Salaries and Scholarship

January 13th, 2018 / By

Law professors teach a wide variety of subjects: Property, Civil Procedure, Legal Writing, Law & Economics, Business Associations,  Feminist Legal Theory, Law Clinics. Professors bring diverse backgrounds to this teaching. Some hold JDs, some hold PhDs, some hold both. Some have practiced law, while others have not. Some earned high salaries before joining a law faculty, while others drew more modest paychecks in government, legal aid, nonprofits, or other academic fields.

Despite this variety, there is one constant: professors who focus their teaching on legal writing or clinical courses earn significantly less money than those who teach other types of classes. This is true regardless of degrees, prior professional experience, or past salary level. What explains this pay gap? And what does the gap tell us about our values in legal education?

Before answering those questions, we have to understand the size of the gap. Academics shy away from salary discussions, but silence can hide inequity. To break that silence, I have been gathering information from salary databases released by public universities. I don’t have information on every public law school, but a surprising amount of data is available.

In this post, I will refer to salaries at one leading law school. US News ranks this school among the top 25 schools nationally, and it is a clear leader in legal education. The salaries at this school, which I’ll call the Myra Bradwell College of Law, do not reflect salaries at every law school. They do, however, illustrate the type of salary gap our schools maintain between professors who teach clinics/legal writing and those who teach other subjects.*


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The Market for Legal Writing and Clinical Professors

January 5th, 2018 / By

Why do professors who teach legal writing and clinics earn significantly less than professors who teach other courses? Why are the writing and clinical professors less likely to hold tenure-track status? And why, finally, are these lower-paid, lower-status professors disproportionately female?

A common answer is: the market. Applicants for legal writing and clinical positions are plentiful, the argument goes, so the market drives their salaries and status down. Professors who teach other courses are more scarce and have more lucrative options; law schools must pay more (and offer tenure-track status) to attract them. Law schools also demand scholarship from professors teaching those other courses, and the pool of people capable of outstanding scholarship and good teaching is very small indeed. Salaries and status must be generous to land those rare individuals–but not so generous for legal writing and clinical professors.

This explanation (which I’ll call the “market hypothesis”) has some initial appeal, but thoughtful examination reveals several flaws. The most striking defect is this one: The market hypothesis doesn’t explain the very high percentage of women teaching legal writing and clinical courses. 62% of the faculty teaching clinics or externship courses identify as women; 72% of those who teach legal writing do so. The pool of law school graduates, in contrast, includes roughly equal numbers of men and women. So why don’t the hiring nets for clinical and legal writing positions pull up a more equal number of male and female professors?

If the market hypothesis is correct, it has to explain why an abundant applicant pool yields such gendered results. I explore below four ways in which the market hypothesis might coexist with our disproportionately female writing and clinical faculties.


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The Second Class Among Us

January 4th, 2018 / By

Bob Kuehn has posted a sobering analysis of the status and salaries of clinical, externship, and legal writing faculty. It should be no surprise that most of these professors lack tenure–and that they earn significantly less than the faculty who teach courses without significant writing or clinical components. The size of the differences, however, may take some tenure-track faculty aback.

Who are the colleagues who suffer lower pay and status? Overwhelmingly, they are women. More than 70% of legal writing professors and externship supervisors are women; about 60% of clinical professors are female. These are striking differences in a profession that is still male dominated in many ways.

I will have more to say about these differences over the coming days. For now, take a look at Bob’s data and think about some new year’s resolutions.

Update: I did not mention professors who teach academic support or bar preparation courses in this post, because I do not have the type of national data Bob gathered for legal writing and clinical professors. Academic support and bar preparation are among the most essential courses we offer in law schools–yet the faculty teaching them are at best second class. I will write more about these key professors soon.

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New AALS Section: Empirical Study of Legal Education & the Legal Profession

January 2nd, 2018 / By

If you’re at the AALS meeting, don’t miss the inaugural session of the new Section on Empirical Study of Legal Education & the Legal Profession. Spearheaded by Judith Wegner, this Section welcomes colleagues who are interested in conducting or using empirical research relating to legal education and the legal profession. You don’t need to be a numbers person to benefit from this Section–just someone who is interested in studying what we do in law schools and the legal profession.

