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Clinics and Costs

May 6th, 2017 / By

Bob Kuehn has written an incisive article about the relationship between law school tuition and clinical education. Contrary to many educators’ assumptions, Bob finds that there is no statistically significant relationship between the tuition charged by schools that require a clinical experience and schools that do not. Requiring students to complete a clinic before graduation, in other words, does not correspond with increased tuition.

Similarly, schools that guarantee students a clinical experience–should they choose to take one–do not charge significantly higher tuition than schools without that guarantee. Accounting for tuition discounts did not change these results: Schools with clinical requirements or guarantees did not acquire significantly more tuition revenue per student than those without those requirements or guarantees.

The same story emerged when Bob analyzed clinical course availability (rather than requirements or guarantees). Enhanced clinical opportunities never correlated significantly with higher tuition (either list price or discounted). On the contrary, several analyses found a significant relationship between clinical opportunities and lower tuition rates. Bob summarizes the results of his research in a post on the Best Practices for Legal Education blog.

How could this be? Aren’t clinics incredibly expensive to run? Well, yes and no. As Bob explains, the availability of clinical education depends more on the choices that law schools make than on the direct cost of clinics.

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Alternative Publishing Models For Cost-Conscious Professors

July 13th, 2016 / By

Casebooks are shockingly expensive. The latest edition of Stone, Seidman, Sunstein, Tushnet, and Karlan’s Constitutional Law has a list price of $242. It’s even more shocking when you consider where the money goes. Not to pay for the cases and other primary materials that make up most of a casebook’s contents: they’re public domain and free to all. Mostly not to cover printing costs: the paperback edition of The Power Broker (to pick a book with the same word count and heft as a casebook) has a list price of $26, and you can buy it on Amazon for $18. Mostly not to authors: royalty rates are typically 10% to 20%. No, most of that money ends up in the pockets of the casebook publishers and other middlemen in the casebook chain. This is a tax on legal education, sucking money from law students and from the taxpayers underwriting their student loans.

In a perceptive and persuasive recent essay, Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books, Ben Trachtenberg runs through these numbers and reaches the obvious conclusion: law schools shouldn’t be asking students to shell out the big bucks to read public-domain legal materials. Casebooks should be cheap or free.

Trachtenberg’s preferred solution is that law schools, alone or together, fund the creation of “top-quality casebooks” which could then be made available to students for the cost of printing. Here at Law School Cafe, Kyle McEntee endorsed Trachtenberg’s suggestion and added that “it may make more sense to do this through an external organization funded through grants” to save students even more.
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Scholarship Advice

April 5th, 2016 / By

My talented colleague Chris Walker is blogging this month at PrawfsBlawg with a series of posts about how junior scholars can maximize the impact of their scholarship. As Chris explains in his initial post, he hopes to crowdsource answers to questions that junior scholars frequently ask.

I hope Chris’s discussion will attract both junior scholars and more senior ones. A lot has changed in the world of legal scholarship over the last thirty-five years:

  • Junior professors begin their tenure-track work with more substantial scholarly experience.
  • Technology and reduced teaching loads allow tenure-track faculty to produce more scholarship–which, in turn, raises expectations for that production.
  • Law reviews, conferences, and online forums have multiplied, making scholarship more interactive.
  • Interdisciplinary work has increased and become more sophisticated.
  • Concerns about insularity have revived interest (at least among some faculty) in scholarship that directly addresses student or practitioner needs.

Given these changes, how do we choose to use the time given us for scholarship? The opportunity to engage in unfettered scholarship is a great privilege–one that we should execute in the public interest. That doesn’t mean that the public should dictate our scholarship; great discoveries sometimes come from meandering, seemingly “irrelevant” explorations. But we, the scholars, should regularly reflect on the ways we use our privilege.

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Scholarship: Cost and Value

March 12th, 2015 / By

Critics of legal education raise two key questions about our scholarship: (1) How much value does it offer? And, (2) do law schools have to spend so much money to produce that value?

The answer to the second question is easy: No. We used to produce plenty of superb scholarship with typewriters and four-course teaching loads. Now that we have laptops, tablets, high-powered statistical software, and 24/7 online libraries, our productivity has leaped. Law schools could easily restore teaching loads to four courses a year while still facilitating plenty of good research. The resulting reduction in faculty size could help fund scholarships and reduce tuition.

