Grading is Over

I turned in my grades. As always, the outcomes correlate rather randomly with class participation (even though I give some credit for it), or anything else I can think of. I haven't yet run the numbers to see if there's a correlation with what row people sat in, or how they did on an ungraded “following directions exam” I gave as an experiment.

I think I'm an easy grader. Even so, the grades came out very very bunched — so I curved them to create some more at the top. The bottom, by and large, kindly selected itself.

Now the essential next steps: 1) prepare the memo to the class about the questions and answers, including model student answers; 2) get out of Dodge.

I'm going to a conference in Boulder. The Digital Broadband Migration: Examining the Internet's Ecosystem. I gather that it's not 77 degrees there like it is here…

Blogging Grading

More good posts on various aspects of grading:

• Orin Kerr, Judgment Calls in Grading Law School Exams: One Professor’s Perspective (read this one!)
• Paul Horwitz, More on Grades
• Ilya Somin, Monday Bearblogging — Vulcan Bear Grades Final Exams

I'm maybe 75% done. Maybe.

1L Grades

Good posts: Orin Kerr, Thought on First-Year Law School Grades and Lyrissa Lidsky, Emotional Distress and 1L Grades.

Our first year grades are due the 25th 28th and will be released soon thereafter all in a lump. This is a big change from previous practice where the grades were due on a rolling basis related to when the exam was given, and the size of the class. And they were released as they came in. This, we suspect, spread the pain for first years and interfered with second semester studiousness. Perhaps, we hope, people will have settled down into second semester routines and be better able to weather any jolts the grades may deliver.

As my exam was on the very last day of the exam period, and my section (IJ) has the most students, I get the worse deal here, but that's life.

Anyway, now that I've used up all the pills they gave me for my dental surgery, I'm back to grading. Which is a different sort of pain.

Zinsser on Writing Good English

Writing Good English: A talk by William Zinsser to foreign students at the Columbia University Graduate School of Journalism is a wonderful essay for native speakers too. Although it is aimed at journalism students, most of it is applies to legal writing too. I wish all my students would read it.

Legal writing is different from journalistic writing in ways that matter, and these may obscure the essential lessons of Zinsser's exhortation for “Clarity, Simplicity, Brevity, and Humanity.” Lawyers sometimes must deal in great complexity. We must use terms of art if we mean the things that those terms, however unhappy, refer to, else we will be thought to mean something else. Details matter, and detail in law is rarely brief. Nevertheless.

And especially this:

The epidemic I’m most worried about isn’t swine flu. It’s the death of logical thinking. The cause, I assume, is that most people now get their information from random images on a screen—pop-ups, windows, and sidebars—or from scraps of talk on a digital phone. But writing is linear and sequential; Sentence B must follow Sentence A, and Sentence C must follow Sentence B, and eventually you get to Sentence Z. The hard part of writing isn’t the writing; it’s the thinking. You can solve most of your writing problems if you stop after every sentence and ask: What does the reader need to know next?”

Oh yes. [update: But see the comments.]

Bah Humbug

I am celebrating the holiday season in the traditional manner for legal academics: grading exams.

And my oh my there are a lot of them this year.

I had thought originally I would tie myself to the mast of public humiliation by posting daily updates about my progress, thinking this would give me an incentive not to slack off, but that plan ran into two snags.

First, it seems that a few people haven't taken the exam yet, for medical reasons. Since I didn't tell the class in advance how many questions were on the exam, and I grade question-by-question rather than an exam at a time, there's too much risk that someone might figure out the number of questions from my postings, and that might somehow be seen as unfair by someone.

Second, the numbers are too humiliating.

Happy holidays.

Susan Crawford Returns to Academia

Susan Crawford is back at U. Mich. Law from a year as Special Assistant to the President for Science, Technology, and Innovation Policy on the National Economic Council. And that means she's blogging again — starting with a Q&A about the last year.

It was fun, she says, but she promised her Dean she'd only be away a year.

Welcome back, Susan.

C. Edwin Baker (1947-2009)

Exploding Offers are Evil

I've been meaning to write about 'exploding offers' for some time; now it seems Dan Markel has beaten me to the punch – except that I disagree with much of what he's written. He starts by saying that,

I think “normal” is probably 2 months or more, but fwiw, I'm not sure “normal” is a good practice. … Indeed, I'm not sure all exploding offers are bad or “coercive,” especially if the candidate is told in advance of doing the interview that such is the practice of the school. The practice itself may not redound to the benefit of the school but barring unusual circumstances, it's not so manifestly unjust as to be condemnable outright.

Thus, Dan (and even more so some of his commentators) would be perfectly comfortable with a law school making an exploding offer (aka a “short string”) of a week or two. (Dan also proposes a something between musical chairs and piranah-style feeding frenzy in which prof wannabes compete to see who can be the first to grab a small number of slots, with the more deliberative getting no job. I can'tell if he's serious, so I'm going to ignore that part of his post.)

Not to put too fine a point on it, I think short-string, or quickly exploding, offers in law teaching are evil. And wrongheaded. And did I mention selfish and mean?

Some background for those not in the legal academy: Most entry-level hiring in law schools follows a fairly predictable course until the actual offer is made. In August candidates submit forms to the AALS that summarize their experience in an ugly and not terribly useful one-page form, and, increasingly, a fuller uploaded c.v. From these, hiring committees can request copies of writings and check out references. Having built their files, the hiring committees choose who to interview at the annual AALS 'meat market' in DC (formally, the AALS hiring conference). Most interviews, which last about 30 minutes, are arranged in advance. (Our committee sends two teams and sees about 50 of the 800-1000+ applicants.) Of the people interviewed in DC, only a fraction will be invited (at the law school's expense) for a interview day in which they will meet faculty, give a presentation, meet more faculty, have a dinner with more faculty. Of the people interviewed on campus, only a fraction – here numbers vary widely – will be extended an offer.

At the moment the offer is extended, the power relationship changes. Until that point, all the power has been in the law school's hands. Now some of it is in the applicant's: he or she can try to negotiate for a better deal in money, teaching or perks (although the ability of a school to deliver may be quite limited). And he or she can hold on to the offer and hope for a better one, however the applicant may define 'better'. The law school faces a particular problem – it has granted a lien on one of what is in most cases a very small supply of slots, and if its offer is held a long time then ultimately refused, the school may find itself in a disadvantageous position as its near-favorite choices may be committed elsewhere.

The problem is in part due to the wide variety of timing: While the AALS hiring conference happens at the same time for everyone, the flyback interviews and the extending of offers happens over a wide time period starting perhaps in late November and running to at least February and sometimes quite a bit later. What's more, reasons unknown to me, the most prestigious and wealthy schools tend to interview and make offers later; I've heard it suggested that they are free-riding on the work of others to figure out who the market considers desirable or playing strategic beggar-my-neighbor, but that seems harsh.

Thus, the “exploding offer”. Where once offers did not carry a deadline, in the past five, maybe ten, years an increasing number of schools – especially schools with relatively low rankings in the legal pecking order – have begun to give candidates offers that expire in 14 days, or 7 days, or even four days. And recently, I've heard of a new wrinkle: some schools are not only interviewing particularly promising candidates before the AALS hiring conference, but they are making offers that explode before the conference – thus requiring candidates to decide before they have any real sense of how the market at large will respond to what they are offering. I imagine the faculties that snag very risk-averse job candidates with this tactic to be chortling to themselves, but I wouldn't want to live there.

I think exploding offers/short strings are just wrong for two related sets of reasons. First, an offer to join a faculty isn't, or shouldn't be, simply an offer like any other job. When we make an offer to someone we're not just putting a warm body in a classroom, we're inviting them to join a community of scholars. We're hoping and expecting that they will become a part of our lively seminars. We want them as resources for our own work, and we look forward to their questions as we contribute to theirs. Teaching jobs are hard to come by. The pressure to take the bird in the hand will in many cases be intense. The idea that someone would be coerced into going to a place they would rather not be, while some other place was still getting its act together, makes sense if what we're engaged in is pure capitalism red in tooth and claw, but not if we're aiming for something a bit more collegial.

Second, entry-level scholars are on average older every year in part because we are favoring Ph.Ds and lawyers with teaching experience as Visiting Assistant Professors (VAPs) or post-JD writing fellowships. These not-so-junior scholars have complex lives as do their spouses or significant others; they have children who need schools – and in some cases may need special teachers or doctors; they have expectations about housing that cannot be tested against reality until they know about how much they will be paid, and what houses go for in the area they are suddenly going to find themselves. It is unrealistic to expect future colleagues to ask other important adults in their lives to make career choices in four or even in 14 days, and it is also unrealistic to expect spouses/others to send out job applications until they know for certain where they are trying to move to. Putting relationships through that vise is simply cruel.

I'm proud that the University of Miami School of Law does not do exploding offers, and didn't do it even in the years when we had very few slots to juggle. Yes, we got strung along a couple of times by people who left us at the last minute for somewhere else, and they made our lives more difficult than we would have liked. As a result, I would have no trouble with a reasonable time limit on job offers: say eight weeks, or maybe even six weeks so long as it was tolled for the holiday season, a time when many people plan to be with their extended families and which in any case is almost useless for job, school, and house hunting.

But “short strings” and “exploding offers” of a week, or even two, are a very lousy, selfish and short-sighted way of starting a relationship that just might last a lifetime.

Today Looms

I have to write a torts exam.

Super Lawyers Puts UM Law at #20

US News rankings are biased in ways that hurt the U. Miami Law; here's one I would guess is biased in our favor: 2010 Super Lawyers U.S. Law School Rankings by Super Lawyers magazine. They say we are #20 in the country. Would it were so.

I suggest you split the difference between the 71st ranking at USN and this one (71+20)/2 = 45.5. That's probably closer to the truth than either of the other two numbers.

I've Been Elfed

It seems that students in our first year section (IJ) just have way too much time on their hands.

(ElfYourself is a product of JibJab.)

Deans May Know This

Joho the Blog, Line from a conf:

“There is a way to herd cats: Move their food.” — speaker at a closed conf

Encouraging Students to Take Foreign Language Courses

I don't know why I had to read this on Above the Law (no, not that), but it seems that UM Law school is implementing a very good change in the tuition structure which will ensure our students can take language (and other) courses in the University without extra charge. See University of Miami School of Law Slows Growth of Tuition.

I often tell students that they enhance their employability for any international work, and also much domestic work, if they speak another language well. And I tell students who have a basic grasp of a foreign language — often it's locals who speak Spanish but don't write it as well as they speak it — that they can get law school credit for advanced language courses in the college. (Last I checked they can't get credit for very basic language courses.)

But students sometimes reported that registration wasn't simple — and one of the issues was that sometimes the law school passed on the extra tuition charges the college charged it for those courses.

I don't know if the Dean's announcement means we have worked out a way to avoid those charges or if we will be eating them — Above the Law seems to get more news about Miami than I do these days — but either way this is good for students who want to brush up their language skills and signal competence to future employers.

(We also teach some introductory civil law classes in Spanish, which I recommend to students with at least near fluency so that they can acquire a basic legal vocabulary.)

Dean White's memo to students — which either wasn't sent to faculty or I missed it in the crush of work — is included below (as reported on ATL).

UNIVERSITY OF MIAMI SCHOOL OF LAW — MEMO — TUITION

Dear Students,

There are two tuition policy changes which I would like to announce and bring to your attention as you go about registering for next semester. Both of them are designed to help you cap your tuition cost in any given semester to the amount of the law school’s then full-time tuition semester rate (currently $18,709). Both of these changes will go into effect this Spring semester.

1) Under our current rules, all UM Law students may take up to 6 credits of graduate level coursework in another UM department or school and count these credits toward their law degree. The rules describing what is allowed are set out in Chapter 16 of the Student Handbook. Unfortunately many of you have felt discouraged from taking advantage of this opportunity by our tuition structure. Rather than try to describe that structure in detail, let me just say that it often worked to impose an extra charge on students who took allowed courses outside of the Law School. This will no longer be the case. Your Law School tuition will now cover those nonlaw courses which you take and apply to your law degree. There will be no surcharge. I very much hope that this will encourage you to take greater advantage of what the University has to offer. Some of you are currently pursuing joint degree programs. I hope that the number of such programs will expand very soon. The tuition structure has made these programs more expensive than they need to be. The change described above will have the effect of capping the tuition cost of any given semester at the full-time Law School rate. One warning…we may not succeed in getting the University billing system adjusted quickly enough to keep you from getting tuition bills charging you more than $18,709. Please be patient and simply send the notice of any such charges to deanofstudents@law.miami.edu We will make sure that your bill is corrected. Please do not complain to the University billing folks!!

2) Under certain unusual circumstances students are allowed to request permission to take 17 credits in a semester. Permission to do this must be given by the Dean of Students. In the past. we have charged additional tuition for that extra credit (currently $1633). The full time rate has been limited to 16 credits. Henceforth, for tuition purposes, we will not charge additional tuition for 17 credits. This change will not affect the conditions under which permission to take a 17th credit will be granted.

I hope that these changes are helpful to you. TW

Patricia D. White

Dean & Professor of Law
University of Miami School of Law

Source: Above the Law

The Scene In Torts Class on Friday

Almost forgot to post this Halloween pix — we had a guest lecturer in Torts class. A number of students also dressed as someone (or maybe his) familiar.

Social Networking for Artists

I'm sort of curious why this Social Networking for Artists event is taking place in the UM law school, but I'm all for it.

Social Networking for Artists
October 23rd, 2009
1:00-4:00pm
University of Miami School of Law
Computer Lab F200
1311 Miller Drive
Coral Gables, FL 33146

Social Networking provides a great opportunity for your art to reach thousands of potential new contacts and patrons. This hands on workshop is for beginners that want to explore Social Networking but have no clue how to start.

$15. Space is limited. Advance Registration Required.
To register: legalartprograms@gmail.com

Not being an artist, I don't suppose I'll probably go, but if anyone reading this does, I'd love a report.

Hard Times at Ave Maria Law (Updated)

AveWatch reports on Ave Maria Law's latest troubles as it settles into Naples, Florida: Declining LSATs.

This news comes on the heels of a very significant legal victory by former Ave Maria School of Law professor Stephen Safranek who accepted a settlement offer in his October 2007 wrongful termination suit against Ave Maria moneyman and controlling power Tom Monaghan, the Ave Maria Foundation, the Law School, and former AMSL Dean and President Bernard Dobranski — see Safranek Wins Settlement from Ave Maria and Monaghan for details.

Update: A reader points me to Ave Maria Law School Settles Into SW Florida which includes the school's own more cheerful account of its current class (2009, which would be the year after the last summarized in the article linked above):

“We had record applications and the credentials of our students have gone up at the same time that we increased class size,” Dean Milhizer said. “Average LSAT scores went up over the previous year. In terms of selectivity, we admitted less than half of the students who applied which is the first time we've ever been that selective.”

The LSAT scores and grade point averages of the incoming class “increased by significant numbers,” according the the law school's director of external affairs, John Knowles.

There are more than 200 new students at the school and the class also has its highest percentage of women to date, the dean said.

Missing from this account, however, is hard data on grades/scores. In due course they'll be reported the ABA, I suppose.

I Am Not Making This Up

As I write this, my students are taking my midterm in Torts, a suitably fiendish exercise in which they have too little time to discuss too many torts.

And here was my fortune cookie message at lunch today:

Advice to the Pre-Law Student

A college student writes asking for pre-law advice:

Hi. My name is —— ——- and I am a freshman at Framingham State College in Massachusetts. In my expository writing class we were assigned a paper in which we have to research our future career goals. A part of the requirement is a personal interview which can be done via email. At Framingham State I am an English major and I aspire to get my JD in law. I would like to be a criminal defense lawyer. If you have the time could you please respond to a few of my questions?

1. What are the most popular majors that apply to law school?
2. Which major do you feel would be the most useful/helpful?
3. What could I do in college that would help me get into the school?
4. What is the most challenging aspect of law school?
5. What would people be surprised to know about studying law or working in law?

I really appreciate if you could get back to me. The assignment is due October 1st.

Thank you,

—— ——-

So I replied. My answers are below; readers are invited to supply better answers so I can use them next time.

1. What are the most popular majors that apply to law school?

Popular doesn't mean “good” — it just means that many people who go to law school chose it. History and political science are very popular; law schools often prefer people with more diverse interests, however. [I didn't comment on the infelicity of the question. Maybe I should have given that the writer is an English major. Then again, s/he is only a Freshman, and it's early in the year.]

2. Which major do you feel would be the most useful/helpful?

Anything that teaches writing and logic is good. Anything with the word “pre” in its name is awful. Criminal Justice is an extremely poor choice too.

3. What could I do in college that would help me get into the school?

See http://law.tm/lawFAQ.htm#major where I wrote:

If you really want to be a good lawyer, I don't personally recommend majoring in anything directly related to law as an undergraduate, or even taking courses in it. That includes “Juvenile Justice”. Colleges always teach the stuff “wrong” from the point of view of a lawyer - maybe right from the point of view of a cop or probation officer or something, but wrong from the point of view of someone who needs to work with law rather than recite it. So you will start out behind the other students since you will have to 'unlearn' what you think you know. Really.

Far, far, better to major in something that teaches you about the world: history, economics, literature, math or even art. You will get all the law you need in law school - why waste college getting a 3rd-rate version of it? Why not get the stuff that makes you a well informed person, and thus a much better lawyer in the long run.

The only rule that over-rides the one above is: major in what you like best. Because ultimately you will get the best grades in what you like best, and grades count! A lot. A whole lot. Especially if you are not going to college at a very high prestige Ivy League or similar school.

If possible - it's not essential - I'd try to take the following courses at some point regardless of what you major in:

* two semesters of economics
* at least one Intro to Philosophy and/or Political Philosophy
* as much US history as you can stand (law is about context, and precedents must be understood in the context of their times)
* a course that covers the structure of the US political/governmental system

Big bonus points if you can manage a course in basic statistics.

I also very highly recommend you subscribe to a first-rate national newspaper and read it every day (your college may have a student discount deal). You will learn essential information about the political and legal system without even realizing how much you are learning. The New York Times is the best, but if your interests are more business oriented then the Wall St. Journal or the Financial Times are ok too. Local papers don't really have enough national and international news to cut it.

4. What is the most challenging aspect of law school?

It is a lot of work. You can't slack off like in college.

5. What would people be surprised to know about studying law or working in law?

1) The economics of it are not as good as they used to be: the hours are up, the pay is headed down.

2) Law is much more flexible than most people think - it's not just about looking up the rules and applying them.

Bar Pass Rates Posted

The 2009 July Florida Bar Pass Rates are out. In order to illustrate my point that Bar Pass Rates are Over-Rated As A Measure of Law School Quality, I thought I'd not only sort the results, but calculate the number failing (the bar reports test-takers and test-passers). The numbers are in most cases reasonably small...

As I said before, "there certainly comes a point where a substantially lower bar pass rate than other schools in the state is a sign of a problem that a law school should work to fix." FAMU's score seems to suggest that, despite recent improvements, there's still work to be done there.

Ten Reasons Why You Should Teach Here -- And Three Why You Shouldn't (v. 3.0)

At the request of the Chair of the Appointments Committee, I am updating and republishing this note on teaching at UM. This marks the third annual appearance of this memo, which by US standards makes it a tradition.

For reasons explained below, we have a dozen new slots to fill, plus some replacements -- so despite the economy, we're hiring, and may be hiring a lot.

Ten Reasons Why You Should Teach Here — And Three Why You Shouldn't (v. 3.0)

1. Faculty

The best reason to come to U.M. is the faculty. At its best (which is to say, "outside of faculty meetings"), this is a faculty that believes ideas are serious things, but also is willing to play with them. You will see this most vividly at faculty seminars, especially those with external speakers. The faculty reads the paper in advance of the talk. It thinks about it. We don't let the presenter speak a long time — we want to have a discussion. There may be an element of performance in the questions and comments, but that usually just adds to the fun. Unlike some faculties I've heard about, we are not worshipers at the temple of sub-disciplinarity: faculty members feel comfortable commenting on papers far outside their own specialties, and they are usually right to do so as the distant perspective sometimes proves at least as valuable as the insider's. Visiting Professor John Flood gives a good description of the Miami seminar experience in Giving Papers at Miami (2008).

While faculty vary in the extent to which they will seek you out — some are shy; others are busy — they will almost all be happy to see you if you seek them out. If you are an entry-level hire, very few will treat you like a junior colleague; for most, you will be part of the family from the start. (That goes without saying for the more senior hires.) And it's an interesting family, including some big names in international law, arbitration, tax, law and society, law and identity, and several other subjects.

But don't take my word for it.  Here's what one of our more recent hires, Charlton Copeland, said a couple of years ago about his initial impressions of UM Law:

The faculty stood out for me at the AALS recruiting conference as one of the most intellectually engaged faculties with which I met over the weekend. They actually were interested in my writing projects, and gave me the sense that they took them and me seriously. My time with the committee ran out too quickly for me. My feeling of intellectual comfort with the faculty was only enhanced during my visit to the campus later in November, but that was augmented by my delight that this would be a group with which I'd be comfortable beyond simply discussing scholarly work. They were a bit quirky, and in a way about which I am excited. I am excited about the diversity of the city of Miami as well, and the opportunities that I think it will provide me to think about my areas of research in new ways — ranging from race and the the law (where the Law School has long been at the forefront in American legal education) to comparative separation of powers issues in Latin America.

2. Institutional style & institutional support

UM wants productive faculty, and it believes in research. But it isn't about telling you what to do. My own story may be instructive: I was hired thinking that I would be writing mostly about administrative and constitutional law. In fact, however, within a couple of years I had turned into an Internet lawyer, and was writing primarily about computers, networks and the law. At no time did anyone here ever suggest that this was a problem. What mattered to people was that I was publishing.

Another way in which UM may differ from some law schools is that our faculty is routinely interdisciplinary and international. Many publish in non-legal journals — a fact which does not necessarily help either our publication or citation counts since the legal tabulators tend to focus only on law journals. Although we recognize that there may be some reputational costs, we are not prepared to tell people where they should publish. We just want it to be good.

There is no international ghetto at UM (the same is true of tax, a traditional faculty strength). As a matter of unwritten policy, everyone is expected to teach a basic course outside their specialty; the result is both that we can have more internationalists (and tax scholars), and that there's a much greater community of overlapping interests.

3. Library

The University of Miami enjoys a superb law library, the result of a decision more than three decades ago to make library acquisitions a financial priority. And if we don't have it, the library will borrow it for you, no questions asked. (As one former librarian put it, "we aim to provide law-firm-quality service". And in fact, it is almost as good as a top law firm, and the librarians are much nicer.)

The law library has extensive holdings in related disciplines, notably political science, and of course the university library is literally next door, and it also has ever-growing electronic access to journals — which can even be accessed from your home office. We have a particularly strong collection in Latin American and Caribbean law, but also strong holdings in European law. We are weak in India, China, and Russia, and no doubt several other countries with non-Romance alphabets, so if your research involves heavy use of materials from one of those countries, you should check to see if we have you covered. I also have a sense that our holdings for pre-1940 materials are not as strong generally as for things published in the last 70 years. But I am continually having pleasant surprises when I consult Baron, the online card catalog. They've done some impressive buying over the years — which is a good thing, as the next major law library is a long way away.

4. Students

We have smart students with upwardly mobile ambitions. Some come from wealthy families, but for many a law degree will be the highest level of education ever achieved in their families — a matter of pride for an extended clan you may have the good fortune to meet at graduation. Despite the lures of nearby South Beach, UM students are by and large a studious lot: their awareness that few silver platters await at graduation usually translates into a commendable work ethic. At least until the end-of-term fog settles in, I find that my students have done the reading, and often have something to say about it. There is a little shyness — some students don't want to ask questions for fear of looking silly; other students worry about being labeled a "gunner" — but ordinarily class discussion can be pretty lively. Although we have more men than women as students, it is often the case that the women lead the discussions and make the most substantive contributions. Classes tend to be fun (at least for the instructor). Visiting professors from other law schools consistently remark on the high quality of classroom performance here.

The UM student body has improved greatly in the past decade. Our best students would be at home in any law school. Our worst students would have been near the middle of the class 15 years ago. The only fly in the ointment is that despite their good college grades and creditable LSATs, a substantial fraction of the class comes to law school unable to write as well as they think or speak. Overcoming this obstacle remains one of our biggest challenges. That said, every year we have students who write publishable papers in classes and seminars. It's been a particular pleasure to see those pieces go into print along side those of full-time academics.

Some of our students will go on to be national leaders; a much larger number will play key roles in the State of Florida, as judges, politicians, and leading members of the bar. Some people have described alumni reunions as state judges' conventions, but this is slightly unfair. On the other hand, there's no question that both Florida as a place, and UM graduates as important players in that place, have been at the center of major wrangles with national impact ranging from the 2000 election to the Terri Schiavo affair.

Aspiring faculty sometimes worry that they will not find good research assistants outside a top ten law school. It's true that I don't hear stories about students writing papers that professors then publish under their own name — as I did when I was a law student at Yale. But if you are looking for a research assistant rather than a ghost writer, then my experience suggests this is not a serious problem if you teach a first-year class. As a teacher in the larger first year classes you can identify the students who are good and who fit your style before they get too caught up in other things. Some of them will get on law review, and will be too busy to work for you; some of those that don't will work downtown for higher pay than the law school can offer, but usually there's someone you will be happy to have who will be happy to have the job in their second or third year. I can't claim that every research assistant I've had has been stellar, but I can say that some of them were amazing — and that they are harder to find when I don't teach first years. (And, despite not teaching a first-year class I had an amazingly good RA this past summer...and then lost her to the law review.)

5. Research support

Research support exists to make it easier for you to write. The most important part of UM's research support is its excellent law library. But it doesn't stop there: In addition to the collection itself, we have a staff of helpful law librarians who seem happiest when given difficult research requests. There's a document delivery service which will get you any book or article you ask for and deliver it to your office within a day if it's on campus or a few days if it must be sent from far away. (One down side: you can gain weight from the loss of movement caused by having everything come to you.)

At conferences I sometimes hear stories about places where senior colleagues try to tell tenure-track faculty what to write about (or, worse, forbid certain topics or styles). We don't do that. If anything, we have erred in the other direction — tip-toeing around junior faculty sensibilities so much that we may have provided insufficient mentoring.  In an effort to do better in that department, the faculty now enjoys the services of a "director of faculty development" — yours truly for the third and probably last year in a row— whose job it is to help colleagues (and especially pre-tenure colleagues) with their research and writing by identifying resources, serving as a sounding board, or just staying out of the way.

In addition, every faculty member has an office budget which allows you to hire a research assistant, books and supplies, and to travel to conferences. Each of these budgets is fairly generous, and the Associate Dean has discretionary funds to add to them up for good cause. In my experience, any cause I can bring myself to ask about has been treated as a good one.

6. The University

A generation ago it was "Suntan U". Today, under the (very) energetic leadership of Donna Shalala and an impressive suite of Deans, the University of Miami is joining the ranks of the leading research universities in the USA. For openers, President Shalala raised $1 billion for the University. YES, $1 BILLION. Now that it's in the bank, she's warming up for a new round of fund-raising. The lion's share of the first round went to the medical school, but we are told that the law school should be able to claim a bigger share of the next round -- and we'll need it because we've also been offered a chance to build a brand new building on a prime location on campus that is already zoned for construction (trust me, that matters).

More importantly, the past couple of decades have seen a transformation in the quality of both the students and the faculty in the arts and sciences. It's become hard for students to get in; and departments such as History, Psychology, Business, and Sociology have attracted faculties that include a wealth of potential collaborators, adding to existing strengths in Medicine and Communications. Both the law school and the University encourage inter-disciplinary collaboration. The law school has begun to take advantage of these resources but there's much waiting for you that remains untapped.

7. Perks

The law school wants to support your research, and we try to put our money where our mouth is. Entry-level faculty can apply for a summer research grant before starting work in order to prepare their courses. We light-load you (usually only one course per semester) during your first year to give you time to find your feet. You'll get a summer grant as of right every summer until tenure to encourage you to write — after that you'll have to submit proposals, and make good on them too. And you're entitled to a semester's leave before tenure, more or less in the term of your choice, in order to help you write.

The law school is located on a very beautiful campus in the center of suburban Coral Gables, itself a very pleasant city with excellent restaurants. Rumor has it that in the old days the university administration spent more on landscaping than books; whatever the truth, there's no question that the campus is very nice to look at. It also sports a state-of-the-art gym that's about three minutes walk from the law school around our picturesque lake (crocodile optional). The campus sports other useful amenities, including a faculty club, a food court, and an on-campus daycare.

8. Miami

Miami is a cosmopolitan city. Part of its identity is as the defacto capitol of Latin America; part is as an artistic and musical center; and then there's the celebrity-and-tourist thing. It's an attractive place for young and old, and — if you take care to live in the right school districts, or have kids who qualify for the right magnet schools, or are ok with private schools — a pretty easy place for the middle-aged pater and mater familias. Like many sunbelt cities, Miami is more sprawling mosaic than urban core and periphery. Both urban and suburban living are within easy reach of the campus. Our politics are fascinating and complex, with much political power held by first and second generation immigrants from Cuba, and to a lesser degree Haiti, and Central America. The region now enjoys a lively cultural life, with a rich music and dance scene and some creditable small theater companies. If you prefer nature to culture, there's always the nearby Everglades as well as world-class coral reefs for diving just south of Miami.  And one of my colleagues sometimes totes a surfboard.

If your work involves domestic issues, you will find them in Miami, which is the city of the future in ways both good and bad. Along with our glitz you will find us on the cutting edge of today's and tomorrow's political and social issues: immigration, environmental (think "Everglades restoration"), medical (think "retirees"), and all the social questions that big cities produce.

Housing costs are plummeting, many other living costs were already low, and there is no state income tax.  The University no longer offers new hires a deal in which the university will subsidize part of your home purchase in exchange for a proportionate share in the equity when you sell, but given what's happening to prices around here, you're still better off as a buyer today.

Did I mention how pretty it is here? Visitors are often stunned by the place, especially in winter.

9. Weather

Miami's weather is glorious for almost half the year; variable for another chunk, and miserable in the dog days of summer and early Fall. The good news is that much (but not all) of the miserable part comes when the law school is not in session, so you can escape if you choose. When the weather is nice, our central courtyard, the "bricks," becomes the social center of the community, a place where students and faculty mingle between classes. Even office rats like me end up looking healthier than the wan, pale, parka-clad figures I see huddling on the Boston subway. For those with outdoor ambitions, you can live on Miami Beach, or just enjoy the sea view from a balcony in a tower apartment in downtown Brickel.

10. The revolution is here -- and we have a great new Dean

In last year's edition of this memo, I wrote that the "revolution is here".   Well, it's even more here now.

Two years ago we undertook an unusually detailed and painstaking strategic planning exercise. That caused us to recommend a radical transformation in the faculty, and perhaps the style, of University of Miami School of Law. The biggest event of last year was the our Interim Dean sold this idea to the central administration. President Shalala made her commitment to a dramatic increase in the size of the law faculty, and to help raise funds for our new building, the centerpiece of her recruitment of our new Dean, Patricia White.

At present we have about half a dozen faculty under 40, only a few more between 40 and 50, another dozen or so between 50 and 60; the single largest group — well over a dozen —  are over sixty, including some well over sixty. Our hiring is resolutely in compliance with the Age Discrimination in Employment Act (of our last nine entry-level hires, two were very experienced lawyers well over 40), but given the overall composition of the entry-level market, it is likely that this age profile will change dramatically in the next few years.

But more than simply replacing faculty as they retire, we plan to do something dramatic: not just fill empty lines (and we have a few) but hire twelve new faculty in the next few years. What this means for our new hires is that they will find themselves at the heart of their new community — and have a chance to lead it — much earlier in their careers than they might otherwise.

Today, the law school enjoys a nearly unique chance to reinvent itself, and people with ideas and energy should find all the breathing room and opportunity they want.   We 'll create a host of new Centers and Institutes -- several are already in advanced stages of planning.  We've created a new Immigration Clinic this year and there is talk of more. We've figured out a quick, temporary, fix to the classroom space shortage by getting some classroom space outside the law quad). We're going to change some (but only some) of the ways we do teaching.  We're going to ramp up the scholarly enterprise by having more talks, more conferences, more happenings.  And we're going to be open to your new ideas.

Dean White thus arrives with a mandate to transform the law school. She comes to us from a successful deanship at ASU. She's already shaken up the way we do things -- I don't have to serve on any committees this year!!! -- and the year has barely begun. Next up are programs to create greater interaction with the University as a whole and deep collaborative relationships with certain schools and disciplines.

Oddly, the financial crisis works in our favor: the law schools hardest hit are those that depended on substantial endowments, and saw the value of their portfolio shrink; we're not one of the rich law schools, and our endowment income was only a small fraction of our budget; the losses don't affect us as much as they do some others. So far at least, we plan to start a major campaign for our new building more or less on schedule, with the idea we'd move in some five years from now.

Thanks to the central administration's backing, and the fortuity of events, we have a chance to do some major hiring while making other transformational changes. With the help of the right people, it could be exciting.

All that is very well, but honesty compels me to say that there are also some reasons why not everyone may be happy here. Indeed, there are three main reasons why you should not teach here:

1. Weather

If skiing is your passion, and neither waterskiing nor snorkeling are substitutes, then Miami may make you sad. It's hot and very humid here from July until the heat breaks sometime in October or September. That means you can have up to three and half months when it's not much fun to go outside. Plus, occasionally we get weather with a name. But we don't get snowstorms, avalanches, wildfires, earthquakes, random tornadoes, floods, or mudslides. If you want immunity to natural disasters, move to Rhode Island.

2. Language

Many people in South Florida speak Spanish as their first (and often only) language. The campus is Anglo — although some of the bilingual staff and students will speak Spanish to each other — so this is not a work issue. But it is a life issue: you will hear lots of Spanish in the stores and on AM radio. If you are the sort of person who can't cope with foreign languages around you, there's a strong chance you will not be happy here. I don't speak Spanish, and I only found it a noticeable handicap for my first few weeks here, when I would get lost driving around and stop at a store for directions, then wait impatiently while they went to find the English-speaker. It's a non-issue today unless I happen to go bargain shopping for some exotic household good, and indeed contributes to Miami's cosmopolitan vibe.