The inaugural panel discussion, which kicks off at 3:30 p.m. tomorrow (Wednesday, January 3) shows the breadth of this Section:

  • Raul Ruiz (Florida International University): Predicting Student Outcomes: Data Mining for Law Schools
  • Victor Quintinilla (Mauer School of Law, IU-Bloomington): Productive Mind-Set, the Power of Belonging, and Bar Passage
  • Bryant Garth (UC Irvine and formerly American Bar Foundation): Understanding the Changing Legal Profession
  • Kellye Testy (LSAC and formerly University of Washington): The LSAC’s Emerging Research Priorities
  • Aaron Taylor (Access Lex and St. Louis University): AccessLex’s Emerging Research Priorities

If that’s not enough to pique your interest, there will also be break-out groups discussing:

  • Conducting and Consuming Research: What tools, resources, or professional development do you need to conduct or use empirical studies?
  • Institutional Excellence and Assessment: How can law schools best assess programmatic and student learning outcomes? What methods and data management strategies apply?
  • Admissions and Academic Success: What are best practices in admissions and academic success programs for students with mixed indicators? How do we know?
  • Bar Exam Preparation & Licensing: What interventions work in preparing students to succeed on the bar exam? How can professional licensing strategies be improved?
  • Professional Identity and Satisfaction: What can be done to enhance students’ sense of professional identity? What factors affect lawyer satisfaction, success, and happiness?

This is the place to be at AALS on Wednesday afternoon. If you can’t make the session but want to connect with the Section, email Judith Wegner at

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New Year’s Resolutions for Law School Professors

January 1st, 2018 / By
  1. Keep your brain healthy by trying new types of mental exercise. Commit to learning at least one of these cognitive skills during the new year: fact gathering, client counseling, interviewing, or negotiating. Then help your students exercise their brains by teaching these kinds of cognition in the classroom.
  2. Cut back on fatty law review articles. The legal academy is showing dangerous signs of scholarly obesity. Writing law review articles is like eating chocolate cake: best done in moderation.
  3. Meet new people. Talk to practitioners and clients in the fields you teach. How do practitioners approach their clients’ problems? What matters most to the clients?
  4. Help the disadvantaged. Teach your students the doctrine and cognitive skills they need to serve low- and moderate-income clients.
  5. Challenge your biases–and those of your institution. Do you value some types of scholarship and teaching more than others? Does your institution award higher salaries and status to colleagues who teach case analysis rather than other types of cognitive expertise? How do those biases affect the provision of legal services?

Embrace change: This is the 6,576th day of the new millennium.

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Lawyering Jobs

November 21st, 2017 / By

I’ve written before about the Bureau of Labor Statistics’ Employment Projections program. Every other year, the statisticians associated with that program count the number of existing “lawyer” jobs as part of their work. This count is especially useful because it includes both salaried and self employed workers. The biennial counts thus include solo practitioners, law firm partners, and practicing lawyers who earn a salary from any source.

The counts offer an excellent opportunity to track the growth of lawyering jobs. Here are the number of “lawyer” jobs reported in selected years since 1978, when the program began:

  • 1978:   380,000
  • 1988:   582,000
  • 1998:   681,000
  • 2008:  759,200
  • 2010:  728,200
  • 2012:  759,800
  • 2014:  778,700

As I’ve written before, those figures show that the number of jobs for lawyers is still growing–but the pace of growth has slowed considerably. Between 2012 and 2014, the number of lawyering jobs increased by just 9,450 positions per year.

The Bureau of Labor Statistics recently released the figures for 2016, and the news is sobering. In 2016, the Bureau counted just 792,500 “lawyer” jobs in the economy. That’s an increase of only 13,800 positions since 2014–or just 6,900 positions per year. That’s better than the anemic growth between 2008 and 2014 (which included periods of job loss), but worse than growth in most other two-year periods.

These figures, unfortunately, coincide with ones released by the ABA for recent graduates. Since 2013, the number of “lawyer” jobs for new JDs has fallen each year, from 26,653 for the Class of 2013 to 22,930 for the Class of 2016. (Figures for the Class of 2017 won’t be available until next spring.) Graduating classes have been smaller, so the percentage of employed graduates has improved somewhat–but the number of jobs found by those graduates has declined.

