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Ann Althouse's Advice for Erwin Chemerinsky: Structure Law School Like a Video Game

Ann Althouse (Wisconsin) offers her thoughts on our series on the single best idea for reforming legal education for Erwin Chemerinsky as he builds the law school at UC-Irvine:

Set the whole thing up according to the principles of a video game.

I'm not kidding. When I went to law school, I did not know what the hell I was doing. I was undereducated — having majored in painting undergrad. I had a rebellious, alienated attitude and had no friends or family who had gone through the experience who could give me any sort of advice. Somehow, I hit upon the device of thinking of law school as an "athletic contest." I devised a set of rules and imagined myself to be playing a game. I didn't do this because I was very competitive. I considered myself an artist. (I still do.) I did it because I thought everyone else was competitive, and I'd be overwhelmed by them. My conception of the experience as a game gave me pleasure, serenity, motivation — and success.

But imagine a law school where the whole thing was openly structured as an elegant game, designed to absorb and hold everyone's attention and to yield motivating rewards along the way.

Forty Words of Wisdom for Erwin Chemerinsky

Thanks to those who responded to our question:

What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine

And thanks to those who took the time to read and comment on the forty provocative entries in the Series:

• Anonymous Law School Dean:  Abolish Tenure
• Brian Baker (San Joaquin): Tie Tenure to Teaching
• Ben Barton (Tennessee):  The Business School Case Method
• Ann Bartow (South Carolina):  Gender Equity
• Derrick Bell (NYU):  Law School, Like Law, Can Only Do So Much
• Doug Berman (Ohio State):  Reengineer the 1L Curriculum
• David Bernstein (George Mason):  Make Law School an Undergraduate Program
• Matt Bodie (St. Louis):  Open-Access Approach to Legal Education
• Tom Bruce (Cornell):  Public Understanding of the Law
• Paul Butler (George Washington):  Take Back the Law School From Dead White Men
• Paul Caron (Cincinnati):  Abolish Tenure
• Larry Cunningham (George Washington): Institutional Diversity
• Jim Freund (Skadden):  Teach Students How to Resolve Disputes
• Conor Granahan (Oium, Reyen & Pryor):  1L "Life in the Law" Course
• Bill Henderson (Indiana):  Lead with Data
• Gail Heriot (San Diego):  Rethink Three Common Assumptions About Law School
• Mark Herrmann (Jones Day): Hire Adjuncts to Teach Substantive Courses
• Ken Hirsch (Duke):  Teach Psychology and Human Behavior
• Dave Hoffman (Temple):  Eliminate ABA's Role in Law School Accreditation
• Mina Jefferson (Cincinnati):  Teach Students to Listen
• Sam Kamin (Denver):  2L Real-World Experiences, 3L Capstone Courses
• Dennis Khong (University of Manchester):  Ph.D. in Scientific Legal Research
• Brian Leiter (Texas):  Hire to UC-Irvine's Strength in Interdisciplinary Scholarship
• Jeff Lipshaw (Suffolk):  Structure the Curriculum Around the Profession's Needs
• Mike Madison (Pittsburgh):  Require Students to Have Two Years of Experience
• Rick Matasar (New York Law School):  Create Real Value for University, State, and Students
• John Mayer (CALI): Frequent Feedback to Students
• Andy Morriss (Illinois): Embrace Competition and Disclose Audited Employment Data
• David Oppenheimer (Golden Gate):  A "Kaleidoscopic Curriculum"
• Russell Osgood (Grinnell College):  Focus on Three to Four New Ideas
• Dan Polsby (Geore Mason):  Comparative Advantage
• Nancy Rapoport (UNLV):  Law as One Tool to Analyze a Client's Problem
• Larry Ribstein (Illinois):  Real Diversity
• Dan Rodriguez (Texas):  Faculty as Financial Stakeholders and Cheerleaders
• Natsu Saito (Georgia State):  Be Honest About the Real Pressures
• Gordon Smith (BYU):  Concentrate on Classroom Instruction
• Ilya Somin (George Mason):  Ideological Diversity
• John Steele (Fish & Richardson):  LL.B. and LL.M. Programs
• Roy Stucky (South Carolina):  Put Students First
• Tom Ulen (Illinois):  A 3L Capstone Course