The answer to the value question is harder. Do we mean immediate pay-off or long term influence? Do we care about value to judges, legislators, practicing attorneys, clients, teachers, students, or some other group? Does each article have to demonstrate value? Or do we recognize that trial and error is part of scholarship as well as other endeavors?

Those are difficult questions and they deserve a series of posts. For now, I’ll limit my discussion to a recent paper by Jeffrey Harrison and Amy Mashburn, which has already provoked considerable commentary. I agree with some of Harrison and Mashburn’s observations, but the empirical part of their paper goes badly astray. Without better method, their conclusions can’t stand. In fact, as I note below, some of their findings seem at odds with their recommendations.

Measuring Citation Strength

Harrison and Mashburn decided to measure the strength of citations to scholarly work, rather than simply count the number of citations. That was an excellent idea; scholars in other fields have done this for decades. There’s a good review of that earlier work in Bornmann & Daniel, Do Citation Counts Measure? A Review of Studies on Citing Behavior, 64 Journal of Documentation 45 (2008). (By the way, isn’t that an amazing name for a journal?)

If Harrison and Mashburn had consulted this literature, they would have found some good guideposts for their own approach. Instead, the paper’s method will make any social scientist cringe. There’s a “control group” that is nothing of the sort, and the method used for choosing articles in that group is badly flawed.* There is little explanation of how they developed or applied their typology (written protocol? inter-rater agreement? training periods?). Harrison and Mashburn tell us only that the distinctions were “highly subjective,” the lines were “difficult to draw,” and “even a second analysis by the current researchers could result in a different count.” Ouch.

Is it possible to make qualitative decisions about citation strength in a thoughtful, documented way? Absolutely. Here’s an example of a recent study of citation types that articulates a rigorous method: Stefan Stremersch, et al., Unraveling Scientific Impact: Citation Types in Marketing Journals, 32 Int’l Journal of Research in Marketing 64 (2015). Harrison and Mashburn might choose a different design than previous scholars, but they need to develop their parameters, articulate them to others, and apply them in a controlled way.

Influence and Usefulness

Harrison and Mashburn conclude that most legal scholarship “is not regarded as useful.” Even when a judge or scholar cites an article, they find, most of the cited articles “serve no useful function in helping the citing author advance or articulate a new idea, theory or insight.” Application of this standard, however, leads to some troubling results.

The authors point, for example, to an article by John Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257 (2003). A court cited this article for the seemingly banal fact that “the federal government, the military, and thirty-three of the thirty-eight states with the death penalty have authorized the use of victim impact evidence in capital sentencing.” Harrison and Mashburn dismiss this citation as “solely to the descriptive elements of the article.”

That’s true in a way, but this particular “description” didn’t exist until Blume researched all of that state and federal law to create it. The court wanted to know the state of the law, and Blume provided the answer. This answer may not have “advance[d] . . . a new idea, theory or insight,” but most cases don’t require that level of theory. Disputes do require information about the existing state of the law and Blume assembled information that helped advance resolution of this dispute. Why isn’t that a worthwhile type of influence?

I suspect that judges and practitioners appreciate the type of survey that Blume provided; analyzing the law of 40 jurisdictions requires both time and professional judgment. Blume, of course, did more than just survey the law: he also pointed out crevices and problems in the existing law. But dismissing a citation to the survey portion of his article seems contrary to the authors’ desire to create scholarship that will be more useful.

A reworked method might well distinguish citations to descriptive/survey research from those that adopt a scholar’s new theory. Asking scholars to limit their work to the latter, however, seems counter productive. A lot of people need to know what the law is, not just what it might be.

Judges and Scholars

One statistic in the Harrison and Mashburn article blew me away. On page 25, they note that 73 out of 198 articles from their “top 100” group of journals were cited by courts. That’s more than a third (36.9%) of the articles! I find that a phenomenally high citation rate. I know from personal experience that judges do pay attention to law review articles. When I clerked for Justice O’Connor, for example, she asked us to give her a shelf of law review articles for each of the bench memos we wrote. She didn’t want just our summaries of the articles–she wanted the articles themselves.