To me, the BLS projections underscore the wisdom of creating programs that allow college graduates to perform some aspects of law practice. There is plenty of demand for legal services–just not at the price demanded by fully licensed JDs. Rather than continue producing JDs at rates the job market can’t absorb, schools would be wise to consider alternative programs.

These figures also counsel caution about recent upticks in LSAT takers. More students may be considering law school, but schools need to remain wary about the employment market. If we admit more students, will employment rates fall again?

* Note: The BLS statistics for “lawyer” jobs report only positions listed under that category. Some BLS tables also report small numbers of judges and law clerks, but I have eliminated those categories for simplicity.



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Revisiting “Hemispheres” in the Legal Profession

August 28th, 2017 / By

Excerpts from “Professional Apartheid: The Racialization of U.S. Law Schools After the Global Economic Crisis” American Ethnologist 44:3, August 2017. This piece relates to the author’s recent book, Law Mart: Justice Access and For-Profit Law Schools (Stanford, CA: Stanford University Press, 2017).

The 2008 global financial collapse was a watershed for US law schools. The sudden loss of capital, triggered by overspeculation and the repackaging of debt among multinational banks, caused global corporations to cancel transactions, settle litigation, and demand greater efficiency in remaining legal-services agreements. Large global law firms laid off thousands of attorneys, canceled new recruitments, and began outsourcing work to legal temp agencies, which in turn benefited from a professional labor oversupply and the new “gig” economy. In the preceding years, US law schools had expanded their operations and planned their budgets based on tuition priced against once-widespread lucrative corporate law incomes. Now they faced austerity. And because it was already in doubt whether law school job outcome reports were accurate, the moral hazard that they generated seemed to multiply after the economic crash. Prospective students took heed. Whereas legal education had seen increased demand in prior economic downturns, this time would be different: enrollment in US law schools plunged 30 percent from 2011 to 2015.

Indexing public fascination with this, failures in legal education made headlines in the New York Times, the Wall Street Journal, Bloomberg, and the Huffington Post. In an age of new cultural insurrections like Occupy and Black Lives Matter, people grew fascinated by the discomfort of this once-elite knowledge community. Beneath those news stories lay serious lessons about difference and knowledge capitalism in the contemporary global system. The so-called crisis of legal education and the legal profession, along with the overwhelmingly market-based reaction to it, suggests something deeper about the state of social justice under neoliberal political economy. (more…)

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Civil War Generals

August 16th, 2017 / By

George Henry Thomas went to work as a law clerk in nineteenth century Virginia. Fortunately for the United States, he found that the work “lacked excitement” and he enrolled in the United States Military Academy at West Point. After Thomas gained field experience, he was invited back to West Point as an instructor. There, Thomas gained both the respect and friendship of the Academy’s commandant, Robert E. Lee.

Thomas and Lee later traveled to the southwest, serving on military missions and deepening their friendship. The two particularly shared a love of their homeland Virginia.

And then Virginia seceded from the Union.

We all know what happened to Lee. He declined a top post in the Union Command and renounced his oath to the United States. He led the confederate army for much of the Civil War, defending an economy and lifestyle based on white ownership of black slaves. He invaded the nation he had sworn to protect, killing more than 5,200 Union soldiers at Gettysburg and Antietam alone: that’s more deaths on American soil than the number who died during the homeland attacks on Pearl Harbor or the World Trade Center.

Overall, Americans suffered more casualties in the Civil War than in all other wars combined.

But what happened to Thomas? Despite his love of Virginia and family ties to that state, he refused to break his oath to the United States. The erstwhile law clerk commanded Union troops throughout the Civil War, from Mill Springs (where he gave the Union its first serious battlefield victory) to the March on Atlanta. Thomas’s family renounced him for remaining loyal to the United States; his confederate friends called for him to be hung as a traitor.