Jim Freund's Advice for Erwin Chemerinsky: Teach Students How To Resolve Disputes

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

James C. Freund (Of Counsel, Skadden, New York; Author, Anatomy of a Merger (1975); Lawyering:  A Realistic Approach to Legal Practice (1979); Legal-Ease: Fresh Insights Into Lawyering (1984); The Acquisition Mating Dance and Other Essays on Negotiating (1987); Advise and Invent: The Lawyer As Counselor-Strategist and Other Essays (1990); and Smart Negotiating: How to Make Good Deals in the Real World (1993)):

As a lawyer, I used to do deals, mostly mergers and acquisitions. Since my retirement a decade ago, I've been mediating disputes that arise out of other people's deals.

The lawyers who attempt to settle disputes through negotiation (including by mediation) are usually litigators. For reasons contained in a recent article [James C. Freund, Calling All Deal Lawyers – Try Your Hand at Resolving Disputes, 62 Bus.Law. 37 (2006)], I think that deal lawyers may often be more effective at the task, but the bulk of them shun this activity ("not my job").

My sense is that in most law schools, litigation is viewed as the gold standard for resolving disputes, and the gladiators who try the cases are the students' role models. This may be appropriate for determining constitutional rights, but to my mind it misses the mark in the world of commerce.

The best way to resolve business disputes that don't affect life or liberty is through reaching negotiated compromise resolutions – based on business judgment, risk analysis and the assessment of probabilities – rather than "outsourcing" the company's fate to judges, juries and arbitrators.

So I urge law schools to motivate and educate their students accordingly. Elevate the negotiated resolution of commercial disputes to equal footing with those all-or-nothing courtroom edicts and just as worthy of a client's esteem. Teach your students – as I did for many years as an adjunct professor – how to reach responsible compromise solutions that avoid litigation. And incentivize those who don't intend to be litigators that it's very much their business also.

For all the posts in the series, see here.

More on Abolishing Tenure for Law Faculty

Yesterday's post from the anonymous law school dean recommending that Erwin Chemerinsky abolish tenure at UC-Irvine attracted a lot of attention, including a piece in the Wall Street Journal's Law Blog, Should Law Schools Abolish Tenure?, which received over 100 comments.  Among the more interesting comments:

• "Could not agree more - end the tyranny of the lame and unaccountable! Inject the classroom with the rule that the rest of the world lives by - accountability and reward for performance!"
• "Tenure is not the problem — the lack of a meaningful post-tenure review is the problem. Protection against political interference (e.g., tenure) should not be protection against laziness or incompetence. When post-tenure review is taken seriously, and has consequences, then no one should complain about a practice (tenure) that promotes innovation and bold inquiry."
• “'Those who deserve tenure don’t need it. Those who need tenure don’t deserve it.' Hard to find a truer statement than that. I would say at least 75% of my professors did not deserve tenure."
• "Abolishing tenure would be a collossal mistake. One has to look no further than the recent Chemerinsky affair to understand that academic freedoms, even for scholars who publish like mad, are always under threat. Left or Right, it doesn’t matter - tenure protects those who’ve ascended to a level where their voices can be heard from those who’d seek to silence them."

Natsu Saito's Advice for Erwin Chemerinsky: Be Honest About the Real Pressures

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

Natsu Taylor Saito (Professor of Law, Georgia State University College of Law; Board of Directors and Chair, Academic Freedom Committee, Society of American Law Teachers):

Advice for the new Dean Chemerinsky? I was thinking, Erwin, that you’d already gotten too much advice, before even getting the job. “Too Liberal,” you were told, loud enough for all of us to get the message. Too liberal for whom? I’m guessing for those funding the institution. For what? Probably for the school to “succeed” in this political climate. There’s a lot of advice packed into those two words, but mostly it sounds like “remember who calls the shots.”

