score accounts for 10% of a school's final grade."

Now, compare Business Week's methodology to the methodology used by USNWR for its law school rankings:

Quality Assessment (weighted by .40)

Peer Assessment Score (.25) In the fall of 2005, law school deans, deans of academic affairs, the chair of faculty appointments, and the most recently tenured faculty members were asked to rate programs on a scale from "marginal" (1) to "outstanding" (5). Those individuals who did not know enough about a school to evaluate it fairly were asked to mark "don't know." A school's score is the average of all the respondents who rated it. Responses of "don't know" counted neither for nor against a school. About 67 percent of those surveyed responded.

Assessment Score by Lawyers/Judges (.15) In the fall of 2005, legal professionals, including the hiring partners of law firms, state attorneys general, and selected federal and state judges, were asked to rate programs on a scale from "marginal" (1) to "outstanding" (5). Those individuals who did not know enough about a school to evaluate it fairly were asked to mark "don't know." A school's score is the average of all the respondents who rated it. Responses of "don't know" counted neither for nor against a school. About 26 percent of those surveyed responded.

Selectivity (weighted by .25)

Median LSAT Scores (.125) The median of the scores on the Law School Admissions Test of the 2005 entering class of the full-time J.D. program.

Median Undergrad GPA (.10) The median of the undergraduate grade point average of the 2005 entering class of the full-time J.D. program.

Acceptance Rate (.025) The proportion of applicants to the full-time program who were accepted for entry into the 2005 entering class.

Placement Success (weighted by .20)

Employment Rates for Graduates The employment rates for 2004 graduating class. Graduates who are working or pursuing graduate degrees are considered employed. Those graduates not seeking jobs are excluded.

Employment rates are measure[] at graduation (.04) and nine months after graduation (.14). For the nine-month employment rate, 25 percent of those whose status is unknown are counted as employed.

Bar Passage Rate (.02) The ratio of the school's bar passage rate of the 2004 graduating class to that jurisdiction's overall state bar passage rate for first-time test takers in summer 2004 and winter 2005. The jurisdiction listed is the state where the largest number of 2004 graduates took the state bar exam.

Faculty Resources (weighted by .15)

Expenditures Per Student The average expenditures per student for the 2004 and 2005 fiscal years. The average instruction, library, and supporting services (.0975) are measured, as are all other items, including financial aid (.015).

Student/Faculty Ratio (.03) The ratio of students to faculty members for the fall 2005 class, using the American Bar Association definition.

Library Resources (.0075) The total number of volumes and titles in the school's law library at the end of the 2005 fiscal year.

(By the way, to get the detailed methodology, I had to subscribe to USNWR's premium edition. The free version only describes the methodology in general terms.)

I'm on record in a number of different places regarding the false precision and dangerous use of the USNWR rankings. See my SSRN page for some of my work in this area: especially Ratings, Not Rankings and Having Our Cake and Eating It, Too.

What are some of the differences between Business Week's methodology for ranking B-schools and USNWR's methodology for ranking law schools? Among other things:

• Business Week measures what happens during the degree program (student satisfaction) and how employers feel about the students graduating from various programs (employer satisfaction). USNWR measures inputs (LSATs and GPAs) that don't describe the student experience at the law schools. It does, however, provide two scores that have meaning to potential students -- placement rate and bar passage rate.
• Business Week's survey has a bigger n of respondents when it comes to student satisfication, and it takes only one response from each company in the recruiter score.
• Business Week uses more objective measures for the intellectual capital of the faculty of the B-schools. The closest ranking system of intellectual capital of law school faculties is Brian Leiter's system.
• Business Week only ranks the top schools, not 100% of all B-schools.

Business Week's rankings aren't perfect -- like all rankings, Business Week's rankings exaggerate the difference among tightly compressed schools. Anyone who sees a real, meaningful difference in the quality of education among the very top schools needs to be buying bridges from Brooklyn and London. But at least Business Week is trying to get things right.

The hope for improving USNWR's rankings methodology, expressed in Ted Seto's draft, is optimistic, although I applaud Ted for trying. If we're not going to get rid of rankings that confuse more than they edify, at least let's have a variety of different rankings, so that potential students have different ways of looking at the data. And for goodness's sake, let's not confuse the rankings of institutions with the quality of individuals from those institutions.

What does Jeff Skilling have to do with faculty hiring and dean searches?

In a Jurist Forum piece earlier this week, I reacted to Jeffrey Skilling's use of the word "disappointed" to describe his 24-year sentence. In between my paragraphs excoriating him for what he allowed Enron to do, I wedged in a reminder that demonizing him is unfair. From my obsessive reading about Enron, I formed a picture of what Skilling was like as a person. That picture may be true, but I'll never know. And having been on the ugly, receiving end of email and web-based attacks in the not-so-distant past, I felt an obligation to highlight the fact that he's not a demon but a human.