3. Geography

It's flat here — no mountains (and houses have no basements). More seriously, it's also far from many of the legal nerve centers. If you're doing national work and you are having meetings related to it, odds are the meeting will neither be in Miami nor even within driving distance. That means air travel. And while we have great direct air connections to most of the world and the law school is generous with travel support, we do not have a working time machine. Given the post-9/11 security regime at airports, and the increasing vagaries of air travel generally, it is rarely possible to have a meeting in New York or Washington without spending the night out of town. That can mean having to reschedule a class (something we allow for good causes), which is a pain for you and even more of one for your students. It certainly means that doing national committee work is always a substantial time commitment. It is almost 500 miles to the state line, and then where are you? Somewhere between Tallahassee and Moultrie, Ga.

This year I am not on our hiring committee. We're searching for both entry-level and experienced scholars. (And we're also inviting groups of scholars who think they'd like to collaborate, or maybe found a Center, to apply as a package.)

Whichever group you fall into, if you find the positives outweigh the negatives and have an interest in coming here, I'd be happy to try to answer any further questions you might have, either in comments to this entry or by private email. Get in touch, or contact the Chair of our Appointments Committee.

NYT Dealbook Blog Praises Dean White

In Another View: Lock the Law School Doors Dan Slater argues that law schools are admitting too many students, but praises UM Law Dean White's (relatively unsuccessful) attempt to get incoming students to defer for a year.

This summer, in the staid world of legal education, where curriculum is uniform and scholars are trained in the art of like-mindedness, one dean hatched a contrary plan.

In a memo to incoming students, Patricia D. White, the dean of University of Miami School of Law, surmised: “Perhaps many of you are looking to law school as a safe harbor in which you can wait out the current economic storm.” She then urged them to “think hard” about their plans and offered incentives for those willing to defer for one year.

Apparently, though, the tide would not be stemmed:

32 students took Dean White up on her offer to defer, [so] the school is still left with a first-year population of 527 — ­ 35 percent more than last year’s incoming class.

I hope the legal job market has turned around by '12. I think it will be better than it is now, but the question is, how much?

Winning "Why I Went to Law School" Videos

WSJ Law blog reports that student-loan company Access Group sponsored a contest — a $10,000 scholarship to the law student who produced the best sub-four-minute video explaining the inspiration behind his or her decision to go to law school.

Here's the winner, from Chapman University Law School, Branigan Robertson's “Discovering Inspiration”. It's good.

Runners up: Ana DeFrates, University of Texas Law School; Anna Grace, Northeastern Law (I liked this one a lot); Joseph Duerst, Arizona State; John Grimm, Georgetown; and Ted Cardos, NYU.

On Being Mean

This is a new one.

After class last Friday, I first took questions from a long line of in most cases needlessly anxious first year students, then stopped to chat with a group of students who seemed to have stayed behind in the classroom to study. I asked them how it was going, the usual questions.

In the course of that conversation I got a complaint that I've never had before. It seems, they all agreed, that I wasn't mean enough. How were they going to be able to cope with mean people in the future if I didn't toughen them up? They expected law school to be tough, and were they getting the full experience?

It has to be said that the other professors in my section are particularly nice people. If there's a candidate for the bad guy, the scary one, it clearly has to be me. I'm the one teaching in a suit (the Dean has her own unique style that I will not attempt to characterize; Patrick Gudridge wears ties and jackets, but frequently the very professorial ones. George Schatzki doesn't wear a tie and sports a pony tail.)

But I don't want to be mean. Tough, sure; rigorous and exacting, you bet. But it's not meant to hurt.

Anyway, back to Friday: Slightly taken aback by this critique — one reason I stopped teaching first semester first years about a decade ago is that they found me too scary — I deflected the issue by saying that it reminded me of the story about the sadist and the masochist.

The masochist says to the sadist, “Please hurt me.” And the sadist says, “No.”

Then again, maybe I've just gone soft.

It Begins

I have my first meeting with my (rather large) Torts class this afternoon.

I suspect the greatest challenge I'll face this term — other than the sheer size of the group and the unfortunate room geometry (it's narrow and deep, and full of mini-jumbotron TV screens in the back half) — is mediating the tension between the need to go really really slowly and the nagging desire to get to the even more interesting stuff in the back of the book. My current syllabus has me doing a pretty standard torts course, without the fun extras. But it's not like you can decide not to do negligence this year.

A Note for my 1L Torts Class

I've written my Torts class a note about my class policies and about how to read and study law. I'm reprinting it here because it may be of interest to other people about to start law school. I'm hiding it below the fold because it's longer than the average blog posting, and I doubt many others will be interested.

Welcome! This note sets out some important class policies, and also has some thoughts about how to go about reading and studying law.

What you will need most of all in class is an open and yet critical mind informed by experience. You should also bring the casebook to every class: Cases and Materials on Torts (9th ed. 2008) ISBN: 978-0-7355-6923-2, by Richard A. Epstein. Please do not settle for an earlier edition as the page numbering is different, as is the selection of cases.

There will also be some supplementary materials and problems appearing at various intervals during the course, some of which will involve interaction with your extraordinarily able Dean's Fellow, Ms. Jennifer Hammitt. These will, unless otherwise stated, be required reading, and some will require you to provide written responses, most likely online.

Most of the class will proceed by discussion most of the time. Your questions are always welcome. I tend to lead discussions with a lot of questions of my own. Some of them are leading questions, some of them are misleading questions, but sometimes they are just plain questions. I hope you will come to believe that what's happening in the classroom is at least as much about learning to think like a lawyer - to work with legal concepts, to learn which kinds of facts, ideas, policies matter, and how to put them to work for you - as it is about whatever legal subject we're working on Torts. In short, you are learning to play a sort of game - but a uniquely serious game, with very complex rules and real-world stakes that will matter enormously to the future clients who will entrust their hopes and problems to you.

Legal instructors differ in the extent to which they are willing to be parentalist. Some of us observe that law students are adults, and conclude from this fact that they should be allowed to make their own choices as to whether they show up for class and whether they participate in class. All that matters, these instructors argue, is how students do on the exam. Other instructors respond that by signing a contract with the law school, our students have engaged us to be trustees for their education, and to use our trained judgment to do whatever we can, within the bounds of law and reasonableness, to maximize our beneficiaries' educations. I agree with both of those views. But what carries the day for me is the thought of your future clients. They're entitled to expect the best you can deliver. So they're entitled to expect me to try to encourage you to be the best you can be. That will take effort on both our parts, especially given my strong belief that what we do in class is at least as much about teaching you how we do it as it is about teaching you the substance of some foundational concepts in the law. ⁽¹⁾

So, in this class you have to play. Students will be called on randomly in each class. Participation on one day will not shield you from participation on the next.

And you have to be there. I will take attendance every day, except when I forget. ⁽²⁾ You can cut up to a whole week's worth of classes without penalty to your grade, although who knows what the lost knowledge will do to your education, or the fear of the lost knowledge will do to your mental health. Miss more than that, and it will begin to lower your class participation grade. ⁽³⁾ If you are consistently absent (missing more than seven classes without a good excuse ⁽⁴⁾) I will contact the Dean of Students office and ask them to speak to you. Miss nine or more classes and there's a risk we may drop you from the class. Please make every effort to come to class on time. ⁽⁵⁾ If you can't make it on time, it's still better to come late than not at all, as a lateness only counts as half an absence.

A few words on reading legal texts (aka "your reading assignments"). One of the first skills you are going to learn in the first year of law school is how to read much more slowly. (Then in the second year we'll expect you to read faster again. Go figure.) This is not a fun thing to learn after years and years in which reading faster was a prized and valuable skill. But legal texts are not like most other texts, and every word can matter. What's worse, what is absent is at times more important than what is present. Therefore, while it is essential to read the text carefully and slowly to absorb its exact meaning this is only the first step, and not even, in my personal experience, the hardest to master.

To become a really great lawyer you will need to internalize the process of having a dialog with the text - call it dialectic reasoning, or an internal Socratic Dialog if you must. You need to be sensitive not only to the specific content of the rule or theory being propounded, but its dependence on various facts, assumptions, and policies. In other words, once you get good at this (but not, I hasten to add, in the first week!) you will need to understand how to figure out what the reach of a decision or rule is, and also what it would take to open the door to a different outcome (we often call this "distinguishing" the case or rule). This dialogic ⁽⁶⁾ reading is an essential legal skill, a core part of "thinking like a lawyer" and one we'll spend a lot of time acquiring and exercising.

Don't forget, also, that courts don't always agree, and that US law is far less monolithic than it appears in Civics classes. Yes, there's a great deal of overlap on many of the basics, but the independence of the states, their ability to have their own legislatures and own court systems, is more than a formality. Federal law also varies sometimes between circuits, but there's a Supreme Court to resolve circuit "splits". There's no such court for state law matters, only a series of processes by which state courts talk to each other ("persuasive authority"), and legislatures enact rules designed by private or semi-private national committees that have taken on the mantle of increasing uniformity among state laws in service to predictability, standardization, easy commerce, and simpler bar exams. It's rarely enough to know the "rule" because so often it does not exist - in many cases you will need to know several contradictory versions of "the rule" as they are used in different states and you will also need to know the arguments that back each version up. Plus, rules change - what's the dissent today may be the majority tomorrow. An even harder part of "thinking like a lawyer" is learning how to gauge when a rule is ripe for change, what kind of arguments might spur that change, and when there's no point in arguing for it. Mostly that comes only with time, from seeing many lines of cases and understanding - in a historical context - how courts and lawyers respond to stimuli.

All this has implications for how you approach the experience of speaking in class, whether as a volunteer or an unwilling volunteer. Please try not to get too worked up about it. Admittedly, torts is not a subject in which "there are no right answers." Some questions, a few questions here and there, actually do have 'right' answers, at least in the sense that they are the conventional answers that the very large majority of the legal profession, including critically judges, would give if asked. And, yes, part of what we do in law school is to indoctrinate you into a way of thinking ("thinking like a lawyer") so that you know how to give those answers too. Sometimes the 'right' answer in this sense of legal convention is also the just answer, or the efficient answer, or even both. Sometimes the weather is perfect, too. On the other hand, many many questions do not have a right answer. Instead they have several possible and even conflicting answers. So even when you give a perfectly good answer, indeed especially when you give a perfectly good answer, that just opens the door to a conversation. Part of my job is to teach you how to work with such questions and see the range of possible answers because (some) lawyers need to persuade others to adopt the most favorable of a range of possible answers; other lawyers' jobs include choosing an answer, either judicially or legislatively, which is the best answer for the circumstances or for society. If you are coming up with some answers in class you are probably doing very well - no one (except possibly you) expects you to have all the answers.

Reference Materials. I'm reluctant to recommend more reading materials because I think even relatively short casebook assignments (should) take a long time when you are a first year student, and the last thing you need is more reading (or worse, substitute reading). There's another reason to be very wary of "outlines" and "hornbooks' - if misused they give you an illusion of competence. It is possible to learn the rules of torts from a hornbook. It may even be possible to learn them well enough to do well on the exam. But what you lose by relying on a canned presentation of the law is the frustrating but ultimately valuable experience of learning to extract meanings from legal texts yourself instead of having to have them pre-digested. That extraction skill is critically important for almost every area of legal practice. There is far, far too much law on the books - and it changes too quickly - for even three years of law school to teach it all to you. Especially if you plan to work on anything interesting and not totally routinized it is far more important to learn how to read the law and learn to navigate within it than it is to learn to regurgitate a hornbook.

That said, there are two legitimate reasons why you might want to consult an outline or a hornbook. The first is if you've spent many hours trying to figure out some point and just need to look it up. The second is during reading period, after you've gone to the effort of systematizing, synthesizing, and outlining, itself an educational process, but want to be sure you haven't left anything important out. Torts being a required course in every law school, there are a wealth of materials on offer. (Emmanuels were very popular when I was a law student.) One that you should consider is Torts by Richard A. Epstein (Aspen 1999), which while quite dated has the advantage of being somewhat linked to the casebook (alas, a few editions ago) since it has the same author.

I do, however, suggest you avoid buying an outline that is case-oriented rather than subject-oriented. Not only do they tend to be of lower quality, but they are most likely to end up as being used as training wheels for case analysis - which means you'll never really learn to ride properly on your own.

Another book that I always recommend to law students is Getting To Maybe: How to Excel on Law School Exams by Richard Michael Fischl & Jeremy Paul (ISBN: 0890897603). Law exams are not like most other exams you have taken in your life, and this book more than others I've seen spills some of the secrets.

How to contact me. I urge you to contact me if you have questions, comments, or suggestions about the class. I cannot stress strongly enough how important it is to come and see me (or email me) early in the semester if you think you need help understanding something. If you are doing the reading but still feel lost or confused, don't wait until the last three weeks of class. I can help. But odds are that I can't help nearly as much at the last minute.

You can call me at (305) 284-4285. Most days, I am in and out of the office. If you get my voice mail, leave a number and state when is the best time to call back.

You can come by my office, Rm. 382, any time, but since I'm in and out erratically, I advise you to call ahead and make an appointment. Also, if you just turn up, I sometimes get busy and may have to ask you to come back later. I'll announce office hours early in the term, but don't feel limited to trying to schedule appointments in that window.

Probably the easiest way to contact me is to send me e-mail at [obfuscated]. I am online a lot. If you don't hear back from me within 24 hours, it means my spam filter ate your email and you should resend it to my backup email account at [obfuscated]. You don't get as fast service on that account, so don't use it first, but the spam filter is a little more accurate.

The Fine Print. ⁽⁷⁾ Class participation is important. Nobody will have any fun if I do all the talking. Plus, class is your opportunity to test out your answers to questions (whether or not you happen to be the one called on) before the exam. Volunteered answers in class are always welcome. Please note, participation does not mean your questions must always be dazzling or that your answers must be erudite. This is the first semester of law school, you are beginners, no one expects you to know all the answers or even all the questions yet. And, again, learning how to approach legal issues is at least half the battle.

Use of Personal Technology in the Classroom. The classroom environment must support learning for all students. In recent years, students increasingly report that other people's technological devices are distracting them. Accordingly, in addition to other professional conduct and the corresponding courtesies, please refrain from any use of an electronic device that might disturb your neighbors - especially anything that flickers (e.g. video) or makes any noise. Please, turn cell phone ringers off. I would be grateful if you would make a special effort to refrain from displaying wallpaper, screen savers, or other material on your laptop screen reasonably likely to offend or distract your classmates. It should also be understood that games (electronic or otherwise) are inappropriate for the classroom. I will sanction any student who interferes with the general learning environment in the class. Such sanctions may include, but are not limited to, the loss of the privilege to use a laptop in my class, individually or collectively.

Personally, I love my laptop. But not everyone loves them. Because some people who do not use laptops find the clicking of keyboards distracting, I will (room geometry permitting) create a laptop-free zone for those who wish to have some distance from them.

Class Assignments and Hypothetical Exercises: Whether or not each part of a class' reading is specifically discussed, you are responsible for all cases, notes and materials assigned. Further information about exercises and hypotheticals will be forthcoming.

Examinations and Grades. I am sorry to inform you that there will be a closed-book final examination at the end of the course. It will be composed substantially (if not exclusively) of essay questions. What is more, in order to do well on this exam you will not only have to have internalized some of the 'thinking like a lawyer' we'll be demonstrating in class but also learned some of the basic substantive tort law we'll be covering. Diligent practice in writing (or at least outlining) answers to the hypothetical problems in the book and in class will help prepare you for the final. Your Dean's Fellow should be a particularly valuable resource for this.

Class participation. I give significant credit for class participation. I take notes during every class, awarding checks (helpful/competent) and stars (wow!). Note that unless you are rude or disruptive I don't give negative credit, so having a bad day is just a lost opportunity, not a disaster. I total it all up at the end of the semester and divide the class into groups. Subject to any limits imposed by the mandatory curve, extraordinarily good class participation will raise your final grade by half a level (e.g. from a medium B+ to an A); good class participation will raise your grade by one quarter level (put you over the top if you are close to the line between two grades); very poor class participation will lower your grade by one level if you are close to the line between two grades (this, I am happy to say, is very rare); outrageously bad class participation (i.e. disruptive or offensive behavior) will lower your grade one level (has only happened once). Very poor attendance may contribute to a diagnosis of very poor class participation. For your information, I have now given a small grade decrease three times in my 16-year teaching career. In two cases the student missed *a lot* of classes. In the other the student was repeatedly rude to peers, even after being warned privately.

Mechanics of Grading. Consistent with the law school's rules, I grade all exams in a manner designed to disguise the author's identity -- I see only the anonymous grading number, not your name. After I turn in the exam grades to the Registrar's office, the Registrar's office produces a list of names and anonymous grading numbers so I can factor in class participation. However, I ask my secretary not to show me this list, and instead I am given a list of grading numbers sorted by the class participation grades I have already given to my secretary. I then compute the final grade. I make it a point to not know the names that go with an exam until after the final grade has been turned into the Registrar's office. Once grades are turned into the Registrar's office, the law school's rules prohibit me from changing a grade for ANY reason other than clerical error. These are rare.

A Final Note. I loved law school because I discovered that I loved the study of law. That is why I'm still doing it. I hope you will love it too.

1. Some people who have read too much Economics argue that what we are in fact engaged in is "credentialing" - selling law degrees as evidence of a student's willingness to work hard. The problem with this theory is that it can be used to argue for almost any result. For example, one might argue that if the degree is all that matters, why require attendance? On the other hand, not all degrees are of equal value. If we want to maximize the perceived value of a lawyer with a UM degree, which benefits everyone in the class, we do that by creating positive brand awareness, which requires that all graduates be as good as they can be.

2. My secretary is very organized. She doesn't let me forget often.

3. Grades are discussed below.

4. I am very stingy with excused absences for anything other than personal illness (please don't share the flu), relatives in hospitals, or matters involving the courts or law enforcement. So please don't ask unless it is something like that.

5. In the words of a late colleague, "That's not a parking permit, it's a hunting license."

6. My spell checker suggested this should be spelled "diabolic".

7. Alert readers will have noticed that the type face which follows is not in fact any smaller than the type which precedes it. The text is not smaller because excessively small print can be an issue for people with disabilities. This class, like most law school classes, is heavily oriented toward reading a large quantity of difficult material in a small amount of time. If you are aware that you have a learning disability, or if you just think that it takes you twice as long to learn things by reading as other people, please talk to Iris Morera, the Disabilities Issues Coordinator, in Room A211, who can tell you about resources here that you may find valuable. All discussions will be totally confidential.

Textbook Buying as a Political Act

Law students thinking of buying their textbooks online might want to consider this way of doing a bit of social activism at the same time:

California College Democrats launched Textbooks for Change, an innovative program that leverages the Amazon Associates Program, and thousands of student textbook purchases, into cash for California's Courage Campaign and their ongoing efforts to repeal Prop 8.  By simply using the link on Textbooks for Change as the portal to Amazon and buying textbooks through the online merchant, approximately 7% of the purchase price goes to support ongoing efforts for marriage equality in California.

Of course, this only works if you support marriage equality….

RE: Curriculum Reform

I've been saying for a long time that we ought to require all law students to learn some basic statistics. Now comes Kevin Drum, with his pulse on the body politic, in Revenge of the Nerds:

Multivariate correlations and data cluster analysis are the new black.

It's a truism that students go to law school because they are afraid of numbers. But there's no escape.

A Good Omen (Herein of Torts)

I got an unusual email today, and it prompts a small disclosure. Here's the key part of the email:

Hi. It's been a number of years since we've spoken, but I figured I would take a shot at inviting you to lunch when I am on campus September 10th … if you are free that day, I'd be happy to treat my favorite 1st year professor to a sandwich or something.

I choose to treat this as a good omen, and an occasion to reveal that my teaching plans for the Fall semester have undergone a radical change. As you may recall, UM over-admitted its entering class — by a lot — so much that we offered them a bribe to wait a year. But even despite that we've got a lot of incoming 1Ls.

One consequence of this, um, bounty is that we're putting on a whole extra section of first-year classes. And I've been tapped to teach Torts. So for the first time in 15 years I won't be teaching Administrative Law — we've found a fine substitute¹ — and I will be teaching my first common law course ever. It's also a return to a first-semester first year course after a layoff of more than a decade; back in the Dark Ages I used to teach Civ Pro I (first semester) and more recently, but still a long time ago, Constitutional Law I (second semester).

Torts is a partial departure for me. Most of my work and all of my teaching has been national or international, procedural, or frankly theoretical (Jurisprudence). But as I think more about privacy issues, torts and tort-like thinking looms larger, and of course common-law reasoning is at the root of so much of what we do, even if it is not a common law subject. Plus, of the common law subjects, tort remains the purest, the least overrun by statutes and codes.

I am looking forward to the class, although not to its size, which could hit 130 students(!). First year students are different: they are very highly motivated, they think entirely like civilians rather than at least partly like lawyers, and there is an unreasonably high fear factor. It's this last aspect that used to put me off what is otherwise a fun and exciting teaching experience: I don't like or want my students to be afraid. By the second year students mostly see through us, so it's no big deal. But first years come in with visions of “Paper Chase” dancing in their heads, and my teaching style, which tends to the dialectic more than to lecture, does not seem to blunt that enough. Or at all.

¹ Why, you might ask, move me to Torts and move someone else to Administrative Law? There are a lot of reasons (including that a few years ago I asked to teach Torts), but one of them is that the new Adlaw teacher will be a part-time member of the faculty and there's a policy of staffing first-year courses with full-time (or full-time visiting) faculty whenever possible.

FAMU Law Back from the Brink

OrlandoSentinel.com, FAMU law school clears key American Bar Association hurdle toward accreditation

An American Bar Association committee is recommending full accreditation for the nearly 7-year-old school after an inspection earlier this year, the school and the ABA have confirmed.

…

Pernell said ABA inspectors who visited the school in February were impressed by ongoing changes, which include creation of the Center for International Law and Justice. The center is designed to expand the school's presence in the developing world even as the school is working toward becoming a more important community resource locally.

Previous site inspections had gone rather badly…

Should Law Deans Twitter?

I wonder how many law Deans Twitter? And whether more should, as a means of communicating directly with students and alumni.

An Idea That is Growing on Me

As I prepare next year's lecture notes, this idea keeps growing on me.

But if it failed, it would fail horribly….

One of my favorite professors in college was a self-confessed liar.

I guess that statement requires a bit of explanation.

The topic of Corporate Finance/Capital Markets is, even within the world of the Dismal Science, a exceptionally dry and boring subject matter, encumbered by complex mathematic models and obscure economic theory.

What made Dr. K memorable was a gimmick he employed that began with his introduction at the beginning of his first class:

“Now I know some of you have already heard of me, but for the benefit of those who are unfamiliar, let me explain how I teach. Between today until the class right before finals, it is my intention to work into each of my lectures … one lie. Your job, as students, among other things, is to try and catch me in the Lie of the Day.” And thus began our ten-week course.

This was an insidiously brilliant technique to focus our attention - by offering an open invitation for students to challenge his statements, he transmitted lessons that lasted far beyond the immediate subject matter and taught us to constantly checksum new statements and claims with what we already accept as fact. Early in the quarter, the Lie of the Day was usually obvious - immediately triggering a forest of raised hands to challenge the falsehood. Dr. K would smile, draw a line through that section of the board, and utter his trademark phrase “Very good! In fact, the opposite is true. Moving on … ”

As the quarter progressed, the Lie of the Day became more subtle, and many ended up slipping past a majority of the students unnoticed until a particularly alert person stopped the lecture to flag the disinformation. Every once in a while, a lecture would end with nobody catching the lie which created its own unique classroom experience - in any other college lecture, end of the class hour prompts a swift rush of feet and zipping up of bookbags as students make a beeline for the door; on the days when nobody caught the lie, we all sat in silence, looking at each other as Dr. K, looking quite pleased with himself, said with a sly grin: “Ah ha! Each of you has one falsehood in your lecture notes. Discuss amongst yourselves what it might be, and I will tell you next Monday. That is all.” Those lectures forced us to puzzle things out, work out various angles in study groups so we could approach him with our theories the following week.

(there's more)

Previously: I Wonder if this Teaching Technique Would Work In Law School

Pressures Students Studying for the Bar Don't Need

Miami Herald, FIU graduate robbed at gunpoint on campus

A recent Florida International University graduate, cramming for his Florida Bar law exam, was robbed at gunpoint of his laptop outside the school's Green Library, FIU police said.

Derrick Storms, 28, of Miami, who graduated from the law school in May, said he was sitting outside the closed library around 4:30 a.m. Monday when one of two teens on bikes approached him.

Being robbed is not a stress that bar-studying students need. Especially if they're so stressed that they're studying at 4:30 am.

Negative Results Advance Science Too

I have just completed a multi-day experiment whose results I wish to report here for the first time, since I understand that negative results are not normally considered publishable in peer-reviewed journals.

A large pile of exams, closely observed over a period of days, will not grade themselves. These results are reproducible. Furthermore, altering the test protocol to pay no attention to the exams does not appear to alter the outcome in a measurable way.

This result is discouraging, but I thought I should report it anyway. Now I'm going into seclusion to grade them manually.

(Pix Copyright by Arbitrary.Marks, licensed via Creative Commons)

FIU Makes a High-Stakes Bet on Alex Acosta

Controversial Alexander Acosta has been named Dean at neighboring FIU Law. See the AP story and the FIU statement. He'll be stepping down as US Attorney in a few days, and starts soon after.

FIU President Modesto A. Maidique said, “His connections at the national and local level and his proven leadership here at home will inspire the next generation of law students at FIU.''

I've never met Mr. Acosta, but I hear from those who have that he's a genuinely impressive human; smart, confident, very articulate. These are good qualities for a Dean. He'll need all those qualities, because jumping into academe is much harder than it looks. There have been some fine practitioner law Deans, but they are in the minority (cf. Why A Practitioner Dean Sounds Like A Better Idea Than It Usually Is). One thing to look forward to: a visit by Justice Alito, for whom Mr. Acosta clerked while he was on the Court of Appeals.

• Approving the 2004 Texas Redistricting plan in defiance of the unanimous conclusion, issued by the attorneys in the Voting Rights section, that the plan violated the Voting Rights Act.
• Taking an active or passive role in forcing out or silencing career (nonpolitical) staff, and replacing them with people without civil rights expertise but with demonstrated ideological and partisan loyalties
• At a minimum standing by while the infamous Bradley Scholzman tried to prevent minorities from voting. (And Mr. Acosta was told of problems with Schlozman, including a racially insensitive e-mail to staff, but did nothing.)
• Sending an unsolicited letter to an Ohio judge four days before the 2004 election in which Mr. Acosta urged the judge to allow Republicans to challenge the registrations of about 23,000 mostly African-American voters.

By some accounts Mr. Acosta did much better at the US Attorney's office than I would have predicted from his resume, or from his initial statement that his chief law enforcement priority would be porn rather than terrorism, narcotics trafficking or, say, public corruption. But there are also reasons to doubt whether things were as great as some local lawyers have liked to suggest: his office tried the Liberty City Six (Seven, Five, whatever) three times, at the cost of millions that surely could have been better spent. It was on Mr. Acosta's watch that prosecutors in the US Attorney's office made recordings of defense lawyer (and blogger) David O. Markus in violation of internal policies of the U.S. Attorney's Office and federal evidentiary rules. This lead U.S. District Judge Alan S. Gold, only a few weeks ago, to issue a strongly worded, 50-page opinion, reprimanding prosecutors from the US Attorney's office, and requiring the government to pay $600,000 in sanctions for Mr. Acosta's subordinates' misdeeds.

Although the gracious Prof. Wasserman says at Prawfsblog that the public nature of the FIU Dean search did not affect the outcome, one can't help wondering. Once a local reporter mistakenly identified Mr. Acosta as a leading candidate (when he was in fact at the top of a very long alphabetical list), that made it much more difficult for him not to be shortlisted. The faculty may or may not have wanted him. Then again, we don't know whether the other top candidates kept their hats in the ring, or whether this is something FIU law faculty member and irascible columnist Stanley Fish lobbied for, or FIU President Mitch Maidique just wanted.

I hope FIU Law prospers under Dean Acosta — their students and faculty deserve it, and it's certainly good for us intellectually to have another thriving faculty so near by.

Meanwhile, I'm happy about our new Dean. (See Patricia D. White to Be Dean of University of Miami School of Law.)

University of Miami Law School Announces Foreclosure Defense Fellowships

The University of Miami School of Law is pleased to announce the availability of a number of Foreclosure Defense Fellowships for May 2009 UM Law graduates who become members of the Florida Bar. Our goal is to provide meaningful and fulfilling post-graduate alternatives while helping local residents caught in the foreclosure crisis. In addition to the honor of being selected, participants will acquire real-world work experience, have the satisfaction of helping address a serious need in our community, and still have some free time to look for longer-term employment.

Winners of these Fellowships will receive a limited grant totaling $10,000, paid in monthly installments, in exchange for a commitment to (1) attend a three or four day training session in late September, and then (2) work at least three days a week for 27 weeks with either Dade Legal Services or Broward Legal Aid, commencing as soon as you are admitted to the Florida Bar.

Further details are available on the application form at http://www.law.miami.edu/4close/application.pdf.

This announcement, which I just sent to all of our recent graduates, represents a milestone in a project I've been working on for some time: trying to get one problem (the lousy market for law graduates) to help solve another (South Florida's foreclosure crisis).

The need is great.

South Florida is ground zero for the national foreclosure crisis. The courts and the legal system are overwhelmed by this legal tsunami. In all of 2006, fewer than 10,000 foreclosures were filed in the Miami-Dade courts. In the first month of 2009, more than 6,000 foreclosures were filed in those same courts -- more than half the annual number 3 years ago -- and the rate of foreclosure filings has increased since then. Last year 56,656 foreclosures were filed in Miami-Dade County alone. This year we are on track to double that number. Although hard figures are difficult to come by, it is estimated that almost a third of these local foreclosure cases involve owner-occupied homestead property ("residential homestead mortgage foreclosures"), and that a very large fraction of the borrowers in those cases are unrepresented.

This is an unprecedented legal crisis for our community. As the Daily Business Review recently put it, "thousands of families are being displaced. Some end up on the streets or in shelters."

The program I have created, with the help and strong support of Interim Dean Paul Verkuil and several other members of the UM faculty and administration, is only a beginning, and very much in need of funding support. I and others will be working during the summer to try to raise money for it, and also for an expanded version that would place our graduates in law offices where they would work as solo pro bono practitioners under the helpful eye of experienced lawyer-mentors. If you know anyone with a quarter of a million dollars, or even the odd thousand, who would like to help in this important work, please send them my way.

And if you are a Miami 3L looking for a job, but cannot find one, please consider this chance to do good and learn from top lawyers at the same time. I think the opportunity, while not very remunerative in dollars, will pay off in the satisfaction of doing good, in learning lawyering skills, and might just impress your next employer.

(In a further attempt to help struggling members of our community, the UM School of Law will also be offering a limited number of substantial scholarships to qualifying students who apply to the LL.M. in Real Property Development and agree to do 15 hours per week of supervised pro bono foreclosure defense representation. Participants in this program do not need to be members of the Florida Bar. Applicants for LL.M scholarships must complete both the regular application for the LL.M in Real Property Development and also a special scholarship application available from the LL.M in Real Property office.)

In the extended part of this post, I've put the (slightly reformatted) text of the Foreclosure Defense Fellowships application form.

Introduction

The University of Miami School of Law is pleased to announce the availability of a number of Foreclosure Defense Fellowships for May 2009 UM Law graduates who become members of the Florida Bar. Our goal is to provide meaningful and fulfilling post-graduate alternatives while helping local residents caught in the foreclosure crisis. In addition to the honor of being selected, participants will acquire real-world work experience, have the satisfaction of helping address a serious need in our community, and still have some free time to look for longer-term employment.

Winners of these Fellowships will receive a limited grant totaling $10,000, paid in monthly installments, in exchange for a commitment to (1) attend a three or four day training session and then (2) work at least three days a week for 27 weeks in one of the programs described below, commencing as soon as they are admitted to the Florida Bar.

The Foreclosure Crisis

South Florida is ground zero for the national foreclosure crisis. While California may have more cases of foreclosure, they are spread out over a larger area. Here, the problem is highly concentrated: in certain ZIP codes in places like Homestead and Florida City, about 25% of the homes are in a stage of the foreclosure process.

The courts and the legal system are overwhelmed by this legal tsunami. In all of 2006, fewer than 10,000 foreclosures were filed in the Miami-Dade courts. In the first month of 2009, more than 6,000 foreclosures were filed in those same courts -- more than half the annual number 3 years ago -- and the rate of foreclosure filings has increased since then. Last year 56,656 foreclosures were filed in Miami-Dade County alone. This year we are on track to double that number. Although hard figures are difficult to come by, it is estimated that almost a third of these local foreclosure cases involve owner-occupied homestead property ("residential homestead mortgage foreclosures"), and that a very large fraction of the borrowers in those cases are unrepresented.

This is an unprecedented legal crisis for our community. As the Daily Business Review recently put it, "thousands of families are being displaced. Some end up on the streets or in shelters."

We propose to respond to this crisis by mobilizing our recent graduates to provide pro bono representation to low-income homeowners facing foreclosure of their primary (homestead) residence.

The Fellowship Program

UM Law May 2009 graduates who are taking the July Bar Exam can apply for a Foreclosure Defense Fellowship placement in either or both of the following programs. In each case Fellows would attend a 'boot camp' put on by the University of Miami in late September 2009, then start work for three days a week as soon as they are admitted to the Florida Bar.

Legal Services of Greater Miami, Inc. (10 Fellows)

Legal Services of Greater Miami, Inc. (LSGMI) will set up a new Mortgage Foreclosure Defense Clinic to be staffed with ten Fellows who will work under the supervision of experienced LSGMI attorneys. Participants will handle intake interviews, identify defenses and issues, make court appearances as needed, and represent homeowners in the new 11th Circuit Homestead Access to Mediation Program ("CHAMP"). Fellows will work out of LSGMI offices, located at 3000 Biscayne Boulevard, Suite 500, Miami, Florida 33137. Fellows will be asked to bring their own laptop computer, when possible. LSGMI's stringent conflict rules will apply, requiring advance approval before Fellows take on any legal work during their days outside the office.

Legal Aid Service of Broward County (3 Fellows)

Legal Aid Service of Broward County (LASBC) will accept three Fellows who will work under the supervision of experienced LASBC attorneys. Fellows will work in all stages of the foreclosure defense process. (Broward is not covered by the 11^th Circuit's CHAMP order.) Fellows will work out of LASBC offices located at 491 North State Road 7, Plantation, FL 33317. Fellows will be asked to bring their own laptop computer, when possible. LASBC rules forbid Fellows from taking on any outside legal work during their Fellowship.

