Inspector General: The IRS Uses Cloud Computing Services Without Adequate Security Controls, Putting Taxpayer Data At Risk

Treasury Inspector General for Tax Administration, Cloud Services Were Implemented Without Key Security Controls, Placing Taxpayer Data at Risk (No. 2022-20-052) (Sept. 27, 2022):

To facilitate and guide its cloud security implementation efforts, the IRS developed its Cloud Security Reference Architecture in September 2019 and the Cybersecurity Cloud Operations Framework in November 2019. The IRS issued its updated Cloud Strategy and Cloud Security Internal Revenue Manual in March 2021 and September 2021, respectively.

By the end of Calendar Year 2020, the IRS had fully implemented 56 cloud services, 12 of which contained taxpayer data. The IRS deployed these cloud services without fully implemented security controls for protecting the data. ... [T]he IRS continued to accelerate cloud adoption without ensuring that important security controls designed to protect taxpayer data were in place in the cloud environment. ...

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Tax Prof Twitter Census (2019-20 Edition) (Updated)

According to Bridget Crawford's latest census, there are 1,313 Law Profs on Twitter (54.1% male/45.9% female), including 83 Tax Profs (several with tax in their Twitter handles):

• @AdamThimmesch (Adam Thimmesch, Nebraska)
• @AjayKMehrotra (Ajay Mehrotra, Northwestern)
• @ajurowkleiman (Ariel Jurow Kleiman, San Diego)
• @andygrewal (Andy Grewal, Iowa)
• @AriGlogower (Ari Glowgower, Ohio State)
• @ArthurEshiwani (Arthur Eshiwanti, Nairobi)
• @AshritaPrasad (Ashrita Prasad, OP Jindal Global Univ.)
• @at_hayashi (Andrew Hayashi, Virginia)
• @AusTaxProf (Miranda Stewart, Melbourne)
• @bearerfriend (Jeremy Bearer-Friend, George Washington)
• @benmosesleff (Benjamin Leff, American)
• @book_leslie (Leslie Book, Villanova)
• @ChanceyGardener ‏(Allen Madison, South Dakota)
• @ChristineYR_Kim (Christine Kim, Utah)
• @clintwallace (Clint Wallace, South Carolina)
• @cryptolawprof (Del Wright Jr., Missouri-Kansas City)
• @DanielJHemel (Daniel Hemel, Chicago)
• @DanielShaviro (Daniel Shaviro, NYU)
• @david_hasen (David Hasen, Florida)
• @davidckamin (David Kamin, NYU)
• @davidsgamage (David Gamage, Indiana-Maurer)
• @deathntaxesprof (Goldburn Maynard, Louisville)
• @delaFeriaR (Rita de la Feria, Leeds)
• @DorothyABrown (Dorothy Brown, Emory)

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Erwin Chemerinsky's Farewell: Lessons From Hamilton

Orange County Register op-ed:  A New Adventure and a Heavy Heart, by Erwin Chemerinsky:

Early on Saturday morning, my wife and I will load up our cars and drive from Irvine to begin our new positions, which officially start on that day, at the University of California, Berkeley School of Law. My nine years in Orange County and at University of California, Irvine have been wonderful, everything I possibly could have hoped for and more. It sounds cliché, but I will drive away with a heavy heart for all I am leaving behind and very mixed emotions.

Many have asked me why I would leave UCI Law School, having devoted a decade of my life to helping to create it since my appointment as the founding dean in September 2007. From the outset, my expectation was that I would spend 10 years as dean. I already had decided and repeatedly said that next year was to be my last in the role. It is time for the Law School to go through a careful re-examination and I am not the one to lead that process; I am too invested in and identified with what we have done.

I am struck by the parallels to the song One Last Time in Hamilton:

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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

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.