Why remind people of this fact now? Because it's hiring season in law schools. Search committees, especially those looking for lateral hires, will have plenty of opportunities to get references from a wide variety of sources. If you're on a search committee, you'll hear from the candidate's references and from the candidate's colleagues who weren't listed as references. Aside from the usual caution of "outing" lateral candidates before they're ready to be outed -- also a problem in dean searches with candidates who are sitting deans -- I want to call your attention to a wonderful article from the Chronicle of Higher Education. In the April 14th issue, John Gravois wrote a piece called Mob Rule: In department disputes, professors can act just like animals. Gravois discusses the research of Professor Westhues at the University of Waterloo. Here's a quote:

A mobbing is like a tornado spun off from a spring rainstorm -- a fervent collective assault that escalates from an ordinary conflict.

What happens in a mobbing is that everybody gets lined up on one side, with one or a few targets on the other side who are demonized as being beyond the pale.

This article is juicier than I've described, and it makes for important reading for search committee members. As they start to hear about a potential lateral candidate's behavior, they should be careful to listen for certain tropes. It's always possible that the discussions of a candidate's personality are accurate, and that the candidate is truly a piece of work. (Search committees should also beware the unanimous but extremely vague praising of a candidate, on the off chance that the candidate's current colleagues want him off their hands as soon as possible.) The more nuanced the references' comments are, the less likely it is that the candidate is being mobbed. I can assure you that law schools aren't immune from mobbing behavior, and laterals are at a disadvantage if they're trying to move away from such behavior. Perhaps the best advice for members of search committees is twofold: read Malcolm Gladwell's book, Blink, to get a feel for your own reactions to a candidate, and then think about the context of any reference's comments.

It's also dean-search season (although I don't think that there's ever an off-season for dean searches). Mobbing behavior can certainly apply to administrators, and now dean candidates also have to worry about stealth mobbing attacks on the Web. Another important Chronicle article, Unleashing the Vitriol, discusses the new tool used by cowards with an axe to grind. When they want to trash a candidate, they blog about unsubstantiated rumors -- often anonymously -- to the search committee, which necessarily slows down the process and also endangers the candidate's chances. Don't get me wrong. I'm in favor of getting information about sources other than the candidate's suggested references, and I'm in favor of tracking down rumors. Committees and faculties must do due diligence on their candidates. But because the Internet raises the stakes on a game of "telephone," any unsubstantiated (or substantiated but disputed) allegations can take on a life of their own. (As I was coming home to Houston this morning, I read about Stephen Colbert's use of "fill in the blanks" interviews with politicians as a way to create new and obviously untrue rumors. I love The Colbert Report -- though not as much as I love The Daily Show -- in part because Colbert's satire strikes so close to home to some "real" news shows.) Like Colbert's televised mock interviews, blogs can create and spread rumors quite efficiently. My advice for search committees? It's important to check out rumors, but treat the anonymous ones with some skepticism. In a few cases, the bloggers are anonymous because they truly fear retribution; often, though, anonymous comments are the last refuge of bullies.

More on my advice for dean search committees later in the year (after I finish some long-overdue drafts).

Curriculum Reform and the Myth of the Horizontal Organization

Rather repeat a previous and, I think, relevant post from Legal Profession Blog over here on the "revised curriculum" debate, I'll do a quick synopsis, and provide a link.

It's interesting to me that I've not seen any linking up of the Harvard Law School curriculum reform agenda with the broader Harvard general education curricular reform package, which was announced several days ahead of the law school's initiative. (To be fair, Jim's post below touches on the relationship between a general liberal education and a legal education.) I blogged about the latter issue in connection with a blogosphere debate in which the folks at Empirical Legal Studies and Larry Solum, among others, chimed in.

Over gumbo and crawfish etouffee, Jim and I talked about this subject several weeks ago, and it struck me again as I looked at the last couple posts on a three-year curricular plan. Tevye, in advising his daughter about the problems of inter-marriage, says "a fish could marry a bird, but where would they live?" The myth of horizontal organization is that you can keep a business organization dynamic and growing merely by agglomerating value-creating specialties. But if that's the case, it's like fish and birds, and who sees the places where neither of them live? Either everybody is responsible for the gaps between specialties (which means nobody is responsible) or nobody is responsible. So in Jim's proposed curriculum, when the students reach the third year, which specialists in the legal academy are going to teach the "capstone" course, whether business-oriented or otherwise?