Could this be one of those fabled teaching moments? Could you, and the rest of us, start honest discussions about who determines what legal education is about, and why? Not in the abstract, but school by school. Who’s giving the big bucks and what strings are attached? Who’s leveraging their political muscle? And just which principles will we, as faculty and administrators, stand on, regardless of pressure?

All students deserve to know about the forces shaping their education; law students also need to know that parallel political and financial pressures are shaping the law. If we can’t address the tension in our own institutions between money and power on the one hand, and academic freedom on the other, how can we expect them to uphold the rule of law in the face of the pressure they will encounter in the “real world”?

[Editor's note:  Professor Saito is the wife of Ward Churchill.]

For all the posts in the series, see here.

Matt Bodie's Advice for Erwin Chemerinsky: An Open-Access Approach to Legal Education

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

Matthew T. Bodie (Associate Professor of Law. Saint Louis University School of Law; Editor, PrawfsBlawg):

Several of the other commenters have suggested dramatic changes to the curriculum. I would recommend that as part of your curricular reforms, you consider an open-access approach to legal education.

First, implement an open-source approach to course materials. As I describe in a forthcoming article, casebooks and other supplementary materials will soon all be in electronic form and online. An open-source approach would allow professors to collaborate freely while having much greater potential for individualization. Particularly if you implement a new regime of courses, an open-source approach would allow your faculty to join with colleagues around the country in developing new materials. Your impact on curricular reform will be far greater if you provide easy access for other schools and professors looking to follow your lead.

Second, implement an open-access approach to classroom teaching. The biggest pedagogical problem with legal education is the dearth of individualized feedback. An open-access approach would provide more feedback through a variety of in-class and online platforms. For example, Paul Caron and Rafael Gely have described the Classroom Performance System as a method of giving students more feedback on their class participation. In addition, an open-access approach would provide for more feedback from students to their professors. We live in a new era of instant Internet news and gossip, and professors are judged publicly as never before. An open-access approach would channel student feedback in a constructive and open manner, giving students a voice and raising teaching quality. Ultimately, an open-access law school would engage both the students and the broader world in improving legal education.

For all the posts in the series, see here.

Anonymous Dean's Advice for Erwin Chemerinsky: Abolish Tenure

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

From a law school dean who wishes to remain anonymous (and who supplied the picture on the left):

Abolish tenure. Tenure is an institution whose time has passed.

Tenure purportedly protects professors against political pressure. Tenured professors presumably enjoy greater freedom to seek truth wherever it lies, without regard to the popularity or volatility of a proposition.

But tenure doesn't work this way. It shelters the lazy and the pedantic. They alone seek refuge in academic sinecures. Active scholars will find a home somewhere. Of all people, you know that. Tenure might have mattered when scholars rarely moved and global academic markets were constrained, if even extant. No more.

Those who deserve tenure don't need it. Those who need tenure don't deserve it.

Most universities lack the prominence and resources that would permit them even to consider abolishing tenure. Your school boasts assets that would enable it to lead the academy up from tenure. You have wealth. You are backed by the prestige of the University of California system. You are blessed with wonderful geography.

Most important of all is what you lack. Irvine Law is free from any obligation to incumbent faculty.

Erwin Chemerinsky, you have a blank slate. Use it wisely.

Start by signing a letter abjuring tenure. Pledge to hire only those professors who likewise agree to forgo tenure. Working at will, solely on the basis of current and future performance, promotes solidarity with your school's true constituents: your students, your graduates, and the legal profession at large. Except federal judges, everyone in this profession works without tenure. So should you.

For all the posts in the series, see here.