If we are able to secure additional funding, we hope to expand this program to include a third option: direct placement with local lawyer-mentors. If this option becomes available, we will ensure that early applicants to the programs above have an equal chance to apply for it, so please do not delay your application for this reason.

The UM School of Law will also be offering a limited number of substantial scholarships to qualifying students who apply to the LL.M. in Real Property Development and agree to do 15 hours per week of supervised pro bono foreclosure defense representation. Participants in this program do not need to be members of the Florida Bar. Applicants for LL.M scholarships must complete both the regular application for the LL.M in Real Property Development (available online) and also a special scholarship application available from the LL.M in Real Property office.

Students may apply for both these Fellowships and the LL.M scholarship, but must choose between them if accepted for both.

How To Apply

Only graduating students of the University of Miami School of Law who have registered to take the Florida Bar Exam in July are eligible for the Foreclosure Defense Fellowship program. Final acceptance to the Fellowship program requires that you pass the Florida Bar Exam and secure admission to the Florida Bar at the earliest possible date.

Fellowship applications are due by August 14, 2009, and should be returned to Rm. G382 in the Law School OR e-mailed to 4close@law.miami.edu with "FELLOWSHIP APPLICATION" and your full name in the subject line. Applying early may increase your chances of receiving a Fellowship.

To apply, submit the following:

1. A copy of your official transcript;
2. A c.v.;
3. An essay of no more than 500 words explaining why you would like to be a Foreclosure Defense Fellow.
4. A cover letter (or e-mail)
1. Stating that you are taking/have taken the Florida Bar exam in July 2009.
2. Ranking the programs described above (Dade, Broward) in preference order, or stating which Fellowship program you are applying for, if you are only interested in one.
3. Describing your fluency in any foreign language(s).
4. Describing any relevant courtroom or mediation experience (e.g Litigation Skills, Mock Trial, ADR courses, Negotiation Competition).

Applications are due by August 14. Please apply earlier if you can. Awards of Fellowships -- conditional on admission to the Florida Bar -- will be made on a rolling basis commencing no later than August 31. Interviews may be requested in some cases.

Two Green Shoots

One of our better students, who had a job offer from a major firm was offered one of those do-pro-bono deals where you work for half pay for a year in the public interest by one of those firms that thought it wouldn't have enough work for all the new associates they hired. He took it. Now the firm wants him to start in October after all.

I hired a research assistant for the summer a couple of weeks ago. He just got a fabulous summer job offer with an international law firm in one of their foreign offices, and I told him to take it. Fortunately I had a back-up in mind….

We're #76

Having made a meal of the fact that a men's mag rated the University of Miami (college) as the #1 party school in the nation (UM Tops In “Scientific” Ranking), honesty now compels me to report that an equally “scientific” ranking system rates the UM Law School as only the 76th party school among the nation's law schools.

It seems that problem is that UM students are not very datable. Maybe they are too busy studying.

(Note: Yale is rated as the 12th best party law school in the country. Unless things have changed, or law schools as a class are grimmer than I ever imagined, this seems to overstate the case by an order of magnitude, at least.)

Florida's Open Records Law Meets the FIU Dean Search

Spare a moment of sympathy for the poor folks at FIU Law.

Having just been through a (very successful) relatively painless Dean search here at UM, I know just how awful even the very best search can be. Now imagine having to do the whole thing in public, thanks to Florida's Sunshine Law: PrawfsBlawg: Deans and Sausages: On conducting a dean search in public and correcting the public record.

I'm for open records, but not for the internal workings of (most) personnel matters, if only because it scares away candidates. In this case, it's hard to see what the public benefit is, and easy to see the costs.

Legalworkshop.org Launches

This looks like a great idea:

STANFORD, Calif., April 21, 2009—A consortium of America’s most influential law reviews today launched The Legal Workshop (www.legalworkshop.org), a free, online magazine featuring articles based on legal scholarship published in the print editions of seven participating law reviews: Stanford Law Review, New York University Law Review, Cornell Law Review,Duke Law Journal, Georgetown Law Journal, Northwestern Law Review, and University of Chicago Law Review.

Basically, they're turning law review articles into op-eds. Sorta like legal bloggers do.

Update: Larry Solum strikes a more skeptical note at “The Legal Workshop” — A New Online Law Review.

Party Tomorrow in Honor of 'Soia and Her Seven Dwarfs'

Soia Mentschikoff wasn't our first Dean, but she's the one who is credited with turning the University of Miami onto its current intellectual path.

Stories about her are still legion, and the people who knew her remain either amused by her, or terrified of her, or both. Her ghost still stalks the law school — and (some say) not just metaphorically (see Is the UM Law Library Haunted?).

Among the many things for which Soia is remembered is the “Seven Dwarfs” she hired as legal writing instructors — all of whom, despite the name applied to them when they first appeared on campus, went on to important legal careers. Tomorrow we're having a remembrance of Soia, and a party in celebration of the Gang of Seven.

You can read more about the event and the 'Seven Dwarfs' in this scanned invitation (sorry about the quality, the background warred with my scanner). Panel discussion at 2pm, reception starts at 3:30. I'm looking forward to more Soia stories at the discussion.

We're also going to unveil the de la Cruz-Mentschikoff Endowed Chair in Law and Economics which will focus on business associations, planning, commercial and international transactions, securities, and antitrust.

US News Is in Season

The US News Law School rankings are leaking out. Some years we get a lower score than the year before, and then I think I shouldn't carp about the whole thing for fear of it looking like sour grapes. Some years we get a higher score than the year before, and then I carp.

The idea of ranking law schools is not ridiculous. The way US News does it is very ridiculous. The survey data relies on the opinions of people who in most cases may be very informed about a few law schools but as a class are not likely to be particularly well informed about many law schools — even though they may be judges, hiring partners, law Deans and professors. And increasingly the survey data is self-referential: people have heard school X has a high/low ranking, so it must be good/bad, right?

At its grossest level, there is no doubt US News captures something real: the top N schools (10? 14? 15? 20? 20+?) really are better than the middle N or lowest N. But are the middle N significantly better than the bottom N? Sometimes, yes, but only sometimes. Here the picture gets very cloudy — not least because “better” ought to be “better for whom”; once you get away from the most elite, best resourced (i.e. high endowment), most prestigious law schools, what is best depends on factors that are personal: urban/rural, North/South, East/Middle/West, large/small, best in town/best town and so on.

The US News systems are designed to churn. Changed numbers sells magazines. Having the numbers stay the same doesn't. Yet it's hard to believe many schools change very much from year to year. Yes, once a while a school suffers a crisis or an epiphany, but those are pretty rare events.

There are inbuilt biases in the US News scoring system that favor small schools, and schools in cities with high starting salaries. Not to mention that in South Florida the market has more medium-sized firms than in other cities our size, and those firms rarely make offers until a candidate has passed the bar, notably depressing the 'employment at graduation' rate.

I sympathize with aspiring students who need a guide to the perplexed when sorting through their options. It's such a shame that the information market's first-mover advantage has allowed such a crummy measure to dominate.

How To Nail an Interview (And Flub a Research Project)

This guy may give good job-seeking advice, but his research methods seem positively unethical to me. They also raise some legal issues. Here's how he gathered his data for How To Nail An Interview:

If I could be the one asking the interview questions, not answering, I could see first hand what made candidates stand out. I could then take that knowledge and cater my behavior in any future interview to give myself the best chance of getting hired.

First, I needed to create a “corporate presence.” I found a company that rented office space by the hour. It was in a downtown Seattle high-rise, had a killer view, and came with a secretary, who'd call me once an interviewee arrived. It was perfect.

Next, I posted a job on craigslist for a marketing coordinator at a “soon to launch” web company. Literally minutes after the posting, resumes poured in, 142 on the first day, 356 in the first week.

Finally, giving the interview wasn't enough. I wanted to be able to go back, review the footage, and dissect answers, body language, everything, to really see what makes someone look good or bad. So before scheduling any interviews, I got online, bought a couple of small cameras, picked up a couple lamps and lamp shades, and with a drill, some super glue, a little bit of cardboard, and electric tape, I constructed 2 hidden camera lamps.

He's smart enough to realize there's an issue here, but I don't think he got any legal advice (or got bad advice) when he decided a standard form release would do the job:

Of course to make sure everything was legally kosher, everyone was required to sign and fax back an appearance release waiver before an interview was scheduled. The reason, “some company meetings will be filmed and we needed proof you'd be comfortable appearing on a video blog if hired.”

Two problems here: First — although I suppose it's an issue of state law where it happened — the release for filming “company meetings” seems unlikely to stretch to job interviews. Not to mention FAKE job interviews.

Second, seeing as the company was fake, even if the release was otherwise valid and applicable, why isn't this a case of a release procured by fraud, which is therefore invalid?

I think he's a lot better at giving interview advice than making legal judgments. Most of his advice about what to do and what to avoid actually seems quite sound.

Good Advice for Law Exam Takers

In the course of an internal email exchange at the law school about advice for law exam takers, Professors Caroline Bradley and William Widen sent in the following sound and pithy advice which they have kindly allowed me to post here:

Caroline Bradley said,

I think that the advice I really would hope more people would take would involve:

1. reading the question carefully - you should answer the question the professor asks, not a different one you would prefer to answer;

2. thinking before beginning to write so the answer is organized and so you don't include irrelevant information;

3. answering the question rather than trying to show how much you know or how much work you have done - relevance is crucial;

4. not making assumptions or inventing facts in a hypothetical;

5. spelling out the analytical steps you are taking rather than merely writing down your conclusions.

William Widen said,

1. Just as a good advocate will take account of the judge who is presiding over the case, the student should take account of advice given and preferences expressed by the particular professor in the course. This does not mean that you must agree with the views expressed by the professor on open points or points of policy, but answers should, as appropriate, address matters focused on in the course.

2. Take the time to carefully read the instructions for each question. Some questions may ask you to write a response as if you were a judge or writing a memo for a client. To the extent possible, be mindful of any role you are asked to play or any context in which you are asked to place yourself. If the question asks you to adress three points in particular, address those three points clearly in your answer. Be responsive to the questions asked and provide responses in the appropriate format.

3. In a standard issue spotter/essay question, professors often want you to demonstrate both knowledge of particular legal doctrines and their parameters AND how those doctrines and parameters might apply to the facts in the question—including identification of alternative theories and ways of looking at the facts. A bald statement of legal doctrine (merely reciting boilerplate or treatise type language) is usually a bad idea. Don't make conclusory statements about doctrine like: there is a contract in this case because there was an offer, an acceptance and consideration. Rather, in addition to identifying the parameters of the doctrine, also identify the facts in the problem that constitute an offer, an acceptance and consideration, identifying why the particular facts fit the parameters of the doctrine as well as any problems with that application. Don't assume that the first doctrine that comes to mind is the only doctrine that is being tested. Take a few minutes to consider alternatives to your first impression—perhaps outlining an answer on scratch paper. Don't assume the professor will read your mind—if you cite to a case explain briefly why that case supports or does not support the position you are taking. Demonstrate on paper your thought process so the professor can evaluate it.

4. Avoid careless misstatements of doctrine. For example, in the UCC the staute of frauds applies to sales of goods with a price of $500 or more. Don't identify the rule as applying to goods with a “value” of $500 or more (when the correct term is “price”) or identify the rule as applying to goods with a price of “more than $500” when the correct formulation is “$500 or more.”

5. Be alert for chances to support your answer/choice of applicable doctrine by reference to the rationale or policy that supports the rule you are using.

6. Don't waste time telling the professor to have a nice summer.

7. Don't waste time telling the professor that you are now running out of time. Write a few more responsive words or sentences.

8. Budget your time so you do not get zero points on one question. Often it is very hard to make up for a zero on one question with a detailed answer to another question. If time is short, provide at least an outline of your answer to each question.

9. Do not waste a lot of time merely reciting the facts in the problem. The professor wrote the question and knows the facts. He or she wants you to apply the law to the facts not merely summarize the facts.

Personally, I always recommend reading Getting to Maybe — but the above is much much shorter!

Congress Moves to Rescue Law Schools

I know that a number of Deans, Law School admissions directors and even professors have been worrying about a possible slump in the future demand for legal education if and when it appears that law firms are more interested in firing than hiring associates. Well, no fear, I read that Congress is coming to the rescue: Year Of Law School Now Mandatory For Nation's 25-Year-Olds :

Under the provisions of a bill approved by Congress and signed into law Tuesday, every 25-year-old American, regardless of prior life commitments, is now legally obligated to enroll in a full year of study at one of the nation's accredited law schools.

Yes, it's only The Onion - America's Finest News Source, but that doesn't mean its a bad idea. Also many Onion headlines about the Bush administration turned out to be true a few years later, so why not this one?

It's the Known Unknowns That Worry Me

Lawrence Cunningham has a soothing historical perspective on the mass of law firm layoffs at Steel, Patience amid Adversity:

In September 2001, after terrorists attacked lower Manhattan, the stock market closed for several days. Corporate finance and deal activity contracted. Law firms lost work. Associates were let go and firms cut back hiring. Eventually, work resumed, with deal flow flourishing.

Then a professor, I went to the library to leaf through the law reviews published in the period just after the bombing of Pearl Harbor that brought the United States into World War II. I also read books about law firms during that period.

Amid World War II, people were terrified, deal flow contracted, associates at large firms were let go and hiring contracted. Scholarship appeared to have been cut back, but in corporate and securities law, did not seem to abate or shift course due to the attacks or resulting war. Eventually, the war ended, markets resumed, expanded, deals flowed, associates were hired, paid, made partner, and prosperity resumed.

Ditto with the episodic booms, busts, scandals and havoc that have ensued—the 1960s electronics boom and bust; the 1970s foreign bribery scandals; the Vietnam conflict and related upheaval; the 1980s savings & laon crisis; the 1980s/90s junk bond boom and bust; the late 1990s / early 2000s telecom boom and bust; and the current crisis, and its coming resolution.

Patience is a virtue for all those affected by adversity, whether economic, military or otherwise.

There's more, but I want to focus the part I quoted. Yes, it's good to learn from history. And indeed, the business cycle tends to repeat. But there are two reasons why I can't quite feel soothed. First, there's the question of which is the right parallel. We're not in 1929 yet, and I still think the smart bet is that we won't get there, but until we see a floor, we can't be sure about that. Especially since just about the entire minority party in Congress, which includes a blocking minority in the Senate, has wedded itself to idiocies such as being for economic stimulus but against spending. Yes, I actually heard a senator say that on the radio last week. And there's lots of it around.

Second, as regards the legal profession we face structural changes not encountered in a while. And I don't mean the likely collapse of the inflated salary structure (and unhealthy billables/month) for the best-compensated associates (and, I'd argue, partners). That's minor compared to the competition from off-shoring legal suppliers in India and elsewhere, not to mention the looming, inevitable, introduction of computer-assisted legal drafting.

Is it time to start writing the contract-generating AI of the future?

My Two Cents On Laptops in Class

To my enormous regret, I missed UM's Equity Theater because I was at a conference in Berkeley, but I'm looking forward to the promised posting of some the videos (and will link to the funniest ones). I hear it was a great show.

Meanwhile, the posting of this amusing video by NYU students, Please Repeat the Question, from their annual law school mockathon, provides an occasion for me to give my 2 cents on the laptops-in-class issue. But first, the funny:

Here are my thoughts on laptops in class:

• I don't doubt for a second that a fraction of the students in every class are using laptops to do something other than take notes. How big a fraction is a very variable thing.
• Anyone who thinks everyone was paying attention before laptops entered the classroom is dreaming.
• Anyone who doubts that more students would pay attention in class if they had their laptops denied to them doesn't understand (1) the concept of the the “captive audience”; (2) the attractive nuisance aspect of wifi; (3) the mental habits of Generation Multitask.
• Many of our students, like me, have gotten used to using a computer for all note taking. Stripping them of a familiar tool would be like telling a previous generation of students that they were forbidden to use legal pads or lined paper but had to take all their notes on index cards: something you should do only if there's a very good pedagogical reason. Students who were already paying attention will be disadvantaged by a ban.
• Laptops create some genuine problems when non-users are annoyed by the keyboard clicking, but in most classrooms the instructor can create a laptop-free zone to accommodate those who would otherwise be bothered.
• Laptops create some genuine problems when bad actors run something with video or with flashing colors that distracts their neighbors. Fortunately, this is both rare and not that hard to detect and deter.
• One of my technoskeptical colleagues banned laptops in his first year class last year, and says he'll never do it again because the exams were so poor — he thinks as a result of the ban.
• Every conference I've been to in the past few years features many members of the audience — yes, including law profs — checking email or surfing or writing something during large parts of the conference. (Not to mention that even non-laptop users read mail, or papers, or do work during faculty meetings, although there the case for paying attention often may be somewhat weaker.) There is a danger of hypocrisy.

My bottom line is that the case for banning laptops is weak compared to their potential benefits. In the end, I see them mainly as a challenge to both me and to my students.

The challenge to me is that I have to be more interesting than MySpace or Scrabble (yes, you know who you are). I suspect I don't always meet this challenge, but I'm working on it.

The challenge to my students is that they have to figure out the right tradeoff between having online fun in class, and learning what they may need to do do well on the exam and in their future careers. Law students are adults, and in the end that choice ought, I think, to be up to them.

Previously: Tell the Prof to Talk Faster

What Good Lawyers Do

Although it came highly recommended there were a number of things that I found didn't resonate for me in Deconstructing the First Year: How Law School Experiences Lead to Misunderstandings of What Lawyers Do at the blog called “clinicians with not enough to do.” I do think almost all of this part is pithy and descriptively accurate:

Really good law students succeed in part by figuring out how law school works and organizing around long-standing structures. Really good lawyers succeed in part by pointing out (diplomatically) what facts the judge does not understand accurately, or by making an argument never tried before in a particular jurisdiction. Really good lawyers know their cases and their files better than anyone else, inside and out. Really good lawyers understand the policy behind the law and why the laws are written a particular way. Really good law students learn to accommodate authority. Really good lawyers confront authority (again, in a diplomatic way).

My only caveat with the quoted passage that I'd say really great law students learn to maneuver around authority structures. But that's hard.

One could of course have a long discussion as to whether this is a good way for a law school to be. But I hope we'd agree that a good part of what a really good law school does is offer the initial training people need to be really good lawyers.

FedEx Offers 25 Free Resumes

FedEx Office is offering to print 25 free resumes tomorrow (Tuesday). It's just a drop in the bucket of the expenses of seeking work, but every little bit helps.

This offer is good for 25 black-and-white resume copies per customer and is only valid for orders placed and picked up in-store. Customers may place orders by submitting their resume in printed format or as a digital file, and the copies will be printed single-sided on resume-quality paper.

Black and white only, but I don't think law firms want color anyway. FedEx Office used to be Kinkos, and there are a bunch of them all over the area. (I know students get a lot of free printing in the law school, but this offer includes nice paper.)

UM Student Running Florida Bar's LSD

No, not what you're thinking. Actually 2L Madeleine Mannello just got elected as the first President of the Florida Bar's new Law Student Division. Here's the official announcement:

Last week, second-year UM Law student Madeleine “Mady” Mannello was elected president of the Florida Bar's newly-established Law Student Division (LSD). Mannello was elected by representatives from 10 Florida law schools.

…

A South Florida native of Ft. Lauderdale, Mannello came to the Law School after earning her Bachelor’s degree in political science from the University of Florida. She is fluent in Italian, and volunteers with several student organizations at UM Law including the Environmental Law Society, where she is vice-president of events and programming; and the HOPE Public Interest Resource Center, where she co-founded a domestic violence initiative and works with Books & Buddies. Mannello is also a notary public and a soon-to-be-certified fitness instructor. With interests in political activism and human rights issues, Mannello plans to go into human and civil rights work.

We have great students!

Looks Like We're Getting New Neighbors

Law.com - Embattled Ave Maria School of Law Wins Approval for Controversial Move to Florida

Ave Maria School of Law has won approval from the American Bar Association to relocate to Florida.

The ABA's “acquiescence,” which allows the school to move from Ann Arbor, Mich., to Naples, Fla., means it will retain full accreditation after the relocation, which is slated to occur in early July.

I recall a few years ago when we first heard about the plan to open a Catholic Law powerhouse only 125 miles away that some of us did worry some about whether the new school might interfere with local fundraising, and maybe to an extent recruiting of students.

Given all Ave Maria's terrible troubles, and everything else going on in the world, that doesn't seem like one of our top five worries at present.

Prior related posts:

• Bad Times at Ave Maria (8/07) [Note: some links no longer work because of this]
• There But for the Grace… (5/07)
• Another Law School Moves Into the Neighborhood (2/07)

I Suspect There's A Poignant Story Here

On my way to class this morning, I saw this sitting there, with no one around:

When I came out of class an hour and a half later, it was gone.

Updates on Sex/Race Bias Suit Against UF Law

Some updates to my previous post, UF Law Professor Files Sex/Race Discrimination Lawsuit:

• Paul Caron has the most extensive updates, including a link to a public email from Florida Dean Bob Jerry, which says, among other things,

  At this time, I am at liberty to say that the allegations of discrimination in this case are unfounded. We will be responding vigorously to this complaint, and we will provide a copy of our response when we do. There are important facts with bearing on this case that will come out when we submit our response.

• Earlier, in Former Florida Law Prof Comments on Racial and Sexual Discrimination Lawsuit Against School and Dean Prof. Caron wrote, “Ms. Russell-Brown has sent me the following clarification:”

  I just wanted to clarify one point for your blog that was not covered by the National Law Journal article, but which is addressed in my complaint.
  
  I went on leave from the UF College of Law in August 2004, in order to meet the 2-year residency requirement for a DPhil in public international law at the University of Oxford (UK). It was while I was overseas that I felt more comfortable, as a “tenure-accruing” faculty member, speaking up about some of the statements and/or comments that I was hearing. I returned from leave back to Gainesville in January 2007, which is when I began to experience the difficulties resulting in my departure by the end of that year, December 31, 2007.
  
  However, while I was on leave and at Oxford for my doctoral studies, from August 2004 until December 2006, my “tenure clock” stopped, along with my publication obligation, and was “re-started” when I returned to academic service at the UF College of Law in January 2007. Consequently, my complaint does not allege that I was “passed over” for tenure consideration, in the sense of being denied tenure, but rather that I was not allowed to continue in my “tenure-accruing” position starting from January 2007, until the end of my “tenure probationary period” in 2009-2010 - that my “tenure clock” was unlawfully stopped on December 31, 2007, in retaliation for my disclosures, and I was not allowed to be considered for tenure in 2009-2010, as UF faculty regulations provide.

• FeminstLawProfessors, Student Describes “Black Exodus” at U Florida Levin College of Law
• FeminstLawProfessors, More on Racial Discrimination at U Florida Levin College of Law

UF Law Professor Files Sex/Race Discrimination Lawsuit

Paul Caron has the details in TaxProf Blog: Former Florida Law Prof Files Racial and Sexual Discrimination Lawsuit Against School and Dean.

The well-written complaint — yes, just one side of the story — makes for ugly reading.

Disequilibrium in the Market for Law Deans

My colleague Tony Alfieri is quoted in Wanted: law school deans. Lots of them as saying, sensibly, that being an “austerity Dean” doesn't sound like much fun.

Tony Alfieri, head of the Center for Ethics and Public Service at the University of Miami School of Law and a tenured professor there, agrees. Alfieri has had feelers for deanships but is ambivalent about the prospect of being “an austerity dean.”

“Many more contemporary deans are trying to strike a more appropriate work/life balance and are taking active roles in raising their children,” he said. “Plus they have serious commitments to their own scholarship, to their writing and, for many, to existing public service commitments. Add to that the fact that these are turbulent times. An austerity deanship poses uncommon and especially high challenges. And it's doubly vexing for women.”

Which I suppose might be one more reason our job might sound attractive…

(But why is it “doubly vexing” for women? Is the idea that men don't raise children or don't do public interest work?)

Jan Paulsson to Join UM Law Faculty

I’m very pleased to announce a major appointment by the our law school: starting next year, international arbitration scholar and arbitrator extraordinaire (and repeat University of Miami Visiting Professor) Jan Paulsson, will join our faculty as the first holder of the new Michael Klein Chair in Law.

This is a big deal for us in several ways.

First, Jan is globalization personified: born a Swedish national, he grew up in Africa but attended high school in California, eventually wound up at Yale Law School. He has worked primarily in Paris, most recently as the head of the Paris-based arbitration practice of one of London’s (and Europe’s) leading law firms, Freshfields Bruckhaus Deringer. He has extensive contacts and experience in Europe, the Middle East, Latin America, and the Caribbean (and for all I know the rest of the world too).

Second, Jan is arguably the leading arbitration advocate, and arbitrator, of his generation although Jan himself would be far too modest to claim any such thing. Multi-lingual, he is also an incredible multi-tasker, holding or having held many of the key jobs in the international arbitration world, including the Presidency of the London Court of International Arbitration and the World Bank Administrative Tribunal while moonlighting every few years as an on-the-spot arbitrator for the Olympic Games (someone has to be on tap to decide doping challenges). He has also written very extensively in the field, authoring two scholarly books and a slew of articles, as well as editing or contributing to the major practitioner works in his field. Indeed, I'm told that when he joins us Jan will be the most-cited member of the faculty.

Third, he’s coming to Miami to head up a new institute that will focus on international arbitration, with a particular focus on Latin America. I will have more to say about this in the future, but I think there's every reason to believe that under his leadership we should be able to build something world-class.

International arbitration is something of a poor stepchild in the US academy – we in the US are neither the primary users of it nor do we supply a particularly large share of the leading advocates (at least in private law), arbitrators, or scholars – although we do have a few domestic stars. But my sense is that US legal academics in particular do not have a visceral sense of the extent to which arbitration has come to play an essential role in the settlement of international commercial and financial disputes. (This may be because we have a reasonably functional domestic legal system or because historically so much of our trade was domestic.)

At UM we already have a healthy international arbitration curriculum, but bringing Jan Paulsson to Miami as the head of a new center will put us in the first rank of the US institutions focused on this increasingly important area of transnational law. Starting next year we will be offering an LL.M. concentration in arbitration as part of our comparative and international LL.M programs.

But to top it all, it turns out that Jan Paulsson is a very nice person – so when I say it's going to be a pleasure to have him on our faculty, that's no formality.

Formality can, however, be found below, where I quote the official announcement being issued by the law school today.

CORAL GABLES, FL (January 9, 2009) - The University of Miami School of Law today announced the appointment of Jan Paulsson to the Michael Klein Distinguished Scholar Chair beginning in the academic year 2009-10. Paulsson is head of the public international law and international arbitration groups at Freshfields Bruckhaus Deringer, and has had his professional base in Paris for 30 years. He is currently also the president of both the London Court of International Arbitration and the World Bank Administrative Tribunal.

In his post, Paulsson will head a newly established institute for international arbitration at the University of Miami School of Law, that will include an enhanced international curriculum, LL.M. specializations, training, and CLE programs.

“We are very excited that Jan Paulsson, one of the world's leading experts on international arbitration, is joining our faculty,” said UM President Donna E. Shalala. “With his leadership, the University of Miami School of Law will be prominently positioned as an important center for the study of international law.”

“Jan is a fascinating combination of academic intellectual and powerful practitioner, who in many ways mirrors the strengths of the person whose chair he will hold - Michael Klein, distinguished UM Law alumnus and former partner of Wilmer Cutler Pickering LLP,” said Acting Dean Paul Verkuil. “We are lucky to have him.”

The school will benefit from Paulsson's expertise as counsel or arbitrator in over 500 arbitrations in Europe, Asia, the United States and Africa. He has also acted before a great variety of international tribunals, including the International Court of Justice and the International Center for the Settlement of Investment Disputes.

“Knowing Jan for over 20 years as an opponent, a scholar, a teacher, an author and a leader in the field of international arbitration, he is a brilliant advocate, an extraordinary and principled arbitrator and truly one of the leading stars in the international community in terms of substance and ability,” said American Bar Association President-Elect and UM Law alumna Carolyn B. Lamm. “I am certain his scholarship and stature will enable the Law School to establish a pre-eminent Latin American arbitration program.”

Mr. Paulsson holds an A.B. from Harvard University, a J.D. from Yale Law School and a Diplome d'études superieures spécialisées from the University of Paris. His many scholarly publications include the books Denial of Justice in International Arbitration published by Cambridge University Press and (forthcoming) The Idea of Arbitration to be published by Oxford University Press.

Media Contact:
Elizabeth Amore
305-284-6266
eamore@miami.edu

I Prefer My Torts to be Hypothetical

I am always on the prowl for ideas to improve my teaching, but having given the idea due consideration, I think that this suggestion by “Law Ingenue,” offered as a cure to Sedentary Law Students, just won't work for me.

To alleviate sedentary behavior, maybe law school classes should start like Japanese companies with small group exercise workouts before class to everyone feels refreshed and ready to go? A little Tai Chi to clear the mind, reduce stress, and get the blood flowing so we can be Zen with Property Law?

Um, no. I can just imagine being blamed for causing an injury.

(In fact, rumor has it that one of my colleagues tried something a bit like this a few years ago, maybe a bit more Yoga-like, and the students objected vehemently …)

Grading Update

I've done my (exam) grades.

Average score on Q1 (nine short answer questions, the least valuable part of the exam) was 5.08 right, a weakish showing. The median as 5.25.

Average score on Q2 was 3.084 (a hair above a “B”).

Average score on Q3 (the most points) was 3.266 (a very solid “B”)

Students had seen question 2 in advance, but tended to do better on question 3, which (a) they had not seen and (b) was much harder. That surprised me.

Average final score on the exam was 3.199 (a “B” - I round down to make up for my loosey-goosey grading impulses). But now I have to add my rather generous class participation credit to calculate the final score. I use a complicated system, in which I sort the class into three tranches based on notes taken in or after almost every class during the semester, tell my secretary who's in which group, then get back the blind grading numbers with just the tranche noted. So I don't know who's who until after I turn in the final grades.

I do not curve my grades, but the raw grades look vaguely bell-like; depending how the class participation falls out, I could be at, above, or below, the faculty average for upper-level courses.

Note: Averages don't tell you much — you can drown in a river that is an average of six inches deep. I haven't the energy right now to do medians.

Law Firm Managing Partner Bemoans US News Rankings

The article by Peter Kalis on Lawjobs.com, Career Center - Gripes About Law School Rankings From a Law School 'Customer' is an interesting but I fear minority view from the chairman and global managing partner of K&L Gates:

If you are a beleaguered law school dean, know that this customer pays not a damn bit of attention to the U.S. News ranking — nor should your applicant pool.

He's got reasons, and they're decent ones, but I can't quite get my mind around to thinking that this is the majority view. Might be good if it were, though.

My view, which I've stated here before, is the US News rankings are based on a pretty silly (and increasingly self-referential) formula. Small gaps tell you nothing. Large gaps do tell you something, although you could probably get almost as good info by looking at the relative size of law school endowments….

Grrrrrrrrrrrrrr

I am grading. This makes me grumpy.

Fellowship Opportunity for Graduating Law Student

The American Constitution Society (ACS), one of the nation's leading progressive legal organizations, seeks a talented, versatile and energetic recent law school graduate to serve as a Law Fellow. The Fellowship will begin in September 2009. The Fellow will serve as part of ACS's Programs staff, which is led by a group of experienced attorneys who coordinate and facilitate ACS's rapidly expanding output of innovative, highly relevant legal and public policy work. The Fellow will work with existing Programs staff to assist in coordinating the work of ACS's Constitution in the 21st Century project, an ambitious multi-year effort to engage scholars, practitioners, public officials and law students in the articulation and dissemination of a progressive vision of the Constitution, law and public policy. In close coordination with the Programs staff attorneys, the Fellow will:

• Assist in developing and planning ACS speaking programs on cutting-edge legal and policy issues, such as briefings at the National Press Club and on Capitol Hill, conferences and symposia around the country and the ACS National Convention;
• Manage the listservs of the ACS Issue Groups (ACS's national network of legal practitioners, scholars, and activists), selecting and posting relevant materials and leading substantive discussions among Issue Group members;
• Help draft program guides for ACS chapters and materials for the public such as short papers based on ACS Issue Briefs;
• Maintain relations with public interest advocates, academics and private practitioners;
• Perform legal research and writing projects as assigned, to further the work of the ACS Issue Groups;
• Attend conferences, hearings or other events as assigned; and
• Assist the Program team in other ways as the need arises.

The Fellowship is a one-year position, with salary and excellent benefits provided by ACS. A law degree from a U.S. law school is required. The ideal candidate will be a recent law school graduate who has a strong academic record; excellent research, writing and oral communication skills; and strong interpersonal skills. He or she also will have demonstrated initiative, organization and attention to detail.

Salary commensurate with other public service legal fellowships; the same benefits that are offered to full-time ACS staff. ACS is an equal opportunity employer; women, people of color, people with disabilities, and gay, lesbian, bisexual and transgender people are encouraged to apply. To apply, send a cover letter; resume; 5-10 page, self-edited writing sample; and three references to ACS via U.S. mail (ACS, 1333 H Street NW, 11th Floor, Washington, D.C. 20005); email (jobs@ACSLaw.org); or fax (202-393-6189; Attn: Shannon Hiller). No phone calls please.

The Scariest Moments in Law Teaching

Jay Wexler suggests that The Scariest Moment of any Class Meeting “is always the very first one”.

That's absolutely not my experience — the moment before the first class, open with infinite possibility, is anything but scary. Exciting and hopeful, yes. The only sour note is if any of the students seem scared — I hate that, as I want the freedom to push them to be rigorous and feel constrained in doing that if I am finding that they experience it as scary as opposed to educational. (Now, the second class, after everyone runs away…) And, kidding aside, the same is true more generally of every class — I'm always psyched to get going at the start, to the point where I often forget about any admnistrivia and announcements because my mind is on the substance. Conversely, I am usually loath to stop, as I have so much more I'd love to say…

No, for me the fourth-scariest moment in law teaching is the pre-exam review session, when students come in with their (sometimes surprisingly picky) questions — the one time in the semester I don't have my security blanket of notes in case my mind goes blank. It hasn't yet, but what if it did?