I'm not prepared to consign the third year of law student to adjuncts and professors of the practice (unless I'm one of them, in which case, ignore everything I've said). I still think this is what Larry Solum was getting at in his discussion of cross-disciplinary skills and tools. A legal academy without deep specialization diminishes its claim to scholarly bona fides; one without that gap-filling threatens to become, as Jim and others have said, an odd way station on the way to the bar exam and to practice. Is it Chicago that asks faculty to teach a subject wholly outside the professor's field on a regular basis? I take Jim's proposal to teach tax in that spirit of gap-filling.

Let's mess with taxes

James Edward Maule strikes again. His comprehensive response to my post on tax law in the first-year curriculum, Wisdom from Whatever Source Derived, is so comprehensive that a proper reply on my part would demand an entire week of posts. So here's a first step.

Come the revolution, both Texas and legal education will be littered with dead armadilloes in the middle of the road

Let's mess with taxes. Indeed, let's mess with the entire curriculum. This is a variation on a challenge posed by my MoneyLaw colleague, Doug Berman in his thought experiment on reinventing the first-year curriculum. What if law school looked like this:

1. Christopher Columbus Langdell is dead, and we are not. So let's devote huge chunks of the first year to methods, research, writing, advocacy, and problem-solving. As matters stand, we purport to teach research and writing using problems in substantive areas that our students haven't encountered. More of the same won't hurt.
   
   I hasten to add that the first year would also be an excellent time for courses that bridge the liberal arts with legal education. Legal history (especially if taught with a keen sense of economic, social, and cultural history) and jurisprudence would fill the bill. And for students who managed to dodge the liberal arts altogether as undergraduates, the first year of law school would not serve as a complement to a liberal arts background, but rather as a substitute.


2. Students so prepared can devote their second year to substantive areas of law. They won't need eight semester hours to master contracts and torts in separate courses. By this point, for instance, the students will be sophisticated enough to grasp everything from consideration to promissory estoppel to the transformation of warranty into products liability in a single four-credit package.


3. The third year can be an extension of the second year's emphasis on substance, but with a twist. Now would be an excellent time to relate everything that the students have been learning to the contexts in which they will actually be working. This is the time for clinical experiences, for journal work, for "capstone" courses. Yes, I'm partial to novel subjects such as disaster law. But wouldn't it also be nice, for instance, if our students could learn ow to handle all the issues that might arise in a single line of productive enterprise? Being able to advise a business owner on every aspect of her or his line of work would be a valuable talent. Being able to leverage a law school education into entrepreneurship would be even better.

I don't pretend for a second that this plan for messing with taxes has a prayer of being implemented. But we can start by tinkering at the margins. When the baseline is continued adherence to an obsolete curriculum that bears little if any relation to the lives that most of students will lead beyond graduation, we have very little to lose. And perhaps, just perhaps, we have a world to win.

Kempf on Spitzer - Or How I Learned to Stop Worrying and Love the Wall Street Journal Op-Ed Page

I love the Wall Street Journal. There, I've said it. I don't read much of Section C (unless my currency futures contracts are top of mind that day), but I love the Personal Journal, and the three right, center, and left articles on the front page (that's the location, not the political bent). I also love the op-ed page. Now the left-hand column of unsigned editorials is, even by my standards, neo-Neanderthal, and I don't share Larry Ribstein's unabashed regard for Holman Jenkins who appears regularly on the facing page. In fact, that's what got me going this morning. Holman takes off against the antitrust laws today, even in their core horizontal anti-pricing fixing mode. That's a position well to the Cro-Magnon of even my old antitrust professor, the late great Bill Baxter, the first chief of the DOJ Antitrust Division in the Reagan administration. (Bill didn't truck much with any vertical theories, but he viewed core price-fixing as a sin against micro-economics.)

But my faith in the WSJ op-ed as an open forum was restored when I looked back and saw that Don Kempf, former Kirkland & Ellis partner, and former GC of Morgan Stanley (and one of the country's great commercial trial lawyers) was praising the socks off Eliot Spitzer, who is usually Public Enemy No. 1 on the very left-hand side of that page.

Why? Because everything was so against type, from the Journal's willingness to publish the article, to Kempf's non-doctrinaire view of the world, to the expression of respect and regard for someone whose views do not wholly align with your own.