Dennis Khong's Advice for Erwin Chemerinsky: Ph.D. in Scientific Legal Research

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

Dennis W. K. Khong (Lecturer and PGR (Law) Programme Director, Institute for Law, Economy and Global Governance, School of Law, The University of Manchester):

I would like to see a law school promote scientific methodology in legal research. In Chemerinsky's case, that would mean that he plans towards offering a doctoral programme in scientific legal research in a couple of years' time. His hiring policy will have to reflect this aim, by hiring less faculty who do traditional ("black letter law") legal research and more faculty who have interest and training in scientific methods such as political science, economics, mathematics, and statistics. It is also time to bring law and economics out of the domain of economics and firmly implant it as part of the methodology of legal research, like what happened to political science in the 1970s and later. All law schools have as their main aim the training of lawyers. What will be truly innovative is a law school that trains legal policy makers.

For all the posts in the series, see here.

Conor Granahan's Advice for Erwin Chemerinsky: 1L "Life in the Law" Course

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine:

Conor D. Granahan (Associate, Oium Reyen & Pryor, San Francisco; J.D. 2005, Indiana University School of Law):

Create a first year, required mini-course entitled "Life in the Law." Focus on career expectations and career paths. Present the employment statistics for the nation, the state, Southern California and the school (or comparable schools as UCI is brand new). Address salaries and expected advancement within an organization. Break down available options, including government positions, academic positions and positions outside of the law.

Provide an in-depth breakdown for private law. Show students how many lawyers practice in big firms, small firms and as solos. Inform students about the largest practice areas, the smallest practice areas and the type of law practiced by what types of lawyers and law firms. Incorporate members of the legal community to provide insights as guest lecturers about their different experiences.

Make the course required to help alleviate frustrations some students may feel regarding employment opportunities. Lessen the pressure, stigma or anxiety associated with using the Career Services department.

I learned a great deal about the structure of the legal market post-graduation, information that could have helped me a great deal while I was choosing elective courses, seeking internships, and ultimately seeking a full-time position. While course selection, internships and a first job do not dictate one's entire career, a student concerned about employment could better prepare for the entrance into the legal market.

[From Bill Henderson:  "Conor is my former student. It was his idea for this forum. His suggestion for a 1l Life in the Law course is exactly what we are doing now at Indiana with our new 1L 4-credit Legal Professions class. Conor:  I am sorry that you did not get the benefit of this course, but you are having an impact. You got this ball rolling .... Thanks!"]

For all the posts in the series, see here.

Larry Ribstein's Advice for Erwin Chemerinsky: Real Diversity

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Larry E. Ribstein (Mildred Van Voorhis Jones Chair, University of Illinois College of Law; Visiting Professor of Law, New York University School of Law; Editor, Ideoblog):

Real diversity.

We already have about 200 law schools, the vast majority of which try to do pretty much what every other school does, despite their attempts at superficial differentiation. What we need is true intellectual diversity. I have some thoughts on that (and echo Henry Manne's earlier thoughts on this topic). Chemerinsky's idea of a law school probably wouldn't be mine, but the precedent would encourage other flowers to bloom (a Hayek law school?).

For all the posts in the series, see here.

Rick Matasar's Advice for Erwin Chemerisnky: Create Real Value for University, State, and Students

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Richard A. Matasar (Dean and President, New York Law School; Former Dean, University of Florida Fredric G. Levin College of Law (1996-99) and Chicago-Kent College of Law (1991–96):

In baseball, everyone plays the same game: you win by scoring more runs than the opposition. Moneyball teaches the disciplined use of metrics to win unconventionally. But in law schools, we play several different games at once -- the prestige game, the cushy place to work game, the indivdual fame and glory game, or countless others that are about us -- professional academics, who continue to be ambitious over-achieving students who have never left the comfort of school. You know that game: publish lots, take high LSAT students, don't damage them too much, maintain a low student to teacher ratio, lie about placement, and pray that you have tons of money for the good life.