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 supervisor, a CEO, a regional manager, an individual. In practice your client’s satisfaction depends on creating an approach that addresses the real problem, not the presenting symptoms. Create a curriculum that includes communication courses in the first year; require service learning or any other activity that puts students in touch with people. Expose students to personality inventories as well as thinking and learning styles. Include professional development activities that promote self-awareness, emotional intelligence and other leadership characteristics so that Schiltz’s “Unhappy, Unhealthy and Unethical Profession” [Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999).] becomes a thing of the past!

For all the posts in the series, see here.

Brian Leiter's Advice for Erwin Chemerinsky: Hire to UC-Irvine's Strength in Interdisciplinary Scholarship

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 Leiter (Hines H. Baker and Thelma Kelley Baker Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program, University of Texas at Austin; Editor, Brian Leiter's Law School Reports; Author, Brian Leiter's Law School Rankings):

I hope that Dean Chemerinsky will, in building a faculty, take advantage of the Law School’s association with a quite major research university. Scholarly excellence of the faculty is and is likely to continue to be the benchmark for excellence of a Law School, and so the association with the University of California at Irvine provides a unique advantage. There are already scholars of great distinction at Irvine whose work is of relevance to legal scholarship — Frank Bean in Sociology, Margaret Gilbert in Philosophy, Bernard Grofman in Political Science, Elizabeth Loftus in Criminology, and Brian Skyrms in Logic and Philosophy of Science come to mind right away — and any Dean would be well-advised to take advantage of their presence, both by finding ways for them to teach and/or participate in the intellectual life of the new Law School and by capitalizing on their presence at the University to make joint appointments of other leading scholars to Law and cognate faculties at Irvine. Within the UC system, this will give Irvine an advantage over Hastings (a free-standing law school) and Davis (UCD’s strengths being greater in the natural sciences than in fields with more natural points of intersection with law). Interdisciplinary scholarship is the coin of prestige in the realm these days, and a Law School based at Irvine should be able to excel on that front.

For all the posts in the series, see here.

Tom Bruce's Advice for Erwin Chemerinsky: Promote Public Understanding of the Law

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 R. Bruce (Research Associate, Cornell Law School, and Director, Legal Information Institute):

Give some houseroom to the idea that law schools have a stake in promoting a sophisticated public understanding of law. That's an idea that reflects inward as well as outward. Here are three such reflections:

1. 1.  It's time for law schools to join the modern administrative state -- to look at the curriculum in many places you'd think the New Deal was still on some kind of probation. Regulations are a reality for the public and for practitioners. It would be good if they were a reality for law students as well.

2.  It's time to take your best students and teach them to write for their clients as well as for other lawyers. Most of our better people finish law school thinking like lawyers, and writing like nobody but lawyers will ever read their work (that might be truer than it should be; see 1. above). The true mark of mastery is the ability to clarify a subject for anyone -- especially those who make continuous professional use of the law without being lawyers themselves.

3.  It's time to move the idea of "interdisciplinary study" onward from "law of" toward "law and." This has taken place in some areas -- law and psychology comes to mind -- but others are begging for it. "Law of computers" has given us much in the area of copyright -- but "law and computation" would have a lot to say about how law is promulgated, seen, understood, considered, and changed.

For all the posts in the series, see here.

Roy Stuckey's Advice for Erwin Chemerinsky: Put Students First

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?

Roy T. Stuckey (Webster Professor of Clinical Legal Education, University of South Carolina School of Law; Principal Author, Best Practices for Legal Education (2007)):

I have a radical suggestion for Dean Chemerinsky. Put students first. Involve them in meaningful ways in making curricular and other important decisions at the law school. Create and maintain effective and healthy teaching and learning environments. Encourage and reward members of your faculty who use best practices for delivering instruction and assessing student learning and who spend time with students outside of class. Expect students to behave professionally from their first day in law school, and expect faculty and staff to model professional behavior. If you put students first, the law school will be a better place immediately and the legal profession will be a better place eventually.

For all the posts in the series, see here.

