Bader: How To Cope With Your Law Prof’s Left Wing Bias

Hans Bader (Competitive Enterprise Institute), How to Cope With Your Prof’s Left-wing Bias:

To get the best possible grade, students may need to pander to their professors’ left-wing ideology.

Professors are much more likely to be progressives than they are to be moderate or conservative. Law professors are no exception. Progressive professors view progressive views as a sign of intelligence, and conservatism as a sign of stupidity. For example, Prof. Robert Brandon, head of Duke University’s philosophy department, argued that conservatives are rare in academia because they are stupid.

So to get a good grade, moderate or conservative law students should pretend to be progressives when taking their final exam. That will make them seem more intelligent to their left-wing professors. They should echo their professor’s left-wing ideology in answering exam questions — such as questions about what a vague provision of the Constitution means, or about who should win a lawsuit where both sides have a plausible legal argument.

Parroting my professors’ left-wing ideology worked for me at Harvard Law School. For example, I got a good grade in my tort law class, because I parroted the professor’s male-bashing and left-wing extremism. I got a high grade even though I did not understand tort law as well as most of my classmates. When I failed to pander to my left-wing professors’ ideology, I got lower grades. I received only a B- in property law, which I understood better than many classmates. Why? Perhaps because I did not echo the anti-property-rights mindset of the left-wing professor.

Moderate and conservative law professors themselves have advised students to parrot their progressive professors’ views to get a good grade on their final exam. Law professor Robert Anderson advises,

Law students: Remember to echo your professor’s ideology on your final exams! If you haven’t noticed this on Twitter, many profs are incapable of separating “is” from “ought,” acknowledging trade-offs, or recognizing the validity of counterarguments.

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Forgiveness: Law, Faith, Christmas, And Hamilton

Martha Minow (Harvard), When Should Law Forgive? (2019):

The potential power of forgiveness in an age of resentment.

Crimes and violations of the law require punishment, and our legal system is set up to punish, but what if the system was recalibrated to also weigh grounds for forgiveness? What if something like bankruptcy―a fresh start for debtors―were available to people convicted of crimes? Martha Minow explores the complicated intersection of the law, justice, and forgiveness, asking whether the law should encourage people to forgive, and when courts, public officials, and specific laws should forgive.

Who has the right to forgive? Who should be forgiven? And under what terms? Minow tackles these foundational issues by exploring three questions:

What does the international response to child soldiers teach us about the legal treatment of juvenile offenders in the United States?

• Why are the laws surrounding corporate debt more forgiving than those governing American student and consumer debt, and sovereign debt in the developing world?
• When do law’s tools of forgiveness, amnesties, and pardons strengthen justice, peace, and democracy (think South Africa), and when do they undermine law’s promise of fairness (think Joe Arpaio)?

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Something Borrowed: Interdisciplinary Strategies For Legal Education

Deborah L. Borman (Arkansas) & Catherine Haras (Cal State-L.A.), Something Borrowed: Interdisciplinary Strategies for Legal Education, 68 J. Legal Educ. 357 (2019):

The focus of this article is “Borrowed Strategies,” education theories and techniques from other disciplines that encourage faculty and students to achieve better learning in law school to ultimately become better practitioners. We address some of the faulty learning theory that pervades the legal academy, i.e., neuromyths, dismissing learning styles as unsupported scientifically. We provide healthy recommendations for teaching and learning based on techniques both inside and outside of legal education.

Conclusion.  To achieve progress in learning in legal education, we need to abandon tired neuromyths about learning styles, multiple intelligences, multitasking, left-brain and right-brain theories of personality, and other fallacies that do not advance teaching or learning in law classrooms. These neuromyths stymie law education at a crucial time in the academy Instead, law andragogy, which embodies the Socratic method of dialogue, can and should leverage this powerful self-regulating practice to enhance law learning. Law can also adopt the literature on cognitive psychology and institute an evidence-based teaching and learning focus on the following concepts explored in detail above:

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Law Students Who Handwrite Their Notes Outperform Laptop Users By One Grade (e.g., B + to A-)

Colleen P. Murphy, Christopher J. Ryan, Jr. & Yajni Warnapala (Roger Williams), Note-Taking Mode and Academic Performance in Two Law School Courses, 68 J. Legal Educ. 207 (2019):

Our study of whether academic performance in two required doctrinal law school courses was linked to note-taking mode found that, when controlling separately for LSAT, handwriters had a higher combined GPA in those courses than laptop users. Moreover, our results, using a quasi-experimental method (the difference-in-differences analysis) to control for LSAT and to isolate the effect of receiving a memo about the pitfalls of using a laptop to take notes, indicated a substantial positive association at a statistically significant level between handwriting and academic performance.