The third-scariest moment is right after I send in my grades. How will the students who did poorly react? So far the worst experience has been with the ones who come to my office and cry, which can be very wrenching. But in the past I've also had someone (a visiting student; I trust ours would know better) call me at home and harangue me to change a grade (which our rules forbid). I even had one person, long ago, come to my office and threaten me — not, I hasten to add, with physical harm, but with an implausible claim that I'd suffer professional retaliation because the one of the student's relatives was Very Important.

And the second-scariest moment is just before I send in my exam. Exam design is very difficult, and I continually wish I could find someone to train me in it. There are so many ways things can go wrong: creation of unintentional distractions; writing questions that are too easy or too hard; writing questions destined to produce results that are hard to grade (either because there are too many minor issues or because the students all fixate on too few); and, most likely, writing questions that produce answers that are basically all alike and hence very very boring to read.

But the very scariest moment — without question — is that moment right before I open the blue books. What if I did a bad job and they didn't learn anything?

So unlike Jay Wexler, for me, all the scariest stuff is at the end.

That would be … right about now.

Law School Price Wars Beginning? Not Quite Yet...

ABA Journal, Law School Free for UC Irvine's Entering 2009 Class.

Students who enroll at the University of California’s new law school in Irvine next fall will get their legal education for free.

The law school is giving full tuition scholarships worth about $100,000 to its first 2009 class of about 60 students, the National Law Journal reports.

Charles Cannon, assistant dean of development and external affairs at the law school, told the publication UC Irvine hopes to attract high-quality students with the offer. The free tuition is expected to cost the school about $6 million, he said.

Irvine is a start-up school. It has hired quality faculty, and this should let them get started with a bang.

I presume, though, they won't be making a habit of this. But if they do, it could lead to a wave of discounting in law school tuition which would change the face of legal education (and in the long run, most likely be in substantial part at the expense of faculty salaries since I doubt we or others schools like us could raise the money it would take to replace a third of our tuition revenue).

More About Starting Salaries

The comments to University of Miami Law Tops Florida Bar Pass devolved into a discussion of the employment prospects of our graduates.

In the course of that discussion, questions were raised about the data the law school publishes in its Viewbook. In particular, commentators questioned the claim made there that the average starting salary for UM grads who work in firms is over $100,000. I wondered about that myself, as the breakout data later on the same page seemed to suggest something lower.

Could the law school have made a (convenient) error in the viewbook?

I took my concerns to the law school administration, who responded by giving me a full data dump and a full explanation. I don't have the energy to try to type in all the data, so I'll just try a simplified version of the explanation. [If you really have to have more, or have further questions, the Dean of Career Development, Marcy Cox, mcox@law.miami.edu (305-284-2668), says she's happy to address them.]

According to Career Development Office, the reason why the both $104,500 number and the more detailed but somewhat different pie charts accompanying it are accurate has to do with response rates, differing data sets, and national reporting standards.

Since firm size and starting salary are related, you might reasonably object — as I did — that it would be more reasonable to pro-rate the responses of the people who gave salary data on the assumption that the people who didn't fill in that part of the survey earned similar amounts by comparable firm size. And I still think there's something to that. But I'm told by the Career Office — and I believe them — that the average salary data is presented the way it is because that's how all law schools do it and the goal is to provide prospective students with numbers that can fairly be compared to what is provided by other law schools.

The Career Development Office avers that it collects the data and reports it in accordance with ABA and NALP guidelines, using the same methods that every other accredited law school in the country uses. Were the law school to do something else, the administration notes, it would no longer be reporting to students in the way it reports to the ABA and NALP. That would mean our data would have an asterisk. And even if we were doing it in order to provide better data the inevitable conclusion that most people would draw is that we were trying to hide something. So the Catch-22 is that we have to do it this way, possibly sacrificing some statistical excellence and even accuracy, or else we'll look like we're engaged in some sort of cover-up. And, of course, in addition to having an asterisk, we'd be harming our competitive position since we'd have gone to some trouble to calculate and report a lower number which would harm marketing and recruiting.

It seems to me that UM is between a rock and a hard place here. I would prefer that we use the best statistical techniques, pro-rate the data we have, and let the chips fall where they may. Following the national standards will, I believe, tend to cause this (and apparently almost every other) law school to report a number as “average” that is in fact likely to be higher than the reality. By my back-of-the-envelope calculations, what UM — following a methodology its competitors use — reports as an “average” salary for graduates in firms, is most likely closer to what someone in the 75th percentile of the salary distribution gets. And given the law firm salary structure is now a notoriously double-humped curve (see Starting Salaries For Law Students are BiModal — If Not Bipolar for more details), this is a fairly severe truth-in-advertising problem.

Students nationally have some right to be upset. On the other hand, it seems pretty hard to ask UM to engage in unilateral disarmament in the recruitment wars: this is a job for the ABA or the AALS to resolve on a national level. (It also means that students thinking about a law career and hoping for the giant salaries offered by the biggest firms should really understand what that double-humped curve means to their prospects.)

Meanwhile, however, I've asked the Career Development Office to include something in the next edition of the Viewbook that makes clearer the relationship between the various data sets it uses. They've agreed in principle, and we'll thrash out some language when time comes to do the next edition.

University of Miami Law Tops Florida Bar Pass

Congratulations to the UM Class of 2008, which recorded a stellar bar pass rate on the Florida bar exam. According to the official list, our grads achieved the highest pass rate of all Florida law schools, with a 92.4% pass rate among first-time test-takers. (More bragging at the official UM announcement.)

I've reproduced the full table below, sorted by percentage passing, based on the raw data (sorted by number passing) contained in a .pdf from the Bar Examiners.

But first, a few words of warning: Bar Pass Rates are Over-Rated As A Measure of Law School Quality.

It would be sort of interesting to extend this table with a column showing percent of class taking the exam, and also percent of class taking out of state exams.

The percent in-state vs. out-of-state tells you something about how national/regional/local the law school is. A large number taking no bar at all raises the question whether the law school is steering some students away from the summer bar exam in order to prop up its statistics, although there are also other very innocuous explanations. It may be that many students go on to LL.Ms and put off the bar, or that the school prepares them for other sorts of careers. The no-bar-anywhere number only raises a question, rather than answering it.

The first number is probably easy to get, but I don't know about the second. We graduated 442 JD's last year, making the 236 Florida test takers just 53.3% of the UM graduating class. My impression is that just about all of our JDs took a bar exam somewhere, and that the numbers reflect a reality that we run a school with both national and Florida ambitions, but I could be wrong about that. Indeed, if you'd asked me, I'd have guessed that the Florida-national ratio was more like 2:1 than 1:1, which suggests either that anecdotal evidence is not worth much, or that the school is becoming more national.

Ten Reasons Why You Should Teach Here -- And Three Why You Shouldn't (v. 2.0)

I published a version of this essay last year.  At the request of the Chair of the Entry-Level Appointments Committee, to whom I can refuse nothing, I am updating and republishing it.

Ten Reasons Why You Should Teach Here — And Three Why You Shouldn't (v. 2.0)

1. Faculty

The best reason to come to U.M. is the faculty. At its best (which is to say, "outside of faculty meetings"), this is a faculty that believes ideas are serious things, but also is willing to play with them. You will see this most vividly at faculty seminars, especially those with external speakers. The faculty reads the paper in advance of the talk. It thinks about it. We don't let the presenter speak a long time — we want to have a discussion. There may be an element of performance in the questions and comments, but that usually just adds to the fun. Unlike some faculties I've heard about, we are not worshipers at the temple of sub-disciplinarity: faculty members feel comfortable commenting on papers far outside their own specialties, and they are usually right to do so as the distant perspective sometimes proves at least as valuable as the insider's. [Update: A recent visiting professor, John Flood, gave a good description of the experience of a Miami seminar in Giving Papers at Miami.]

While faculty vary in the extent to which they will seek you out — some are shy; others are busy — they will almost all be happy to see you if you seek them out. Very few will treat you like a junior colleague; for most, you will be part of the family from the start. And it's an interesting family, including some big names in international law, tax, law and society, law and identity, and several other subjects.

The faculty stood out for me at the AALS recruiting conference as one of the most intellectually engaged faculties with which I met over the weekend. They actually were interested in my writing projects, and gave me the sense that they took them and me seriously. My time with the committee ran out too quickly for me. My feeling of intellectual comfort with the faculty was only enhanced during my visit to the campus later in November, but that was augmented by my delight that this would be a group with which I'd be comfortable beyond simply discussing scholarly work. They were a bit quirky, and in a way about which I am excited. I am excited about the diversity of the city of Miami as well, and the opportunities that I think it will provide me to think about my areas of research in new ways — ranging from race and the the law (where the Law School has long been at the forefront in American legal education) to comparative separation of powers issues in Latin America.

2. Institutional style & institutional support

UM wants productive faculty, and it believes in research. But it isn't about telling you what to do. My own story may be instructive: I was hired thinking that I would be writing mostly about administrative and constitutional law. In fact, however, within a couple of years I had turned into an Internet lawyer, and was writing primarily about computers, networks and the law. At no time did anyone here ever suggest that this was a problem. What mattered to people was that I was publishing.

Another way in which UM may differ from some law schools is that our faculty is routinely interdisciplinary and international. Many publish in non-legal journals — a fact which does not necessarily help either our publication or citation counts since the legal tabulators tend to focus only on law journals. Although we recognize that there may be some reputational costs, we are not prepared to tell people where they should publish. We just want it to be good.

There is no international ghetto at UM (the same is true of tax, a traditional faculty strength). As a matter of unwritten policy, everyone is expected to teach a basic course outside their specialty; the result is both that we can have more internationalists (and tax scholars), and that there's a much greater community of overlapping interests.

3. Library

The University of Miami enjoys a superb law library, the result of a decision more than two decades ago to make library acquisitions a financial priority. And if we don't have it, the library will borrow it for you, no questions asked. (As one former librarian put it, "we aim to provide law-firm-quality service". And in fact, it is almost as good as a top law firm, and the librarians are much nicer.)

The law library has extensive holdings in related disciplines, notably political science, and of course the university library is literally next door, and it also has ever-growing electronic access to journals — which can even be accessed from your home office. We have a particularly strong collection in Latin American and Caribbean law, but also strong holdings in European law. We are weak in India, China, and Russia, and no doubt several other countries with non-Romance alphabets, so if your research involves heavy use of materials from one of those countries, you should check to see if we have you covered. I also have a sense that our holdings for pre-1940 materials are not as strong generally as for things published in the last 70 years. But I am continually having pleasant surprises when I consult Baron, the online card catalog. They've done some impressive buying over the years — which is a good thing, as the next major law library is a long way away.

4. Students

We have smart students with upwardly mobile ambitions. Some come from wealthy families, but for many a law degree will be the highest level of education ever achieved in their families — a matter of pride for an extended clan you may have the good fortune to meet at graduation. Despite the lures of nearby South Beach, UM students are by and large a studious lot: their awareness that few silver platters await at graduation usually translates into a commendable work ethic. At least until the end-of-term fog settles in, I find that my students have done the reading, and often have something to say about it. There is a little shyness — some students don't want to ask questions for fear of looking silly; other students worry about being labeled a "gunner" — but ordinarily class discussion can be pretty lively. Although we have more men than women as students, it is often the case that the women lead the discussions and make the most substantive contributions. Classes tend to be fun (at least for the instructor). Visiting professors from other law schools consistently remark on the high quality of classroom performance here.

The UM student body has improved greatly in the past decade. Our best students would be at home in any law school. Our worst students would have been near the middle of the class 15 years ago. The only fly in the ointment is that despite their good college grades and creditable LSATs, a substantial fraction of the class comes to law school unable to write as well as they think or speak. Overcoming this obstacle remains one of our biggest challenges. That said, every year we have students who write publishable papers in classes and seminars. It's been a particular pleasure to see those pieces go into print along side those of full-time academics.

Some of our students will go on to be national leaders; a much larger number will play key roles in the State of Florida, as judges, politicians, and leading members of the bar. Some people have described alumni reunions as state judges' conventions, but this is slightly unfair. On the other hand, there's no question that both Florida as a place, and UM graduates as important players in that place, have been at the center of major wrangles with national impact ranging from the 2000 election to the Terri Schiavo affair.

Aspiring faculty sometimes worry that they will not find good research assistants outside a top ten law school. It's true that I don't hear stories about students writing papers that professors then publish under their own name — as I did when I was a law student at Yale. But if you are looking for a research assistant rather than a ghost writer, then my experience suggests this is not a serious problem if you teach a first-year class. As a teacher in the larger first year classes you can identify the students who are good and who fit your style before they get too caught up in other things. Some of them will get on law review, and will be too busy to work for you; some of those that don't will work downtown for higher pay than the law school can offer, but usually there's someone you will be happy to have who will be happy to have the job in their second or third year. I can't claim that every research assistant I've had has been stellar, but I can say that some of them were amazing — and that they are harder to find when I don't teach first years.

5. Research support

Research support exists to make it easier for you to write. The most important part of UM's research support is its excellent law library. But it doesn't stop there: In addition to the collection itself, we have a staff of helpful law librarians who seem happiest when given difficult research requests. There's a document delivery service which will get you any book or article you ask for and deliver it to your office within a day if it's on campus or a few days if it must be sent from far away. (One down side: you can gain weight from the loss of movement caused by having everything come to you.)

At conferences I sometimes hear stories about places where senior colleagues try to tell tenure-track faculty what to write about (or, worse, forbid certain topics or styles). We don't do that. If anything, we have erred in the other direction — tip-toeing around junior faculty sensibilities so much that we may have provided insufficient mentoring.  In an effort to do better in that department, the faculty now enjoys the services of a "director of faculty development" — yours truly as of a year ago — whose job it is to help colleagues (and especially pre-tenure colleagues) with their research and writing by identifying resources, serving as a sounding board, or just staying out of the way.

In addition, every faculty member has an office budget which allows you to hire a research assistant, books and supplies, and to travel to conferences. Each of these budgets is fairly generous, and the Associate Dean has discretionary funds to add to them up for good cause. In my experience, any cause I can bring myself to ask about has been treated as a good one.

6. The University

A generation ago it was "Suntan U". Today, under the (very) energetic leadership of Donna Shalala and an impressive suite of Deans, the University of Miami is joining the ranks of the leading research universities in the USA. For openers, President Shalala raised $1 billion for the University. YES, $1 BILLION. Now that it's in the bank, she's warming up for a new round of fund-raising. The lion's share of the first round went to the medical school, but we are told that the law school should be able to claim a bigger share of the next round -- and we'll need it because we've also been offered a chance to build a brand new building on a prime location on campus that is already zoned for construction (trust me, that matters).

More importantly, the past couple of decades have seen a transformation in the quality of both the students and the faculty in the arts and sciences. It's become hard for students to get in; and departments such as History, Psychology, Business, and Sociology have attracted faculties that include a wealth of potential collaborators, adding to existing strengths in Medicine and Communications. Both the law school and the University encourage inter-disciplinary collaboration. The law school has begun to take advantage of these resources (I, for example, am working with a team on health privacy issues that includes participants from both the Business School and the Med School), but there's much waiting for you that remains untapped.

7. Perks

The law school wants to support your research, and we try to put our money where our mouth is. Entry-level faculty can apply for a summer research grant before starting work in order to prepare their courses. We light-load you (usually only one course per semester) during your first year to give you time to find your feet. You'll get a summer grant as of right every summer until tenure to encourage you to write — after that you'll have to submit proposals, and make good on them too. And you're entitled to a semester's leave before tenure, more or less in the term of your choice, in order to help you write.

The law school is located on a very beautiful campus in the center of suburban Coral Gables, itself a very pleasant city with excellent restaurants. Rumor has it that in the old days the university administration spent more on landscaping than books; whatever the truth, there's no question that the campus is very nice to look at. It also sports a state-of-the-art gym that's about three minutes walk from the law school around our picturesque lake (crocodile optional). The campus sports other useful amenities, including a faculty club, a food court, and an on-campus daycare.

8. Miami

Miami is a cosmopolitan city. Part of its identity is as the defacto capitol of Latin America; part is as an artistic and musical center; and then there's the celebrity-and-tourist thing. It's an attractive place for young and old, and — if you take care to live in the right school districts, or have kids who qualify for the right magnet schools, or are ok with private schools — a pretty easy place for the middle-aged pater and mater familias. Like many sunbelt cities, Miami is more sprawling mosaic than urban core and periphery. Both urban and suburban living are within easy reach of the campus. Our politics are fascinating and complex, with much political power held by first and second generation immigrants from Cuba, and to a lesser degree Haiti, and Central America. The region now enjoys a lively cultural life, with a rich music and dance scene and some creditable small theater companies. If you prefer nature to culture, there's always the nearby Everglades as well as world-class coral reefs for diving just south of Miami.  And one of my colleagues sometimes totes a surfboard.

If your work involves domestic issues, you will find them in Miami, which is the city of the future in ways both good and bad. Along with our glitz you will find us on the cutting edge of today's and tomorrow's political and social issues: immigration, environmental (think "Everglades restoration"), medical (think "retirees"), and all the social questions that big cities produce.

Housing costs are plummeting, many other living costs were already low, and there is no state income tax.  Plus, the University has taken bold steps to help faculty find good housing by offering new hires a deal in which the university will subsidize part of your home purchase in exchange for a proportionate share in the equity when you sell, an offer that puts many very nice homes within reach.

9. Weather

Miami's weather is glorious for almost half the year; variable for another chunk, and miserable in the dog days of summer and early Fall. The good news is that much (but not all) of the miserable part comes when the law school is not in session, so you can escape if you choose. When the weather is nice, our central courtyard, the "bricks," becomes the social center of the community, a place where students and faculty mingle between classes. Even office rats like me end up looking healthier than the wan, pale, parka-clad figures I see huddling on the Boston subway. For those with outdoor ambitions, you can live on Miami Beach, or just enjoy the sea view from a balcony in a tower apartment in downtown Brickel.

10. The revolution is here

In last year's edition of this memo, I wrote that the "revolution is coming".   Well, it's here.

As a result of an unusually detailed and painstaking strategic planning exercise last year we are undertaking a radical transformation in the faculty, and perhaps the style, of University of Miami School of Law. We have at least six open jobs at present, with the likelihood of much more turnover as faculty retire (couples welcome!). The next three to five years stand a good chance of determining the future course of the school for a generation to come.   Hiring is going to be a big part of that transformation.

At present we have less than half a dozen faculty under 40, only a few more between 40 and 50, another dozen or so between 50 and 60; the single largest group — well over a dozen —  are over sixty, including some well over sixty. Our hiring is resolutely in compliance with the Age Discrimination in Employment Act (of our last nine entry-level hires, two were very experienced lawyers well over 40), but given the overall composition of the entry-level market, it is likely that this age profile will change dramatically in the next few years.

But more than simply replacing faculty as they retire, we hope to do something even more dramatic. Under the leadership of Interim Dean Paul Verkuil, we've asked the Provost to authorize us to hire a very large number of additional faculty, over and above the half-dozen openings we have already. 

What this means for our new hires is that they will find themselves at the heart of their new community — and have a chance to lead it — much earlier in their careers than they might otherwise. The coming turnover and expansion in the faculty, coupled with this year's Dean search introduces an element of uncertainty about what we'll be like in the future that may not be to everyone's taste. Fortunately, the faculty engaged in a successful strategic planning exercise last year, which means that any new hires will be spared that chore at least.  But it also means that we're going to be growing and experimenting. 

Today, the law school enjoys a nearly unique chance to reinvent itself, and people with ideas and energy should find all the breathing room and opportunity they want.   We 'll create a host of new Centers and Institutes -- several are already in advanced stages of planning.  We're going to change some (but only some) of the ways we do teaching.  We're going to ramp up the scholarly enterpirse by having more talks, more conferences, more happenings.  And we're going to be open to your new ideas.

I hope that people reading this will come join us in building something wonderful.

All that is very well, but honesty compels me to say that there are also some reasons why not everyone may be happy here. Indeed, there are three main reasons why you should not teach here:

1. Weather

If skiing is your passion, and neither waterskiing nor snorkeling are substitutes, then Miami may make you sad. It's hot and very humid here from July until the heat breaks sometime in October or September. That means you can have up to three and half months when it's not much fun to go outside. Plus, occasionally we get weather with a name. But we don't get snowstorms, avalanches, wildfires, earthquakes, random tornadoes, floods, or mudslides. If you want immunity to natural disasters, move to Rhode Island.

2. Language

Many people in South Florida speak Spanish as their first (and often only) language. The campus is Anglo — although some of the bilingual staff and students will speak Spanish to each other — so this is not a work issue. But it is a life issue: you will hear lots of Spanish in the stores and on AM radio. If you are the sort of person who can't cope with foreign languages around you, there's a strong chance you will not be happy here. I don't speak Spanish, and I only found it a noticeable handicap for my first few weeks here, when I would get lost driving around and stop at a store for directions, then wait impatiently while they went to find the English-speaker. It's a non-issue today unless I happen to go bargain shopping for some exotic household good, and indeed contributes to Miami's cosmopolitan vibe.

3. Geography

It's flat here — no mountains (and houses have no basements). More seriously, it's also far from many of the legal nerve centers. If you're doing national work and you are having meetings related to it, odds are the meeting will neither be in Miami nor even within driving distance. That means air travel. And while we have great direct air connections to most of the world and the law school is generous with travel support, we do not have a working time machine. Given the post-9/11 security regime at airports, and the increasing vagaries of air travel generally, it is rarely possible to have a meeting in New York or Washington without spending the night out of town. That can mean having to reschedule a class (something we allow for good causes), which is a pain for you and even more of one for your students. It certainly means that doing national committee work is always a substantial time commitment. It is almost 500 miles to the state line, and then where are you? Somewhere between Tallahassee and Moultrie, Ga.

This year I am not on our entry-level hiring committee, but I am on our lateral hiring committee.  Whichever group you fall into, if you find the positives outweigh the negatives and have an interest in coming here, I'd be happy to try to answer any further questions you might have, either in comments to this entry or by private email.  Get in touch.

Of Coase and Coercion

A note to myself, but you're invited to listen in and comment if you'd like. [Update: comments glitch fixed.]

If I were teaching a first year legal “toolbox” course, I'd certainly teach Coase as part of it. And I'd include something like this too: Unenumerated: The Coase Theorem is false: contracts depend on tort law.

The proof that the Coase Theorem is false is actually quite simple: the assumptions of the Theorem contradict each other. The assumption that transactions are voluntary contradicts the assumption that any prior allocation of rights is possible, including rights that allow one party to coerce another. In fact, for the Theorem to at all make sense, a very large and crucial set of prior rights allocations must be excluded — namely any that allow any party to coerce another.

But we can't generally solve externalities problems by bargaining under this revised assumption. Externalities cannot be neatly distinguished from coercive acts, as extending one of Coase's own examples illustrates. In this example we have a railroad with a train that, passing by a farmer's wheat field, gives off sparks, which may start a fire in the field. In Coase's account, the prior allocation of rights might give the railroad the right to give off sparks, in which case the farmer must either plant his wheat far enough away from the railroad (wasting land) or buy the right to be free from sparks from the railroad. The prior allocation might instead already give the farmer the right to be completely free from sparks, in which case the railroad can either buy the right to emit sparks from the farmer or install spark-suppressors. If these are the two possible prior allocations of rights, Coase concluded that the railroad and the farmer will in the absence of transaction costs bargain to the most economically efficient outcome: if it costs less for the railroad to reduce the sparks than for the farmer to keep an unplanted firebreak, bargaining will achieve this outcome, and if the reverse, bargaining will achieve the reverse outcome, regardless of whether the farmer initially had the right to be free from sparks. So far, so good — it seems, on the surface, that if bargaining is costless an efficient outcome will be achieved.

The problem is that these are not the only prior allocations possible. The Coase Theorem is supposed to work under any other allocation of prior rights. But it doesn't. It fails for a large and crucially important class of prior allocations: namely any that allow one party to coerce another.

But I don't teach a first year “toolbox” course. Indeed, we don't have such a course. (We have “Elements” which — I'm told — is about how to read lines of cases, something which is important but different.)

I do, however, teach a Jurisprudence course of my own devising. I do “Of Coase and Cattle” there. Should I add something like this? It would be a distraction from where I'm trying to go, but maybe a useful one.

Then again, if I really let myself get distracted, I'd soon be trying to explain why the solution to the problem here is Habermassian, not libertarian. And that would take me very far from where the course is currently designed to go. But maybe I should bite the bullet and take it there? But that would make it much more of a philosophy course, and much less of an analytic jurisprudence course, than I intend it to be.

Annals of Progress

This just in:

Dear Faculty: After careful consideration and to better reflect the services and resources we provide to our students and alumni, we are pleased to announce that the Career Planning Center is now called the Career Development Office (CDO). The role of law school career offices throughout the country, including our office, has considerably changed in the last decade. Career offices have expanded their role by giving students and alumni lifelong services that not only help the students and alumni identify and use the appropriate resources to obtain their first jobs but also help them assess and discover their ideal careers. We feel that the new name accurately represents this progressive change and ask you to join us in using the name and sharing it with others in our community. Also, please note our new website address: www.law.miami.edu/cdo.

Student Business Cards are Here! The Career Development Office is pleased to offer business cards to current students.  For more information please click here.

And I think business card style option “B” looks pretty good.

Paul Verkuil to Be Interim Dean at U. Miami Law

Paul Verkuil, Professor (and former Dean) at Cardozo, will be the Interim Dean at UM for a one-year period. Here's the official bio from Cardozo:

Professor Verkuil was dean of Cardozo from 1997 to 2001. After practice at two leading law firms in New York, he served on the law faculty of University of North Carolina, as dean of Tulane Law School, and as president of the College of William and Mary. From 1992 to 1995 he was president and CEO of the American Automobile Association. Professor Verkuil was a visiting professor at the University of Pennsylvania and served as Special Master in the case of New Jersey v. New York involving the sovereignty of Ellis Island. He is a life fellow of the American Bar Foundation and of the American Law Institute. Professor Verkuil is coauthor of Administrative Law and Process (4th ed. 2004) and Regulation and Deregulation (2nd ed. 2004). He is a leading scholar of law and regulation and has published more than 60 articles in this field

Dean Verkuil's tenure will start officially on August 1, coincidentally the day I'll be getting back to Miami from a trip starting tomorrow.

Work-Study Effects

In college they always used to tell us that the people on work study got better grades because they were forced to manage their time more carefully. Maybe not?

Jeffrey S. DeSimone, NBER Working Paper, The Impact of Employment during School on College Student Academic Performance,

From the abstract:

This paper estimates the effect of paid employment on grades of full-time, four-year students from four nationally representative cross sections of the Harvard College Alcohol Study administered during 1993-2001. The relationship could be causal in either direction and is likely contaminated by unobserved heterogeneity. Two-stage GMM regressions instrument for work hours using paternal schooling and being raised Jewish, which are hypothesized to reflect parental preferences towards education manifested in additional student financial support but not influence achievement conditional on maternal schooling, college and class. Extensive empirical testing supports the identifying assumptions of instrument strength and orthogonality. GMM results show that an additional weekly work hour reduces current year GPA by about 0.011 points, roughly five times more than the OLS coefficient but somewhat less than recent estimates. Effects are stable across specifications, time, gender, class and age, but vary by health status, maternal schooling, religious background and especially race/ethnicity.

From the conclusion:

… a 30-hour work week lowers the average grade by one mark, i.e. from A– to B+, compared with not participating in the labor market at all.

These results are consistent with what some college instructors regularly experience: students who blame class tardiness and absence, failure to submit assignments and poor exam performance on their employment obligations. However, the findings of this study suggest that the negative relationship between labor supply and grades is not simply attributable to less academically motivated students working long hours. In that case, the aforementioned hypothetical lackluster students would not necessarily perform better academically if they were prevented from working, which is simply an activity to which bad students devote more time than good students. Instead, students who spend longer hours in paid labor because of preferences or budget constraints related to their fathers’ schooling attainment and attitudes ultimately perform worse in school than they otherwise would.

Full text - PDF (216 K). Paper spotted via Eszter's Blog.

I wonder to what extent if any these effects are valid for law students — and especially to what extent it is age-related. (And, if we're going to put in special testing for the effect of college-student family stereotypes, why Jewish and not Asian?)

Everything is a Law School Hypo

I enjoyed this video, Barbri Girl, from the 2008 NYU Law Revue.

I'm afraid, however, that the reason I liked it so much isn't simply that it's sort of funny, and at its start so true to life. No, it's because there's a legal issue embedded in here — probably unintentionally — regarding whether anyone has grounds to sue over this video. And that just seems so appropriate given the subject matter.

See, the song on which this skit is based is the wonderful/awful “Barbie Girl” by Aqua, a Danish-Norwegian pop-punk band. The song was the subject of a major trademark lawsuit by Mattel.

A video accompanying the original song is available on YouTube. I'm pretty sure I saw a much less camp, and somewhat harder-edged, performance of it back when the song was being litigated — something vaguely like a studio version of the start of this — but maybe I'm imagining things.

Getting back to the law, Mattel was basically handed its head on a plate by the 9th Circuit. In a decision sure to be in every IP casebook, Judge Alex Kozinski not only said the song was protected as a parody under the First Amendment but concluded the decision with the admonition that, “The parties are advised to chill.” See Mattel Inc. v. MCA Records Inc., 296 F.3d 894 (2002).

But here's where the fun starts: “Barbie Girl” was clearly a parody of the Barbie image. This video, however, is not. But that's ok because as “BAR/BRI Girl” the trademark being parodied isn't Mattel's so they have no grounds for suit.

As for BAR/BRI themselves, they can't sue, for the same reasons that Mattel's suit against Aqua was baseless.

But here comes the (weak, legal) joke: the people who have a potential right of action against the NYU law students in the Barbri Girl video are Aqua! It's a real stretch to say that the Barbri Girl video is a parody of Aqua's song. [Contrast Barbri Girl with this “Ugly Girl” parody song, sometimes attributed to Weird Al Yankovic, here supported by some Sims 2 Machinima.] Rather, BarBri Girl appropriates the tune (and more) of Barbie Girl for a satirical purpose other than parody of the source. And — unless copyright law has changed since I last looked — that sort of satire isn't necessarily a protected First Amendment use of a copyrighted tune, cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Dr. Seuss Enterprises v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997).

But don't panic. Despite using the whole tune, and some of the look and feel of the original video, Barbri Girl is probably fair-use anyway, since the use is not commercially motivated and indeed is arguably for nonprofit educational purposes, and will have no “negative effect … upon the potential market for or value of the copyrighted work.” (per the Supreme Court in the 2 Live Crew decision).

And most importantly, I don't think Aqua is going to sue.

By the way, none of this stuff is going to be on the bar exam.

For All the Students Studying for the Bar

Here's one for all law students studying for the bar exam:

Update: If you can't play the embedded video above, click through and it will work.

Visiting Miami Law

John Flood's Random Academic Thoughts (RATs), Summarizing Miami, talks about what it is like to come and visit with our faculty for a semester.

It makes me want to visit here — imagine a semester with no committees!

We Get Phone Calls

I am sitting at home, finishing up my wife's birthday Sunday brunch, we're about to move on to opening her presents before going off to the UM Law graduation ceremony this afternoon.

My cell phone rings. It's not a familiar number, and call ID says it's blocked.

Me: “Hello.”

Phone: [Silence]

Me: “Hello?”

Phone: [inaudible mumble … Michael … inaudible mumble]

Me: “This is Michael Froomkin. Who's this?”

Phone: “Hello, my name is [Redacted]. I got your name from the Internet and called your office, and got your cell number. I was wondering if you could tell me where I'm supposed to park for graduation?”

Me: “It depends on what sort of permit you have.”

Phone: “I don't have a permit. I'm just driving down to watch the ceremony. I was wondering if you could tell me where it's suggested we park.”

Me: “I'm a law professor, not a traffic warden. There is some parking, there might be signs, I don't know.”

Phone: [hangs up]

US News and the Costs of Ethical Behavior

Our US News score is lousy. The methodology is very bad — and any large private school without a very big endowment is going to suffer under it — but even so I think fails to reflect some of our real strengths when I look at who is doing relatively well out of the system.

Brian Leiter says, and who am I to gainsay him?, that many, many schools “massage” the data they report to US News,

Schools hire unemployed graduates as research assistants, hand out fee waivers to hopeless applicants to improve their acceptance rates, inflate their expenditures data through creative accounting or simply fabrication, cut their first-year enrollment (to boost their medians) while increasing the number of transfers (to make up the lost revenue), and so on. Because more than half the total score in U.S. News depends on manipulable data, schools intent on securing the public relations benefits of a higher rank simply “cook the books” or manipulate the numbers to secure a more favorable U.S. News outcome.

I'm 99.9% sure that this law school does exactly none of those things. I think our administration is honestly reporting its stats — honest to a fault, some might say.

Indeed, I know of a case where we have a person (not the Librarian) who doesn't have tenure, who has a joint faculty and library job, carries two titles, but has been spending increasing amounts of his/her time teaching students, coaching moot court teams, doing all the things great faculty members do. Why not count this person towards our faculty for student/faculty ratio purposes, I asked? Wouldn't be right given how the rules treat library staff, came back the answer.

There are two related issues here: The first is to what extent one can ethically lawyer the numbers to one's advantage. Not being involved in those decisions, I have no idea where the line is, nor what the tradeoffs are on pushing it. There's no question some schools went a lot too far, and paid for it in embarrassment when they got caught.

The second issue is what, if Leiter's claim is correct, it means for law schools that don't engage in any of the shenanigans he describes. On the one hand, I'm quite proud to be able to say that we are not cheating. On the other hand there's always Leo Durocher's warning to contend with, that “Nice guys finish last.”

I Should Jesticulate More

MoneyLaw: Teaching Evaluations Again

Nonverbal behaviors appear to matter much more than anything else in student ratings. Enthusiastic gestures and vocal tones can mask gobbledygook, smiles count more than sample exam questions, and impressions formed in thirty seconds accurately foretell end-of-semester evaluations. The strong connection between mere nonverbal behaviors and student evaluations creates a very narrow definition of good teaching.

…

…show a few seconds of a teacher on tape with the sound off. A group of students is then asked to evaluate the teacher on a number of measures. These evaluations — again based on sound off seconds — turn out to be remarkable close to the evaluations the same teachers receive at the end of a semester from their regular classes. In short, looks, movement, expressions, etc, may trump everything else.