David Oppenheimer's Advice for Erwin Chemerinsky: Create a "Kaleidoscopic Curriculum" for 1Ls

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 B. Oppenheimer, Associate Dean for Faculty Developmentand Professor of Law, Golden Gate University School of Law; Co-Author, Whitewashing Race: The Myth of a Color-Blind Society (University of California Press, 2003)):

The single best idea I can offer you is to create a “kaleidoscopic curriculum” for your first year students. Help them to see that a legal problem should be examined from multiple points of view, as a kaleidoscope breaks up shapes and re-envisions them from multiple angels. Encourage your first year faculty to work together, as an inter-disciplinary group, to demonstrate through the cases and problems they assign that the law really is a seamless web. Ask them to jointly teach cases across subject areas that raise problems in several doctrinal fields. For example, a typical employment discrimination case usually raises issues of tort law, contract law, statutory anti-discrimination law, and civil procedure. Similarly, a typical real estate fraud case may raise issues of property law, contract law, tort law, criminal law, and civil and criminal procedure. Encourage your faculty to develop problems and find cases that they can each teach from their different perspectives, and that they can all teach together. Teaching such cases kaleidoscopically will help your students see legal problem solving as complex, dynamic and creative.

For all the posts in the series, see here.

Gail Heriot's Advice for Erwin Chemerinsky: Rethink Three Common Assumptions About Law School

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?

Gail Heriot (Professor of Law, University of San Diego School of Law; Editor, The Right Coast blog):

Here’s my advice: Get a new name. Not literally, of course. But like a king who adopts a new name upon assuming the throne, a new dean should leave his old reputation and alliances behind and take a fresh look at things.

Among the common assumptions that could use some re-thinking

1. 1.  “Race-based admissions help minorities.” That’s not what Richard Sander’s research shows. His findings indicate that more African-American law students would have graduated and passed the bar if they had attended schools at which their academic credentials matched those of other students. Some people have rejected Sander’s conclusions, but they would be more persuasive if some of them weren’t actively trying to prevent him from continuing his research.

2.  “The best curriculum is one that allows faculty members to teach what they feel passionate about.” Yes, isn’t it pretty to think so? And isn’t it interesting how often law professors declare that what they want is in the institution’s interest?

3.  “The $150,000 spent on coming to law school is money well spent.” Well, for some it is, but not for others. Unfortunately, law schools are misleading some of these students. Published figures about average salaries and placement rates are largely fictional. I’m not just talking about marginal schools; even elite schools are contributing to the problem. If corporate CEOs marketed securities the way law schools market legal education, they’d be jailed.

But remember, you needn’t literally get a new name. King Erwin I will do nicely.

For all the posts in the series, see here.

John Steele's Advice for Erwin Chemerinsky: Use LL.B. and LL.M. Programs to Revolutionize 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?

John Steele (Special Counsel, Fish & Richardson, Silicon Valley; Lecturer, University of California-Berkeley, Boalt Hall School of Law; Lecturer, Santa Clara University School of Law; Editor, Legal Ethics Forum blog).

My vision:

UCI has an undergraduate (LLB) and two graduate (JD & LLM) law programs.

Undergraduate teaching emphasizes lectures, case studies, and skills training for five semesters, with elective seminars thereafter (sometimes taught by grad school profs). Summer internship programs at law firms, non-profits, and government law departments teach students practical skills and enlighten them about career choices. The LLB program attracts socio-economically diverse students who amass less debt and choose jobs they truly want. (Undergrads studying business, history and poli-sci often take LLB courses.)

After a few years of practice, some LLB alums return for one or two year LLM degrees in specialties like public interest, local and state government, and commercial transactions. UCI runs a night-school LLM for local prosecutors and defenders, who study criminal justice policy and work on advanced trial skills. Local courts rely on the program for empirical studies and reform innovations. UCI's LLB alums have found success entering the nation's elite LLM programs, which covet their experience and socio-economic diversity.

The JD program chafes under the "standard model" resulting from ABA accreditation, USN&WR rankings, and UC budgeting. But the LLB program's existence permits the JD program to tilt slightly toward an academic graduate school model -- which the JD faculty favors. The JD program has risen within the top 40 but, alas, the standard model straitjacket has produced another standard JD program populated mostly by upper middle children of upper middle class parents. But UCI's LLB and LLM programs have shaken up American legal education.