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Maynard Presents Converting Student Loans (And Other Aid Programs) To Cash Grants Today At Toronto

Goldburn P. Maynard Jr. (Louisville) presents Hold on to Your Student Loan . . . I’ll Take the Cash Instead at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

The federal government has finally admitted what some knew and others suspected: the federal student loan program is veering into hot mess territory. At the end of January, the U.S. Department of Education’s (DOE) Office of Inspector General released its final audit report (OIG Report) regarding the cost of income-driven repayment (IDR) plans and loan forgiveness programs. The report gave a stark assessment: “Decision makers and others may not be aware of the growth in the participation in these IDR plans and loan forgiveness programs and the resulting additional costs. They also may not be aware of the risk that, for future loan cohorts, the Federal government and taxpayers may lend more money overall than is repaid from borrowers.“ Although federal student aid programs have been blessed by legislators and presidents and reauthorized over several decades the intricacies of their impact have been little known by those in Congress.

The OIG Report confirmed what scholars had warned about in previous years: the costs of the IDR and loan forgiveness programs had been vastly underestimated. Even more troubling is the fact that their benefits disproportionately accrue to borrowers with high incomes who attend expensive institutions. The intent of this federal program was both honorable and well-meaning, as most subsidies are, but the result should not be a surprise. Every policymaker worth her salt knows that government programs are subject to the law of unintended consequences. First developed by Robert K. Merton, the law of unintended consequences states that unanticipated or unintended effects invariably result from human action, most often government action in the form of legislation and regulation.

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Barton: Fixing Law Schools

Benjamin H. Barton (Tennessee), Fixing Law Schools: From Collapse to the Trump Bump and Beyond (NYU Press 2019):

An urgent plea for much needed reforms to legal education

The period from 2008 to 2018 was a lost decade for American law schools. Employment results were terrible. Applications and enrollment cratered. Revenue dropped precipitously and several law schools closed. Almost all law schools shrank in terms of students, faculty, and staff. A handful of schools even closed. Despite these dismal results, law school tuition outran inflation and student indebtedness exploded, creating a truly toxic brew of higher costs for worse results.

The election of Donald Trump in 2016 and the subsequent role of hero-lawyers in the “resistance” has made law school relevant again and applications have increased. However, despite the strong early returns, we still have no idea whether law schools are out of the woods or not. If the Trump Bump is temporary or does not result in steady enrollment increases, more schools will close.

But if it does last, we face another danger. We tend to hope that crises bring about a process of creative destruction, where a downturn causes some businesses to fail and other businesses to adapt. And some of the reforms needed at law schools are obvious: tuition fees need to come down, teaching practices need to change, there should be greater regulations on law schools that fail to deliver on employment and bar passage. Ironically, the opposite has happened for law schools: they suffered a harrowing, near-death experience and the survivors look like they’re going to exhale gratefully and then go back to doing exactly what led them into the crisis in the first place.

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Distance Legal Education: Lessons From The *Virtual* Classroom

Jacqueline D. Lipton (Pittsburgh), Distance Legal Education: Lessons from the *Virtual* Classroom:

In the 2018-2019 revision of the American Bar Association (ABA) Standards and Rules of Procedure for Approval of Law Schools, the ABA further relaxed the requirements relating to distance education in J.D. programs. However, outside of a handful of schools that have received permission to teach J.D. courses almost entirely online, most experiments in distance legal education have occurred in post-graduate (i.e. post-J.D.) programs: LL.M. degrees, and various graduate certificates and Master’s degrees in law-related subjects. These programs can be taught completely online without requiring special ABA permission.

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In Defense Of American Excellence

Jasper L. Tran (Minnesota), In Defense of Excellence, 73 Vand. L. Rev. En Banc ___ (2020) (reviewing Anthony T. Kronman, The Assault on American Excellence (2019)):

While Anthony Kronman’s The Assault on American Excellence certainly has many rich veins to mine, this Review aims to tap only those central to his observations on how academic excellence has gradually lost its reign in colleges and universities. Part I situates the Book among his earlier scholarship and other scholars’ work. To better understand his vantage point, Part II contextualizes the Book with Kronman’s intellectual journey and the historical-to-current views on diversity. Part III discusses the Book in detail, beginning with Kronman’s argument for the pursuit of excellence followed by his identification of the three anti-excellence movements, and critically engages the Book with arguments/counterarguments that it could have, should have, but did not cover. Part IV briefly concludes with an ex ante view on the future of excellence. ...

Conclusion.  While this short Review does not do enough justice to the Book, which is excellent and worth reading in its entirety, I venture to leave some brief thoughts. “‘The true question to ask respecting a book is, Has it helped any human Soul?’” Kronman’s Book certainly has eased mine and possibly the souls of those who still believe in intellectual diversity and the pursuit of excellence. It may even help save the lost souls who are still perplexed about the increasingly aggressive intrusion of politics to higher education to better understand and formulate their stands on this issue.