(quoting from Bias, The Brain, and Student Evaluations of Teaching, 82 St. John's L. Rev. 235 (2008))

If Only

(via la Bartow at Feminist Law Professors)

Why A Practitioner Dean Sounds Like A Better Idea Than It Usually Is

The Miami Daily Business Review ran an article yesterday about our Dean search, but it's behind their paywall so I can't link to it. Despite a couple obvious inaccuracies — as far as the faculty knows, for example, it's not clear if we know yet who all the candidates will be — it's a pretty balanced look at what's going on, at least as far as I can tell.

But some alumni say the school’s next dean should have strong ties to South Florida’s legal community to support fundraising and create job opportunities for the school’s graduates. Departing Florida Supreme Court Justice Raoul G. Cantero III and Miami lawyer Brian Spector were named as possibilities.

“People like Raoul Cantero or Brian Spector are probably the types of leaders that law schools need for the future,” said Miami forensic accountant and lawyer Lewis Freeman, an alumnus and booster of UM and its law school. It’s “going outside the box of academia for people with real world experience.”

I think it's understandable that smart people who live at some remove from the institution would feel this way. But I also think that as regards our short-term future they are — sorry to be so blunt — dead wrong.

A local lawyer is not going to have much of an edge in getting our students local jobs (and a former judge even less so). On the other hand, it's possible that right local lawyer might be an excellent fund raiser, maybe even better than the right academic (although in all honesty, I'm not actually sure that is true). Fund raising is undoubtedly a major part of a Dean's job. But at this time in our history, what we need as much as money is an administrator who knows law schools, understands how to run a construction project, and whom we don't have to train. Law schools are different from firms (and courts) culturally, politically, and administratively. Let's take each in turn.

The cultural problem is the easiest to overcome. There are practitioners and judges who get the academic mission, and who appreciate the central importance of scholarship in a law school. I certainly know some. So while this is a most critical of these three areas, it's also the one where the supply of qualified practitioner/judges is greatest. But because this is so important, it's the area where a faculty will be most wary: it's not enough for a candidate to talk the talk — they have to have done it. Any practitioner, and probably any judge, who hasn't written at least a few law journal articles or a book is not going to be a serious candidate, especially in this law school where the self-image, at least, is one of scholarship as well as teaching and service.

Which brings me to the second issue: politics. I don't mean left-right — although a far-right torture-loving Dean wouldn't work here — but rather personal politics. A University isn't like a law firm: most of the inmates have life tenure. You can't vote them off the island, or even cut their partnership share in any substantial way. It's the ultimate “herding cats” environment. People used to more hierarchical work environments, not to mention used to judicial independence, are with very very rare exceptions simply not prepared for what's in store. There are almost no whips to crack, and even if you do it, it usually ends up rebounding. Yet you can't go far without significant buy-in from the team.

Then there's the administrative side. From what I can tell, a lot of being a good Dean is making sure that other people have the details covered. To do that, you have to know what they are. On-the-job training is possible, but the learning curve for a person new to law school administration, who hasn't even had a ringside seat as a professor, is frighteningly steep. I'm fairly sure that right now — in a school with a US News deficit and some substantial construction projects likely in its near future — isn't the best time to undertake that training project … if it can be avoided.

I do agree that practitioners have a lot to offer a law school as teachers and members of our community. I've consistently supported ideas such as “practitioner in residence” and the hiring of academically oriented practitioners for various types of faculty posts, including in one case full tenure, depending on their writing experience. But teaching what you know is very different from managing what you don't know.

The key mistakes that the practitioners quoted by the DBR make is thinking that law schools are not part of the “real world” and that being in or even running a law firm gives you easily transferable management skills. Law schools today are in fact complex organizations with tight budgets, unusual rules, peculiar labor forces, diverse and active constituencies, extensive relations with the greater University, and complex goals. They are hard to administer — much harder, I'd think than a court (at the end of the day, there's always a bailiff…), and very different from a law firm. There are very few non-lawyers who you should trust to argue a case for you without some specialized training first; similarly, there are very few non-academics you should trust to be a Dean of a law school without some acculturation and experience first. And all of them see law schools as very 'real world' indeed.

Ave Maria Updates

It seems that Ave Maria law school is having some money woes, so it won't build a building it its company town, but will locate in Naples, at least for now. More at Law.com - Ave Maria to Relocate Law School Once Again and at Law Blog - WSJ.com : Ave Maria! Unable to Raise Cash, Law School Scraps New Building Plan.

Meanwhile, some kindly soul has posted the transcript of what must be one of the Truly Weird Depositions of All Time, the testimony of Ave Maria Board Chairman (and general supremo) Tom Monaghan in a lawsuit brought by three former Ave Maria professors. The professors allege that they were fired in retaliation for reporting illegal conduct by Monaghan, and for refusing to acquiesce to what they say were Monaghan's attempts to make the Board move the school from Michigan to Florida — to property he himself owns.

Summaries of the key weirdnesses at Avewatch, Monaghan Deposition #1: “I don’t know” and Fumare, Observations on Monaghan Deposition #1.

Watch those blogs for sequels.

The End, The Beginning

I taught my last class of the semester this afternoon. For several of the students it was their last class of law school, and they were more than a bit giddy with relief — demob happy. But we had a good class anyway, or because of it.

The end today for graduating students is really just a beginning of something bigger and longer and likely more important, which is why we call that ceremony coming up “Commencement”. The end today for me is just a turning of a wheel: I expect to do it all again next year.

But for one of my colleagues today, it was the final turn of this particular wheel. After 56 years on our faculty, here since September, 1951, Minnette Massey taught her last class today. It is very hard for me to imagine our University of Miami School of Law without this indomitable, outspoken, adorable, sometimes irascible, deeply decent, icon and pioneer of the Florida bar—one of the first women to do innumerable things in the Florida legal world. Minnette was Acting Dean for three years in the '60s; I have to suspect sexism kept her from ever being appointed as 'Dean'. She was a mentor to two generations of state legal luminaries, and the go-to person for local federal judges who needed special masters in complex cases, particularly before they had Magistrate Judges to do some of those jobs. Among Minnette's many achievements is decades of work to fully integrate the bar, not least by mentoring students and young professionals. She's not young, but no one who knows her thinks she had to retire. Minnette made it clear, however, that she didn't want to be one of those people who waited until she had to be forced out: her leave-taking, like so much else in her life, would be her own decision on her own time on her own rules.

Everyone has a Minnette story or three. Here's one of my earliest: back when I was in my first year of law teaching, with a full three months under my belt, I attended the AALS winter conference for the first time. I was teaching Civ Pro I in those days, so of course I went the to the meeting of the Civil Procedure Section, which happened to be a joint section meeting with the Admiralty section that year — the big case was Carnival Cruise Line, which was about the enforcement of forum selection clauses on cruise tickets. On the way into the room, I bumped into Minnette. I had planned to lurk in the back. Minnette steered me to the front row, greeting everyone in the room on the way, which left us craning our necks up at a panel on a raised dias. The talk began. The admiralty speaker was, from a civil procedure standpoint, somewhat obvious. And he was not brief. I was thinking how much better off I would have been in the back, but here I was in the front, with a senior colleague I didn't know very well, she had said hello to everyone, we were very visible, there was no escape, we'd just have to look interested. “ISN'T THIS BORING?” Minnette said to me in a stage whisper loud enough to be heard next door. (I later learned that was her regular voice.) I wanted to crawl under my seat. But no one else seemed to mind. I suspect that everyone in the room just knew she was being herself: you always know where you stand with Minnette — she doesn't play games, and no, she won't suffer fools in silence, but you cannot be around her long without seeing how much she cares about people and about justice. Minnette doesn't brag (much), so it takes somewhat longer to learn just how much she has given to others and to our law school. I will miss Minnette enormously — unless we are lucky and she again blazes a new trail, this time in retirement, and makes Emeritus status something that involves greater involvement in the law school community than has commonly been the case in the past.

Several of us snuck in at the end of her class this afternoon to join the standing ovation in Room 109, and formed an impromptu receiving line in the aisle as she left the room. When she came to Charlton Copeland, currently our most junior faculty member, she said, “It's up to you now.”

What Do 1L Attrition Statistics Actually Tell You?

TaxProf Blog points us to a genuinely interesting and — to me — new statistic about law schools, 1L Attrition.

Now I'm trying to figure out what it means. Some things are clear:

• A very low attrition rate is probably good — it means that students are happy, don't drop out or transfer, and aren't flunked out. You're likely to be happy there. (Unclear, though, what it means about legal education if no one ever flunks out; no admissions process is that perfect. Except maybe Yale's.) Unless of course it means everyone wants to transfer but no one will take them…

• A very high attrition rate is a red flag of a sort. Either students are dropping out in droves, flunking out en masse, or getting the heck out of Dodge. But for some students it may not be all bad: a high flunkout rate, for example, may mean the school takes chances on marginal students and then gives them an honest signal about their prospects after the first year, rather than stringing them along (and collecting tuition) for three years. It could be a brutal first year, but it might be worth finding out what the place is like if you survive boot camp.

• What about the middle? Here, I think the headline number is almost misleading. I'd want to know why students are leaving. There's a big difference between a school in which people leave because they can't stand it (drop outs); leave because they can't hack it (flunk outs); and leave because they transfer to somewhere better (feeders). A number of schools with high US News scores massage their data by not accepting low-LSAT candidates as 1Ls. They make up for the small resulting first year class (and lost tuition) by using the '2L transfer strategy' — accepting a large number of transfers in as 2Ls. This also helps their bar pass rate, since the transfers in are people with good grades, which makes them good risks for the bar (and unless those students are replaced by transfers in, it also likely depresses the bar pass rate for the sending school below what the class they admit would have achieved, further enhancing the competitive position of the accepting school). From the point of view of some motivated students, a school that sends many transfers may actually be better than one whose 1L products are seen as unattractive for some reason by the schools using the 2L transfer strategy. Thus a high transfer number may be a sign that students are fleeing — or it may be a sign that admission to the school plus good grades sends a signal that higher-ranked schools are happy to accept.

• If I were trying to make sense of this number, I'd not only want to know why people left (especially flunking vs. transfers), and where they left to, but also how many transfers IN the school had. Although there too, the number would need to be treated with care. A school that loses large numbers to transfers out and gains few is a place people want not to be (or a great feeder school). A place that is more or less in balance seems to make the transfers figure something of a non-issue. A place that is a huge net gainer is probably a place people want to be — but it's also a place that likely is gaming its US News stats, which a student might think reflects poorly on its general ethical climate, or at least suggests the number has even less meaning than usual.

[Lest this seem defensive in any way, I should point out that U. Miami's statistics here put it at #78 (higher is better) in a large pack of many law schools bunched together with trivial statistical differences between them.]

I Need a Research Assistant

RESEARCH ASSISTANT WANTED

To: All 1st & 2nd Year Students at the University of Miami

From: Michael Froomkin

I need a research assistant this summer. If things work out, we could continue the arrangement into next year. At minimum, I need someone who can write clearly, who is well-organized, and who is really good at finding things in libraries and on the Internet. If you happen to have some programming/HTML skills, that would be a big plus but it is not in any way a requirement.

Hours (and weeks) are flexible and negotiable in the range of 10-20 hours per week. It's also possible that if you need more hours I might be able to put together a package with another faculty member who also seeks part-time assistance during the summer.

The pay is the university's standard miserable hourly wage ($8/hr) for research assistants, but the work is sometimes interesting.

If interested, please e-mail a copy of your resume (c.v.), a short writing sample (non-legal is preferred), a transcript (need not be an official copy), and a note telling me how many hours you'd ideally like to work per week, and when you are free to start. Be sure to include your phone number and email address. Please put the words RESEARCH ASSISTANT (in all caps) in the subject line.

First year students are particularly encouraged to apply.

How Law Schools Compete for Entry-Level Faculty

Glenn Cohen lists 17 questions that prospective hires should ask a law school after they get the offer.

I think it's a great list.

UM Law, incidentally, does very well (in some cases very very well) on all but #11 (we give “only” one semester of pre-tenure sabbatical) and the second part of #15: Unlike (I think) most universities, we don't have reciprocal deals for tuition remission with other schools, or any tuition assistance plan.

And I have two children approaching college-age …

Law School Dreams

There's an interesting conversation going on at Madisonian.net.

Strike that.

There's usually an interesting conversation going on a Madisonian.net, but this week they're having an especially promising 'Moblog' on legal education.

• cheer successes,
• be engaged,
• don't let up after tenure,
• “addresses conflict head-on and not in a passive-aggressive (or aggressive) manner” — but also stomp on bullies [hmm, some tension there?],
• set high standards for students, provide them with support to enable them to meet those standards, and hold them to those standards,
• model professional behavior by your actions,
• value those who teach in the clinic and those who teach legal research and writing,
• have fun.

We do some of these things better than others. And I'd love it if we did each of these things better than we do now — and with a Dean search going on, we're certainly entitled to dream. But what Rapoport doesn't say enough about is how you do all those things at once. Yes “it takes hard work to create such a community and to keep it thriving. ” I get that. But are these things that require a Dean to push them? Or are they things that only work as organic change bubbling up from below? Or do both sets of stars have to be aligned?

More prosaically, as we interview Dean candidates in the next weeks, how on earth to detect which ones are likely to help foster these tendencies?

I'm Relevant This Week

I'm teaching issues relating to search engines this this week in Internet Law, and one of the issues I'm doing is the problem of search engine bias.

How nice of Wired.com to run an article showing just how relevant my class can be:

A U.S. government-funded medical information site that bills itself as the world's largest database on reproductive health has quietly begun to block searches on the word “abortion,” concealing nearly 25,000 search results.

Called Popline, the search site is run by the Johns Hopkins Bloomberg School of Public Health in Maryland. It's funded by the U.S. Agency for International Development, or USAID, the federal office in charge of providing foreign aid, including health care funding, to developing nations.

Lots more where that came from….

Update: The Dean of the Johns Hopkins Bloomberg School of Public Health weighs in — and says the right things.

The "Security Mindset" and "Thinking Like a Lawyer"

One of my favorite security gurus, Bruce Schneier, has an entertaining and yet infuriating article on The Security Mindset in which he tries to explain how security professionals think differently from other engineers.

SmartWater is a liquid with a unique identifier linked to a particular owner. “The idea is for me to paint this stuff on my valuables as proof of ownership,” I wrote when I first learned about the idea. “I think a better idea would be for me to paint it on your valuables, and then call the police.”

Really, we can't help it.

This kind of thinking is not natural for most people. It's not natural for engineers. Good engineering involves thinking about how things can be made to work.

It's fun and you should read the whole thing.

But it's also a bit frustrating — because Bruce restricts his discussion to how engineers think. To me, what he is describing is a big part of “thinking like a lawyer”. And when Bruce asks whether this sort of demented worldview, one in which you shake things to see how they break, can be taught, I think, “Hell, yes: I've been doing it for years.”

Most lawyers don't have the math to be a cryptographer or the technical chops to do security analysis of a complex program. But good lawyers — whether transactional or litigation oriented — do have a “security mindset”: A big part of learning to 'think like a lawyer' is learning again and again how things broke. That equips you to try to build things that won't break (or at least won't break in old ways); it also trains you how to break them.

Leiter's Open Letter to Law Bloggers

Brian Leiter, An Open Letter to Other Law Bloggers Regarding the US News Rankings

When the new rankings come out in a couple of weeks, may I suggest that you not post the overall ranking. You all know the overall rank assigned to a school by U.S. News is meaningless, often perniciously so. It combines too many factors, in an inexplicable formula, and much of the underlying data isn't reliable, and some of it e.g., expenditures on secretarial salaries and electriciy isn't even relevant. You all know this. So don t report it. The fact that this garbage appears in a major news magazine doesn't change the fact that it is garbage.

Instead, let me suggest that if you want to blog about the rankings when they come out, write about some of the underlying data that speaks for itself: the reputational scores, for example, or the bar passage rates, or the numerical credentials of the students. Those have limitations too—the median of 500 is not really comparable to the median of 200; the reputation scores are not based on presenting evaluators with any information about the schools being evaluated; and so on—but one can at least say clearly what the limitations are, and one is not hostage either to the dishonesty of the schools “reporting” the data or the sheer idiocy of the U.S. News ranking formula.

Indeed the USN rankings are the dumbest pseudo-stats imaginable. But people — especially prospective students — put enormous weight on them.

I Wonder if this Teaching Technique Would Work In Law School

Kai Chang writes about his favorite college professor, who was also a self-confessed liar. See Overcoming Bias: My Favorite Liar for the details.

It's an interesting idea; I wonder if it would work in law school or if students would resent it. There's also the risk that people would free ride and wait for the answer in the next class. I suppose, though, that one could give some class participation credit for being the first to ID the answer…

Another Reason Not to Teach Contracts

I didn't enjoy Contracts very much as a law student — it all seemed utterly arbitrary, except for the parts that seemed random or cruel. So I've never much wanted to teach it.

But now, thanks to Ethan Leib's post Chicken. Fowl, indeed. I have a whole new reason never to want to teach it.

The Microcosmographia Academica Is Online

Thanks to Paul Horowitz's PrawfsBlawg: “O young academic politician, know thyself!”, I now have a link to an online copy of the Microcosmographia Academica.

I was introduced to this wonder by a young man in a hurry when I was student in Cambridge. He's done very well for himself, I might add.

First published in 1908, one hundred years later the Microcosmographia Academica reamains one of the truest and saddest things ever written about academic politics.

Official UM Law Dean Search Page

There's now an official UM School of Law Dean Search page. Complete with a Position Description.

Here are some of the things the Dean will do:

• Strengthen institutional excellence and selectivity
• Enhance the recognition of the school’s quality and strengths
• Attract and retain promising scholars of the first rank.
• Continue to build and develop areas of strength in teaching and scholarship
• Strengthen excellence in both scholarship and classroom teaching
• Creatively support, enhance and promote faculty productivity
• Focus on ways to enhance the student experience at the Law School
• Fundraise, with a particular focus on relieving the financial burden on students and enhancing scholarship, teaching, and innovative programs
• Work with faculty and University leadership to finalize and implement the Law School’s Strategic Plan
• Maintain the excellence of the academic program in conjunction with the faculty, and provide leadership on innovative curriculum development, academic standards and program initiatives
• Offer students the diversity and richness of a large law school while providing a flexible, student-centered education with a commitment to excellence
• Encourage and support faculty scholarship, teaching excellence, and service
• Cultivate collegial and constructive relations with and among faculty
• Enhance diversity of the faculty, staff and student ranks
• Ensure that library and information resources continue to support the academic program and faculty scholarship, and explore new avenues for the fruitful deployment of technology in law studies

And that's not even the whole list.

And here are some additional “Desirable Characteristics”:

The Dean should be an accomplished scholar who is highly regarded by the legal academy. She or he should have enthusiasm for the Law School’s future and appreciation for its history; institutional and intellectual ambition, energy and judgment; leadership skills, including political sensitivity, an effective personal style, and the ability to foster collegiality and engagement.

The Dean helps set the overall tone for the school. The Dean will have:

• The ability to attract, retain and develop outstanding faculty, administrators and staff
• The ability to promote successful change in response to emerging challenges
• An appreciation for the assets of the Law School and the ability to build its future by their effective utilization
• The capacity to manage and develop a complex academic enterprise
• A global vision with the ability to be an advocate for continued growth and excellence in the academic program
• The ability to promote scholarly enthusiasm and productivity
• A commitment to a collegial model of governance and the ability to cultivate respect for and demands of faculty and staff roles
• The ability to nurture a strong sense of community among faculty, staff, students and alumni
• An appreciation for and commitment to encourage student service in the community and legal careers geared to public service
• A commitment to diversity that will reinforce the Law School’s historic position as a school of opportunity
• A commitment to fund-raising with the interpersonal and communication skills necessary to interact persuasively with the philanthropic community, to solicit and steward both governmental and private support from alumni, members of the Board of Trustees, friends, foundations, law firms and corporations
• Excellent communication skills
• A high level of energy which motivates others, inspires enthusiasm and reflects the forward momentum of the Law School

Walking on water is also optional.

UM Law Team Wins State Trial Competition

Each year, the Trial Lawyers Section of the Florida Bar sponsors the Chester Bedell Memorial Trial Competition. Each law school in the state is invited to send two teams. This year eight schools responded and sent sixteen teams.

The 2007-08 competition, a mock products liability case, was held on Wednesday and Thursday. On Thursday, yesterday, each team tried the case twice, representing the plaintiffs at one trial and the defendant at the other. For each trial, three trial lawyers served as jurors and a judge or another trial lawyer served as the presiding judge. The teams with 2-0 records and the highest scores advanced to the semifinals on Friday morning. (Miami's other team ended day 1 with a 1-1 record, losing to one of the semifinalists.) The winners (Stetson and Miami) advanced to the finals on Thursday afternoon. The finals were tried before a panel of five lawyer-jurors and a circuit judge.

And the UM team won. Robert Palmer, chair of the Trial Lawyers Section announced the winning team. Frank Angones, President of the Florida Bar, presented the best advocate award to Jonathan Weiss, and the team trophy to Joycelyn S. Brown, Christopher M.
Lomax, and Jonathan R. Weiss. Sarah B. King was the witness.

Congrats to all, and to team coaches Terry Anderson and James Gailey.

First Day of Classes

Today is the first day of class for both my Internet Law class and my Jurisprudence class.

Today is also the day that my office desktop displayed a blue screen of death when I booted it up this morning.

And it's the day that the nice people from IT carted it away….

Drumroll Please

Today I'll turn in the grades for Administrative Law.

Dean Search

Our Dean search starts in earnest in January. Meanwhile, if you know (or are!) someone who'd be a great Dean for our law school, email me and I'll forward the info to the committee (which, thank goodness, I'm not a part of!).

Irreverent, no doubt irrelevant, video.

He Did It

Before you complain about my final exam, read this: Rube Goldberg Indicted for Murder.

Reasons to Avoid Law School

Paul Gowder has written an essay on Why you shouldn't go to law school.. There's a lot of truth there, but it also leaves out a few crucial things.

The truest parts are surely these: a lot of legal jobs are no fun. Some of the most no-fun jobs pay very well, but many of the no-fun jobs don't pay that well if you consider the need to repay law school (and perhaps also undergraduate) debt.

A law degree is absolutely not a guaranteed meal ticket. Nor is it a guarantee that you'll be doing something interesting. For one thing, before you even get to the negatives that Gowder lists, there's an even more basic issue that makes some people unhappy: you are a lawyer. Some people — notably a significant fraction of the people who drifted into law school straight from college because they couldn't think of anything else to do — find that they don't like being a lawyer. Gowder captures that problem. And it is a very real problem.

One thing he doesn't capture is that there are also people who actually discover they love the law. It's about important things. You get to solve people's problems. Perhaps you get to solve puzzles, or you get to deal with people.

Gowder's essay is aimed at all the people who are not landing at the elite of the profession. People who do really well get to choose some of the firms that are still run by nice people with decent values.

Gowder is writing to the rest of the world, and he paints a grim picture. What he says has a lot of truth (although I think he's overly grim about what the experience of public interest law is like), but also dramatically incomplete.

The biggest thing Gowder's essay leaves out is the attractions of government work. There are a lot of good government jobs at the local, state and national levels. The federal jobs even offer decent wages. The local jobs don't always. But government jobs do offer some other important things: because the offices are chronically understaffed and under-resourced, young lawyers get responsibility early in their careers. These jobs often offer the satisfaction of using one's talents for the public good.

Government work has many faces: prosecutors, public defenders [link added 1/17], agency lawyers, state AG's offices, advisers to legislatures and to the executive. Lots of these are frustrating yet fulfilling places to work.

The prospects for lawyers are not as bright as they were in the Good Old Days (whenever those were). The profession is stratified, pay and job quality varies enormously, satisfaction levels are shrinking while (not coincidentally) hours (especially in the highly paid sectors of the private sector) are at unreasonably high levels. And the billing rates are climbing to levels that are sure to incite client revolts.

So there are indeed many reasons not to go to law school. You should only go if you know why you are doing it (although you should also expect that you are likely to change your mind about what kind of law you like best once you are exposed to new things), not because you can't think of anything better to do. And I also suggest a couple of years working full time before law school — there's nothing like seeing the working world from the inside to both make you a more disciplined student, and also to give you insight into many of the situations that give rise to the legal issues you will spend three years analyzing. (Second-best: graduate school in an affiliated discipline, as it gives a different and also valuable perspective.)

That said, I have to admit I enjoyed many aspects of the practice of law. At the end of the day I didn't care deeply enough about which oil company got the money, but I cared about my clients (and they cared a lot which oil company got the money!), and I had pride in the quality of our work. Unlike Gowder's dismal prediciton, I was never in a position where either I or anyone around me even contemplated anything unethical. I did have the advantage of parlaying elite credentials into working for a very good and very decent firm, but not all firm jobs (at least 15 years ago) amounted to complete corporate serfdom.

I enjoyed law school more, which is a large part of why I came back to it. There really is a distinct kind of rigor and reasoning style which characterizes the law. Law is how we decide (or, sometimes, should decide) important social issues. It is the means by which we implement the large majority of public policies. It matters. Unless you are caught up in the sort of associate treadmill that eats all your waking life, a law license is also a license to take part in a meaningful way in politics, law reform, legal aid, and many other things that can be very satifying even if your day job isn't as exciting as it might be.

In Law School We Present Every Point of View

Law school dialectics:

We're Hiring!

Today is the start of the AALS meat meet market, the annual hiring conference for would-be law professors. My wife is the chair of our entry-level appointments committee, so she's in DC along with the rest of our committee, while I'm minding the home front.

The law school has a lot of openings this year — six by some counts, although I'd guess that one or two of those jobs may be earmarked for lateral offers. But whatever the number, we're hiring, and it's a recession year. If this turns out to be anything like the year I was on the market, many state schools will find their budgets being cut between now and summer, and some of the jobs they thought they had may evaporate. There are some disadvantages to being in the private sector — high tuition burdening students with debt chief among them — but this may be one of the times when being private works to our advantage.

A few weeks ago I published an extended essay on this blog in which I tried to describe some of the salient features of life at UM from the point of view of entering faculty. I titled it “Ten Reasons Why You Should Teach Here — And Three Why You Shouldn't”. In case anyone is reading this from the AALS, I repost a slightly amended version of the same essay below.

But before I do that, I can't resist quoting from our student newspaper, the Res Ipsa Loquitur, which recently interviewed our most recent hire, Charlton Copeland, about his initial impressions of UM Law. This is part of what he said:

The faculty stood out for me a the AALS recruiting conference as one of the most intellectually engaged faculties with which I met over the weekend. They actually were interested in my writing projects, and gave me the sense that they took them and me seriously. My time with the committee ran out too quickly for me. My feeling of intellectual comfort with the faculty was only enhanced during my visit to the campus later in November, but that was augmented by my delight that this would be a group with which I'd be comfortable beyond simply discussing scholarly work. They were a bit quirky, and in a way about which I am excited. I am excited about the diversity of the city of Miami as well, and the opportunities that I think it will provide me to think about my areas of research in new ways — ranging from race and the the law (where the Law School has long been at the forefront in American legal education) to comparative separation of powers issues in Latin America.

And that maybe sums it up better than I can. It's certainly shorter.

Ten Reasons Why You Should Teach Here — And Three Why You Shouldn’t

1. Faculty

The best reason to come to U.M. is the faculty. At its best (which is to say, “outside of faculty meetings”), this is a faculty that believes ideas are serious things, but also is willing to play with them. You will see this most vividly at faculty seminars, especially those with external speakers. The faculty reads the paper in advance of the talk. It thinks about it. We don't let the presenter speak a long time — we want to have a discussion. There may be an element of performance in the questions and comments, but that usually just adds to the fun. Unlike some faculties I've heard about, we are not worshipers at the temple of sub-disciplinarity: faculty members feel comfortable commenting on papers far outside their own specialties, and they are usually right to do so as the distant perspective sometimes proves at least as valuable as the insider's.

While faculty vary in the extent to which they will seek you out – some are shy; others are busy – they will almost all be happy to see you if you seek them out. Very few will treat you like a junior colleague; for most, you will be part of the family from the start. And it’s an interesting family, including some big names in international law, tax, law and society, law and identity, and several other subjects.

2. Institutional style & institutional support

UM wants productive faculty, and it believes in research. But it isn't about telling you what to do. My own story may be instructive: I was hired thinking that I would be writing mostly about administrative and constitutional law. In fact, however, within a couple of years I had turned into an Internet lawyer, and was writing primarily about computers, networks and the law. At no time did anyone here ever suggest that this was a problem. What mattered to people was that I was publishing.

Another way in which UM may differ from some law schools is that our faculty is routinely interdisciplinary and international. Many publish in non-legal journals — a fact which does not necessarily help either our publication or citation counts since the legal tabulators tend to focus only on law journals. Although we recognize that there may be some reputational costs, we are not prepared to tell people where they should publish. We just want it to be good.

There is no international ghetto at UM (the same is true of tax, a traditional faculty strength). As a matter of unwritten policy, everyone is expected to teach a basic course outside their specialty; the result is both that we can have more internationalists (and tax scholars), and that there's a much greater community of overlapping interests.

3. Library

The University of Miami enjoys a superb law library, the result of a decision more than two decades ago to make library acquisitions a financial priority. And if we don't have it, the library will borrow it for you, no questions asked. (As one former librarian put it, “we aim to provide law-firm-quality service”. And in fact, it is almost as good as a top law firm, and the librarians are much nicer.)

The law library has extensive holdings in related disciplines, notably political science, and of course the university library is literally next door, and it also has ever-growing electronic access to journals — which can even be accessed from your home office. We have a particularly strong collection in Latin American and Caribbean law, but also strong holdings in European law. We are weak in India, China, and Russia, and no doubt several other countries with non-Romance alphabets, so if your research involves heavy use of materials from one of those countries, you should check to see if we have you covered. I also have a sense that our holdings for pre-1940 materials are not as strong generally as for things published in the last 70 years. But I am continually having pleasant surprises when I consult Baron, the online card catalog. They've done some impressive buying over the years — which is a good thing as the next major law library is a long way away.

4. Students

We have smart students with upwardly mobile ambitions. Some come from wealthy families, but for many a law degree will be the highest level of education ever achieved in their families — a matter of pride for an extended clan you may have the good fortune to meet at graduation. Despite the lures of nearby South Beach, UM students are by and large a studious lot: their awareness that few silver platters await at graduation usually translates into a commendable work ethic. At least until the end-of-term fog settles in, I find that my students have done the reading, and often have something to say about it. There is a little shyness — some students don't want to ask questions for fear of looking silly; other students worry about being labeled a “gunner” — but ordinarily class discussion can be pretty lively. Although we have more men than women as students, it is often the case that the women lead the discussions and make the most substantive contributions. Classes tend to be fun (at least for the instructor). Visiting professors from other law schools consistently remark on the high quality of classroom performance here.

The UM student body has improved greatly in the past decade. Our best students would be at home in any law school. Our worst students would have been near the middle of the class 15 years ago. The only fly in the ointment is that despite their good college grades and creditable LSATs, a substantial fraction of the class comes to law school unable to write as well as they think or speak. Overcoming this obstacle remains one of our biggest challenges. That said, every year we have students who write publishable papers in classes and seminars. It's been a particular pleasure to see those pieces go into print along side those of full-time academics.

Some of our students will go on to be national leaders; a much larger number will play key roles in the State of Florida, as judges, politicians, and leading members of the bar. Some people have described alumni reunions as state judges’ conventions, but this is slightly unfair. On the other hand, there’s no question that both Florida as a place, and UM graduates as important players in that place, have been at the center of major wrangles with national impact ranging from the 2000 election to the Terri Schiavo affair.

Aspiring faculty sometimes worry that they will not find good research assistants outside a top ten law school. It's true that I don't hear stories about students writing papers that professors then publish under their own name as I did when I was a law student at Yale. But if you are looking for a research assistant rather than a ghost writer then my experience suggests this is not a serious problem if you teach a first-year class. As a teacher in the larger first year classes you can identify the students who are good and who fit your style before they get too caught up in other things. Some of them will get on law review, and will be too busy to work for you; some of those that don’t will work downtown for higher pay than the law school can offer, but usually there's someone you will be happy to have who will be happy to have the job in their second or third year. I can’t claim that every research assistant I’ve had has been stellar, but I can say that some of them were amazing — and that they are harder to find when I don't teach first years.

5. Research support

Research support exists to make it easier for you to write. The most important part of UM's research support is its excellent law library. But it doesn't stop there: In addition to the collection itself, we have a staff of helpful law librarians who seem happiest when given difficult research requests. There's a document delivery service which will get you any book or article you ask for and deliver it to your office within a day if it's on campus or a few days if it must be sent from far away. (One down side: you can gain weight from the loss of movement caused by having everything come to you.)

At conferences I sometimes hear stories about places where senior colleagues try to tell tenure-track faculty what to write about (or, worse, forbid certain topics or styles). We don't do that. If anything, we have erred in the other direction — tip-toeing around junior faculty sensibilities so much that we may have provided insufficient mentoring, In an effort to do better in that department, the faculty now enjoys the services of a “director of faculty development” — yours truly as of a few weeks ago — whose job will be to help colleagues (and especially pre-tenure colleagues) with their research and writing by identifying resources, serving as a sounding board, or just staying out of the way.

In addition, every faculty member has an office budget which allows you to hire a research assistant, books and supplies, and to travel to conferences. Each of these budgets is fairly generous, and the Associate Dean has discretionary funds to add to them up for good cause. In my experience, any cause I can bring myself to ask about has been treated as a good one.

6. The University

A generation ago it was “Suntan U”. Today, under the (very) energetic leadership of Donna Shalala and an impressive suite of Deans, the University of Miami is joining the ranks of the leading research universities in the USA. For openers, President Shalala raised $1 billion for the University. YES, $1 BILLION. Now that it's in the bank, she's warming up for a new round of fund-raising. The lion's share of the first round went to the medical school, but the rumor is that the law school might be able to claim a bigger share of the next round.

More importantly, the past couple of decades have seen a transformation in the quality of both the students and the faculty in the arts and sciences. It's become hard for students to get in; and departments such as History, Psychology, Business, and Sociology have attracted faculties that include a wealth of potential collaborators, adding to existing strengths in Medicine and Communications. Both the law school and the University encourage inter-disciplinary collaboration. The law school has begun to take advantage of these resources (I, for example, am working with a team on health privacy issues that includes participants from both the Business School and the Med School), but there's much waiting for you that remains untapped.