There is another game, however, that is far scarier -- the need to build institutions and to provide value to students, the university, the State, and your funders. That game has different rules. Much of the advice you are getting is about the new game: designing curriculum that begins with clients and employers, creating incentives for faculty to implement this education, working the employment market to advance students' interests, etc. There is little to add other than the punchline: you must focus on outcomes for which you will be accountable.

So, what game are you in?

Here the one I like: create real value for the university, State, and students.

1. Know yourself. Follow your passions to provide leadership that aligns with your customer's interests;
2. Be honest about your strengths and weaknesses and build a team that shares your vision and is strong where you are weak. Share the credit with them;
3. You are a fiduciary, responsible to produce a high rate of return on the investments made by your students, the university, and the State;
4. It's never about you of the faculty. You are a symbol of your school; it's not personal;
5. Get out if you are asked to play a different game.

For all the posts in the series, see here.

Ken Hirsh's Advice for Erwin Chemerinsky: Teach Psychology and Human Behavior

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Kenneth Hirsh (Director of Computing Services and Senior Lecturing Fellow, Duke University School of Law; Member, Board of Directors, Center for Computer-Assisted Legal Instruction (CALI)):

What practicing attorney has not asked himself or herself, "why did my client do that" or "why did our adversary decide to pursue this?" The traditional law school curriculum ignores the one factor that plays as large a role in human interaction as any other - psychology. It is a given that knowledge of substantive and procedural law is required for a lawyer to effectively represent a client. But such knowledge is used in a vacuum if the attorney does not understand the rationale, or lack of any rationale, for a person's behavior. What is the motivation? Why is something seemingly so insignificant to me so life-altering to you? I would add courses in basic psychology and human behavior to the law school curriculum.

For all the posts in the series, see here.

Tom Ulen's Advice for Erwin Chemerinsky: A 3L Capstone Course

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Thomas S. Ulen (Swanlund Chair, University of Illinois at Urbana-Champaign, and Professor of Law, University of Illinois College of Law; Editor, Law & Econ Prof Blog)

I have tried to think of a change in legal education that is feasible, both politically and financially, but transformative. Here it is: create a required third-year capstone course in which the students would be divided into small groups of 10 – 20 to address all the legal and other dimensions of a model legal issue. The instructors, on whom there would be great demands both before and during the course, would design a complex, realistic problem that would call on the students to bring together all of their skills – negotiation, research, organization, substantive and procedural law, litigation management, client counseling, political sensitivity, and more.

Consider this example. The City of Sandifer has decided to build a new 40,000-seat stadium for the Sandifer Cougars, a reasonably successful Major League Baseball franchise. The student firm has been retained to counsel the City and the Cougars through the process of getting the stadium built. They must acquire a suitable piece of property for the new stadium. They must hire an architect to design the stadium and a prime contractor to build it. They must try to persuade the State government to subsidize the costs of the stadium and then help in preparing the bond issue that will be floated. There will be litigation about some matters, and there will be high political heat.

This intense exercise could bring together all the learning of the previous two years of law school and send the 3Ls into practice with some enthusiasm.

For all the posts in the series, see here.

Andy Morriss' Advice for Erwin Chemerinsky: Embrace Competition and Disclose Audited Employment Data

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Andrew P. Morriss (H. Ross and Helen Workman Professor of Law and Professor of Business, Institute for Government and Public Affairs, University of Illinois; Editor, St. Maximos’ Hut and The Commons: Markets Protecting the Environment blogs):

1.  Embrace competition. California has the most open market for legal education in the United States, with both state-accredited and unaccredited law schools competing with ABA-accredited law schools. (This gives a large benefit to the ABA-accredited California schools’ U.S. News’ rankings – see Morriss & Henderson by reducing the denominator in the bar passage calculation.) Instead of being part of the crowd, embrace the open market and ally yourself with the non-ABA accredited schools in further opening California’s market to alternative forms of legal education. Given the effect of the ABA standards in reducing minority and low income access to legal education (see George Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Leg. Educ. 103 (2003); Harry First, Competition in the Legal Education Industry, 53 N.Y.U. L. Rev. 311 (1978), and 54 N.Y.U. L. REV. 311 (1978)) and the lack of a connection between those standards and educational quality, your school can have an impact by championing an open market.