For all the posts in the series, see here.

Mike Madison's Advice for Erwin Chemerinsky: Require Students to Have Two Years of Experience Before Enrolling

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?

Michael J. Madison (Associate Dean for Research and Associate Professor of Law, University of Pittsburgh School of Law; Editor, Madisonian.net blog):

The quality of the new lawyers who graduate from law schools depends heavily on the quality of the students that law schools enroll. So, for my single best idea, I would adopt something akin to the business school model of admissions.

Make clear to prospective applicants that incoming students should have a minimum of two years’ of experience in the world before enrolling in school. Expect some meaningful exposure to the ways of a community or practice other than one based on taking tests and writing papers. Given special cases and exceptions, in practice this would amount to a presumption rather than a hard and fast rule.

Why?

1. Too many law students today are new college graduates who couldn’t think of anything better to do. Some of those students will be discouraged from applying, meaning that law schools end up with more engaged students.
2. Other things being equal, engaged students with a bit of worldly experience are likely to turn out to be better and more satisfied lawyers, because learning and practicing law are so bound up with knowledge of the world at large.
3. A law school that adopts this strategy may have a comparative advantage in placing its students with employers. Law firms are reluctant to hire “older” students, but they are also frustrated by the expense of having to train new lawyers in the art of being an independent, responsible adult. A different admissions strategy may save firms some of that pain.

For all the posts in the series, see here.

Sam Kamin's Advice for Erwin Chemerinsky: Offer 2L Real-World Experiences, 3L Capstone Courses

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?

Sam Kamin (Associate Professor of Law, University of Denver, Sturm College of Law; Editor, MoneyLaw blog):

UCI’s law school will start with a number of natural advantages: location, resources, and the University of California brand to name only a few. These advantages will virtually guarantee that the school succeeds and begins to climb up the US News Rankings. Thus, my advice focuses not on survival, but on how UCI can help its graduates to stand out and excel in an over-crowded market for law graduates.

I would encourage Dean Chemerinsky to send his students out into the world in their second year. Require them to do a full-time internship, to work in the clinic, or to volunteer their time for an under-served group. This will both give the students insight into what lawyers actually do and create goodwill for the school in the legal community that will ultimately hire your graduates. Use the third year to build on what the students have learned in the real world: Capstone courses emphasizing ethics, skills and critical reasoning will be particularly meaningful to students who have already seen how the law is practiced.

Finally: Assess. It’s rare in law school teaching to step back from what we do and ask whether it’s working or not. Talk to those who hire your graduates; find out what they need and whether they’re getting it. Talk to your graduates; find out if they feel they were adequately prepared for what their jobs ask of them. Don’t be afraid to change what happens in law school based on what you learn.

For all the posts in the series, see here.

Nancy Rapoport's Advice for Erwin Chemerinsky: Law as One Tool to Analyze a Client's Problems

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?

Nancy B. Rapoport (Gordon & Silver, Ltd. Professor of Law, William S. Boyd School of Law, University of Las Vegas; former Dean, University of Houston Law Center and University of Nebraska College of Law; Editor, Nancy Rapoport's Blogspot and MoneyLaw blogs):

Erwin has a unique opportunity to have a powerhouse school filled with scholars who will be excited about starting up new traditions. My hope is that the overall ethos at the school will recognize that law is a tool for analyzing problems, but it is by no means the only tool. Sometimes, it's not even a necessary tool. (Sacrilege!)

Too often, law students get the impression that knowing "the law" -- even knowing the legal theory underlying the law -- is sufficient to provide clients with meaningful answers to their problems. Instead of being able to say, "After reviewing your situation, I think that you should do X," law school graduates are saying, "Well, these cases say Y."  That's not a sufficient answer to most complex problems.