7. Perks

The law school wants to support your research, and we try to put our money where our mouth is. Entry-level faculty can apply for a summer research grant before starting work in order to prepare their courses. We light-load you (usually only one course per semester) during your first year to give you time to find your feet. You'll get a summer grant as of right every summer until tenure to encourage you to write — after that you'll have to submit proposals and make good on them too. And you're entitled to a semester's leave before tenure, more or less in the term of your choice, in order to help you write.

The law school is located on a very beautiful campus in the center of suburban Coral Gables, itself a very pleasant city with excellent restaurants. Rumor has it that in the old days the university administration spent more on landscaping than books; whatever the truth, there's no question that the campus is very nice to look at. It also sports a state-of-the-art gym that's about three minutes walk from the law school around our picturesque lake (crocodile optional). The campus sports other useful amenities, including a faculty club, a food court, and an on-campus daycare.

8. Miami

Miami is a cosmopolitan city. Part of its identity is as the defacto capitol of Latin America; part is as an artistic and musical center; and then there's the celebrity-and-tourist thing. It's an attractive place for young and old, and — if you take care to live in the right school districts, or have kids who qualify for the right magnet schools, or are ok with private schools — a pretty easy place for the middle-aged pater and mater familias. Like many sunbelt cities, Miami is more sprawling mosaic than urban core and periphery. Both urban and suburban living are within easy reach of the campus. Our politics are fascinating and complex, with much political power held by first and second generation immigrants from Cuba, and to a lesser degree Haiti, and Central America. The region now enjoys a lively cultural life, with a rich music and dance scene and some creditable small theater companies. If you prefer nature to culture, there's always the nearby Everglades as well as world-class coral reefs for diving just south of Miami.

If your work involves domestic issues, you will find them in Miami, which is the city of the future in ways both good and bad. Along with our glitz you will find us on the cutting edge of today's and tomorrow's political and social issues: immigration, environmental (think “Everglades restoration”), medical (think “retirees”), and all the social questions that big cities produce.

Housing costs tend to be high, but many other living costs are low and there is no state income tax. The University has, however, taken bold steps to address the housing issue by offering new hires a deal in which the university will subsidize part of your home purchase in exchange for a proportionate share in the equity when you sell, an offer that puts many nice homes within reach.

9. Weather

Miami's weather is glorious for almost half the year; variable for another chunk, and miserable in the dog days of summer and early Fall. The good news is that much (but not all) of the miserable part comes when the law school is not in session, so you can escape if you choose. When the weather is nice, our central courtyard, the “bricks,” becomes the social center of the community, a place where students and faculty mingle between classes. Even office rats like me end up looking healthier than the wan, pale, parka-clad figures I see huddling on the Boston subway. For those with outdoor ambitions, you can live on Miami Beach, or just enjoy the sea view from a balcony in a tower apartment in downtown Brickel.

10. The revolution is coming

The next five years will see a radical transformation in the faculty, and perhaps the style, of University of Miami School of Law. We have at least six open jobs at present, with the likelihood of much more turnover as faculty retire (couples welcome!). The next three to five years' appointments, including that of our next Dean, stand a good chance of determining the future course of the school for a generation to come.

At present we have only ten full-time faculty under 50, and only fourteen between 50 and 60; the remaining 17 are over sixty, including some very much over sixty. Our hiring is resolutely in compliance with the Age Discrimination in Employment Act (of our last six entry-level hires, two were very experienced lawyers well over 40), but given the overall composition of the entry-level market, it is likely that this age profile will change dramatically in the next few years.

What this means for our new hires is that they will find themselves at the heart of their new community — and have a chance to lead it — much earlier in their careers than they might otherwise. The coming turnover in the faculty, coupled with this year's Dean search introduces an element of uncertainty about what we'll be like in the future that may not be to everyone's taste. Fortunately, the faculty is engaged in a strategic planning exercise this year which means that any new hires will be spared that chore at least. At present, the law school enjoys a nearly unique chance to reinvent itself, and people with ideas and energy should find all the breathing room and opportunity they want. I hope that people reading this will come join us in building something wonderful.

All that is very well, but honesty compels me to say that there are also some reasons why not everyone may be happy here. Indeed, there are three main reasons why you should not teach here:

1. Weather

If skiing is your passion, and neither waterskiing nor snorkeling are substitutes, then Miami may make you sad. It's hot and very humid here from July until the heat breaks sometime in October or September. That means you can have up to three and half months when it's not much fun to go outside. Plus, occasionally we get weather with a name. But we don't get snowstorms, avalanches, wildfires, earthquakes, random tornadoes, floods, or mudslides. If you want immunity to natural disasters, move to Rhode Island.

2. Language

Many people in South Florida speak Spanish as their first (and often only) language. The campus is Anglo — although some of the bilingual staff and students will speak Spanish to each other — so this is not a work issue. But it is a life issue: you will hear lots of Spanish in the stores and on AM radio. If you are the sort of person who can't cope with foreign languages around you, there's a strong chance you will not be happy here. I don't speak Spanish, and I only found it a noticeable handicap for my first few weeks here, when I would get lost driving around and stop at a store for directions, then wait impatiently while they went to find the English-speaker. It's a non-issue today unless I happen to go bargain shopping for some exotic household good, and indeed contributes to Miami's cosmopolitan vibe.

3. Geography

It's flat here — no mountains (and houses have no basements). More seriously, it's also far from many of the legal nerve centers. If you're doing national work and you are having meetings related to it, odds are the meeting will neither be in Miami nor even within driving distance. That means air travel. And while we have great direct air connections to most of the world and the law school is generous with travel support, we do not have a working time machine. Given the post-9/11 security regime at airports, and the increasing vagaries of air travel generally, it is rarely possible to have a meeting in New York or Washington without spending the night out of town. That can mean having to reschedule a class (something we allow for good causes), which is a pain for you and even more of one for your students. It certainly means that doing national committee work is always a substantial time commitment. It is almost 500 miles to the state line, and then where are you? Somewhere between Tallahassee and Moultrie, Ga.

This year I am not on either our entry-level or lateral hiring committees. But if you find the positives outweigh the negatives and have an interest in coming here, I'd still be happy to try to answer any further questions you might have, either in comments to this entry or by private email.

A Finding With Many Implications

Is a photo worth a thousand votes?:

People asked to rate the competence of an individual based on a quick glance at a photo predicted the outcome of elections more than two-thirds of the time.

Nearly 300 students at Princeton University were asked to look at pairs of photographs for as little as one-tenth of a second and pick the individual they felt was more competent, psychologist Alexander Todorov reports in Tuesday's issue of Proceedings of the National Academy of Sciences.

The participants were shown photos of leading candidates for governor or senator in other parts of the country, but they were not told they were evaluating candidates. Those who recognized any of the photos were not counted.

When the elections took place two weeks later, the researchers found that the competency snap judgments predicted the winners in 72.4 percent of the senatorial races and 68.6 percent of the gubernatorial races.

It seems to me that this finding, if valid, has many implications.

• National political parties should focus group photos before deciding who to recruit or support in primaries
• I'll bet it's a very sexist test — this may explain part of how elections disadvantage female candidates.
• I wonder if this works for law schools? Would student satisfaction be higher when taught by professors whose looks signaled competence? Can we focus group potential hires via their photos? Can we do it without disadvantaging anyone who's not a white male of a certain age?
• Might it be that dress sends signals of competence? If so, is it important to dress up (or down?) for the first day of class?
• “Lookist” takes on a new meaning
• Do I sense the makings of a new suspect class? Are people who don't look competent to others a “discrete and insular minority”? Certainly their disability affect electability, thus undermining their political power, which is one of the tests….

And, how do I look?

Amnesty International Comes to UM Law

Good things sometimes come to my mailbox.

The University of Miami School of Law will host this year's Southern Regional Conference of Amnesty International from October 19th through the 21st. Attendees will include delegates from eleven states, local activists, and the UM School of Law community.

The conference starts on October 19th at the Holiday Inn across from the University of Miami with workshops and a human rights tour of Miami. At 7:00 p.m. Haitian writer and poet Edwidge Dandicat will be the keynote speaker at the opening cultural event held at the Storer Auditorium (5250 University Drive Coral Gables, FL 33146).

Throughout the weekend Amnesty will hold 22 workshops on a variety of critical human rights issues and activism skills with renowned speakers. Four of the workshops will be in Spanish and English/Spanish interpretation will be provided during the opening and closing plenary.

UM faculty will be on a panel about Immigration and give a workshop in Spanish on the Death Penalty.

The Conference closes on Sunday, October 21st, with Bukeni Tete Waruzi - a former child soldier - speaking about his experience in the Democratic Republic of Congo.

Should be a great event.

Best Headline of the Day

WSJ Law Blog, Law-School Dropout Wins Nobel Peace Prize.

I Knew That

Does Law School Curriculum Affect Bar Examination Passage? asks the question, and says the answer is “no”. That is certainly what our study here, several years ago, showed.

WSJ Story on Impoverished Law Graduates

The whole legal blog world is linking to the Wall St. Journal article Hard Case: Job Market Wanes for U.S. Lawyers and this WSJ blog discussion of it, WSJ.com : The Dark Side of the Legal Job Market, so why buck the trend.

For what little it's worth, the anecdotal evidence I have from former students is that while things can be pretty rough, they're not as bad as this article makes out unless you either did very poorly in law school, or (this is my interpretation) interview very badly.

There's no question that a law degree from U.M., or indeed any but a tiny number of law schools, does not guarantee you a job, much less a very high-paid job: as I noted previously (Starting Salaries For Law Students are BiModal — If Not Bipolar), the evidence is that the legal market has become segmented into two parts, with the lower tier getting starting — starting — salaries in the $40-$55 thousand range. A good wage…but not so great if you are carrying a huge load of debt.

Some Thoughts on Law School Selection, With Particular Reference to Miami

A commentator in the “We'll Try Harder” thread, in which I noted with some pleasure that a magazine says UM is great for Hispanic students, throws down the gauntlet,

What are the top 10 Best Law Schools for Jews, michael? Asians? Whites? Show this troll that the legal community really does care about segregating minorities into “incubators” where they can really flourish. Surely you have some thoughts on which Law schools are best for particular minorities…please share!

Well, since you asked.

I don't think there's a simple answer to the question of what law school is best for everyone (unless it's “Yale”). Tastes and needs vary.

Urban/rural is a really important choice — where are you more comfortable? Do you need to be away from distractions?

Weather matters a lot to some people, especially those subject to Seasonal affective disorder. Geography also matters in the sense that all other things being equal, there's multiple advantages to going to a law school near where you'd like to work. (Learn the local folkways, meet local employers in social and legal events, easy to get to interviews especially with smaller firms that may not have a travel budget.)

Big/small — you can get lost in a big place unless you are a self-starter while small schools tend to do a better job of hand-holding, but big schools usually have a larger faculty and thus a richer curriculum.

Some schools — fewer than you'd guess from their ads — have specializations that may matter to your JD education.

And for some people the makeup of the student body and/or the sensitivity of the law school and/or surrounding community may matter. In that sense, Miami really does have a serious and relatively rare feature that may matter enormously to some potential students: this is a city that speaks Spanish as much as English — and more than English in some neighborhoods. (The effect is much less pronounced on campus, as we're fairly Anglo, but a lot of the staff and some of the students will speak Spanish to each other.) That may attract some people, and may put off others, but it is a real fact of life in this city. I would imagine that some bilingual students would find this very comfortable and even comforting; I would imagine that some Anglos unused to linguistic diversity might find it challenging. (Others, like me, find it charming and cosmopolitan.) But it is a real and relevant fact here and in that sense if no other makes this a welcoming place for Hispanic students. (There are, of course, other things too, such as our habit of teaching a few courses relating to civil law in Spanish, but that's another story.)

As for Jews, I'm no authority on the subject, but I think there's a spirit at Cardozo that you don't find many places. When I went there for an interview I felt at home right away in a way that I rarely encounter. It wasn't unique, but it was noticeable. I wasn't able to accept their job offer for geographic reasons, but I really liked the place. And it is nice to have a school that recognizes Jewish holidays. (UM does a tolerable job of accommodation, but it's not always built into the official calendar.) My kids' resolutely secular private school closes for major Jewish holidays, just as it does for major Christian ones, and I appreciate that.

As for whites, I would say the best schools are the ones that are not too dominated by whites. It's a diverse and complex world out there, boys and girls, and you better get used to it.

We'll Try Harder

1. New Mexico (27%; 22%)
2. Miami (12%; 8%)
3. Texas (17%; 4%)
4. USC (16%; 6%)
5. American (14%; 6%)
6. Florida State (8%; 7%)
7. Arizona State (15%; 7%)
8. Stanford (11%; 7%)
9. Arizona (12%; 8%)
10. Florida International (28%; 17%)
11. UCLA
12. BYU
13. George Washington
14. Florida
15. Illinois
16. Colorado
17. Connecticut
18. San Francisco
19. DePaul
20. Southwestern

via TaxProf Blog.

Ladies & Gentlemen - The Nation's First Radioactive Deanship

The rumors that have been flying around the internet all day appear to be true: Chemerinsky says UC Irvine rescinds offer to become law school dean. Why would a startup school treat a major Cosntitutional scholar like this? It seems that, notwithstanding his 20 year publication record, they discovered this week that he's a — wait for it — liberal. Apparently a major donor freaked or something.

Not only is this sort of behavior unheard of, unprincipled, but it's also very stupid. Who would take the job now, after this display of political interference and intolerance?

But meanwhile, hey Erwin, we need a Dean here next year!

Every Law School Needs One of These

Via Boing Boing comes news of a Voice-stress ice-cream dispenser that increases portions for the miserable:

Demitrios Kargotis unveiled his Mr Whippy machine at the Ars Technica festival in Linz. It's a self-serve frozen custard machine that doles out portion sizes based on the amount of misery it detects in a voice-stress analysis. The sadder you are, the more ice-cream you get.

I think every law school should have one of these!

ABA Withdraws Proposed Bar Pass Standard

I was amazed to learn that the ABA apparently withdrew — or at least delayed — the controversial proposed bar pass standard, aka Interpretation 301-6, more than two weeks ago.

Here are some Comments sent to the ABA regarding Proposed Interpretation 301-6: (comments1); (comments2); (comments3); (comments4); and (comments5).

I've been unable to find an official notice of the withdrawal, but it's reported in this Press Release from the National Lawyers Guild.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates
• Other Perspectives on the ABA’s Proposed Bar Pass Standard
• The ABA's Proposed New Standard: Predicting Effects

Starting Salaries For Law Students are BiModal -- If Not Bipolar

Bill Henderson has a really interesting chart up at Empirical Legal Studies: Distribution of 2006 Starting Salaries: Best Graphic Chart of the Year which shows a very bimodal distribution of starting lawyer saleries. As he says,

The sample includes—in order of size—private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median—but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.

If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right—i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Lots of other interesting comments there too.

Bad Times at Ave Maria

It's time to check in on Ave Maria, the Catholic law school with plans to relocate to South-West Florida.

Things were already quite bad at Ave Maria — just how bad can be seen from this Feb. '07 resignation letter from Assoc. Prof. Kevin Lee (“In my estimation the Law School operates in a manner more in tune with Thomas Hobbes than Thomas Aquinas.”). [It's an interesting letter on several levels, not least its assertion of a vision of Catholic legal scholarship as based “in true devotion to Mary.”]

But back to Ave Maria today. Set the scene with the Statement at Mirror of Justice (a blog which I really should read more often); then see the subtly-titled post Dean Runs Amok at AveWatch.org…or read the whole series of entries on that topic.

The full text of the letter sent by Dean Dobranski to the tenured Professor he is trying to fire would be appropriate if the Professor were a suspected ax murderer or rapist. The Dean has yet, as I understand it, to make the charges public (it's not even clear if he's informed the subject of them), but the real offense is thought to be that the Professor “was involved with the faculty's complaint to the school's accreditor, has filed a complaint with law enforcement against Dobranski, and recently called for a renewal of the faculty's earlier 'vote of no confidence' in governance.”

Next, there's the stiff, elegant, letter by Professor Emeritus Charles E. Rice, co-founder and former member of the Board of Governors, in which he urges the current Board of Governors of Ave Maria to fire the Dean, then resign en mass in order to save the school (and themselves).

Fumare, another blog that keeps an eye on doings at Ave Maria, reports that “Professors Lyons and Pucillo have cleaned out their offices and were evicted from the law school this past week.” Evicted? Cf. this Statement from Professors Lyons and Pucillo to AMSL Community.

There is no sign of any of this, however, at Incense, the relentlessly upbeat “independent weblog of alumni & supporters of the many good works of the Ave Maria Foundation, where we accentuate the positive about all things Catholic. Dominus vobiscum.”

Previous posts:

• There But for the Grace…
• Another Law School Moves Into the Neighborhood

Welcome Section "B"

I participated in the Law School's orientation program today by moderating a discussion on the law relating to Guantanamo with the incoming students in section 'B'. I don't teach in the first year but the idea was that students having a teacher who won't be grading them this year would make students more willing to talk.

It was a lively session. I see my role in these events primarily as devil's advocate, so I tried not to telegraph my opinions. Indeed, after class one student told me he was sure I was a liberal, the other that he was sure I was a conservative. I told the class that if they wanted to know what I really think, they'd find it here. So, students wanting to know what I think about the issues will find a hint in my 124 postings on Guantanamo and in the 99 posts on Torture. Since the posts are in reverse chronological order, you should start at the bottom, where you'll find Guantanamo: Our Collective Shame. Posted October 10, 2003 and still true.

Ten Reasons Why You Should Teach Here -- And Three Why You Shouldn't

Hiring season is approaching — indeed, today is the day that hiring committees get to see the first round of AALS faculty appointments register forms — and the law blogs are full of unusually good advice for lawyers wanting to enter the teaching profession. In recent years I've felt constrained about what I could say publicly about the hiring process because I was a part of a hiring committee. But this year, as far as hiring is concerned, I am just a regular faculty member, so I can speak more freely.

Rather than repeat the general advice you can find elsewhere, I thought I would instead say a few things about a subject I know particularly well: teaching here at the University of Miami School of Law. Although our overall US News rank is very middle-of-the-pack, due mainly to our large size, our faculty has a relatively high reputation rate both in US News and other comparable surveys. But none of these (flawed) indexes really reflect much about what a faculty member's life is like, and thus they are even less useful to an aspiring faculty member than they are to would-be law students.

So, aspiring law professors and future colleagues, I've compiled ten reasons why you should teach here — and three why you shouldn't.

1. Faculty

The best reason to come to U.M. is the faculty. At its best (which is to say, “outside of faculty meetings”), this is a faculty that believes ideas are serious things, but also is willing to play with them. You will see this most vividly at faculty seminars, especially those with external speakers. The faculty reads the paper in advance of the talk. It thinks about it. We don't let the presenter speak a long time — we want to have a discussion. There may be an element of performance in the questions and comments, but that usually just adds to the fun. Unlike some faculties I've heard about, we are not worshipers at the temple of sub-disciplinarity: faculty members feel comfortable commenting on papers far outside their own specialities, and they are usually right to do so as the distant perspective sometimes proves at least as valuable as the insider's.

While faculty vary in the extent to which they will seek you out – some are shy; others are busy – they will almost all be happy to see you if you seek them out. Very few will treat you like a junior colleague; for most, you will be part of the family from the start. And it’s an interesting family, including some big names in international law, tax, law and society, law and identity, and several other subjects.

2. Institutional style & institutional support

UM wants productive faculty, and it believes in research. But it isn't about telling you what to do. My own story may be instructive: I was hired thinking that I would be writing mostly about administrative and constitutional law. In fact, however, within a couple of years I had turned into an Internet lawyer, and was writing primarily about computers, networks and the law. At no time did anyone here ever suggest that this was a problem. What mattered to people was that I was publishing.

Another way in which UM may differ from some law schools is that our faculty is routinely interdisciplinary and international. Many publish in non-legal journals — a fact which does not necessarily help either our publication or citation counts since the legal tabulators tend to focus only on law journals. Although we recognize that there may be some reputational costs, we are not prepared to tell people where they should publish. We just want it to be good.

There is no international ghetto at UM (the same is true of tax, a traditional faculty strength). As a matter of unwritten policy, everyone is expected to teach a basic course outside their specialty; the result is both that we can have more internationalists (and tax scholars), and that there's a much greater community of overlapping interests.

3. Library

The University of Miami enjoys a superb law library, the result of a decision more than two decades ago to make library acquisitions a financial priority. And if we don't have it, the library will borrow it for you, no questions asked. (As one former librarian put it, “we aim to provide law-firm-quality service”. And in fact, it is almost as good as a top law firm, and the librarians are much nicer.)

The law library has extensive holdings in related disciplines, notably political science, and of course the university library is literally next door, and it also has ever-growing electronic access to journals — which can even be accessed from your home office. We have a particularly strong collection in Latin American and Caribbean law, but also strong holdings in European law. We are weak in India, China, and Russia, and no doubt several other countries with non-Romance alphabets, so if your research involves heavy use of materials from one of those countries, you should check to see if we have you covered. I also have a sense that our holdings for pre-1940 materials are not as strong generally as for things published in the last 70 years. But I am continually having pleasant surprises when I consult Baron, the online card catalog. They've done some impressive buying over the years — which is a good thing as the next major law library is a long way away.

4. Students

We have smart students with upwardly mobile ambitions. Some come from wealthy families, but for many a law degree will be the highest level of education ever achieved in their families — a matter of pride for an extended clan you may have the good fortune to meet at graduation. Despite the lures of nearby South Beach, UM students are by and large a studious lot: their awareness that few silver platters await at graduation usually translates into a commendable work ethic. At least until the end-of-term fog settles in, I find that my students have done the reading, and often have something to say about it. There is a little shyness — some students don't want to ask questions for fear of looking silly; other students worry about being labeled a “gunner” — but ordinarily class discussion can be pretty lively. Although we have more men than women as students, it is often the case that the women lead the discussions and make the most substantive contributions. Classes tend to be fun (at least for the instructor). Visiting professors from other law schools consistently remark on the high quality of classroom performance here.

The UM student body has improved greatly in the past decade. Our best students would be at home in any law school. Our worst students would have been near the middle of the class 15 years ago. The only fly in the ointment is that despite their good college grades and creditable LSATs, a substantial fraction of the class comes to law school unable to write as well as they think or speak. Overcoming this obstacle remains one of our biggest challenges. That said, every year we have students who write publishable papers in classes and seminars. It's been a particular pleasure to see those pieces go into print along side those of full-time academics.

Some of our students will go on to be national leaders; a much larger number will play key roles in the State of Florida, as judges, politicians, and leading members of the bar. Some people have described alumni reunions as state judges’ conventions, but this is slightly unfair. On the other hand, there’s no question that both Florida as a place, and UM graduates as important players in that place, have been at the center of major wrangles with national impact ranging from the 2000 election to the Terri Schiavo affair.

Aspiring faculty sometimes worry that they will not find good research assistants outside a top ten law school. It's true that I don't hear stories about students writing papers that professors then publish under their own name as I did when I was a law student at Yale. But if you are looking for a research assistant rather than a ghost writer then my experience suggests this is not a serious problem if you teach a first-year class. As a teacher in the larger first year classes you can identify the students who are good and who fit your style before they get too caught up in other things. Some of them will get on law review, and will be too busy to work for you; some of those that don’t will work downtown for higher pay than the law school can offer, but usually there's someone you will be happy to have who will be happy to have the job in their second or third year. I can’t claim that every research assistant I’ve had has been stellar, but I can say that some of them were amazing — and that they are harder to find when I don't teach first years.

5. Research support

Research support exists to make it easier for you to write. The most important part of UM's research support is its excellent law library. But it doesn't stop there: In addition to the collection itself, we have a staff of helpful law librarians who seem happiest when given difficult research requests. There's a document delivery service which will get you any book or article you ask for and deliver it to your office within a day if it's on campus or a few days if it must be sent from far away. (One down side: you can gain weight from the loss of movement caused by having everything come to you.)

At conferences I sometimes hear stories about places where senior colleagues try to tell tenure-track faculty what to write about (or, worse, forbid certain topics or styles). We don't do that. If anything, we have erred in the other direction — tip-toeing around junior faculty sensibilities so much that we may have provided insufficient mentoring, In an effort to do better in that department, the faculty now enjoys the services of a “director of faculty development” — yours truly as of a few weeks ago — whose job will be to help colleagues (and especially pre-tenure colleagues) with their research and writing by identifying resources, serving as a sounding board, or just staying out of the way.

In addition, every faculty member has an office budget which allows you to hire a research assistant, books and supplies, and to travel to conferences. Each of these budgets is fairly generous, and the Associate Dean has discretionary funds to add to them up for good cause. In my experience, any cause I can bring myself to ask about has been treated as a good one.

6. The University

A generation ago it was “Suntan U”. Today, under the (very) energetic leadership of Donna Shalala and an impressive suite of Deans, the University of Miami is joining the ranks of the leading research universities in the USA. For openers, President Shalala raised $1 billion for the University. YES, $1 BILLION. Now that it's in the bank, she's warming up for a new round of fund-raising. The lion's share of the first round went to the medical school, but the rumor is that the law school might be able to claim a bigger share of the next round.

More importantly, the past couple of decades have seen a transformation in the quality of both the students and the faculty in the arts and sciences. It's become hard for students to get in; and departments such as History, Psychology, Business, and Sociology have attracted faculties that include a wealth of potential collaborators, adding to existing strengths in Medicine and Communications. Both the law school and the University encourage inter-disciplinary collaboration. The law school has begun to take advantage of these resources (I, for example, am working with a team on health privacy issues that includes participants from both the Business School and the Med School), but there's much waiting for you that remains untapped.

7. Perks

The law school wants to support your research, and we try to put our money where our mouth is. Entry-level faculty can apply for a summer research grant before starting work in order to prepare their courses. We light-load you (usually only one course per semester) during your first year to give you time to find your feet. You'll get a summer grant as of right every summer until tenure to encourage you to write — after that you'll have to submit proposals and make good on them too. And you're entitled to a semester's leave before tenure, more or less in the term of your choice, in order to help you write.

The law school is located on a very beautiful campus in the center of suburban Coral Gables, itself a very pleasant city with excellent restaurants. Rumor has it that in the old days the university administration spent more on landscaping than books; whatever the truth, there's no question that the campus is very nice to look at. It also sports a state-of-the-art gym that's about three minutes walk from the law school around our picturesque lake (crocodile optional). The campus sports other useful amenities, including a faculty club, a food court, and an on-campus daycare.

8. Miami

Miami is a cosmopolitan city. Part of its identity is as the defacto capitol of Latin America; part is as an artistic and musical center; and then there's the celebrity-and-tourist thing. It's an attractive place for young and old, and — if you take care to live in the right school districts, or have kids who qualify for the right magnet schools, or are ok with private schools — a pretty easy place for the middle-aged pater and mater familias. Like many sunbelt cities, Miami is more sprawling mosaic than urban core and periphery. Both urban and suburban living are within easy reach of the campus. Our politics are fascinating and complex, with much political power held by first and second generation immigrants from Cuba, and to a lesser degree Haiti, and Central America. The region now enjoys a lively cultural life, with a rich music and dance scene and some creditable small theater companies. If you prefer nature to culture, there's always the nearby Everglades as well as world-class coral reefs for diving just south of Miami.

If your work involves domestic issues, you will find them in Miami, which is the city of the future in ways both good and bad. Along with our glitz you will find us on the cutting edge of today's and tomorrow's political and social issues: immigration, environmental (think “Everglades restoration”), medical (think “retirees”), and all the social questions that big cities produce.

Housing costs tend to be high, but many other living costs are low and there is no state income tax. The University has, however, taken bold steps to address the housing issue by offering new hires a deal in which the university will subsidize part of your home purchase in exchange for a proportionate share in the equity when you sell, an offer that puts many nice homes within reach.

9. Weather

Miami's weather is glorious for almost half the year; variable for another chunk, and miserable in the dog days of summer and early Fall. The good news is that much (but not all) of the miserable part comes when the law school is not in session, so you can escape if you choose. When the weather is nice, our central courtyard, the “bricks,” becomes the social center of the community, a place where students and faculty mingle between classes. Even office rats like me end up looking healthier than the wan, pale, parka-clad figures I see huddling on the Boston subway. For those with outdoor ambitions, you can live on Miami Beach, or just enjoy the sea view from a balcony in a tower apartment in downtown Brickel.

10. The revolution is coming

The next five years will see a radical transformation in the faculty, and perhaps the style, of University of Miami School of Law. We have at least six open jobs at present, with the likelihood of much more turnover as faculty retire (couples welcome!). The next three to five years' appointments, including that of our next Dean, stand a good chance of determining the future course of the school for a generation to come.

At present we have only ten full-time faculty under 50, and only fourteen between 50 and 60; the remaining 17 are over sixty, including some very much over sixty. Our hiring is resolutely in compliance with the age discrimination in employment act (of our last six entry-level hires, two were very experienced lawyers well over 40), but given the overall composition of the entry-level market, it is likely that this age profile will change dramatically in the next few years.

What this means for our new hires is that they will find themselves at the heart of their new community — and have a chance to lead it — much earlier in their careers than they might otherwise. The coming turnover in the faculty, coupled with this year's Dean search introduces an element of uncertainty about what we'll be like in the future that may not be to everyone's taste. Fortunately, the faculty is engaged in a strategic planning exercise this year which means that any new hires will be spared that chore at least. At present, the law school enjoys a nearly unique chance to reinvent itself, and people with ideas and energy should find all the breathing room and opportunity they want. I hope that people reading this will come join us in building something wonderful.

All that is very well, but honesty compels me to say that there are also some reasons why not everyone may be happy here. Indeed, there are three main reasons why you should not teach here:

1. Weather

If skiing is your passion, and neither waterskiing nor snorkeling are substitutes, then Miami may make you sad. It's hot and very humid here from July until the heat breaks sometime in October or September. That means you can have up to three and half months when it's not much fun to go outside. Plus, occasionally we get weather with a name. But we don't get snowstorms, avalanches, earthquakes, random tornadoes, floods, or mudslides. If you want immunity to natural disasters, move to Rhode Island.

2. Language

Many people in South Florida speak Spanish as their first (and often only) language. The campus is Anglo — although some of the bilingual staff and students will speak Spanish to each other — so this is not a work issue. But it is a life issue: you will hear lots of Spanish in the stores and on AM radio. If you are the sort of person who can't cope with foreign languages around you, there's a strong chance you will not be happy here. I don't speak Spanish, and I only found it a noticeable handicap for my first few weeks here, when I would get lost driving around and stop at a store for directions, then wait impatiently while they went to find the English-speaker. It's a non-issue today unless I happen to go bargain shopping for some exotic household good, and indeed contributes to Miami's cosmopolitan vibe.

3. Geography

It's flat here — no mountains (and houses have no basements). More seriously, it's also far from many of the legal nerve centers. If you're doing national work and you are having meetings related to it, odds are the meeting will neither be in Miami nor even within driving distance. That means air travel. And while we have great direct air connections to most of the world and the law school is generous with travel support, we do not have a working time machine. Given the post-9/11 security regime at airports, and the increasing vagaries of air travel generally, it is rarely possible to have a meeting in New York or Washington without spending the night out of town. That can mean having to reschedule a class (something we allow for good causes), which is a pain for you and even more of one for your students. It certainly means that doing national committee work is always a substantial time commitment. It is almost 500 miles to the state line, and then where are you? Somewhere between Tallahassee and Moultrie, Ga.

As I said at the outset of this essay, this year I am not on either our entry-level or lateral hiring committees. But if you find the positives outweigh the negatives and have an interest in coming here, I'd still be happy to try to answer any further questions you might have, either in comments to this entry or by private email.

The ABA's Proposed New Standard: Predicting Effects

Who are the losers under the ABA's proposed new bar pass standard?

Otherwise Occupied, New ABA law school standard interpretation may kill 5 CA schools does some calculations, and even attempts to figure out second-order effects,

The end result: As many as five current ABA-approved law schools could lose their accreditations. Four schools (Golden Gate University School of Law, Thomas Jefferson School of Law, Whittier Law School, and Western State University College of Law) would immediately fail to meet this standard.

…

But the fallout may be greater. The loss of those schools bumps the ABA passage rate up, which causes some collateral damage, taking out Chapman University School of Law:

Interestingly, some commentators see the US Department of Education's pressure on the ABA to enact a bar pass standard as an attempt to gut the ABA's support of affirmative action,

Michael Dorf, The Bush Department of Education Tries to Gut Grutter Below the Radar Screen

[The Dep't of Education's] pressure on the ABA is designed to make it hard for law schools to pursue diversity, not to make it voluntary. Under that pressure, the ABA now proposes to make bar passage rates an element of accreditation. [… ] Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end.

The proposed changes are objectionable in at least four ways. First, bar passage rates are a very crude measure of the quality of a legal education. Second, to the extent that the issue is consumer protection, simply publicizing bar passage rates should be sufficient to warn prospective students that admission into law school as a 1L does not guarantee admission into the profession after graduation. Third, under the pressure of US News rankings, law schools already have ample incentive to pay attention to their bar passage rates, so the pressure of the new standard would only be felt at those schools that fare poorly in those rankings and/or have made a commitment to taking a chance on students with weaker numbers notwithstanding the price they thereby pay in the rankings. So long as students know what they're getting into (see “Second”), there is no good reason to limit schools' flexibility to pursue such an approach to admissions. And fourth, whether accreditation ought to turn on bar passage rate should ultimately be a matter for the judgment of the legal profession and legal academy, not the ideologues of the Bush administration.

Vernellia Randall, ABA Proposal Threatens Diversity In Legal Education,

Contrary to the implication in this statement that the proposed standard takes a school’s mission into account, and will be receptive to arguments about diversity, the proposal issued by the Council rejected the suggestion that they take a school’s mission into account in determining compliance. Instead, they inserted language about consideration of “student populations served” in a section of the proposal that only applies to schools that are in compliance.

This story is receiving some play in other media outlets. It may mislead individuals and groups concerned about diversity into a false sense of security about the impact of the proposal. As the Patton Study showed, the proposal will put almost all of the diversity-friendly schools out-of-compliance and worsen the state of minority enrollment.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates
• Other Perspectives on the ABA's Proposed Bar Pass Standard

Other Perspectives on the ABA's Proposed Bar Pass Standard

Here are some other views of the ABA's proposal on bar pass rates:

Scrivener's Error:

• Initially, note the irony that the Bush Administration's Department of Education is acting in a way to take more power away from states in two areas “traditionally” committed to states — education and regulation of the legal profession. Ironically, this particular effort is yet another argument for national, not state, regulation of attorneys; if the supposed “state's rights” maroons and ideologues who actually make policy in this administration think it important to establish more measurable national standards…

• Under the proposed rubric, almost no law school in either California or Washington State could qualify under the second standard, because so many of the graduates of those schools take the bar in those states… which have pass rates of around 50%. Conversely, it's extremely unlikely that some states with notoriously high bar passage rates will help. Then there's the “Wisconsin issue” — graduates of the University of Wisconsins and Marquette law schools are exempt from their own state's bar exam.

