Paul L. Caron

Monday, September 24, 2007

Advice for Erwin Chemerinsky from Caron & Henderson

As we announced on Friday (here and here), Bill Henderson and I are using the Erwin Chemerinsky/UC-Irvine flap to generate and publicize the best ideas about reforming legal education from some of the leading thinkers in the law school world.  We asked various legal luminaries to give us 250-word answers to this 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?

Bill and I offer our thoughts below; we will post the responses of others in the coming days.  [We also are accepting unsolicited contributions here.]

Paul Caron (Cincinnati):

The central tenet of Moneyball – that technological changes make possible more and better data that innovative leaders can deploy to great success – has been embraced in varying forms by subsequent books like Freakonomics, The Long Tail, and Super Crunchers. As I wrote three years ago:

The tectonic plates of the legal education landscape are inexorably moving in the direction toward greater accountability and transparency in this era of increased computing power and Internet capabilities. These conditions are creating the environment in which the law school version of Billy Beane may emerge to seize the opportunities afforded in this new world order.

What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483, 1547 (2004).

My general advice to Erwin Chemerinsky is to embrace his inner Billy Beane and adopt a data-driven approach to running the new UC-Irvine law school. Such an approach would play itself out in myriad ways, which I cannot sketch in 250 words here. But my “single best idea for reforming legal education” is to rethink tenure.

Although tenure had noble origins as a protector of academic freedom, it has morphed into nothing more than a lifetime employment contract. The Billy Beane who eschews long-term contracts for free agents undoubtedly would abhor life tenure for anyone.

Law schools struggle to create reward structures to incentivize faculty performance. The stakes often border on the trivial and tend to focus exclusively on scholarship at the expense of teaching and service.

Instead, renewable five year contracts could be given to faculty, with objective performance measures in all three categories. UC-Irvine provides the ideal environment for such an experiment – given the publicity surrounding political interference in Chemerinsky’s hiring, what better place to develop adequate job protection for faculty within the confines of contractual appointments?

To attract and retain faculty, UC-Irvine should pay a significant salary premium over comparable schools (here and here) and offer faculty-wide bonuses for student successes (e.g., bar passage, job placement). My guess is that high-achieving, well-rounded, energetic faculty would flock to UC-Irvine to work under Dean Beane-Chemerinsky.

Bill Henderson (Indiana):


Your peers in the legal academy fundamentally misunderstand the importance of labor markets.  Ignore them.  To have a major impact, follow these six data-driven steps.

  1. No matter what you do, cost, location, and brand will get you into the bottom of Tier 1 within five years. Cf. GMU Law (founded in 1980); UNLV (debuted in Tier 2).  Therefore, take some risks.
  2. Don’t believe the fallacy that a law school can build a national reputation based on scholarship.  The “big winners,” GMU and San Diego, gained a mere 15 spots in US News reputation since the rankings began. See here.  Academic reputation is a function of last year’s ranking. See Stake (2006).
  3. The entry level market for lawyers is currently a function of (a) USNWR rank, (b) location (which you’ve got), and (c) school size. See Henderson & Morriss (2006). This bi-modal distribution reflects how the market currently clears; the distribution of legal ability—net after three years of law school—looks like this.  This is an arbitrage opportunity.
  4. Meet every southern California legal employer and ask what it will take, in terms of training, to privilege your students over UCLA, USC, San Diego, etc. Carefully weigh this advice as you build your curriculum.  Follow up with surveys and focus groups; analyze your LSSSE data.
  5. Meticulously document how you have added value over three years; showcase it to more employers and prospective students. This will snowball.
  6. Read my Moneyball/Moneylaw post. Call with any questions.

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Are there still people who think Michael Lewis's "Moneyball" proved anything? Jeremy Bonderman, whom teams weren't supposed to draft because of the lower success rate of pitchers still in high school, is an established starter for one of the five best American League teams and just completed his fifth full season in the majors. Poor Jeremy Brown, who was rated the best bet of all according to Billy Beane's statisticians, was finally released by the Athletics in May 2007 after an undistinguished minor league career. The A's certainly did not do better in identifying likely successes in the major leagues than other teams. (BTW, if you want to dismiss two cases as "merely anecdotal", try URL on other A's draftees.)

As far as baseball is concerned, the Athletics' success was predicated on a messier reality far more contingent than Lewis portrayed. The A's chief bit of luck was simultaneously developing Hudson, Mulder, and Zito. The A's record since the breakup of this trio of starting pitchers has been mediocre.

If you're going to argue that abolishing tenure is a good idea, try a different analogy!

Posted by: Dennis | Oct 11, 2007 1:38:29 PM

Given that Corey made no attempt to define what "human culture" means and how statistical analysis degrades "human culture," compared statistical analysis to pre-WWII European dictatorships and generally used $8 words to make his "point" sound more substantive that it actually is, I recommend that you take his critique for all that it is worth.

Posted by: Craig | Sep 26, 2007 2:55:34 PM

The techniques suggested above seem like advice on how to place UCI as high as possible in the existing rank order, not a blueprint for overall pedagological reform. Ultimately, freakonomics and long tail describe exploits, (as old as capitalism but now guided by graphs rather than experience) designed to reach an underserved portion of EXISTING markets. This is a beat-them-at-their-own-game strategy not a win-a-revolution strategy. (vs. perhaps, total non-participation in US News rankings or other iconoclastic utopian policies)

Posted by: Corey | Sep 25, 2007 1:20:35 PM

The core critique of data driven administration is not a denial of its potential success. Even the facist European governments of the 1930s had their administrative triumphs. The critique posits that real human beings chafe at life under technocracy. I would never attend or work for a UCI Law so focused on business model over human culture.

Corey (JD, IU-Bloomington, 2007)

Posted by: Corey | Sep 25, 2007 11:32:01 AM