2.  Treat students’ decision to attend your school as a major investment decision. Legal education is a major investment, even at subsidized in-state tuition levels. When the opportunity cost of spending three years out of the job market is factored in, the cost for students is well over $100,000 at most law schools. Students need honest, detailed, and easy-to-compare data about employment outcomes to evaluate the merits of the different “investment opportunities” law schools offer. Start your deanship with a public pledge to make such data available about your students’ employment outcomes and back it up by hiring a reputable auditing firm to certify the data as honest. Openly pressure your fellow deans, in California and elsewhere, to do the same. It may not make you popular at deans’ meetings, but you can have a major impact in improving students’ welfare.

For all the posts in the series, see here.

Brian Baker's Advice for Erwin Chemerinsky: Tie Tenure to Teaching

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Brian L. Baker (Director of the Law Library & Professor of Law, San Joaquin College of Law; Editor, Director's Blog):

It is all about classroom instruction. Hire the best teachers and tie tenure to teaching. With growth, add researchers and seminar courses, and expand tenure so excellence, in teaching or research, is equivalent. Those preferring teaching should do so unfettered by publish or perish. Those preferring niche areas of law should do so unfettered by grading 70+ exams a semester.

The poor writing students bring to law schools today makes a Legal Writing program a "no brainer." Credit levels should rise to reflect the remedial writing instruction that is now the norm. Research instruction should also be expanded. It should be embarrassing that "Advanced Legal Research" programs are a rehash of basic research skills that weren’t learned as a 1L.

Invite the outside in, constantly. Represent all the community. A lecture series entertains students and brings outsiders in to see a law school in action. Promote intellectual diversity. Start a Federalist Society and an American Constitution Society. Start La Raza and BLSA chapters. Provide opportunities for religious groups to meet and gender related groups to thrive. As these groups grow and intermingle, a community will be formed. This community will look back on law school fondly, and help financially, or otherwise, sooner than you imagine.

Look at the temperament of your administration. Nothing stops future giving quicker than administrators who act arbitrarily. Many of us are egoists. It comes with the territory. Deans must find those that can put egos aside for the good of the school.

Students spend a lot of time learning to be law professors and not to be lawyers. This must change. Skills programs and excellent teaching help fix this problem. Communities that believe in themselves and trust administrators solve many other problems.

For all the posts in the series, see here.

Larry Cunningham's Advice for Erwin Chemerinsky: Institutional Diversity

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Lawrence A. Cunningham (Professor of Law, George Washington University Law School; Editor, LSN Educator:  Courses, Materials, and Teaching):

While Dean Chemerinsky knows far more about legal education than I, in the spirit of reform contemplated by this series, I can suggest institutional diversity as a possibility. At present, law schools are mostly defined according to identical statistical or roughly similar reputational references (just the pecking order is contested, such as whether Columbia or NYU is the "better" law school).

The main other current distinguishing marks are sponsorship by a state or affiliation with a religious tradition. But even these are mostly dwarfed by the uniform references. There is far less distinction among law schools based on substantive orientation (the few examples that leap to mind are Tulane's leadership in civil law, George Mason's association with Law and Economics, and CUNY's distinction in public interest law).

Many other graduate programs reflect a much deeper level of distinction based on specialization. Among MBA programs, for instance: Babson for entrepreneurship, Wharton for finance, Illinois for accounting, Harvard for management, and this list could include scores of additional examples. Similarly lengthy lists could be provided for medicine, engineering, and other departments. What might the substantive, specialty differences be among UCLA, USC, San Diego . . . and Irvine?

For all the posts in the series, see here.