Law is often part of the answer, but it's rarely a complete answer to a client's problems. Those problems are affected by other, sometimes competing, factors: the client's business needs, as well as any psychological and social pressures that the client is facing. I believe that students, in their final year of law school, should know some basics: economics, accounting, psychology, and sociology (especially group dynamics). And no law student should graduate if he or she can't write well. Period.

The faculty of Erwin's new school will, I hope, be true MoneyLaw hires:  hired more for what they've proven that they can do than for what their credentials predict that they will do. If some of them have an interdisciplinary bent, so much the better.

For all the posts in the series, see here.

Ilya Somin's Advice for Erwin Chemerinsky: Embrace Ideological 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?

Ilya Somin (Assistant Professor of Law, George Mason University School of Law; Editor, The Volokh Conspiracy blog):

Your well-deserved appointment as Dean of UC Irvine Law School was the result of your impressive qualifications. But the decision to rescind that appointment for fear of offending conservatives who dislike your liberal political views was only reversed after a massive outcry against ideological discrimination from scholars across the political spectrum.

Unfortunately, the problem of ideological discrimination in faculty hiring is not limited to your case. At the top 20 law schools, faculty contributing to Democratic political candidates outnumber those contributing to Republicans by almost 6 to 1 (81% of contributors to 15%). By no means is this imbalance due solely to discrimination; far from it. However, studies show that discrimination against non-liberals probably does account for a significant part of the ideological imbalance on arts and science faculties. Law schools are unlikely to be much different, a conjecture supported by a good deal of anecdotal evidence (see e.g. here).

Social science research suggests that most people dislike questioning of their political views and often prefer to be surrounded by those who agree with them. Moreover, as Cass Sunstein has shown, groups of like-minded people tend to grow more extreme in their views over time and less tolerant of dissent. It is no surprise if these tendencies are sometimes exhibited by law faculties, as well as other ideologically lopsided groups. In the academic world, ideological discrimination in hiring usually takes the form of discrimination against conservatives and libertarians. That is not because liberals are uniquely intolerant, but because the preponderance of liberals in academia ensures that they have greater ability and temptation to discriminate. Conservatives and libertarians would probably behave the same way were the situations reversed.

You can help change this situation. By committing to a strong policy of ideological nondiscrimination in faculty hiring, you and UC Irvine can help set a good example for other schools. At the same time, you can also improve the reputation of UCI by hiring top scholars who may have been overlooked by your competitors because of their ideologies. Even if you end up with a higher percentage of conservatives or libertarians than is typical in academia, your own sterling liberal credentials will prevent any perception of favoritism towards the right. The opportunity to do well by doing good is there for your taking.

For all the posts in the series, see here.

David Bernstein's Advice for Erwin Chemerinsky: Make Law School an Undergraduate Program

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 E. Berntein (Professor of Law, George Mason University School of Law; Editor, The Volokh Conspiracy blog):

Make the law school an undergraduate program. California is a huge legal market, and students can take the bar without going to an ABA-approved school. Law is an undergraduate subject in other common-law countries, and, absent ABA intervention, there is no reason why it should not be at least offered to undergraduates here. A four instead of seven year route to a law degree will save future lawyers huge amounts of money, and even more in opportunity costs. This will especially benefit potential lawyers from less privileged backgrounds, to whom huge debts and many years in school may seem too daunting.

For all the posts in the series, see here.

Jeff Lipshaw's Advice for Erwin Chemerinsky: Structure the Curriculum Around the Profession's Needs

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?

Jeffrey Lipshaw (Associate Professor of Law, Suffolk University Law School; Editor, Legal Profession Blog):

I need to start with a disclaimer. I’m a former corporate executive and business leader. What I am going to say sounds a lot like “let’s listen to our customers,” but many academicians are going to choke on the idea that students or the profession are customers. Well, I choke it on too. In the corporation, the “customer” idea got so much traction that pretty soon we were talking not just about “external customers” but about “internal customers” (i.e. the business units to the law department, or IT, or human resources). And I contended that the phrase “internal customer” caught some of the spirit we wanted, but it caught too much.