When the war ended, Thomas led troops overseeing Reconstruction. He helped defend freed slaves from local governments and the newborn Ku Klux Klan. In 1868, he warned about attempts to lionize the confederacy:

The greatest efforts made by the defeated insurgents since the close of the war have been to promulgate the idea that the cause of liberty, justice, humanity, equality, and all the calendar of the virtues of freedom, suffered violence and wrong when the effort for southern independence failed. This is, of course, intended as a species of political cant, whereby the crime of treason might be covered with a counterfeit varnish of patriotism.

How many statues have Americans erected to honor the man who kept his oath to his country, fought against slavery, and recognized the evils of romanticizing the confederacy? Just one (in Washington, D.C.).

How many statues have we erected to Lee, the man who broke his oath, defended slavery, invaded his former country, and led a war that killed more than half a million Americans? Too many.

We need not excoriate Lee today: reconciliation is part of ending conflict. But it’s long past time to take down all the statues, and we are sadly mistaken to honor him as a leader. We need to come to terms with the way in which Americans have romanticized the confederacy and its culture.

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Council, Please Shape Up

August 6th, 2017 / By

The Council of the ABA Section of Legal Education and Admissions to the Bar has weathered significant criticism over the last few years. Some of that criticism has been well founded; other attacks have been unfair. But now the Council is acting as its own worst enemy–pursuing a course that has already provoked significant criticism in the legal academy and probably will attract negative attention in the press.

As Jerry Organ explains in a detailed column, the Council voted in June to make several changes in the form used to report law school employment outcomes. The Council acted without any public notice, without following its usual processes, and without gathering input from anyone outside the Council. The lack of process is especially disturbing given: (a) some of the changes had previously provoked vigorous debate; (b) the Council had previously rejected some of the proposals in light of that debate; and (c) the Council–along with legal education more generally–has been accused of lacking transparency.

I am sure, as Council Chair Gregory Murphy has written, that the Council acted in good faith–believing that the changes would receive “universal, or near universal, acclamation.” But that’s the problem with disregarding process and input: a small group of decision makers can persuade themselves that they know best. This case is a good illustration of how even highly educated, well intentioned groups can fall prey to that fallacy.


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A Better Bar Exam—Look to Upper Canada?

July 25th, 2017 / By


Today, tens of thousands of aspiring lawyers across the United States sit for the bar exam in a ritual that should be designed to identify who has the ability to be a competent new lawyer. Yet a growing chorus of critics questions whether the current knowledge-focused exam is the best way to draw that line and protect the public. As Professor Deborah Merritt has noted, “On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary.”

For years, the response to critiques of the bar exam has been, in effect: “It’s not perfect, but it’s the best we can do if we want a psychometrically defensible exam.” The Law Society of Upper Canada (LSUC), which governs the law licensing process for the province of Ontario, developed a licensing exam that calls that defense into question.

Overview of Law Society of Upper Canada Licensing Exam

The LSUC uses a 7-hour multiple-choice test consisting of 220 to 240 multiple-choice questions to test a wide range of competencies. For barristers (the litigating branch of the profession), that includes ethical and professional responsibilities; knowledge of the law; establishing and maintaining the lawyer-client relationship; problem/issue Identification, analysis, and assessment; alternative dispute resolution; litigation process; and practice management issues. A 2004 report explains how the LSUC identified key competencies and developed a licensing test based upon them.

Unlike the US exams, the LSUC exam is open-book, so it tests the ability to find and process relevant information rather than the ability to memorize rules. Most important, it tests a wider range of lawyering competencies than US exams, and it does so in the context of how lawyers address real client problems rather than as abstract analytical problems.

Below, we discuss how these differences address many of the critiques of the current US bar exams and make the LSUC exam an effective test of new lawyer competence. We also provide sample questions from both the LSUC and the US exam.

Open-Book Exam

Like all bar licensing exams in the United States (with the New Hampshire Daniel Webster Scholars Program as the sole exception), the LSUC exam is a pencil-and-paper timed exam. However, unlike any United States exam, including the Uniform Bar Exam, the LSUC licensing exam is open book.

The LSUC gives all candidates online access to materials that address all competencies the exam tests and encourages candidates to bring those materials to the exam. To help them navigate the materials, candidates are urged to create and bring to the exam tabbing or color-coding systems, short summaries of selected topics, index cards, and other study aids.