• Well over 85% of the bar exam is drawn from material covered in the mandated first-year courses. Why, then, hasn't the legal profession followed the medical profession's lead and moved to a national exam covering that material shortly after it is actually studied, similar to the two-part medical boards? I suppose part of it is that most law schools are revenue-positive, meaning that they want students to continue.

Ultimately, though, what I find disturbing … [is the assumption that] the bar exam, or bar exam passage rates, measure a damned thing about attorney competence. (Unfortunately, the traditional law-school exam format isn't much better… but that's for another time.) And that's for a very simple reason: With very, very rare exceptions — almost all of which concern either criminal law or trial practice — a lawyer's emphasis cannot be on coming up with “the answer” right now, but with persuasive advice that meets all of a client's needs.

For example, assume that a client comes to an attorney asking whether there's a way to get out of a particular contract (not so hypothetically, an especially abusive vanity publishing contract). What is ultimately in the client's best interest? The bar-exam answer is to look at the contract, figure out what it says and whether it is theoretically enforceable, and give essentially a multiple-choice response. That, however, ignores the relative financial and emotional situations of the parties; the power of potential publicity; jurisdiction; choice of law; counterclaims; and a wide variety of other considerations. No bar exam question ever even considers the possibility of an “efficient breach,” and that's just within the contract itself.

My spouse:

Rhode Island only has one law school, so that unless there are a very large number of very successful out-of-state test takers, Roger Williams University defines the average.

Bill Henderson has a lot of interesting things to say, among them:

• There are a lot of potential problems here. Foremost is the huge variation in bar passage standards from state to state. In every jurisdiction, the ostensible purpose of the bar exam is to screen for “minimal competency” in legal knowledge. But the wide range in MBE cut scores and “equating” practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as “federalism run amok.”

• … while criterion #1 will cause a lot of panic, most schools will satisfy the “80% over three attempts” rule. [citations] Yet, by the third try, who deserves credit—the graduating law school or the review course?

• Finally, any new bar passage standard for accreditation needs to be accompanied by serious research on which law schools, controlling for entering credentials, are associated with the largest gains in bar exam performance. There are some tricky methodological questions here—e.g., if the MBE score is the dependent variable, using a fixed effects model to deal with differences in cut score—but we certainly have the ability to solve them.

Once we know what curriculum, teaching methods, and (let's not kid ourselves) the attrition policies that produce the best bar results, legal educators can have an intelligent discussion on how to proceed. This might include designing a better bar exam, which has not significantly changed over the last three decades.

SW Virginia Blog notes that Regents University Law school might be one of the school that has trouble with the first prong of the proposed standard.

Previous posts:

• ABA Proposes Bar Pass Rate Standard
• More on Proposed ABA Standard on Bar Pass Rates

More on Proposed ABA Standard on Bar Pass Rates

Previous post: ABA Proposes Bar Pass Rate Standard

July 06 — 75.1%
July 05 — 70.5%
July 04 — 74.1%
July 03 — 75.8%
July 02 — 78.2%

Based on this very limited data set, the idea that the annual pass rate in Florida, given the new higher score needed to pass, is likely in the 70-75% range seems reasonable.

I've also found a treasure trove of statistical data on national bar pass rates in the LSAC National Longitudinal Bar Passage Study (NLBPS) which has a useful “executive summary” from which I learned that (at least before the national move in the last decade to raise the minimum bar pass score), most people who persevered eventually passed the bar:

• The eventual bar passage rate for all study participants was 94.8 percent (21,886 of 23,086).
• The eventual passage rate for all study participants of color was 84.7 percent (2950 of 3482).
• The eventual passage rates for racial and ethnic groups were: American Indian, 82.2 percent (88 of 107); Asian American, 91.9 percent (883 of 961); black, 77.6 percent (1062 of 1368); Mexican American, 88.4 percent (352 of 398); Puerto Rican, 79.7 percent (102 of 128); Hispanic, 89.0 percent (463 of 520), white, 96.7 percent (18,664 of 19,285); and other, 91.5 percent (292 of 319).
• Among those examinees of color who eventually passed, between 94 and 97 percent passed after one or two attempts and 99 percent passed by the third attempt.
• The eventual pass rates increased substantially over first-time rates for all examinees.
• There were no differences in bar passage rates between men and women.

…


• Both law school grade-point average (LGPA) and Law School Admission Test (LSAT) score were the strongest predictors of bar examination passage for all groups studied.
• A demographic profile that could distinguish first-time passing examinees from eventual-passing or never-passing examinees did not emerge from these data.
• Although students of color entered law school with academic credentials, as measured by UGPA and LSAT scores, that were significantly lower than those of white students, their eventual bar passage rates justified admission practices that look beyond those measures.

The importance of this data in the context of the proposed rule is that the data suggest that the second prong of the ABA standards may be much more forgiving than I initially thought: I'm told there may be as many as 20 schools in the US that are in danger of failing the first test (3 years within 10% of state's average pass rate), but it does seem that many of these schools might nonetheless make it on the alternate test, which requires 80% of graduates pass within three tries in three years.

To the extent that this second rule creates an incentive for the schools to help first-time-failers to pass later, that is good for those students — although whether it is also good for their future clients is a matter for debate, one that would turn in part on what we think the bar exam measures.

One also has to wonder, if indeed the second prong of this rule will protect all, or almost all, existing law schools, will the U.S. Department of Education accept it as a meaningful standard?

ABA Proposes Bar Pass Rate Standard

Pushed by the U.S. Department of Education to demonstrate that it has standards that actually mean something — without which it risks losing the privilege of accrediting law schools — the American Bar Association (ABA) has proposed bright-line bar pass rate standards.

The short version is in a press release, ABA Legal Education Section Publishes Proposed Interpretation of Bar Passage Standard for Approval of Law Schools, or you could go straight to the full text of proposed new interpretation 301-6.

Here's the key part of the summary:

For established schools undergoing periodic review, the proposed interpretation offers two alternatives to satisfy the standard.

Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school's graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams.

Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation.

My very preliminary thoughts on this proposal is that the new rules are (1) slightly odd, (2) will undoubtedly make it harder for law schools to take risks on students and risk creating other unfortunate incentives, (3) threaten to put some schools out of business, and (4) are certain to generate enormous controversy.

I flesh out each of these assertions below. I'd be very grateful for comments and corrections.

(1) The first slightly odd thing about this rule is that the first prong compares the school to all test takers from ABA approved schools, including out-of-state test takers. I'd like to know how out-of-state test takers do compared to in-state. In Florida they do about average; but what about, say, New York and California? Do the many out-of-staters make things easier or harder for local schools? [See (3) below for a discussion of whether a bright-line makes sense.]

(2) For law schools on the cusp, this will create real pressure to do bad things.

(A) They will have an even greater incentive to play it safe on admissions. We know that the one thing the LSAT predicts well is your ability to take tests, and the bar exam is a test. This rule will inevitably work against people with lower LSATs, and that means disproportionately against people whose families have less money and who are not white.

(B) Alternately, if these schools want to keep taking risks in admissions, they're going to have to flunk out more students in order to only graduate those with a high probability of passing the bar. The downside of this policy is a “One L” atmosphere: schools become much more stressful, meaner, places — which may not be conducive to learning.

(C) A correlative pressure will be to teach even more to the bar; and while the bar arguably may test stuff most lawyers should know, nobody could seriously argue that a three-year bar course will tend to produce good lawyers.

(D) Lastly, for schools right on the knife edge, there will be enormous pressure to manage who takes the bar by having weak students delay test-taking: stuff all your at-risk students into one calendar year, and thus improve your outcomes in the alternate year. As a result, I predict an increase in the annual variation in the bar pass rate scores of schools in the at-risk zone.

(3) Some law schools could be in real trouble. I have absolutely no idea what the second and third time pass rates look like; it may be that enough people make it eventually so that the 80% within three tries within three years rule saves schools that would fail the first test. But I rather doubt this is true in all cases. (The conventional wisdom is that anyone can fail once but if you don't pass on second try your chances of ever passing are quite low.)

Consider, the last July's exam Florida numbers as an example — and that's all they are, an example, since the relative Florida numbers bounce around a lot year to year, and these are just last year's July takers not the February plus July numbers which is what the ABA will use:

FSU, 88.1
University of Miami, 85.7
University of Florida, 81.2
Stetson, 81
Florida International, 79
Florida Coastal, 75.4
Nova Southeastern, 74.9
Barry, 72
St. Thomas, 63.1
Florida A&M, 56.3 [*]

Non-Florida law school graduates, 71.6

[*] - Note that Florida A&M is only provisionally accredited and thus different, and in fact somewhat tougher, rules apply to it.

Note also that these numbers are not weighted for size, so this doesn't allow us to compute the state average pass rate.

I've found these July 2004 first-time-taker numbers:

University of Miami (227/270) - 84.1%
University of Florida (185/228) - 81.1%
FSU (102/129) - 79.1%
Florida Coastal (62/84) - 73.8%
non-Florida schools (771/932) - 73.7%
Stetson (113/159) - 71.1%
St. Thomas (68/102) - 66.7%
Nova Southeastern (143/232) - 61.6%
Barry (14/25) - 56%
Overall of first-time takers (1645/2221) - 74.1%

And in 2005, apparently 70.5% of all first time takers passed the exam.

So if we assume the overall pass rate runs from 70-75% (or maybe even lower with February data added in?), then we can say that Florida schools which consistently score under 60% are in trouble, and even Florida schools that tend to be under 65% will be sweating. Florida may not have any accredited schools in the “trouble” group, but there will surely be some sweating.

And Florida A&M (FAMU) — which has to meet an even tougher standard for accreditation — may be in real trouble if this rules goes through before it is accredited. Ordinarily one would expect bar pass scores to go up a bit after accreditation, as good students will be more willing to attend due to the lower risk of the school cratering; even so A&M may face problems keeping its accreditation if this rule goes through.

And here we see the real problem with a bright-line rule. Not all law schools are trying to do the same thing. FAMU has an unusual history. It ran a small law school from 1954 to 1968, when it was shut down by the the Florida Board of Control (later known as the Board of Regents). The legislature re-established this historically Black law school in Tampa in 2000, as part of a deal that also created a law school for Miami's FIU.

FAMU Law has an unabashed mission of extending educational opportunities,

In law, FAMU reaffirms its historical responsibilities to its students to provide important opportunities for service to the diverse communities in Florida, the nation, and the world. FAMU strives to set, to maintain and to reward high standards for faculty, staff and students through continual evolution and pedagogy, curricula, research and public service demands. FAMU will continue to serve as a beacon of hope and a catalyst for change. The College of Law’s role is to promote the development of legal professionals as community leaders who are sensitive to the needs of all people.

FIU is doing fine; FAMU has been provisionally accredited, but is also facing various problems.

One could argue that the standard is reasonable and that FAMU should be held to same bar pass standard as other schools, that failing to meet that standard would in fact be a cruel hoax on a significant number of students who graduate and then fail the bar. There's merit in that view.

But there's also merit in the contrary view, that the standard is arbitrary (why those numbers?), and that whatever the standard, the legal ecosystem ought to have a place for schools that admit at-risk students, knowing that some, even many, will not make it. So long as students understand what they are getting into, is the public really well served by a rule that prevents a school like FAMU from existing even if forty-some percent of its graduates will fail the bar on their first try?

(4) Unsurprisingly, the proposed rule is already controversial. A number of law school Deans are organizing against it.

Previous relevant posting: Bar Pass Rates are Over-Rated As A Measure of Law School Quality (“Let me start by saying that there certainly comes a point where a substantially lower bar pass rate than other schools in the state is a sign of a problem that a law school should work to fix.”)

Update: See More on Proposed ABA Standard on Bar Pass Rates

Best Wishes to Bar Exam Takers

Best wishes to all UM students taking the bar exam today. It's a rotten experience, but unavoidable if you want to practice law.

I recall a few aspects of the two-day New York Bar exam vividly, although most is now mercifully forgotten. I remember on day two, the essays, discovering that I suddenly couldn't recall which way the mailbox rule worked. Fortunately, all the questions about it had been on day one. (Why I was thinking about it, if there wasn't a question, I don't now recall.)

And I remember my joy on day two when the complex, but do-able, wills and estates question concluded with the instruction “FOR THE PURPOSES OF THIS ESSAY IGNORE ALL ESTATE TAX QUESTIONS” — a great source of happiness as estate tax was the one (minor) subject (of, I think, 17 “minor” subjects and six “major” subjects) where I had completely failed to understand the review lecturer or the books, and one that remains largely undiscovered by me to this day.

And I remember thinking as I walked out — “I may not have to take another test ever again. Unless they make me take a driver's test again when I'm 70.” Strangely, it did not occur to me that had I failed this would not be true, even though I had no strong sense of how well or badly I had done, other than I had felt prepared for the questions.

And indeed, I passed. And so, I trust will my former students.

So far, I have avoided having to take any further tests, although I have not at all avoided further forms.

Previous relevant postings: Anyone Can Fail the Bar Exam — but really, don't panic — and Bar Pass Rates are Over-Rated As A Measure of Law School Quality.

John Gaubatz

Pat Gudridge:

Michael and I regret to announce the death of our colleague John Gaubatz. John was a long-time member of the UM faculty, a strong teacher in the classic socratic mold, a nationally recognized scholar in the field of trusts and estates, and (as chair of the admissions committee) a pioneer in the use of personal computers in law school administration. John was a vigorous proponent of moot courts as a law school teaching medium, writing an important book in support of his views. The law school's moot court competition now bears his name — a fitting honor. We will remember John Gaubatz for his character, unquestioned integrity, intellectual honesty, and hard work — and also for the gifts of his friendship and humor. We extend our condolences especially to John's wife Kathy — like John a distinctive, independent presence, and a person of great accomplishment.

Selected Previous Posts on Grading

Selected previous posts on grading:

• On Law School Exams, Open Book and Closed Book, December 09, 2004
• Grading, May 14, 2005
• My Grades Are In, January 20, 2006
• More On Law School Grading, January 31, 2006
• We Have Great Students, January 16, 2007

Measuring How Much Schools Challenge Students

The Washington Post and Newsweek have a crude but interesting methodology that aims to capture whether high schools challenge their students.

The metric has a lot of limitations, but it also has its attractions. They start by excluding all magnet schools, more or less on the grounds that they'd win if they were included. They rank the remaining schools on how many advanced tests the students take:

We take the total number of Advanced Placement, International Baccalaureate or Cambridge tests given at a school in May, and divide by the number of seniors graduating in May or June. All public schools that Newsweek researchers Dan Brillman, Halley Bondy and Becca Kaufman found that achieved a ratio of at least 1.000, meaning they had as many tests in 2006 as they had graduates, are put on the list on the Newsweek website, and the 100 schools with the highest ratios are named in the magazine.

… I think 1.000 is a modest standard. A school can reach that level if only half of its students take one AP, IB or Cambridge test in their junior year and one in their senior year. But this year only about five percent of all U.S. public high schools managed to reach that standard ….

This is indeed a crude measure. It doesn't capture how good the teachers or the students are (the results of the tests don't enter into the calculation). There's no control for demographics of the school's catchment area, although it appears that the correlation isn't that good since rich schools sometimes reserve their APs for the 'best' students which keeps down the numbers.

And it's not exactly a measure of value-added either.

No, at best it measures what it says: whether or not the high schools are challenging their students by exposing them to advanced courses. That may be very basic, but it's still worth knowing.

How would we make a comparable metric for law schools?

Law School and Wikis

I could readily imagine having a class project centered about building a wiki (my death penalty class blog this past semester has some wiki-like facets). I also would readily approve a student independent study project that was wiki-centric, and I certainly could see student organizations and law reviews working on wikis as an integral part of their activities.

That sounds like fun.

In Which, Once Again, I Get Sucked In To Law School Admnistrative Duties

A a few hours ago I sent the following email to all the students who signed up for my Internet law class next fall:

Thank you for signing up for Internet Law in Fall '07. It's a great class and I'm looking forward to teaching it. Unfortunately, it seems I'm going to be teaching it next Spring, not next Fall.

I know that late schedule changes cause you significant inconvenience, so I wanted you to hear from me why this change is necessary before you got the official notice from the Registrar's Office, which should arrive in a day or two.

After the schedule was set, I was appointed to two administrative positions in the law school that will require intensive effort in the Fall: First I was appointed to the Strategic Planning Committee and this week I agreed to take over as Director of Faculty Development from Prof. Mary Coombs, who is resigning from that post.

Internet law is a demanding class to teach: I use my own materials, and I try to make them as up-to-date as possible in a very fast-changing area. It was clear that there was no way I could do the class in Fall and also do justice to both of these new responsibilities. In appointing me to the Faculty Development post, the Dean's office urged me to only teach one class in Fall — and that has to be Administrative Law, which we try to offer every semester.

This means you are getting the short end of the stick, and I apologize for that. The Dean's office and I have asked the Registrar to give you priority for Internet Law if you decide to take it in the Spring — and I hope to see you then. Meanwhile, if I can be of any help in suggesting alternate courses, please don't hesitate to email me with a list of courses you are considering.

And, if you have a particular interest in Internet law that won't wait, or if you are graduating in December, it might be possible to arrange an independent writing project for the Fall. To do that, however, you need to have a (fairly narrow) topic in mind. More information about how I supervise independent writing projects is here.

Again, I hope you will accept my apologies for this late change to the schedule.

English Profs Lead Sheltered Lives

An English prof blogs about an unreasonable student request in “Most outrageous note evar.”

While I agree that this student's request is totally unreasonable (barring a medical emergency), I think this blogger's reaction shows that English profs lead sheltered lives. Here in law school, where we train people to be advocates, many students come to think they have nothing to lose by making pushy requests, even ridiculous ones, and they do it quite often. Given how things work, they may be right — there's not much penalty for being turned down and, as fund-raisers say, “If you don't ask, you don't get.” Figuring out where the line is between zealous advocacy and Rule 11 (sanctions for frivolous or vexatious arguments) takes judgment, and it takes some people longer to acquire that than others.

One tries not to get inured, but I suppose it creeps up….

Previous related post: If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask.

There But for the Grace...

Things sound really, really bad at neighbor-to-be Ave Maria Law School,

Crisis at Ave Maria Law: To summarize: last spring, a substantial majority of the faculty issued a vote of “no confidence” in Dean Bernard Dobranski. The response from the AMSL Board of Governors, led by Board Chairman and AMSL's largest funder, Thomas Monaghan, was a terse restatement of its support for the Dean. This rejection of open discussions, combined with retaliatory actions by the Dean, exclusion of the faculty from governance of the school, and serious violations of academic freedom were subjects of an investigation by an ABAfact-finder earlier this year. In the midst of this ABAprocess, the AMSL Board voted in effect to close AMSL and transfer its assets to a new law school to be located on the campus of Ave Maria University, in southwest Florida.

Disagreement over this proposed move is thus only one aspect of the difficulties at AMSL. Problems at AMSL go much deeper, and are much more structural. Since the vote of “no confidence” in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.

And there's lots more where that came from.

Bar Pass Rates Redux

The February bar pass rate scores are out, and UM's are lower than they were in the summer. But I still hold to what I said last time: Bar Pass Rates are Over-Rated As A Measure of Law School Quality.

(And, I might add, they are meaningless at schools which discourage graduates from taking the bar unless the school is confident they will pass. You know who you are.)

IRAC and Ruin

Concurring Opinions: IRAC in Iraq. Great and wrenching post.

Does Posing Naked for Playboy TV Have Anything to Do With Your Fitness to Practice Law?

There's heavy breathing going on at the WSJ Law blog as they report that Brooklyn Law School Student Bares All. It seems that Ms. Adriana Dominguez, a 3L who has “worked in the domestic violence unit in the Brooklyn DA’s office and served as treasurer of her law school’s Legal Association of Activist Women” also, as the NY Daily News put it, “shed her briefs”.

The WSJ blogger asks if this additional extracurricular activity might cause difficulties with the NY character and fitness committee when Ms. Dominguez applies to join the bar.

Let the jokes about visible fitness of the candidate, and the lack of character of the bar begin.

Kidding aside — assuming the conduct in the video was legal, it's First Amendment protected speech, and I can't imagine how a bar committee would dare block someone on the basis of their legally protected speech. They better not dare, anyway.

A more interesting question is to what extent a stunt like this might impact one's legal career. I imagine some straitlaced firms might think twice about hiring this kind of amateur videographer. (Maybe Sullivan & Cromwell is not a good bet?) And I could see it being an issue that might get in the way of a judicial career — would a governor or President nominate someone knowing this would be an issue at the confirmation hearing?

Some people are going to say that this sort of dumb stunt shows poor judgment, and might raise legitimate questions in a client's mind. And I'm sure that there comes a — gradually receding? — point where it's all just too much. But if the romp in question is no more than the Daily News article makes it sound (“happily strips naked, gets spanked and holds gavels up to her bare breasts”) well, really, who in the end cares?

SwapNotes -- Boon or Bane?

Not sure how I feel about this. I (and it appears tons of other lawprofs) got a note today announcing this:

SwapNotes (www.swapnotes.com) is a new free online service that allows students and professors to share notes, outlines, and old exams (which we take down if asked by the professor).

By linking the courses you teach with the casebooks you use, we hope to make it easier for you to see what other professors who use your casebook have to say. By downloading student notes, you can see how colleagues differ in teaching the same material or what common misconceptions your students may have. Additionally, students won't need to wait on long lines, or consult booklists, to quickly find their casebook. They can just check on SwapNotes.

SwapNotes has been around for less than a semester. Despite its short history, thousands of students have uploaded over 3,000 outlines from dozens of law schools across the United States and Canada, transforming it into a useful resource for professors and students.

On balance, it seems like yet another attempt to provide students with shortcuts which will impair their necessary engagement with the material. And thus not a good thing.

Not to mention that I prefer to control my intellectual property myself.

I do not wish to have material from any of my courses on your site. Further, I would like you to acknowledge that you are not posting material by any student in my courses on your site, as I am asserting my intellectual property in the lectures that students might quote or transcribe prior to such an attempt to post, and I do not grant you a license to disseminate it.

Although, I confess, I feel the temptation….

U. Miami Makes Top 20 in New Law School Ranking

I've yet to see a ranking system for law school that I trust. Leiter's was the least bad, and it had problems. US News is so badly constructed that it's a joke, and the fact that it now is morphing into a self-referential feedback loop just makes it worse (studies show that USN rankings increasingly define reputations, and a lot of the USN ranking is based on … reputation).

But if we're going to have biased ranking systems, I prefer those that are biased in our direction. So may I introduce you to the Lawdragon 25 Leading Law Schools, based on where members of the Lawdragon 500s graduated from law school. They put the University of Miami School of Law at #18 in their rankings.

Which sounds great, but shouldn't be taken too seriously. Even if we trusted Lawdragon to tell us who the best lawyers in the US are, the survey is strongly biased to large schools, since it compares total number of law school alumni among the 'elite' without discounting for school size.

But that bias works for us, so I guess now we can claim to be a “top 20 law school”.

Realistically, however, I would not put UM among the top 20 US law schools if only because we don't have the resources that come with the sort of massive endowment the top 20 schools tend to have, and because first year classes here are very big.

For what it's worth, I do think that we ought to be somewhere low in the second 20. US News, which is as biased against size (and location in provincial legal markets) as Law Dragon is biased for bigness, ranked UM at 65 — a massive problem for the school. Average the two scores [ (18+65)/2 = 41.5] and you get something more plausible although not methodologically defensible.

Professional Deformation

You know you're a law professor when you look at a story like this and think, “I bet that would make a great Torts final exam question.”

And I don't even teach Torts. (Actually, there's probably some way to make it a Property final exam question too, if you do easements…)

What Makes a Good 1L Law Exam Answer

Orin Kerr has done 1Ls around the country a great service by writing a very clear guide to distinguishing between Bad Answers, Good Answers, and Terrific Answers to 1L exams.

While the principles also have considerable applicability to more advanced courses, I think that we professors legitimately expect all this and more from 2Ls and 3Ls, including more complex issue-spotting, coping with more complex and contradictory rules, and taking account of various sorts of policy considerations (when relevant), to name just three. Actually, might we hope for some of those in the terrific 1L answers too? I should admit here that it's been far too long since I actually taught first years, and for some to-me-incomprehensible reason the day students (but, it must be said, not the students in our since-dismantled night program) said I was too scary….

Update: on the subject of exams, Paul Ohm has a thoughtful post about achieving fair grading in a common grading situation. (Personally, I grade each question separately and average them, but that's not without issues.)

Tell the Prof to Talk Faster

Prof. Ann Bartow seeks advice for some students who have what I hope is an unusual problem.

I once asked one of my students if lots of people used their laptops to goof off. No, he said, you talk so fast there's no time for that.

Statement by Law Deans on Stimson Remarks

The following statement, dated January 14, 2007, has been signed by more than 57 U.S. law deans, with more joining by the hour:

We, the law deans undersigned below are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles “Cully” Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.

As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

We urge the Administration promptly and unequivocally to repudiate Secretary Stimson’s remarks.

Sincerely,

[first 57 signatories below]

William E. Adams, Jr.
Acting Dean, Shepard Broad Law Center
Nova Southeastern University

James J. Alfini
President and Dean
South Texas College of Law

Michelle J. Anderson
Dean and Professor of Law
CUNY School of Law

Katharine T. Bartlett
Dean and A. Kenneth Pye Professor of Law
Duke University School of Law

Louis D. Bilionis
Dean
University of Cincinnati College of Law

Jeffrey S. Brand
Dean
University of San Francisco School of Law

Brian Bromberger
Dean
School of Law, Loyola University at New Orleans

Don Burnett
Dean
University of Idaho College of Law

Robert Butkin
Dean and Professor of Law
The University of Tulsa College of Law

Evan H. Caminker
Dean
University of Michigan Law School

Jim Chen
Dean and Professor of Law
Louis D. Brandeis School of Law, University of Louisville

Neil H. Cogan
Vice President and Dean
Whittier Law School

Allen K. Easley
President & Dean
William Mitchell College of Law

Michael Fitts
Dean
University of Pennsylvania School of Law

Stephen J. Friedman
Dean and Professor of Law
Pace University School of Law

Arthur R. Gaudio
Dean and Professor of Law
Western New England College School of Law

Jon M. Garon
Dean
Hamline University School of Law

Peter Goplerud
Dean
Florida Coastal School of Law

Mark Gordon
Dean
University of Detroit Mercy School of Law

Jack A. Guttenberg
Dean & Professor of Law
Capital University Law School

Patrick E. Hobbs
Dean
Seton Hall University School of Law

Gilbert A. Holmes
Dean and Professor of Law
University of Baltimore School of Law

John C. Jeffries, Jr.
Dean
University of Virginia School of Law

Elena Kagan
Dean
Harvard Law School

Harold Hongju Koh
Dean
Yale Law School

Larry Kramer
Richard E. Lang Professor and Dean
Stanford Law School

Frederick M. Lawrence
Dean and Robert Kramer Research Professor of Law
The George Washington University Law School

David A. Logan
Dean and Professor of Law
Ralph R. Papitto School of Law
Roger Williams University

Lydia Pallas Loren
Interim Dean and Professor of Law
Lewis & Clark Law School

Philip J. McConnaughay
Penn State University
The Dickinson School of Law

Cynthia Nance
Dean and Professor of Law
University of Arkansas School of Law—Fayetteville

Charles I. Nelson
Dean and Professor of Law
Faulkner University

Nell Jessup Newton
Dean
UC Hastings College of Law

Elizabeth Rindskopf Parker
Dean
University of the Pacific, McGeorge School of Law

Margie Paris
Dean
University of Oregon School of Law

Rex R. Perschbacher
Dean and Professor of Law
University of California at Davis School of Law

Peter Pitegoff
Dean
University of Maine School of Law

Lawrence Ponoroff
Dean and Mitchell Franklin Professor of Private & Commercial Law
Tulane University Law School

Lawrence Raful
Dean and Professor of Legal Ethics
Touro College Jacob D. Fuchsberg Law Center

Robert Reinstein
Dean, Temple University Beasley School of Law

Richard Revesz
Dean, New York University School of Law

Lauren Robel
Dean, Indiana University School of Law—Bloomington

Nancy H. Rogers,
Dean, The Ohio State University Moritz College of Law

Karen H. Rothenberg
Dean & Marjorie Cook Professor of Law
University of Maryland School of Law

Edward Rubin
Dean and Professor of Law
Vanderbilt University Law School

Lawrence G. Sager
Dean, School of Law. University of Texas at Austin

Michael Schill
Dean, UCLA School of Law

David M. Schizer
Dean and the Lucy G. Moses Professor of Law
Columbia Law School [update: was left off the list I was sent]

Gary J. Simson
Dean
Case Western Reserve University School of Law

Aviam Soifer
Dean
William S. Richardson School of Law, University of Hawai'i

Rayman L. Solomon
Dean
Rutgers University School of Law - Camden

Leonard P. Strickman
Dean
Florida International University College of Law

Symeon C. Symeonides
Dean
Willamette University College of Law

Emily A. Spieler
Dean
Northeastern University School of Law

Ellen Y. Suni
Dean and Marvin Lewis Rich Faculty Scholar and Professor of Law
University of Missouri-Kansas City (UMKC) School of Law

Kellye Y. Testy
Dean and Professor of Law
Seattle University School of Law

Frank H. Wu
Dean
Wayne State University Law School

David Yellen
Dean and Professor
Loyola University Chicago School of Law

Dealing With E-Mailed Research Queries from Strangers

Almost every day I get an email from a student somewhere that reads something vaguely like this one I received today:

Dear Mr. Froomkin.

As a graduate student in The [Redacted] Institute for the History and Philosophy of Sciences and Ideas at [Redacted] university, [OECD country] I am doing a reaearch on building an identity and self representation in the blogs. I read some of your papers refering to Habermas, which might be of use to me. Would you be able to send me some more papers [or adresses of these] talking about Habermas attitude towards the discourse used by individuals while trying to represent themselves, wheather in a true or false way, using blogs or psychological forums on the internet.

Any other citations dealing with Habermas, Discourse and the cyber would be of help.

Thanks

Perhaps because I'm an intellectual dilettante, the subject matter of the queries vary widely. Other variations on the theme involve questions from students in far less developed countries (who may not have access to as many materials), and questions from high school students -- or even grade school -- students doing a class project who want to know my views on some loaded question, like whether all speech or only harmful speech should be regulated online. And then (especially in December, January, April and May) there are the US college and UK law students who have an urgent question about some point of cyberlaw which they really need answered before 3pm today -- presumably because it's a question on their open book exam.

I try to respond to the grade school and high school queries whenever I can. And I try to be helpful with the third-world correspondents because I want to be sensitive to the possibility that they don't have a good library to hand, and that their internet access may be slow or limited. And if I happen to have written a paper on the subject of the query, I send the URL -- although I wonder why anyone who could find my email address couldn't also find my papers. And if the student has an interesting topic, once in a while I offer to read the paper when it is in draft.

But for the bulk of the more advanced students in the developed world who ought to be doing their own research -- well, there the struggle is to be polite. Or at least not too rude.

Today was not a good day: I'm afraid I responded as follows,

I haven't written other papers in this area.

You may find the following links helpful:

http://www.google.com

http://scholar.google.com/

But I'm torn: on the one hand, scholarly inquiry is a good thing. And I might have known the answer off the top of my head, in which case I would have given it. And just because today's questioner comes after dozens, maybe hundreds, of others, doesn't mean he really deserves my bad temper. On the other hand, I'm not his research assistant, and life is short.

But of course, I already feel guilty: Was I too curt? I'd be very curious to hear from other people on both sides of these sorts of exchanges what the right way to deal with them is.

Grading Season Again

It's the dreaded grading season again. Grading being one of the two horrible parts of this job (the other is administration).

Dan Solove explains how it is done in his neck of the woods. Tempting, tempting.

Bar Pass Rates are Over-Rated As A Measure of Law School Quality

The Florida Bar has released the bar pass rate scores for first-time test takers in the July 2006 bar exam. As you can see from the table below UM did "well" compared to other law schools in the state:

FSU, 88.1
University of Miami, 85.7
University of Florida, 81.2
Stetson, 81
Florida International, 79
Florida Coastal, 75.4
Nova Southeastern, 74.9
Barry, 72
St. Thomas, 63.1
Florida A&M, 56.3

Non-Florida law school graduates, 71.6

Our "good" score this year means that this is an appropriate time to post on why bar pass scores are much less meaningful as indicators of law school quality than they may seem -- there's less chance it will seem like sour grapes.

Let me start by saying that there certainly comes a point where a substantially lower bar pass rate than other schools in the state is a sign of a problem that a law school should work to fix. Most people come to law school in order to become lawyers. If they can't pass the bar, at least on second try, in most cases they have wasted large amounts of time and money. If this is happening to a substantial fraction of the class, and it isn't happening nearly as much in other law schools in the same state, then something is wrong either with the teaching, the work ethic, or with the admission policy. Note that the latter may not be the school's direct fault: as there are more and more law schools it becomes increasingly likely that some schools simply are unable to attract enough students with enough discipline or talent, which puts pressure on the school to either teach to the bar, or to flunk a greater fraction of the entering students.

We'd love everyone to pass; realistically, not everyone studies hard enough for an exam that is three parts memorization, two parts issue spotting, and one part legal reasoning. How low is too low a bar pass rate? Reasonable people could disagree as to exactly where that line is. In part, the answer varies by state, since different bar examiners score in different ways. It's also important to note that in recent years many states (including Florida) have substantially raised the minimum score needed to pass the bar. Thus today's scores in Florida are not comparable to scores a decade ago, as people are failing now who would have passed then.

That said, there are two sets of reasons why bar pass scores don't tell you as much as you might think they do.

First, the scores quoted above -- the only ones readily available to us or anyone -- reflect only in-state takers. The more you run a national program, the more your students take bar exams in the other 49 states (and the District of Columbia) where they hope to practice. Quite commonly, these out-of-state test takers include many of the best and most motivated students -- it takes more work and often better grades to get a job far from where you studied. So, for the better law schools there is an element of selection bias in the in-state data that is relatively absent for the schools whose students have less chance of out-of-state work.