I am currently registered to vote in Marion County (Indianapolis), Indiana, and there is a race for Marion County Prosecutor between the Republican incumbent, Carl Brizzi, and his challenger, the mayor's former deputy, Melina Kennedy, who also happens to be a friend of mine. (Full disclosure: I almost always vote for my friends, particularly when they are running against each other, and I intend to vote for Melina.) These are two good, honorable people (for people willing to subject themselves to the voting approval of the masses). Brizzi's focus has been on Melina's lack of experience as a trial lawyer (now I never saw Adam Schiff actually appear in court - he just second-guessed Ben Stone and Jack McCoy, and generally at forty-two minutes past the hour - cha-chong!). But why, instead of his ads sounding like she's a dolt, can't it be: "she is a fine person and a fine lawyer, and perhaps a fine administrator, but one prerequisite of this job is and should be experience as a trial lawyer, and she doesn't have it." That's a fair and honorable position.

Let's see. This post was about civil discourse. Yes.

UPDATE: The question has been raised (note the deliberate use of the passive voice) what this has to do with Money Law: the art of winning the unfair academic game. The answer is - I think a lot about civil discourse, and the law school's role in teaching it. I was honored to be able to talk to the Tulane faculty today about about a work in progress, and somehow, at least on one of the questions, we were able to honor the integrity and articulateness of the challenge to the thesis (as between questioner and responder), and the thesis, and yet still hold to our positions. Is that because neither of us really have a stake in it? Maybe I'm naive, but that has been the constructive and thoughtful tenor of most of my formal and informal discussions with the academy. What if the discussion had real economic or political consequence turning on it? Does the discourse become less civil? And does that explain the nasty edge to the debate between two, by all accounts, honorable lawyers running for Marion County prosecutor? Sorry for not making that clear earlier.

Why you'll never find Antonin Scalia in the Hall of Fame

Justice Antonin Scalia, a meticulous judicial craftsman? Don't believe the hype. Jurisdynamics has excoriated Justice Scalia for pandering to creationists. And now Ratio Juris trashes Justice Scalia for muffing the rules of baseball. The upshot? Antonin Scalia is one of the most careless jurists ever to sit on the Supreme Court.

Glad to Be Here

That was a staggering introduction. My co-editors at Legal Profession Blog, the incredibly accomplished Alan Childress (Tulane Law School; Visiting Professor, GW) and Mike Frisch (Georgetown), and I have been trying to create an interesting mix of substance, academic perspective, insight into the practice, law and society issues, and ethical and disciplinary regulation. Please visit us over there.

Every once in a while, I get this incredible impulse to blog on a matter that even I can't figure out how to link back to the legal profession (I managed to get in something on my beloved-but-until-this-season-long-downtrodden Detroit Tigers, right). Jim Chen has been kind enough to offer another forum, and as to those particular exercises in random thinking, Alan and Mike are just as happy, I think, to have them somewhere else.

In fact, I see that Jim has posted something over on Jurisdynamics about The God Delusion by Richard Dawkins, and I'll be back with a response some time in the next few days! That's scary, because Jim is really smart, and I'm . . . well, not as smart as Jim.

Jeff Lipshaw joins MoneyLaw

MoneyLaw warmly welcomes Jeff Lipshaw to its circle of contributors. Along with S. Alan Childress and Michael S. Frisch, Jeff is a founder and editor of the Legal Profession Blog, a fascinating new blog on the legal profession and its myriad wonders. (Observant readers will notice that the sidebar now sports a dynamic preview window for the Legal Profession Blog. Blogrolling is de rigueur, but no one does it quite like Jurisdynamics Network webmaster Gil Grantmore.)

Much more can -- and will -- be said of Jeff, who has one of the strongest and most versatile private law packages that this entry-level hiring market (or any other) has seen, but for now I will be content to report an eyepopping pair of numbers:

Total downloads of all papers by Jeffrey M. Lipshaw:  1,121
Number of abstracts and/or full text documents for Jeffrey M. Lipshaw:  10

You can check Jeff's latest numbers for yourself.

Please join MoneyLaw in extending a warm welcome to Jeff Lipshaw.

The Matrix

I think everyone has seen the movie, The Matrix. If you have not, it portrays the battle between being "real" and feeling good. In effect, machines have taken over the world and cultivate humans as an energy source. They--the humans--actually grow in really yummy looking little pods. They are content because whatever consciousness they have is simply the result of a computerized reality.

Some bothersome Moneylaw-type humans are actually fighting for real reality even though it means some unhappiness. In the movie, the evil forces are those who want to perpetuate the sense of well-being. Thus, the movie assumes, counter to what the current demand for mood-altering drugs indicates, that we are instinctively on the side of those who fight for the real reality. The movie skips over a question that philosophers have addressed one way or another for centuries. Are we actually on the side of the real? Descartes saw the issue as whether our consciousness is imposed by some outside force or the result of our free will. The idea is reflected in Robert Nozick's Anarchy, State, and Utopia when he asks whether we would willingly enter an experience machine. In the machine everything is dandy, and you do not recall that you opted into the machine. Nozick makes the case that there are reasons for not entering the machine.