You’ll do anything to make a customer happy. But your job as a lawyer (or an IT or human resources professional) is not to make the business happy; it’s to fulfill your professional responsibility with every reasonable and creative accommodation to the business goals. Your job is neither to be a “no” nor a “rubber stamp.” What you want to do is not “listen to your customer” but “listen to your teammates.” That’s a process of mutual accommodation.

So the best single idea for reform is to ask senior people on the practice side what they would have in the curriculum, and listen carefully to the answers. The goal is not for law professors simply to satisfy customers, but to be open to accommodation to the wisdom of our professional colleagues. And if it means soul-searching about what really is a matter of pedagogical principle, so be it.

For all the posts in the series, see here.

Russell Osgood's Advice for Erwin Chemerinsky: Focus on 3-4 New Ideas

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?

Russell K. Osgood (President, Grinnell College; former Dean (and Tax Prof), Cornell Law School):

Reform doesn’t usually flow from the discovery of a single big new idea. Rather, reform and improvement usually occurs when a new idea is tested alongside existing strategies and the results are compared. So, I would encourage Erwin to find three or four new ideas and invest in the people/technologies/infrastructure needed to test them out. Further, I would encourage him to find individuals willing to test the results of their undertakings. A lot of people claim something is better based upon assertion or hope. If something is really going to improve legal education, it should be able to produce measurable outcomes using sophisticated evaluative mechanisms over a multi-year period. Finally, I would find some convincing people with the new ideas before I would invest much in the infrastructure or technology or other collateral costs of projected reforms.

Ben Barton's Advice for Erwin Chemerinsky: Adopt the Business School Case Method

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:

Benjamin H. Barton (Director of Clinical Programs and Associate Professor of Law, University of Tennessee College of Law; Author, Is There a Correlation between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study):

I’m currently writing an essay for a Tennessee Law Review Symposium advocating that law schools adopt the business school case method. Business school cases are generally real life problems. They ask the students to read the files and then perform actual management tasks. The students also generally work in teams and are graded on their actual work throughout the semester. The students thus spend their time learning how to actually manage, instead of only learning dry management theory.

There are several advantages to the business school case method. The business school case method is much more focused on the actual process of being a business manager. By comparison, the law school case method focuses on the work of judges, not lawyers.

The team aspect of business schools is also preferable to traditional law school classes. Some lawyers practice solo, but a majority work in groups, and working on a team is a necessary (and largely untaught) legal skill. Business schools also give students more regular feedback on their work, because each project/case is graded along the way.

Business school grading is also much more rational than law school grading (and better approximates the experiences of MBA students when they graduate). This is because MBA students are graded on the strength of their actual work, not a single exam at the end of the semester. In sum, trading case methods with MBA programs might vastly improve the first year, and legal education as a whole.

Ann Bartow's Advice for Erwin Chemerinsky: Build Gender Equity Into UC-Irvine

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?

Ann M. Bartow (Associate Professor of Law, University of South Carolina School of Law; Editor, Feminist Law Professors blog):

Building on Paul Butler's words, I’d suggest making at least half your founding faculty female. (Since one longstanding tenet of feminism is “the personal is political” I hope it's okay to note that your law professor spouse would be an excellent first hire!). Tenure gets the blame for gender imbalances on the faculties at most existing law schools, but you have plenty of open slots to fill. I'd imagine you'll do a fair amount of lateral hiring. Don’t feel guilty about depleting the already tiny ranks of tenured female law professors of elite schools like Yale. I hope you won't be afraid to also consider smart, productive women at less prestigious law schools (though I'd appreciate it if you didn't poach any of my South Carolina colleagues). Establish a world class law school where women hold up half the sky. This will pressure other law schools to follow suit, especially once you start drawing the most talented female students to Irvine. In a more women-friendly environment than the typical law school, female students are more likely to reach their full academic potential. Someday you can hire them!

Once you've got a large cohort of female faculty members, resist game playing and make sure women faculty and staff are compensated as well as the men. Focus on scholarship quality, rather than on where articles are placed, keep teaching evaluations in perspective, and avoid making female law professors do disproportionate amounts of service.