Second, law schools differ enormously in the extent to which they teach to the bar exam. Any law school with even minimal pretensions to grandeur is going to concentrate on teaching legal reasoning, legal theory, legal history, and just about anything other than the rote learning that occupies the bulk of the bar exam. And, the more you run a national program drawing students from all over, the less you want to teach them even predominantly the law of one state where so many of them will not be practicing. (Indeed, I'd argue that even if you knew that all your grads would practice in one state you would still need to teach national principles since most practices will involve issues that cross state boundaries.) A three year bar review course may raise your pass rate, but it will not train nearly as good or as flexible lawyers as a program that stresses critical thinking and analysis.

The downside of a quality program is that it fails in substantial part to teach to the bar -- an exam which at best tests a small fraction of the things that it takes to be a good lawyer, and which many would say doesn't even do that. And that means the students will have to take a cram course after they graduate to memorize all the rote rules they didn't learn in law school. Better a six-week cram course than a three-year one, I'd say. (Indeed, my law school, Yale, was notorious for teaching nothing relevant to the bar at all, a reputation that only somewhat exaggerated the reality. A consequence was that I actually enjoyed a lot of the bar review course as it contained concepts and material wholly new to me -- spendthrift trusts! what a concept! But I digress.)

In summary, and strange as it may seem, a very high bar pass rate is not necessarily the sign of a great law school; it may even be the sign of too much emphasis on cramming, and not enough on learning to think like a lawyer. Conversely, there comes a point where the bar pass rate is so low that it is a sign that the law school is doing something wrong -- admitting the wrong people, failing to create the right work ethic, not teaching some fundamental principles of law, or something -- but unless one is flirting with that uncertain point, one really shouldn't make too much of relatively small annual fluctuations in a school's bar pass rate or of relatively small differences between schools.

Hierarchies of Legal Articles (and the Reproduction Thereof)

This week, it seems like every law blogger is offering his or her own (although actually, it's usually "his", hmm) list of the 'hierarchy of legal scholarship' [1], [2], [3]. I think there's quite a lot to be said for Eric Muller's Hierarchy of Legal Scholarship, but it's just too darn complicated.

So here's mine:

0 - Lousy articles which get the facts wrong

1 - Lousy articles

2- Good articles

3 - Articles which would have been really good except they go on too long

4- Really good articles (bonus for a snappy title)

5 - Supremely good articles (very rare)

Not only is this much simpler, but I expect it will command wide agreement.

I Love This Cartoon

Which reminds me. Miriam Cherry asked recently "Where's the Elephant in Your Law School?, which she defined as "A problem that is so common that no one talks about or discusses it." The answers were not pretty.

More on Class Cancellations

Yesterday's post on class cancellation got interesting responses here and elsewhere; like Dr. Steven Taylor, I think the best was by former guest blogger Jon Weinberg, who wrote

I don't think that the conflict is between teaching classes (doing my job) and attending conferences (self-centeredly blowing off my job). Attending conferences (either to present papers, or just to learn stuff that feeds into my teaching or writing) is my job, just as teaching is. Being a member of a scholarly community -- including the part of that community that isn't in Detroit -- is a big part of what the university pays me to do.

I do think I need to add one clarification to what I wrote: when I 'cancel' a class, whether for Yom Kippur or a conference, I almost always reschedule it (one rare exception was last year, when we lost so much time due to having two hurricanes -- but even there we clawed back to within 30 minutes or so), so we're really talking about rescheduling rather than canceling classes.

On Canceling Classes

Prof. Bobby Chesney asks if it's ok to cancel a class for a conference. Will Baude, Yale Law student, channels Felix Frankfurter and says that it would be something akin to a violation of a 'sacred trust':

So I think a very strong presumption against sacrificing class even further to one's other professional ambitions is at the very least an ideal. I would like to hope that is not too much to ask for.

It's probably close to what I would have said when I was a student there.

Where you stand depends on where you sit. It's easy to say that stuff when you are at a school which is on the East Coast corridor, and where most people will come to you, and where the school's name will get faculty invited to things, published, and noticed even they don't show up. Out here in the provinces, if we want to attract top faculty and have them participate actively at a national and international level, we have to assure them they will not become unpersons for eight months of the year.

We think, perhaps self-servingly, that it's in the students' interest to be taught and supervised by people who are involved in new and important things things in an active way. But when it's a long way to that meeting, it's not a day trip (and ever more so in these days of uncertain and encumbered air travel). So we have to compromise the ideal or pay an unacceptable price. Note also that most of us teach more hours per year than they do at Yale, so we have fewer days of the week free. Plus if you are lucky enough to be in demand, conferences sometimes book you a year in advance -- well before you know your teaching schedule...

I do everything I can to avoid canceling classes, but I would guess I average about one to two days canceled a semester to give a paper at a conference or to participate in state, national, or international law reform activities. Should I have said no to the Chief Justice of the Florida Supreme Court when he asked me to serve on a committee on privacy and court records? Even though, modesty aside, I was probably the legal academic in the state who knew the most about the computer and privacy issues? I'd have loved to avoid that chore, but it seemed like something I ought to do. Even if it meant rescheduling a class or two. Was it just "professional ambition" to accept invitations to give papers at big conferences in my field at Yale or Harvard or Stanford? No doubt in part; but I also learned a lot by going and met some great people, some of whom are still my teachers. Part of that, I hope, filters into the classroom.

I agree that too much of a good thing would be bad; and I think the event has to be pretty important before I'd cancel a class. But if Miami didn't have a policy that gave me some flexibility, my work would be a lot poorer for it, and so too would some of my teaching.

Makeups are unpopular with students, and rightly so; and what's acceptable could easily grow into what's oppressive or unfair. We do have a makeup time in our schedule when no one has classes, which should make it theoretically easier. In practice there's always someone with an internship or something, so it's never perfect. But I think the tradeoff is far more complex than Mr. Baude suggests -- especially outside New Haven, Cambridge, and at most a handful of other schools. On balance, I think I and my students benefit from the number of things that my colleagues and I do -- much of which, given our geography, would not be possible if we had a more rigid rule on rescheduling classes.

I have to add that almost invariably our students are unbelievably gracious about it (at least to my face) when I explain to them what is going on and why I'm rescheduling a class. And I appreciate it.

Law School Sued for "Culling" First Years

Our neighbor, the St. Thomas University School of Law, has been sued over expelling students. It seems to be a fraud claim: that the school admitted students it knew wouldn't pass and/or that it had a plan to flunk a greater percentage of the class than advertised in order to raise its bar pass rate:

A former law student has filed a federal class action against St. Thomas University School of Law of Miami, claiming that it is illegally accepting and then expelling more than 25% of its first-year class to boost its flagging bar pass rates.

Filed in U.S. District Court for the District of New Jersey, the complaint alleges that the private law school unlawfully dismissed Thomas Joseph Bentey and as many as 80 students from the incoming class of 2005 because they failed to maintain a 2.5 grade point average.

The action further alleges that in 2003 the school began a scheme to accept large numbers of students-and their tuition dollars-only later to dismiss or pressure the withdrawal of almost 30% of its first- and second-year students. The case could include hundreds of former students as plaintiffs if the court grants class action status.

The associate dean for student and alumni services at St. Thomas law school called the lawsuit "illogical."

"Why would you admit people and dismiss them early if you're trying to get their resources?" said George Sheldon.

I would have thought judges would tend not to be sympathetic to this sort of claim, especially the class action part (as to be a class action you need to show that the facts are the same for each member of the class -- but each exam is different) -- but I am not ready to predict that it won't get to discovery, especially as an individual claim for the named plaintiff alone.

I can confidently predict, however, that it's not going to affect my grading.

Fate Worse than Death?

Under the headline Decision of the Day: The Worst Sanction Ever?, Robert Loblaw reports on Willhite v. Collins, 06-1004 (8th Cir., Aug. 21, 2006), as follows:

Attorney David Van Sickle was a little too zealous an advocate for his clients in a property dispute. After losing several actions in state court, he filed the same suit in federal court. The district court was not amused, imposing monetary and other sanctions on Van Sicke, including a requirement that he take and -- gasp! -- pass a law school class on federal jurisdiction. The Eighth Circuit remands on other grounds, but encourages the district court to revisit this sanction because of the burden it would place on some unlucky law school to accept a practicing attorney as a student.

Might even be good for students, too, as a sort of 'Don't Let This Happen to You' example.

What Skill Set for Tomorrow's Lawyers?

In The social job market, Alex Halavais points to and discusses some thinking about the skill set that tomorrow's engineers will need. If you presume an outsourced world, it's different from what they are getting today -- much more foreign language and culture, interpersonal skills, and (remote) management.

I wonder what the similar skill set should be for tomorrow's lawyer.

• The languages and sensitivity to globalization issues, foreign, comparative and international law, are almost conventional wisdom already, although execution lags.
• ADR is a big part of the package.
• Using technology is big, although understanding the technology is not, sadly, nearly so obviously necessary unless one's specialization touches it directly.
• I've blogged previously about the importance of basic statistics.
• Many people believe that given the increased specialization of our profession, the law schools should start helping students specialize earlier. Two signs of this trend are certificates for JD's and the profusion on (money making!) LL.M programs. Here, I'm agnostic. I think that there's a fine case to be made that the push to specialization in practice actually increases the need for law schools to ensure that their graduates have a decent generalist grounding, for they may never have another chance at it. And both the realities of practice and of malpractice show that lawyers at least need to be able to identify (but not necessarily solve single-handedly) issues outside their specialties before it is too late.

Power Corrupts

I knew these aphorisms:

• Lord Acton: Power tends to corrupt, and absolute power corrupts absolutely
• Anon: Those who recall Lord Acton's dictum are condemned to repeat it
• Anon: Power corrupts, powerpoint corrupts absolutely
• Advert: Bad power corrupts, get a line conditioner

But now I need to add another one:

• Even a small amount of Decanal power corrupts instantly.

Law School Grading Curves

Both Eugene Volokh and Orin Kerr have interesting thoughts on law school grading curves.

The details of UM's first-year grading policy (set out below) are not, to me, particularly intuitive. The basic principles, though, make sense: we have multiple sections in the first year, and we want to do equity between them; yet, we don't want to 'force' any professor to give As that are not in that teacher's opinion deserved.

After the first year, there is no required curve for regular faculty (and I don't use one), but adjuncts -- who we presume may not know our system as well, and who also have a greater incentive to grade easy in order to inflate enrollments and positive feedback -- are on a curve.

I haven't looked at it carefully, but our first year curve seems a little lower than Orin and Eugene's accounts of UCLA's and GW's; our upper level curve -- to the extent we have one -- seems very similar.

Some of the colleagues would justify the relative difficulty of our first year curve on the grounds that even though they are rising, our students' average credentials are still somewhat lower than a top-25 school's. And, especially at the low end, first-year grades can provide an important signaling role to students who should think long and hard before spending tens of thousands more on tuition.

Other colleagues, and many students, have argued for inflating the curve on the grounds that everyone else is doing it, so we should to.

Personally, I have never gotten very involved in this debate, on the grounds that a rational hiring partner in a firm will look at class rank, not grade average -- and we provide class rank information. Many students, however, end even some practitioners, have argued to me that firms are not as rational in their hiring as I would expect...

Here are the actual UM grading rules, from the UM Law School Handbook:

Grades assigned in all graded courses at the School of Law are recorded according to the following system:
A - 4.00
B+ - 3.50
B - 3.00
C+ - 2.50
C - 2.00
C- - 1.50
D - 1.00
F - 0.00

First-Year Grade Distribution

Students in first-year courses (other than Legal Research & Writing and second semester elective courses) are graded in accordance with the following grade distribution:

1. the combined total number of B+ and A grades awarded in each course shall equal or exceed 20% of the number of students graded in that course; and

2. the combined total number of B, B+ and A grades awarded in each course shall equal or exceed 45% of the number of students graded in that course. This distribution also applies to first year required courses (e.g., Torts and Criminal Procedure) taught to students in the part-time division during their second year.

The sum of C-, D and F grades in first-year courses (other than Legal Research and Writing) shall not be less than 5% nor more than 15% of the number of students graded in that course, (subject to waiver for a particular course in unusual circumstances by vote of the Faculty or by the Dean prior to the submission of grades).

The Legal Research & Writing Program applies the following grade distribution:

1. the total number of B+ and A grades awarded each semester in each section shall equal 25% + 5% of the number of students graded in that section; and

2. the total number of B, B+ and A grades awarded in each semester in each section shall equal 60% + 10% of the number of students graded in that instructor's section.

Grades received in Legal Research & Writing I and II are not computed in determining one's cumulative grade-point average for purposes of academic probation, dismissal and re-admission or reinstatement.

It is the responsibility of the Office of the Associate Dean to interpret the proper implementation of the First-Year Grade Distribution.

Upper-Class Adjunct Professor Grade Distribution

Upper-class course offerings taught by adjunct professors must be graded to an average or mean in the range of 3.000 and 3.150. Upper-class seminar and workshop offerings taught by adjunct professors must be graded to an average or mean in the range of 3.000 to 3.350. It is the responsibility of the Office of the Associate Dean to interpret the proper implementation of the Upper-class Adjunct Professor Grade Distribution.

What (Pre) Law Students Should Know

It isn't going to win me many friend with students, but I have to say that Yair Listokin is basically right: Statistics Should be Mandatory for Law Students. I've long believed that statistics should be a near-prerequisite for law school, and if you haven't had before law school we should offer it for credit, and encourage -- maybe even require -- students to take it.

Meanwhile, if you're an undergraduate thinking of going to law school, may I point you to my FAQ about going to law school, which for many years has included this advice:

If you really want to be a good lawyer, I don't personally recommend majoring in anything directly related to law as an undergraduate, or even taking courses in it. That includes "Juvenile Justice". Colleges always teach the stuff "wrong" from the point of view of a lawyer - maybe right from the point of view of a cop or probation officer or something, but wrong from the point of view of someone who needs to work with law rather than recite it. So you will start out behind the other students since you will have to 'unlearn' what you think you know. Really.

Far, far, better to major in something that teaches you about the world: history, economics, literature, math or even art. You will get all the law you need in law school - why waste college getting a 3rd-rate version of it? Why not get the stuff that makes you a well informed person, and thus a much better lawyer in the long run.

The only rule that over-rides the one above is: major in what you like best. Because ultimately you will get the best grades in what you like best, and grades count! A lot. A whole lot. Especially if you are not going to college at a very high prestige Ivy League or similar school.

If possible - it's not essential - I'd try to take the following courses at some point regardless of what you major in:

• two semesters of economics
• at least one Intro to Philosophy and/or Political Philosophy
• as much US history as you can stand (law is about context, and precedents must be understood in the context of their times)
• a course that covers the structure of the US political/governmental system

Big bonus points if you can manage a course in basic statistics.

I also **very** highly recommend you subscribe to a first-rate national newspaper and read it every day (your college may have a student discount deal). You will learn essential information about the political and legal system without even realizing how much you are learning. The New York Times is the best, but if your interests are more business oriented then the Wall St. Journal or the Financial Times are ok too. Local papers don't really have enough national and international news to cut it.

Get the above under your belt and you are really ready for law school!
 

Incidentally, UM Law has a very good page for people thinking about law school, 28 Critical Questions about law school. (There used to be 29 of them, but one seems to have gone non-critical.) They even give the answers, which shows it is about law school rather than being like law school...

'How to Cheat Good'

I give take-home exams frequently, and a thankfully small number of my students could probably profit from reading Alex Halavais's wicked valedictory essay, posted as he leaves teaching¹ at least temporarily for pastures new: How to cheat good.

Fortunately, the type of student who needs this advice probably isn't reading here.

¹ Update: Er, seems I was wrong about that, as explained in the comments…

Law School Commencement Follow-Up

In several ways, this may have been the best commencement since I got to UM.

First, Caroline looked suitably imposing carrying the Law School's modernistic mace around the Convocation center. Our kids, who followed along on the web cast, said she looked like a 'level 500 warrior princess wielding an Elven mythril heavy mace' which sounds about right.

The law school has a tradition of asking a graduating student to sing the national anthem (in English, at least so far). This years' performer could have been the best ever.

The same might be said about the commencement speech by Anne-Marie Slaughter, the Dean of the Woodrow Wilson School of Public and International Affairs, which you can find (regrettably in ALL CAPS) on her blog under the title, Commencing on the Right Foot. If it wasn't the best in a decade or more, it was certainly up there.

But perhaps the best part was that I managed to distribute almost my entire supply of "Support the Students" buttons, which means that considerably more than half of the faculty attending wore them, a number well exceeding my expectations. It was nice to see the faculty (relatively) united. President Shalala did not seem that pleased, but she had the good sense not to say anything ... although one faculty member told me that the President wouldn't speak to her when she had one on.

As for the invocation? Well, it was less dull than usual...but it didn't mention the union or the students.

Advice for Those Seeking Academic Jobs

This USA Today article contains important advice for anyone seeking employment as a law teacher (or any other job, I'd imagine). CEOs (and, I can assure you, law faculties) believe that, "A person who is nice to you but rude to the waiter, or to others, is not a nice person."

Indeed, I can think of one person who interviewed at UM some time in the last few years who I think might well have gotten a job offer back then but for the oft-repeated story of how s/he treated a waiter...

The Ethical Tomato -- A Summer Job Possibility

The Ethics Center wants two law student research assistants for a project related to McDonald's Corp. and standards for tomato growers. The are about 4 weeks of full time work commencing right after exams -- and sooner, if possible. It involves a preliminary analysis of proposed agriculture worker standards with regard to their compliance with both legal and "ethical" norms. This preliminary report will set the stage for a proposal for a full investigation over the next year or two, if they decide to pursue it.

UM Ethics Programs will be delighted to receive letters of interest and resumes directed to Anita Cava at acava@miami.edu as soon as possible.

The position carries a stipend of up to $2,500, depending on experience and availability. (Which is more than the chicken feed you get for being a research assistant!)

This is Pretty Funny

From Brian Leiter's Law School Reports: World's Fastest Article Rejection by a Law Review (25 minutes). It's worth clicking through to the article that got rejected, by the way.

Look Who's Talking

Interesting and generally positive line-up of participants in today's UNICCO-SEIU-community meeting. The list is notable for the very large participation by UM law faculty -- and our Dean.

Disclosure: President Shalala asked me to participate in this effort (I'm unclear as to why, and even feared she may have thought I was Michael Fischl!), but I declined, both because I'm in Boston today and because I know how little I know about labor law.

cf. Picketline blog

Life Is Tough ... For Some

I wonder if stuff like this helps explain why applications to UM Law remain strong?

Pseudonymous 1-L UM blogger Klio writes about her spring break:

Spring Break for the University of Miami Law Student is a bit non-traditional. Because we spend our law school days sparsely clothed in a tropical paradise, most of us head back home to a Abercrombie & Fitch wool sweater hell. Some of us seek refuge from the 1L stress with an inquisitive exploration abroad to places like London, Paris, and Latin America. Others just stay put, tumbling out of bed at noon to crash face down on the sandy, white beaches.

Personally, I spent the week binge writing.

UM Law Still (Relatively) Popular

According to this article in something called The Independent Florida Alligator, law school applications nationally are down 9.5% this year, but UM is down only 4%.

Given that our percentage increases in applications during the past decade have tended to be way above recent increases in the national pool, it's nice to see the pattern of UM beating the trend continue even when there is shrinkage in the over-all number of applicants.

Note: I have never served on the admissions committee.

Update: This decade-long increase in our applicant pool may explain why recent classes seem to have a substantially better median student then when I first got here. What's especially notable is how much better the weakest students are today than they were over a decade ago (the best students were and are wonderful). It has been a long time since I flunked anyone who didn't turn in a blank, or nearly blank, blue book (which usually means panic attack, but sometimes means pass/fail gambler). Indeed, I give almost no D's and very very few C-'s these days. This is a big change from 12-15 years ago, and while it's possible I'm a victim of unknowing grade inflation, it would certainly be unknowing.

Changes in Attitudes, Changes in Latitudes

This will probably get me in trouble, but I wanted to respond to one of the comments to UM Promises to Be Good About Something, which actually seems to be responding to something I said in Class Warfare. There I wrote,

I'd expect that most of the faculty see students as junior versions of themselves and their friends. After all, we were (almost) all law students once. What the current fracas reveals is that many students not only don't see the faculty as senior versions of themselves, but seem quite unaware that even when it doesn't feel their pain, the faculty wants them to learn, and to go out into the world prepared to do good and to do well.

The commentator disagreed,

Your students see you and your colleagues as the Havard/Stanford/Yale elites that you and they are. When a Miami student looks around, they do not see senior versions of themselves because you are not that. Miami students do not see themselves as attorneys in the top DC/NY law firms, as federal clerks (and certainly not federal judges), as US/DOJ attorneys, and certainly not as law professors. How are you a senior version of the students that you teach? Almost none of them will be a tenured professor at a law school. You know that.

To which a former student replied, "Shoot higher...people in other UM Law classes certainly saw themselves in those roles...and are currently in those roles."

I think that's absolutely the right answer, and that the first commentator has let his reverse elitism get the better of him.

It's true that the odds of getting a teaching job coming from UM are low compared to a top 10 law school, although it has been done. But most of the students in any law school other than Yale, which is both small and a bit of teacher factory, are not going to be professors either, so this is hardly unusual. (If you want to teach, write publishable stuff: get on a law journal, publish a note and also write something else for publication in a non-UM journal -- something a number of my students have done while in law school. After graduation, work a bit, then get a pre-teaching fellowship from one of the schools that offer them. It can be done.)

OK. Here's where I get myself in trouble:

As I see it, the way in which the majority of UM students differ most from the majority of Yale students is that Yale students feel empowered and UM students by and large do not. While this feeling obviously has some empirical validity (law is a credential-conscious profession; a top-5 degree has greater market value, pretty much everyone at Yale will get a nice job if they want it), the empirical element is nowhere as great as UM students think, especially if we leave out the bottom 10% or so of the UM class, the people who do face some serious employment obstacles after they graduate -- if they even pass the bar. So what really has the biggest effect on the rest is the self-fulfilling aspect of this prophecy: because UM students don't try lots and lots of stuff -- like apply for clerkships -- they don't get lots of stuff.

Rejection is a part of life, even a Yalie's life; undoubtedly coming from UM sharpens the odds (although less than you might think -- many employers, especially the feds, want geographic diversity; firms and others have become dubious of academic monoculture): the really big difference is the extent to which people will take charge of their own futures, think big, take risks, do unconventional things, and take large efforts to apply for many things and risk tons of rejection, to get what they want.

The top N% of our class would fit right in at Yale. I'm not sure what N is, exactly: more than 5 less than 15, I'd guess. The next batch would stand out less for lack of brains than lack of ... I don't know quite what to call it ... it's not exactly entrepenurialism, nor willingness to work, nor thinking out of the box, but a sort of imaginative and ambitious self-starting. Maybe it's just "attitude".

I agree that not everyone at UM is going to have a big national career. But some will; and many, many will end up holding key positions in this state -- an increasingly important state in the life of this nation. That's not to be sneered at. You may also be surprised to learn that of my classmates at Yale, not all are doing the big firm thing either, and many of those that did at first bailed out because they hated it. When last heard from, at least one classmate was home schooling her kids.

So, yes, UM students do look sort of familiar in many ways. Other than how they dress in February, anyway.

Needy and Inappropriate Email from Students?

The professor blogs are abuzz about To: Professor@University.edu Subject: Why It's All About Me, a New York Times front-page story about inappropriately needy, rude, or revelatory email from students to professors.

I have only two comments: First, this was an article that was mostly about undergraduates. In my experience this sort of thing is almost never a problem for me with UM law students. On the other hand, I see it all the time in requests I get from undergrads who want to go to law school (or to some other part of UM) and think I will be their research assistant or white pages service. Not to mention the occasional foreign law student or US high school student, who wants me to do their homework for them. Including the the unforgettable one who wrote me during final exam season that my essay on the three top problems in cyberlaw was urgently needed by 2pm that day...

Second, one striking thing about the NYT article (which may explain the above?), is that it it mostly quoted female professors. Could it be that undergraduate students find women more approachable, or look at them and see mommy? Are the students in some sexist manner more willing to bother the women than the men because they see the men as more 'professional'? Or are the women faculty more willing to speak out about the problem? Or just more likely to feel lingering guilt about not responding--something that the men perhaps tend to dismiss?

Blogging for Credit? Why Not?

Equal Process? Due Protection?: Brilliant ideas (not mine) points to 3L Epiphany, which includes this arresting passage:

"I'm getting credit for this."

Law school credit, that is. I'm getting law school credit for blogging. And as far as I know, I'm the first law student to do so.

To which EP appends,

Maybe I’ll try it next semester. I imagine the conversation will go something like this:

Me: “Hey dean [or whoever is in charge of deciding to give credits for things like this], do you want to give me a couple of credits to criticize everything I don’t like about this school, rip the third-world bathrooms, complain about the woeful parking conditions and idiots who run the parking shuttles, moan about my lack of job prospects, point out the absurdities of law school, wonder whether it’s all worthwhile, take note of the eccentricities of the faculty, mention my incompetent LRW teacher, and occasionally reveal my personal problems?"

Dean: “Um, no. I don’t think so. Get the hell out of my office now.”

In fact, at UM any faculty member can do an independent two-credit writing project with a student. I could, for example. And I would be delighted to work out a blogging-for-credit project. But not anything so shapeless as the project described above.

What would a good blogging-for-credit project look like? There's room for negotiation, but I think that the project would have to be focused as to subject, involve the application of actual legal research, and ideally be somewhat sensitive to current events. It might follow a notorious local trial, involving in-person attendance and explanations of what's going on. Or it could be a running commentary on, say, the most interesting cases decided by a particular circuit. (The trick here would be to contextualize, to add value to what we'd get anyway from the advance sheets.)

I'm sure there are other models too, and invite suggestions.

Potentially interested UM students should read what I tell students who want to write ordinary papers, and also consider themselves on notice that I'm apparently considered a tough grader....

More On Law School Grading

In There's something about law school, a law student frets about "The arbitrariness and randomness of law school grading":

This is not a major revelation I've recently had, but this semester, more than any, underscores this point for me. After each of my three exams, I felt worse about my performance than I had following any other law school exams. And yet, I had my best semester in terms of grades. Only in law school can you leave an exam not only having no clue how you did, but thinking you might've actually failed (well, that’s not true – I knew I never failed but I've definitely left exams thinking I got a C or C+) and then end up with a good grade.

Here’s another example that emphasizes how grades have no correlation to actual knowledge or skill. Let’s talk about two students, named X and Y. X had the same Business Associations prof I did. Y had a different prof. X got an A. Y got a B. X did a lot of reading but by the mid-point of last semester was only reading High Courts – she basically read in their entirety maybe 5 cases over the final half of the semester. X never participated in class because Prof. BA didn't care whether you participated and in fact created very little opportunity for students to get involved. Don’t get the wrong impression – X is not lazy by any means. X just decided that in doing all the work necessary for law school, it was not productive to wade through 12-15 pages of mind-numbing minutiae for every case. Y did all the reading and participated a lot, which Y thought was important because Y’s prof said participation will be counted in the final grade. Y's participation added a lot to the class discussion because Y had intelligent things to say; Y wasn't just raising her hand to open her mouth.

So what’s the problem? X, who got an A, basically knows nothing about business, corporations, finance, economics and money, etc. X is more into history, sociology, creative writing, etc. Y, who got a B, worked for 6-7 years before law school in a field where one need to know about business, finance, economics, corporations, etc. (I know by using these terms I’m not exactly summarizing all that BA is about, but you get the idea – some people are going to do corporate transactions because they’re good at that stuff; other people’s eyes glaze over when you start talking about business, finance, economics, etc. ... I'm not saying one person is smarter than the other, just that people have different aptitudes for different things.) Basically X could never have even been hired where Y worked. And I guarantee if you take X and Y at the same law firm and give them the same assignment, if the task is business-related, Y would do a better job.

But X got a better grade. When X and Y apply for jobs, someone will look at Y’s transcript and see the BA grade and think something like "He doesn't really get it" but they’ll think X does “get it.” But that’s incorrect. Y gets it and X doesn’t. Yet X got a better grade.

I tried to post comments there, but for some reason the blog wouldn't let me. So here's what I tried to say:

I wouldn't be too quick to jump to the conclusion that "grades have no correlation to actual knowledge or skill," both because it is so different from my experience as a student and also because I know I wasn't alone.

My experience was that on the rare occasions when I thought I did great, I didn't do so great. And frequently, when I thought I did badly, I did very well. I came to believe that on time-limited exams, if you were able to put down everything you knew, which tended to cause a happy feeling, it was usually a sign you didn't know enough. On the other hand, if you could think of 20 more things you coulda shoulda said, which tended to create a bad feeling, it was a sign you knew the subject pretty well.

Yes, the facts you describe relating to your own experience may be consistent with the "arbitrariness" theory you offer, but they are also consistent with an "unreliable subjectivity" theory that I think I experienced. And, for that matter, in classes with curves they are also consistent with a "Well or badly as I did, it was worse (or better) than the next guy" theory. Or maybe you knew some subjects better than others?

Without lots more info, it's not that easy for you, or me, to know which of these stories might be right in any given case. So, I say: go look at your exams. Read the model answers if any are provided and compare them to your answers. Ask the prof what you did wrong. It might be informative ... and you might even learn something.

As for the sad tale of student X and student Y, I am much less sympathetic. Who knows what they put in their blue books. It's blind grading -- all the stuff in your head is not going to help much if you can't get it on paper. And, yes, there are other skills that matter for lawyers too -- like the ones reflected by in-class participation. But at the end of the day, if you can't get it on paper, that's an important fact.

I know people who didn't do well in law school who are terrific lawyers; sometimes that was evident in school, sometimes it manifested later. I also know a small number of great students who are not great lawyers, but I have to say that this is a rarer phenonenon. In other words, high grades do tell you something very likely to be meaningful about the person who earned them; the reverse is not as reliably true, and that's why smart employers also consider things like writing samples, recommendations, experience.

Student Evaluations & Lateness

After we turn in our grades -- long after, in my case -- we get our student evaluations. I wish the students filled them out after the exam: it would more fairly represent what I'm doing. But instead the administration has them fill them in about 2/3 of the way through the semester, just when they are most anxious.

I got mine today. Like every year I get dinged for talking too fast -- but it's genetic. And I do tell the students to stop me if I go too fast. The best ones do.

This year, unusually, I got substantial amounts of hostility for part of my class policies. You see, I require that all male students come to class in a coat and tie, and female students must wear comparable professional attire. Students must address me as "sir" and each other as "my esteemed colleague" or words to that effect. No one -- other than me, of course -- is allowed to talk for more than one minute. No one is allowed to miss more than one week's worth of classes without an excuse from the Dean of Student's Office; miss more than that and it counts as negative class participation and can hurt your grade. Anyone who is late is marked as having half an absence, so more than six latenesses can hurt your grade.

Ok, I'm kidding. Actually, the only parts of the above paragraph that are true are the parts about being late and missing class. And the part about the hostility this policy engendered. Yes, I take attendance, in part because the ABA rules say that by turning in a grade I'm certifying that my students went to class. (And as the Dean of Students will write an excuse for just about anything, the true sanction, for people with a minimum of common sense, is the minor hassle of getting a form filled out and signed.)

I penalize lateness because late people disturb others, disturb me, and likely have unprofessional habits that could use some push back. I used not to penalize latenesses, and students just drifted in in droves during the first 10-15 minutes of class. (Then they complained they couldn't follow what was going on....) I had ten people out of 60 come in late one day. It was ridiculous.

So while I want to be sympathetic to student concerns, and might even experimentally lower the tariff next year to, say, lateness equals 1/3 of an absence, I just don't see why expecting people to be on time, and incentivizing them a little, is such a terrible thing.

Am I hopelessly behind the times here?

Busy Week

Everyone wants to be in Miami when the weather is good.

• Today, John Bruton, European Union ambassador to the United States, will speak at the law school on "The European Union Today: Consequences of the Constitutional impasse and Relations with the United States." From what I gather it's going to be popular--probably standing room only.
• Tomorrow, Professor Jan Paulsson, the international arbitrator who is visiting the Law School this semester, will give an LL.M seminar on "Law and Sports in the International Arena," which I presume will be about the IOC and other sports bodies' athletic controversies over alleged doping by athletes.
• Thursday, Justice Stephen G. Breyer will deliver the Cole Lecture at UM Law School. I don't think it's open to the public without a ticket -- the faculty had to RSVP to get seats and students had to enter a lottery to get tickets. [Update: it looks like this last part is wrong -- see the comments.]

My Grades Are In

I finally finished grading today -- an activity that for me always re-enacts Parkinson's Law.

I find grading very difficult and stressful. It takes a long time.

That it is dreadfully boring is not the worst of it, although it does seem to get more and more boring the more often I teach the same course (the questions change more than the errors do -- an indictment of my teaching, no doubt). I feel it requires the utmost care, since the outcomes matter so much to the students. And while I am pretty sure that most of my grades would be the same were I to grade these again next month, especially the A's B+'s C's and down, there is a large mass of exams clustering around the C+/B border (we don't have a B- grade here), where I am pretty sure a degree of randomness, or arbitrariness if you prefer, inevitably creeps in. These are exams with some virtues, far from lost causes, but they each bear several specimens from the menagerie of incommensurable vices. And I must reduce them to a number or letter.

The worst part of it is that I want the students all to do well. And of course they don't all do well. Blah answers are bad enough. What really drives me 'round the bend are the aggressively wrong ones. How, I ask myself, could they be there in the room with me -- and they were there, I take attendance -- for so many hours and still think that? How could I have failed to communicate something so basic? And whether or not it was my fault, what will happen if they inflict this misunderstanding on clients? And how, now that they are out of my clutches, will I ever set them straight about it? And, oh look, it's quite a while since my mind wandered....

We don't have a curve except for first year students. And I usually let the chips fall where they may. This year, however, I graded a little differently from usual. Thanks to some prodding via a general memo to all the faculty from an Associate Dean, I was slightly more lenient this year. To begin with, in addition to the two-week attendance-taking moratorium right after Wilma, I forgave slightly more absences than I otherwise would have.

In Internet Law I rounded a few grades up instead of, as usual, rounding everything down. (The usual rule is less h