Most law professors seem to crave the painlessness of the Matrix. In terms of the experience machine, it amounts to a preference for sensing that one is part of a productive endeavor over actually being part of a productive endeavor. Having gone through the contortions necessary to change perceptions of themselves, their schools and programs, they then begin to take satisfaction from those appearances as though they were real. In terms of the film, it is comparable to constructing the Matrix or Nozick's experience machine and then happily jumping in. The pull is irresistible to many. Indeed, the unhappiest people I have known in the academic world are those who are unable to suspend their disbelief sufficiently to enjoy the illusion.

Some features of the Matrix are:

1. A new professor is asked to write an article for a symposium by a senior colleague. The article is called “referried” because no law review students were involved. The article comes out and the senior colleague publicly congratulates the new professor and reviews the article for tenure purposes.

2. A popular faculty member is proposed for tenure. His teaching evaluations are good to average. His volume of scholarship is high. In the file is a negative letter from a national expert asserting, correctly, that 30% of the candidate's work is recycled from earlier work. After twenty minutes of laudatory commentary at the tenure review meeting, nothing is said about the negative letter and its claim.

3. Another popular candidate is proposed for tenure. She, her husband, and their children are regulars at faculty social events. Dinner at her house is always fun. Her teaching evaluations are average and class visits reveal that she is, at best, an average teacher. In addition, even though she has met the numerical requirements for number of articles to be granted tenure, most of her writing came in the last year. Both of her last two articles--one of which was a fifteen-page symposium piece she submitted at the request of a friend--were in manuscript form when evaluated. The tenure vote is positive.

4. A faculty member travels to Italy where he has family members. He proposes starting a summer program in Italy. None of the students at your school speak Italian, your state has little trade with Italy, and United States law would be taught at the summer school. At least two other faculty would travel to Italy, at the school's expense, in order to do the teaching. The program is approved by the faculty.

5. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. The reasoning is that you would still comply with accreditation requirements.

6. You have read this list and decide none of this has happened at your school.

What would a "fresh" 1L curriculum look like?

Jim was kind enough to allow me to leverage my new blog adventure, Law School Innovation, into a chance to hang out in his neck of the blogosphere. Eager to join in, I have a thought experiment that riffs on Jim's post about James Maule's post on Harvard's reforms to its 1L curriculum:

Suppose a (crazy?) university president told his law school dean that she and her faculty had to completely overhaul the 1L curriculum and could only retain one "traditional" 1L course in each semester of the first year.

What sort of curriculum might emerge from this overhaul?

Might it have some real "MoneyLaw" virtues?

Douglas Berman joins MoneyLaw

Douglas A. Berman of The Ohio State University's Moritz College of Law has joined MoneyLaw. The longtime editor of the Sentencing Law and Policy Blog, Doug very recently launched the Law School Innovation blog. For my part, I will be serving as a contributor to LSI and am delighted to form this partnership between Law School Innovation and MoneyLaw.

Please welcome Doug Berman to MoneyLaw.

Disinterested Law School Rankings

Thomas Cooley's release of the 8th annual edition of its law school rankings, Judging the Law Schools, brings to mind a question we asked in our Moneyball article (What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Texas L. Rev. 1483, 1524, n.235 (2004)): why is it that the various alternative law school rankings have one thing in common -- the ranker's law school always fares better in the alternative ranking that it does in the U.S. News ranking?

The new Cooley rankings give equal weight to 32 objective variables from the Official ABA Guide to Approved Law Schools and favor large law schools, producing this Top 20:

1. Harvard
2. Georgetown
3. Texas
4. Virginia
5. NYU
6. Yale
7. Northwestern
8. Columbia
9. George Washington
10. Minnesota
11. American
12. Michigan
13. Fordham
14. Penn
15. Berkeley
16. Thomas Cooley
17. Temple
18. UCLA
19. Hastings
20. Miami

Here is the chart from our Moneyball article comparing the alternative rank of the rankers' law school with the U.S. News rank:

For more, see Size Matters: The New Thomas Cooley Law School Rankings (TaxProf Blog).