John Mayer's Advice for Erwin Chemerinsky: Frequent Feedback to Students

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

John Mayer (Executive Director, Center for Computer-Assisted Legal Instruction (CALI)

As the Executive Director of CALI, I read a lot of feedback from students that pertains to their perceptions of legal education. The single biggest thing that students crave is more feedback. Imagine if you took a job where you were paid at the end of 15 weeks based on your performance -- better performance = more pay, but you weren’t told how well you were doing until the end of the 15 weeks. That’s law school. Students are studying hard, but they aren’t sure that they know what they know until the results of the final exam are in.

I would advise Dean Chemerinsky to mandate that all classes provide some form of personal feedback to all students. This doesn’t have to be graded, but it should be substantive. This could be in the form of midterm exams, quizzes or even students evaluating each other’s mini-essays or shared collections of multiple choice questions. The technology tools exist so that this isn’t an undue burden on the instructor or require the hiring of teaching assistants for every class.

It is worth noting that feedback can be bi-directional. The aggregate results of weekly quizzes can tell the instructor where she has lost the students and should provide some additional instruction. If instructors want to read really excellent final exams, then you have to make sure that students are on track throughout the semester. The surprises you get reading the finals are no less disconcerting than the surprises that the students get when you grade it.

For all the posts in the series, see here.

Derrick Bell's Advice for Erwin Chemerinsky: Law School, Like Law, Can Only Do So Much

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Derrick A. Bell, Jr. (Visiting Professor of Law, New York University School of Law; first tenured black professor at Harvard Law School (1971) who relinquished tenure (1992) to protest lack of women of color on faculty; autobiography: Confronting Authority: Reflections of an Ardent Protester):

This is not another Stanford Erwin will be leading, but a public law school subject to strong, political influence and control. There is little doubt that despite substantial improvement in legal education since I graduated 50 years ago, it remains the most pedagogically poor of all professional schools, with substantial resistance to the reformation that will simply not happen. It would be too expensive, require too much time of those faculty whose primary interest is scholarship, and in the final analysis, too revealing of the truth about law that Ralph Bunche set out in a 1935 essay published in the Journal of Negro Education and edited by Mark Tushnet in The NAACP: Legal Strategy Against Segregated Education, 1925-1950, 11-12 (1987 ed.)

Dr. Bunche, writing to NAACP lawyers who were relying on the Constitution as the basis for racial reform:

[R]eliance on law to remedy racial injustices rested on the “inherent fallacy . . . in the failure to appreciate the fact that the instruments of the state are merely the reflections of the political and economic ideology of the dominant group.” The NAACP, Bunche said, “had conducted a militant fight under this illusory banner.” The difficulty was that “the Constitution is a very flexible instrument and that, in the nature of things, it cannot be anything more than the controlling elements in the American society wish it to be,” adding that public opinion was unreliable because it was “seldom enlightened, sympathetic, tolerant or humanitarian.”

Bunche warned that even if occasional victories might be won from the courts, essentially at random, they would prove to be hollow because “the status of the Negro . . . is fundamentally fixed by the functioning and demands of [the economic] order,” which the courts could not affect. Lawsuits, “while winning a minor and too often illusory victory now and then, are essentially inefficacious in the long run. They lead up blind alleys and are chiefly programs of escape.”

Here is wisdom almost a century old that explains the limits of constitutional doctrine to effect change or even to move much beyond where the populace happens to be. To an extent greater than most will acknowledge, the law involving race reflects dramatically the law in general. Erwin Chemerinsky is a master of teaching and writing about the law as it is generally viewed. He should not exhaust his talents trying to create a structure that at best would reveal just how weak a reed law is for those subordinated in an economic-political system that rewards a few and encourages the rest to blame one another for their misfortunes.

For all the posts in the series, see here.