Lawyering is an open-book profession. Indeed, it might be considered malpractice to answer a legal problem without checking sources! As we have previously noted, good lawyers “…know enough to ask the right questions, figure out how to approach the problem and research the law, or know enough to recognize that the question is outside of their expertise and should be referred to a lawyer more well-versed in that area of law.” Actually referring a problem to someone else isn’t a feasible choice in the context of the bar exam, of course, but accessing the relevant knowledge base is.

The open-book LSUC exam tests a key lawyering competency untested by the US exam—the ability to find the appropriate legal information—and it addresses a significant critique of the current U.S. exams: that they test memorization of legal rules, a skill unrelated to actual law practice.

Candidates for the bar in Canada no doubt pore over the written material to learn the specifics, just as US students do, but they are also able to rely on that material to remind them of the rules as they answer the questions, just as a lawyer would do.

Testing More Lawyering Competencies

Like all bar exams in the US, the LSUC exam assesses legal knowledge and analytical skills. However, unlike US bar exams, the LSUC exam also assesses competencies that relate to fundamental lawyering skills beyond the ability to analyze legal doctrine.

As Professor Merritt has noted, studies conducted by the National Conference of Bar Examiners [NCBE] and the Institute for the Advancement of the American Legal System confirm the gaps between the competencies new lawyers need and what the current US bar exams test, citing the absence of essential lawyering competencies such as interviewing principles; client communication; information gathering; case analysis and planning; alternative dispute resolution; negotiation; the litigation process; and practice management issues.

The NCBE has justified their absence by maintaining that such skills cannot be tested via multiple-choice questions. However, as illustrated below, the LSUC exam does just that, while also raising professional responsibility questions as part of the fact patterns testing those competencies.

Testing Competencies in Context of How Lawyers Use Information

The LSUC exam attempts to capture the daily work of lawyers. Rather than test knowledge of pure doctrine to predict a result as the US exams tend to do, the LSUC used Bloom’s taxonomy to develop questions that ask how knowledge of the law informs the proper representation of the client.

The LSUC questions seek information such as: what a client needs to know; how a lawyer would respond to a tribunal if asked “x”; where a lawyer would look to find the relevant information to determine the steps to be taken; and what issues a lawyer should research. That testing methodology replicates how lawyers use the law in practice much more effectively than do the US exams.

The LSUC exam format and content addresses a significant critique of US bar exams—that those exams ask questions that are unrelated to how lawyers use legal doctrine in practice and that the US exams fail to assess many of the key skills lawyers need.

Sample Questions from the LSUC and the MBE

Here is a sampling of LSUC questions that test for lawyering skills in a manner not addressed in US exams. These and other sample questions are available on the Law Society of Upper Canada’s website:

  1. Gertrude has come to Roberta, a lawyer, to draw up a power of attorney for personal care. Gertrude will be undergoing major surgery and wants to ensure that her wishes are fulfilled should anything go wrong. Gertrude’s husband is quite elderly and not in good health, so she may want her two adult daughters to be the attorneys. The religion of one of her daughters requires adherents to protect human life at all costs. Gertrude’s other daughter is struggling financially. What further information should Roberta obtain from Gertrude?
(a) The state of her daughters’ marriages.
(b) The state of Gertrude’s marriage.
(c) Gertrude’s personal care wishes.
(d) Gertrude’s health status.
  1. Tracy was charged with Assault Causing Bodily Harm. She has instructed her lawyer, Kurt, to get her the fastest jury trial date possible. The Crown has not requested a preliminary inquiry. Kurt does not believe that a preliminary inquiry is necessary because of the quality of the disclosure. How can Kurt get Tracy the fastest trial date?
(a) Waive Tracy’s right to a preliminary inquiry and set the trial date.
(b) Bring an 11(b) Application to force a quick jury trial date.
(c) Conduct the preliminary inquiry quickly and set down the jury trial.
(d) Elect on Tracy’s behalf trial by a Provincial Court Judge.
  1. Peyton, a real estate lawyer, is acting for a married couple, Lara and Chris, on the purchase of their first home. Lara’s mother will be lending the couple some money and would like to register a mortgage on title. Lara and Chris have asked Peyton to prepare and register the mortgage documentation. They are agreeable to Peyton acting for the three of them. Chris’ brother is also lending them money but Lara and Chris have asked Peyton not to tell Lara’s mother this fact. Should Peyton act?
(a) Yes, because the parties consented.
(b) No, because there is a conflict of interest.
(c) Yes, because the parties are related.
(d) No, because she should not act on both the purchase and the mortgage.
  1. Prior to the real estate closing, in which jurisdiction should the purchaser’s lawyer search executions?
(a) Where the seller previously resided.
(b) Where the seller’s real property is located.
(c) Where the seller’s personal property is located.
(d) Where the seller is moving.