Wisdom from whatever source derived

In commentary on "Law school diagnosis" and in a post on his own blog, James Edward Maule suggests, only partly in jest, that Harvard Law School's vaunted curricular reform proposal can be duplicated by the simple expedient of teaching a basic course in federal income taxation as a required component of the first year:

Much time and effort could be saved, and the same worthwhile goals accomplished, by moving Introduction to Federal Taxation, as many of us teach it, into the first year. What's in the package? Constitutional law analysis? Yes. Administrative law principles? Yes. Statutory and regulatory analysis? Yes. Application of law to facts? Yes. Problem solving? Yes. Planning to avoid problems? Yes. Discussion of ethical considerations? Yes. Awareness of client needs? Yes. Development of interviewing and counselling techniques? Yes. Attention to international issues? Yes. Incorporation of business, social, economic, and political facets of the topics? Yes.

I will now construe this suggestion as a serious proposal for reforming the first year curriculum.

Jim Maule isn't the first person to suggest the inclusion of a basic income tax course in the mandatory first-year curriculum. Many, many years ago, back when she and I shared an employer, Karen Burke made the same suggestion to me. There's much to recommend the idea. Most students will take basic tax eventually; those who do not almost surely should. Jim and Karen are right: the course is filled with potential. It has everything a law school course should have, plus the added bonus of being relevant to the future professional interests of virtually every law school graduate. As an inveterate generalist, I've always been fascinated by the idea of adding tax to my teaching repertoire. It covers the full range of business law issues and provides the perfect platform for considering, at the highest manageable levels of abstraction, the very purposes of government. In teaching law students, we should happily accept wisdom from whatever source derived.

There is only one problem. Unfortunately, I think it's insurmountable.

H. Vogel, Suicide of Brutus (an illustration in 1 John Clark Ridpath, History of the World (1885))

First-year students, when asked to extract abstract principles -- legal process, canons of interpretation, some sense of common law versus statutory or regulatory lawmaking, etc. -- in favor of substantive doctrines from a law school course will extract . . . substantive doctrines. I haven't decided whether the reason for this lies in the nature of American undergraduate education or in some debilitating facet of legal education. It might be even worse. The fault, dear Brutus, is not in our schools, but in ourselves, that we are underlings.

For purposes of deciding whether to include income tax -- or admiralty or worker's compensation or insurance or any other substantive subject -- to the first-year curriculum as our students' introduction to legislation and legal process, none of this matters. What does matter is whether we can use tax or any other substantive subject as a sneaky back door to teaching a rigorous course in legislation, legal process, or "the administrative state." In my experience, we can't.

Does Google Apply Moneyball Principles in Hiring?

Following up on my recent post Is the IRS Applying Moneyball principles in its Hiring of Law Students? (and Jim Chen's detailed response here), today's Wall Street Journal has a fascinating article on the hiring process at Google: Google Adjusts Hiring Process As Needs Grow, by Kevin J. Delaney:

People close to the company say it has traditionally focused a lot on candidates' academic performance and favored those who went to elite schools. [Google's HR head] says that college grade-point average is a factor, and that most hires have done well academically. But he says there's no formal GPA requirement, and he points to new staff members who don't have college degrees but do have solid professional track records.

The Gambler

Kenny Rogers (the left-handed pitcher, not the silver-haired country singer) just completed his 22 consecutive scoreless inning of postseason work for Detroit as the Tigers evened the 2006 World Series at one game apiece with a 3-1 win over the Saint Louis Cardinals. What exactly does this have to do with MoneyLaw, aside from this forum's sabermetric obsession? In due course the answer will drop into the strike zone like a knee-buckling curveball.

In thoughtful commentary on my post, "Law school diagnosis," Bill Henderson argues that law school curricula are likely to stay skewed in favor of litigation, in part, because the economics of big firm practice favor the status quo:

The most remunerative jobs upon graduation are those in large law firms. And the litigators at BigLaw firms dicker over expensive legal disputes worth millions of dollars. A trial by a BigLaw firm will cost $500K minimum. And the usual motion practice can easily cost $300K minimum. The associate salaries for these firms are driving the market. If your graduates are landing at these types of firms, why change?

Except that they don't. The modal law school graduate isn't working for a BigLaw firm. Small firm practice, solo practice, public sector employment, and corporate counsel positions, at least when combined, outnumber placements in law firms with 50+ partners. This is to say nothing of entrepreneurial work, which has been creeping upward as an occupational option within the range of opportunities that present themselves to law school graduates.

And even in the world of BigLaw, it might be worth gauging how much revenue comes from motions practice, Big Litigation, and administrative equivalents of state or federal court adjudication, as opposed to transactional work. Once again, Bill Henderson has identified a seam where MoneyLaw's informed instincts and the Empirical Legal Studies Blog's mastery of data can cooperate fruitfully. Bill, I'm ready whenever you are.

Now it's time to talk about Scott Boras.