Dave Hoffman's Advice for Erwin Chemerinsky: Eliminate ABA's Role in Accrediting Law Schools

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

David Hoffman (Associate Professor of Law, Temple University, James E. Beasley School of Law; Editor, Concurring Opinions blog):

To survive in global economy, American law schools need more freedom to make radical changes. Take as a cautionary example the WSJ's recent story on the legal job market: clearly for many, the J.D. is a low-return investment. In an ideal world, law schools would respond by convincing Bar Associations to permit more lawyer advertising. This change would justify certificate programs, in turn reducing the opportunity costs of the J.D. Given a world where specialization could be advertised, law schools might permit some students to graduate "early" – in 18 months or two years - and receive the ordinary juris doctor degree (the "OJD"). Others would stay for longer and earn certificates in business, discovery-management, or arbitration. The most committed students would stay the longest and earn advanced degrees in tax, or "legal scholarship."

But such reforms are impractical under our current licensing scheme, which creates a set of immutable rules that discourage innovation. The Bar's accreditation standards increase the cost of legal education and reduce competition between lawyers. They make it impossible to create a true laboratory of law schools, competing for student dollars by offering the best value. Thus, the "single best idea" for reforming legal education is the one that makes all others possible: to eliminate the Bar's accreditation role. This is not to say that we don't need any kind of accreditation – we do, but it should not be one run by our guild. Instead, we should seek an accreditor that would embrace an experimental approach to legal education.

For all the posts in the series, see here.

Dan Rodriguez's Advice for Erwin Chemerinsky: Faculty as Financial Stakeholders and Cheerleaders

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Daniel B. Rodriguez (Minerva House Drysdale Regents Chair in Law, University of Texas School of Law; former Dean, University of San Diego School of Law):

UCI’s aspirations to become a leading law school in a short time face a mighty $$$ mountain. Confronted with the improbable objective of raising privately the hundreds of millions of dollars necessary to keep up with the true elite in legal education, the leaders of the UC’s law schools have, with the assent of the Regents and the (self-interested) California legislature, taken a trip down the inelastic demand curve of law school admissions and jacked up their tuition to astonishing levels. In two years, a legal education at UC’s flagship, Boalt Hall, will cost $40,000 a year. The negative impact on law graduate professional choices, diversity, and public interest lawyering will be great.

Dean Chemerinsky and UCI should work diligently to avoid this exercise in entrepreneurial collective action (I believe the Sherman Act uses a different phrase) and pursue financial resources the old-fashioned way, by fundraising aggressively. To do so effectively, the law school should draw together, in a way that deans seldom do effectively, the faculty in the common enterprise of raising resources for initiatives, programs, and infrastructure that will enable UCI to prosper without fleecing their new law students and their families. Faculty members should be encouraged by their visionary new dean to think of themselves as stakeholders, as investors in the preliminary and long-term financial well-being of this law school. Developing programs of value to the region, creating outreach opportunities to help the community better understand law and its imbedded role in modern society, promoting faculty work in the media, nurturing networks of mutual advantage with law firms, corporations, and other universities in the U.S. and abroad . . . all these ideas and others can only be incubated and implemented with the resolve, commitment, and energy of faculty members. The dean is the chief fundraiser to be sure, but the faculty role is critical. Erwin has role modeled this behavior in his own career; teaching the imperative of like behavior in the service of UCI’s financial progress will be time well spent for the new dean.

For all the posts in the series, see here.

Mina Jefferson's Advice for Erwin Chemerinsky: Teach Students to Listen

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Mina Jones Jefferson (Assistant Dean of Professional Development, University of Cincinnati College of Law; Member, Board of Directors, National Association for Law Placement):

Remember Mrs. Palsgraf. Most lawyers remember Palsgraf v. Long Island Railroad Co., but few know much about the woman behind the story. Her name was “Helen,” although it has been said that it was really “Jacobina,” but she called herself “Helen” or “Lena.” She was forty-three and her husband had left her. She did janitorial work and was accompanied by her two daughters on that fateful day in 1924. As a result of the accident she became mute and subsequently spoke with a stutter. The absence of this information in the typical 1L Torts class illustrates the vacuum in which legal education takes place.

While teaching students to “think like lawyers” also train them to “listen like people.” Behind every case is a person – a super