But I never would have guessed that the judicial citation rate was as high as 36.9% for professional articles, even for journals from the top 100 schools. At least in judicial circles, there’s a big drop-off between learning from an article and citing the article. Most judges try to keep their opinions lean, and there’s no cultural pressure to cite scholarly works.

I’m not sure how to mesh the judicial citation statistic with the tone of Harrison and Mashburn’s article. More than a third sounds like a high citation rate to me–as does the one quarter figure for journals in the 15-100 group.

Ongoing Discussion

Harrison and Mashburn urge critical debate over the value and funding of legal scholarship, and I back them all the way on that. I wrote this post in that spirit. As I note above, I don’t think law schools need to spend as much money as they do to produce strong levels of excellent scholarship. I also applaud efforts to replace citation counting with more nuanced measures of scholarly value. But we need much stronger empirical work to examine claims like the ones advanced in this paper. Are Harrison and Mashburn right that most legal scholarship “is not regarded as useful”? I don’t know, but I was put off by strong statements with weak empirical evidence.
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* Harrison and Mashburn chose the first article from each volume. That’s a textbook example of non-random selection: the first article in a volume almost certainly differs, on average, from other articles.

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Lessons from MIT

October 1st, 2013 / By

Challenges in legal education, as others have noted, are part of deeper trends in higher education and the economy. My current work on a university-wide committee has taken me away from this blog, but it has increased my knowledge of other parts of higher education. Colleagues in many fields are struggling with “Robin Hood” tuition/scholarship practices; the growing gap between well-paid professors and low-paid teaching staff; and a new interface between the academy and workplace. Solutions are elusive, but these issues are provoking serious study.

In 2010, MIT President Susan Hockfield established MIT’s Production in the Innovation Economy (PIE) research group. Hockfield asked the group to study the decline of U.S. manufacturing, and to identify factors that might restore a more vibrant economy. The group conducted extensive research in the United States and abroad, produced a preview report, just released one book, and has a second book due in January.

What does any of this have to do with legal education or law practice? I’m struck by two points made in the preview report.

Products, Services, and Bundles

We used to divide the economy into products and services. Citing Harvard economist Richard Freeman, the MIT report notes that products are things we can drop on our feet. Services are less likely to hurt your feet, although they may mess with your mind.

Today, however, “the traditional line between ‘manufacturing’ and ‘services’ has become so blurred that it no longer serves to distinguish separable and distinct activities or end products.” (P. 10) Our economy still produces plenty of goods and services, but the economic “activities that create most value, that is, the ones that are most difficult for others to replicate, are bundles [of goods and services].” (Id.) Apple doesn’t just manufacture iPods; it sells a suite of goods and services that have changed the ways we listen to music, exercise, and learn.

Lawyers think of themselves as service providers, but many of our traditional services are quite product-like. You can, in fact, drop a contract, take-over agreement, or divorce decree on your foot. A box of documents, produced in response to a discovery request, could definitely stub your toe. These “products” result from intellectual work, but that’s true of any engineered item.

During the last decade, lawyers have been dismayed to see their services mutate more clearly into products. Want the paperwork for a simple divorce? You can buy it online or in a bookstore. Want to incorporate your small business? Those forms are available as well. E-discovery lawyers, working away at their basement computers, look more like assembly-line workers than professional service providers.

While lamenting this shift, legal educators and bar leaders have missed a key point: The most successful legal service providers have recognized that law is a bundle of products and services. We won’t get anywhere protesting the commodification of law practice. We have always produced commodities; form leases and form pleadings existed decades ago, and lawyers tweaked them for individual clients. Law has always included products.

Instead, we need to focus on the services that we can provide to accompany the products. “Service” doesn’t mean charging a lot of money to tweak the form pleading; it means providing the additional advice that clients actually want from their lawyers. To provide those services, the ones that will sustain lawyers during the next generation, we need to know much more about what today’s clients want. We also need to educate students in ways that focus on interacting with clients, determining what those clients need, and providing those services. Too much of today’s legal education still focuses on our products.