Scott Boras is easily the most famous graduate of the McGeorge School of Law. McGeorge's list of prominent friends and alumni includes luminaries such as Elizabeth Rindskopf Parker and Bill Lockyer, but the truth is that Scott Boras's celebrity power easily eclipses that of a law school dean or even that of the attorney general of California. To its credit, McGeorge enthusiastically embraces Scott Boras, whose ties to the University of the Pacific include a stint on the university's baseball team and a career as a pharmacist in Sacramento that enabled him to earn a McGeorge law degree at night.

Like MoneyLaw icon Billy Beane, Scott Boras was a failed ballplayer. He played second base and centerfield in the Chicago Cubs and St. Louis Cardinals organizations, but never rose above AA. Four years and three knee operations after signing, he was out of organized baseball.

A more risk-averse law school graduate would have clung to the BigLaw job that Scott Boras landed in Chicago after his final tour of duty at the University of the Pacific. An even more risk-averse law school graduate might have yearned and secured a law teaching job. (Yes, I know the counterarguments: (1) you are much likelier to make tons of money practicing food and drug law than getting tenure teaching it, and (2) it may be easier for a camel to pass through the eye of a needle than for a McGeorge graduate to snag an interview at the AALS combine.) But Boras started giving advice to former minor league teammates who had made it to "The Show."

The rest, of course, is baseball history. Boras is the most powerful agent in baseball, perhaps in all of professional sports. His clients routinely command more than they are expected to receive. His masterful negotiation of a $252 million contract (yes, a quarter of a billion dollars) for Alex Rodriguez ruined the Texas Rangers and now taunts the New York Yankees. When they call you the "Baseball Antichrist," you've got it made.

And now? Take a look at the 2006 Detroit Tigers. Catcher Iván Rodríguez. Outfielder Magglio Ordóñez. Starting pitcher Kenny Rogers. All of them Boras clients. Regardless of whether the Tigers bring home the World Series trophy, Scott Boras already stands as the emblem of the riches that await law school graduates -- and law schools -- if only they would gamble in favor of entrepreneurship and deal-making over the usual dispute resolution business model embodied by BigLaw's industrial-adjudicative complex.

Grades, Courses, and Capture

I have written about the variety of ways it is clear, to me at least, that many or most law schools are captured by and run for the comfort of privileged faculty. Comfort is increased when faculty teach what they want to teach whether or not those courses have much to do with avoiding and resolving disputes -- a problem I believe is independent of any lasting Langdellian influence. Faculty comfort is also increased by high teaching evaluations and low numbers of student complaints. To this end, although the trend may be reversing, everyone is more comfortable when high grades are are given. For example, at my Law School, there is a mandatory 3.20 average and I suspect we are not out of line with other schools. At the same time, our bar failure rate is now at 20%. What this means is that a higher percentage of students fail the bar than have a C average or lower. We are evidently proof of the Lake Wobegon dream in that all of our students are above average – at least until they leave Lake Wobegon.

Some of the arguments I hear for giving high grades are surprising. One is that low grades hurt the feelings of the students. Another is that it is hard to give a C to someone you have come to know. The most compelling argument for increasing the grades is that students cannot compete in job markets with graduates of other law schools who were subject to high grading curves. The stunning thing about this is that it assumes law firms look at G.P.A. and not class rank. What an amazing example of not getting the Moneyball message. Recently hired faculty who have been involved in law firm recruiting decisions assure me this is true to the extent that a student with a GPA below a certain level will not be looked at regardless of rank. (I wonder why we just don’t raise the curve to 3.9 so they will all get jobs or create a new grade – how about A-squared.) If markets worked, those firms hiring without paying attention to the relative curves of Schools eventually should be left in the dust.

But, I digress. My real point is how the grade scam plays into faculty capture. Faculties have choices. They can offer the types of courses Jim Chen has described. This may mean retooling and long hours of preparation. Or they can simple pay off those who are affected negatively by the choice of "business as usual." What better way to pay off the students for, say, not raising questions about course offerings that seem only distantly connected to avoiding and solving disputes than to give high grades. High grades make faculty, parents, and students happy. And, law firms, so I am told, are indifferent to what the grades mean. Make no mistake this is a real payoff. If a student’s job prospects go up with higher grades, even if the student is no more qualified, it is a real pocketbook-affecting payment.

There is, in fact, a contract of sorts. For faculty it means less class preparation, fewer complaining students, and the illusion of being productive. For administrators it means no pressure to modernize the curriculum by asking faculty to broaden their offerings. And, for students it means a resume that, to them, looks good. And, in these days of self-promotion, glossy brochures, and symposia stuffed with pals they are learning from the best.