[These questions test the applicant’s understanding of: the information a lawyer needs from the client or other sources, strategic and effective use of trial process, ethical responsibilities, and knowledge of the real property registration system, all in the service of proper representation of a client. Correct answers: c, a, b, b.]

Compare these questions to typical MBE questions, which focus on applying memorized elements of legal rules to arrive at a conclusion about which party likely prevails. [More available here.]

  1. A woman borrowed $800,000 from a bank and gave the bank a note for that amount secured by a mortgage on her farm. Several years later, at a time when the woman still owed the bank $750,000 on the mortgage loan, she sold the farm to a man for $900,000. The man paid the woman $150,000 in cash and specifically assumed the mortgage note. The bank received notice of this transaction and elected not to exercise the optional due-on-sale clause in the mortgage. Without informing the man, the bank later released the woman from any further personal liability on the note. After he had owned the farm for a number of years, the man defaulted on the loan. The bank properly accelerated the loan, and the farm was eventually sold at a foreclosure sale for $500,000. Because there was still $600,000 owing on the note, the bank sued the man for the $100,000 deficiency. Is the man liable to the bank for the deficiency?
(a) No, because the woman would have still been primarily liable for payment, but the bank had released her from personal liability.
(b) No, because the bank’s release of the woman from personal liability also released the man.
(c) Yes, because the bank’s release of the woman constituted a clogging of the equity of redemption.
(d) Yes, because the man’s personal liability on the note was not affected by the bank’s release of the woman.
  1. A man arranged to have custom-made wooden shutters installed on the windows of his home. The contractor who installed the shutters did so by drilling screws and brackets into the exterior window frames and the shutters. The man later agreed to sell the home to a buyer. The sales agreement did not mention the shutters, the buyer did not inquire about them, and the buyer did not conduct a walkthrough inspection of the home before the closing. The man conveyed the home to the buyer by warranty deed. After the sale closed, the buyer noticed that the shutters and brackets had been removed from the home and that the window frames had been repaired and repainted. The buyer demanded that the man return the shutters and pay the cost of reinstallation, claiming that the shutters had been conveyed to him with the sale of the home. When the man refused, the buyer sued. Is the buyer likely to prevail?
(a) No, because the sales agreement did not mention the shutters.
(b) No, because the window frames had been repaired and repainted after removal of the shutters.
(c) Yes, because the shutters had become fixtures.
(d) Yes, because the man gave the buyer a warranty deed and the absence of the shutters violated a covenant of the deed

[Correct answers: d, c]

We Can Build a Better Bar Exam

As illustrated above, the LSUC exam shows that it is possible to test a far wider range of competencies than those tested in US bar exams.

Does the LSUC exam address all of the flaws of US bar exams? No—one problem that persists for both the LSUC and US exams is the requirement for rapid answers (less than 2 minutes per question), which rewards an ability and practice not associated with effective lawyering.

Does the LSUC exam fully address experiential skills? No—LSUC also requires applicants to “article” (a kind of apprenticeship with a law firm) or participate in the Law Practice Program (a four-month training course and a four-month work placement).

But the exam does what the NCBE has told us cannot be done. It is a psychometrically valid exam that assesses skills far beyond the competencies tested on US bar exams: skills such as interviewing, negotiating, counseling, fact investigation, and client-centered advocacy. And its emphasis is on lawyering competencies—using doctrine in the context of client problems.

Eileen Kaufman is Professor of Law at the Touro College, Jacob D. Fuchsberg Law Center.

Andi Curcio is Professor of Law at the Georgia State University College of Law.

Carol Chomsky is Professor of Law at the University of Minnesota Law School.

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