The concept of bundled goods and services can guide our way in legal education. Take a hard look at our curriculum. Which classes focus on products (the legal content we deliver to clients)? Which ones help students master services (listening to clients, responding to their needs, providing assistance that reaches beyond the legal product)? “Legal reasoning” and “thinking like a lawyer” don’t count as services in this rubric: those are necessary skills, but they are ones that lawyers use to design their product.

In the new economy, clients won’t pay much for legal products–they can purchase those at ever-declining cost. Instead, how do we educate students to provide the bundled service? Do we in legal education even know what those bundled services are?

Innovation and Production

The MIT report also stresses the feedback loops between innovation and production. Those forces have always depended on one another: R&D departments communicated with their production departments to refine concepts and perfect them for the market. “That’s because,” the MIT research group observes, “much learning takes place as companies move their ideas beyond prototypes and demonstration and through the stages of commercialization. Learning takes place as engineers and technicians on the factory floor come back with their problems to the design engineers and struggle with them to find better resolutions; learning takes place as users come back with problems.”

Over the last two decades, however, companies have separated these two functions. They have closed R&D departments, relying upon universities to provide innovation. At the same time, they have outsourced production to workers in other countries, placing research and production on separate continents. This trend toward separation, the MIT researchers contend, is one cause of America’s troubled economy. Companies in countries like Germany and China are moving ahead of us–in innovation as well as production–because they maintain close links between those functions.

Again, there is a lesson here for lawyers and legal educators. We have also increasingly separated innovation and production. I know some scholars who regularly test their ideas with practicing lawyers and clients, but I know many more who rely exclusively on academic workshops and conferences. Practicing lawyers contribute their share to this gap: many are too busy, or too focused on the short term, to spend time reflecting on new ideas.

Closing this gap could provide new energy for legal scholarship, as well as new products and services for lawyers to sell. Connecting research and practice doesn’t mean that all research will become client-specific, applied work. Other industries support plenty of basic scientific research because they know that basic research powers innovation. In law, we need to build the same infrastructure that other U.S. industries once had, and that MIT urges them to rebuild: collaborations that allow innovators and producers to learn from one another.

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Berkman Center Webcast on “Creating a Law School e-Curriculum”

June 27th, 2013 / By

The Berkman Center for Internet and Society at Harvard Law has a live webcast on July 9th at 12:30 pm eastern called “Creating a Law School e-Curriculum.” The speaker will be Oliver R. Goodenough, a fellow at The Berkman Center and a Professor of Law at the Vermont Law School.

Here’s the description:

Legal practice and legal education both face disruptive change. Much of how and what we do as lawyers and how and what we have taught as legal educators is under scrutiny. Legal technology is an important factor in driving these challenges. Law schools reform their curriculums law and technology is an area that is ripe for expansion in our teaching. It also provides ample room for scholarly examination. Creating opportunities for learning how technology is shaping legal practice should be a priority for any school looking to provide a useful education for the lawyers of the present, let alone the future.

To watch the webcast, simply visit this page at 12:30 pm eastern on July 9th. If you’re in Boston, the same page provides a form for you to RSVP to the luncheon.

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Summer Research Grants

March 20th, 2013 / By

A survey of law faculty salaries, conducted by the Society of American Law Teachers, suggests that the overwhelming majority of law schools offer summer stipends to at least some faculty. The reported stipends range from a low of $5,000 to a high of $25,000. Notably, those reports do not include any of the schools with the most highly compensated faculty; you won’t find the summer salaries for schools like Harvard, Yale, Columbia, NYU, the University of Chicago, or Stanford on this list.

These summer stipends supplement salaries that already rank among the highest in the academy. They are also quite unusual in the academy; other university faculty do not receive summer research grants with the ease or regularity that law faculty do. Professors in other disciplines usually apply for outside grants if they want summer support. More often, they do without: they devote their summers to research even though they technically are unpaid during that time.

Why do law faculty need so much financial encouragement to produce research? Why aren’t we encouraging our faculty to seek outside grants if they want that summer support? Summer research grants are wonderful bonuses, but they shouldn’t be necessary to encourage research. People join the academy to research and teach, so that’s what we should do.

A first step in reducing the cost of legal education would be to eliminate summer research grants for full professors. We could continue to award grants to junior faculty, who are seeking tenure and may bear their own student debts. For full professors, summer research grants seem like a luxury we can give up to help both our students and our institutions.

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