Gordon Smith's Advice for Erwin Chemerinsky: Concentrate on Classroom Instruction

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?

Gordon Smith (Professor of Law, Brigham Youg University, J. Reuben Clark Law School; Editor, Conglomerate):

Following the pattern established by Paul and Bill, my "single best idea for reforming legal education" is actually a cluster of ideas captured by a simple admonition: concentrate your resources on what law schools (should) do better than legal employers – classroom instruction.

Corollary #1: Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings. In other words, ignore Bill Henderson's suggestion to solicit advice from legal employers. Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.

Corollary #2: Improve the quality of classroom instruction. With all of the money you save by eliminating the legal writing program and co-curricular offerings, you can invest in small class sizes and light teaching loads. Make excellence in teaching a real expectation for promotion and tenure of your professors. Train them to be good teachers, and give them the support required to develop innovative teaching materials.

Corollary #3: Provide all of that improved instruction in two years. In the U.S., the pressure to move to two-year programs has been building, and, as my new dean pointed out to me recently, the globalization of law practice will increase that pressure, as American training (seven years of university education) is placed in competition with international training (five or six years of university education).

Dan Polsby's Advice for Erwin Chemerinsky: Focus on Your Comparative Advantage

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 D. Polsby (Dean and Professor of Law, George Mason University School of Law):

Dear Erwin –

You begin this new venture in possession of one of the most revered trademarks in higher education, the patronage of a generous billionaire and affiliation with an excellent, surging research university. And it gets better. You have a whole year to be dean without a faculty to trip you up at every step, without a student body to complain about everything you do, and with a (very properly) cowed central administration that will be in no mood to tangle with you on any matter of importance. With all this going for you, there’s no way you can fail. So it is hard to think of what profit you might find in free advice from a competitor. But here it is anyway, with a money back guarantee. Think hard about what your comparative advantage is going to be. Build your mission around that. Do not spend a minute or a penny on anything that does not further the mission. And get to be best, best friends with Mr. Bren. Good luck!

Doug Berman's Advice for Erwin Chemerinsky: Reengineer the 1L Curriculum

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?

Douglas Berman (William B. Saxbe Designated Professor of Law, Ohio State University, Moritz College of Law; Editor, Sentencing Law & Policy blog):

I urge Dean Chemerinsky to consider reengineering the first-year curriculum. The first year of law school is, for nearly all law students, the most memorable and often the most consequential year of schooling they ever experience. And yet, the basic structure and content of the the first-year curriculum has not been critically reassessed or even seriously reconsidered in over a century.

A rigorous assessment of the status quo might prompt the development of a whole new first-year program updating the study of law for the 21st century. As a matter of substance, I fear that the traditional first-year curriculum gives students the false impression that common-law doctrines and court-centric adversarial analysis is central to the work of every modern lawyer. As a matter of style, I fear that the traditional large 1L class environments and in-class timed exams unduly reward aggressive talkers and fast writers.

I do not view the traditional 1L curriculum as entirely broke and needing radical reconstruction. In fact, I would expect that, after extended review and reflection, Dean Chemerinsky and others might decide to preserve many features of the traditional first-year curriculum. But for a professional schools that frequently espouse the virtues and values of diversity, the traditional first-year program tends repeatedly to deliver and test the same sorts of (caselaw) materials in the same sorts of (in-class) ways. Instructional diversity seems to me to be as important as institutional diversity.

I suspect a fresh approach to the first-year curriculum might include more hands-on problems, more research and writing assignments, more focused study of those institutions and individuals shaping legal doctrines and greater exposure to all the lawmaking and lawyering that take place outside of courtrooms. Ultimately, right now it is not easy to imagine what a truly modern 1L student would study because law schools, which are surprisingly conservative when it comes to curricular reform, have rarely tried to chart a new path for the first year of legal education. It would be beneficial to the entire profession, and as well as to the students who start at UC-Irvine, if Dean Chemerinsky looks forward and not backward when developing his new school's first-year curriculum.