As an aside, isn’t interesting to watch markets work and not work. On the one hand, law firms, at least according to my recently hired colleagues, are less responsive to class rank than grades. On the other hand, private schools have higher grade inflation than public schools. (There is, however, contrary evidence.) Private school students have a more elastic demand and schools must lower the “price” of attending or raise the grade payoff to stay competitive.

Law school diagnosis

Why do law school courses bear so little resemblance to the real-world conditions in which most law school graduates eventually work? My MoneyLaw colleague Jeff Harrison, with good reason, would regard this as further evidence of professorial capture and self-dealing. Without rejecting Jeff's well supported hypothesis on the personal origins of this gown-town disconnect, I'd like to explore other possible explanations rooted in the content of legal education. I'll now seek succor from a different member of the Florida law faculty. Inspired by an analogy to Alyson Craig Flournoy's thoughtful but underappreciated Restoration Rx: An Evaluation and Prescription, 42 Ariz. L. Rev. 187 (2000), I'll make this initial attempt at a more comprehensive diagnosis.

Consider Patient 001, the Harvard Law School. For many years before Elena Kagan became dean, Harvard was regarded by many as having a stagnant classroom culture. (Among American law schools, Harvard's fierce rival in New Haven is widely regarded as being even more disconnected from reality, but let's save Yale for another day.) Harvard's pedagogical malaise is easy to trace: Round eighteen hundred and ninety-two, Christopher Columbus Langdell made all law schools blue. The Langdellian curriculum of contracts, property, torts, criminal law, and civil procedure dominates American legal education. If American legal education is sick, and the curriculum is at least one of the causes, then Langdell's Harvard was the disease vector.

To be sure, Harvard with much fanfare has announced changes in its first-year curriculum. In a welcome departure from Harvard's conservative institutional culture, the new curricular plan quite ambitiously seeks to direct "greater attention to statutes and regulations" and "to the institutions and processes of public law." Harvard now recognizes that a good legal education does not stop at the water's edge. Ultimately Langdell Hall hopes that its wards will more frequently "reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines," the better "to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions."

Harvard's implementation of these lofty goals will rely on "three new course requirements to the first-year curriculum":

1. A new course focusing on legislation and regulation.
2. Each student will take one of three specially crafted courses introducing global legal systems and concerns - Public International Law, International Economic Law, and Comparative Law
3. A new course, Problems and Theories, will focus on problem solving, while introducing students to theoretical frameworks illuminating legal doctrines and institutions.

These are innovative developments -- to a degree. Many schools have attempted to teach legislation, regulation, or some combination thereof in the first year. Before it was forced to concede that it couldn't find three regular teachers of legislation, Minnesota used to be one of them. I imagine I should be grateful that this school's desperation to cover its required first-year legislation course in the early 1990s prompted me to drop my plan to practice environmental or public utility law in Virginia. Other schools have likewise abandoned legislation and regulation because they too lack the personnel (and perhaps also the institutional will) to break the common law's grip on the first-year curriculum.

As for international or comparative law, bully for Harvard. Not every school can come close to offering these courses on a sufficiently regular basis even to contemplate making them a required portion of the curriculum. As with legislation and regulation, the successful internationalization of the curriculum depends on resources. No teachers, no courses, no progress.

Much hinges on Harvard's third course, the problem-solving course that will also "introduc[e] students to theoretical frameworks illuminating legal doctrines and institutions." This course seems most likely of the three new offerings to present "fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies."

The notion that law schools might teach their students to solve "fact-intensive problems as they arise in the world" and not simply to regurgitate "legal doctrines" as observed "in appellate opinions" has the potential to make a real difference in legal education. We legal educators have approached the profession as though dispute resolution were our true calling. The more involved and more expensive the process of solving a conflict, the better.

But this is pathological. Aren't disputes better avoided in the first place? The very existence of an appellate decision testifies to the failure of law to enable the resolution of the underlying conflict by means other than resort to formal adjudication. Shouldn't we aspire to something better -- to thinking of law as the enterprise of applying our best insights about organizational science, human behavior, political philosophy, resource management, etc., toward the goal of peaceable cooperation? I believe that we can, that we should, that we must.

We have built an entire system of legal education on the assumption that high-level, high-cost litigation is the lawyer's supreme calling. This has all the allure of an approach to medicine that favors expensive, intrusive intervention in response to disease over preventive care. Come to think of it, that too would be a fit subject for reform. I'll leave that subject, at least for the moment, to Elizabeth Ann Weeks and other teammates of mine here at the Jurisdynamics Network. For now, it suffices to note that "private ordering, regulation, litigation and other strategies" (which Harvard unfortunately didn't elaborate) might outperform litigation in solving problems, perfecting institutions, and fulfilling human desires. Veritas indeed.