Paul Butler's Advice for Erwin Chemerinsky: Take Back the Law School From Dead White Men

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?

Paul Butler (Carville Dickinson Benson Research Professor of Law, George Washington University Law School; Editor, BlackProf blog):

Erwin, the people who did not want you to have this job are dead white men who happen still to be alive. The mission of the 21st century law school is to demonstrate that they were right to be afraid of you, of us, of the rainbow people who in this new age have come to claim what is ours. Its name is America. The new law school must help us take it back.

Architecture: Consult departments of physics and design - the atrium should remind all who enter the law school that Auschwitz was only yesterday and Darfur is across the street. Students should have to wade through Guantanomo Bay to get to Constitutional Law. In Fred Korematsu Law Library display portraits of migrant workers, the wrongfully executed, and Rosa Parks.

Appointments: A faculty like California! Having people of color as half of their professors will seem as natural to your students as having mainly white men seems to students at other schools.

Agenda/First faculty meeting: What is role of law school during despotic regimes? Spanish fluency - mandatory for admission, or only for graduation? Should "Justice and Re-distribution of Wealth" be a required course, or integrated into the entire curriculum?

Each morning students will pledge allegiance to the flag by discussing how to safely dismantle California state prison system.

On wall of faculty lounge: "The lawyer is either a social engineer or a parasite." Charles Hamilton Houston.

Christopher Columbus Langdell is dead. Act like you know.

Mark Herrmann's Advice for Erwin Chemerinsky: Hire Adjuncts to Teach Substantive Courses

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?

Mark Hermann (Partner, Jones, Day (Chicago); Author, The Curmudgeon's Guide to Practicing Law; Editor, Drug and Device Law Blog):

A Practitioner's Advice to Erwin Chemerinsky:

Here's my thought for Dean Chemerinsky: Aggressively recruit adjunct faculty members from your local legal community -- to teach substantive classes.

Many law schools view adjunct faculty as cannon fodder. If the law school needs a dozen bodies to teach, say, legal writing or trial advocacy, it's worth a sweep through the local legal community to round up the necessary bodies. That is, however, the very least that adjunct faculty can do.

Scholars sometimes doubt whether full-time practicing lawyers have the time, inclination, and ability to teach real, substantive classes. Many practitioners don't, but enough do to make it worth the search. I have taught Advanced Civil Procedure on the adjunct faculty of Case Western Reserve University School of Law since 1997. During that time, a half dozen of my colleagues at Jones Day have asked whether similar opportunities might exist for them.

Expanding the adjunct faculty benefits both the local legal community and the law school. As any scholar knows, the best way to learn a subject is by teaching it. Employing practitioners on adjunct faculties thus improves the quality of the local bar.

The law school also benefits from this cross-fertilization. First, a law school can expand its course offerings to fields in which practitioners toil daily, but scholars are unlikely to tread. In many areas of law, the most interesting concepts come from experience, not book learning.

Second, practitioners bring a different approach to the law than scholars. People are naturally influenced by the lives they live. Folks who practice law will naturally teach differently than those who study legal issues from a more theoretical perspective.

Finally, enlisting practitioners on the adjunct faculty builds bridges that can benefit law schools in other ways. Firms and schools can co-host conferences; firms can suggest topics for events or provide speakers; lawyers may even be inclined to contribute money to law schools with which they have an on-going relationship.

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.]

Continue reading

Advice for Erwin Chemerinsky

The hiring, firing, and re-hiring of Erwin Chemerinsky as founding dean of the new UC-Irvine law school has attracted enormous national attention. (For a roundup of coverage, see here.)  Bill Henderson and I want to use this moment in time to generate and publicize the best ideas about reforming legal education from some of the leading thinkers in the law school world. Next week, TaxProf Blog will begin posting the answers of university presidents and provosts, and law school deans, faculty, students, and career planning professionals, 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?

Each contribution will be limited to no more than 250 words.