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Call for Papers: Michigan Junior Scholars’ Conference

Michigan Law School has issued a Call for Papers for its 6th Annual Junior Scholars' Conference:

The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.

Applications are due by January 3, 2020.

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Journal Of Legal Education Publishes New Issue

The Journal of Legal Education has published Vol. 68, No. 2 (Winter 2019):

From The Editors

• Camille A. Nelson (American) & Anthony E. Varona (American), From the Editors, 68 J. Legal Educ. 191 (2019)

Articles

• Jamie R. Abrams (Louisville), The Deconstructed Issue-Spotting Exam, 68 J. Legal Educ. 194 (2019)
• Colleen P. Murphy (Roger Williams), Christopher J. Ryan, Jr. (Roger Williams) & Yajni Warnapala (Roger Williams), Note-Taking Mode and Academic Performance in Two Law School Courses, 68 J. Legal Educ. 207 (2019)
• Louis N. Schulze, Jr. (Florida Int'l), Using Science to Build Better Learners: One School’s Successful Efforts to Raise its Bar Passage Rates in an Era of Decline, 68 J. Legal Educ. 230 (2019)

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Crawford: SSRN And The (Arbitrary) Determination Of 'Scholarly' Merit

Bridget J. Crawford (Pace), SSRN and the (Arbitrary) Determination of 'Scholarly' Merit, 22 Green Bag 2d 201 (2019):

This article, published in the Green Bag, investigates and critiques SSRN’s (lack of clear) criteria for classification of material as a “scholarly paper” or “other paper.” In the former category appear to be “scholarly research papers,” bibliographies, briefs filed before some courts, some (but not all) teaching materials, and some (but not all) articles published in the Green Bag, for example. In the latter category are data tables, summary book reviews, opinion pieces, advocacy and satirical papers. “Other papers” are internet-searchable but are not displayed on the author’s SSRN page. Downloads of “other papers” are not included for purposes of SSRN’s various rankings.

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Chilton & Masur: What Should Law School Rankings Measure And How Should We Measure it — A Comment On Heald & Sichelman's Rankings

Adam S. Chilton (Chicago) & Jonathan S. Masur (Chicago), What Should Law School Rankings Measure and How Should We Measure it: A Comment on Heald & Sichelman's Rankings, 60 Jurimetrics J. ___ (2019) (reviewing Paul J. Heald (Illinois) & Ted M. Sichelman (San Diego), Ranking the Academic Impact of 100 American Law Schools, 60 Jurimetrics J. ___ (2019)):

There are obvious benefits to ranking academic departments based on objective measures of faculty research output. However, there are considerable difficulties associated with producing reliable and accurate rankings. In this short comment, we offer an evaluation of Heald & Sichelman's recent foray into the project of ranking law schools. Heald & Sichelman are to be commended for the transparency and rigor of their rankings effort. At the same time, it is important to note that their rankings involve a series of contestable discretionary choices and could give rise to potential counter-productive gaming by law schools seeking to improve their place in the rankings. In particular, Heald & Sichelman's system places a thumb on the scale on behalf of more senior faculty who publish in traditional law reviews and write in popular substantive areas like constitutional law.

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Sisk: Citations — 'A Valid, If Imperfect, Proxy For Faculty Scholarly Impact On A National Scale'

Gregory C. Sisk (St. Thomas-Minnesota), Measuring Law Faculty Scholarly Impact by Citations: Reliable and Valid for Collective Faculty Ranking, 60 Jurimetrics J. ___ (2019) (reviewing Paul J. Heald (Illinois) & Ted M. Sichelman (San Diego), Ranking the Academic Impact of 100 American Law Schools, 60 Jurimetrics J. ___ (2019)):

No single metric of faculty scholarly activity can fully capture every individual contribution. For that reason, evaluating a single professor’s scholarly work requires a nuanced, multifaceted, and individually focused assessment. However, for a contemporary sketch of the collective scholarly impact of a law school faculty, citation measurements in the legal literature are both reliable and valid.

The new Heald-Sichelman study of citations in the HeinOnline database confirms the reliability of the multiyear results of the Leiter-Sisk Scholarly Impact Ranking based on the Westlaw journals database. Despite using a different law journal database, counting citations differently, including pre-tenure faculty, and even adding download statistics into the mix, the Heald-Sichelman ranking correlates powerfully at 0.88 with the most recent Leiter-Sisk ranking. An objective citation measurement is time-sensitive and corresponds to informed awareness of law school faculty developments around the country. A citation-based ranking thus is a valid, if imperfect, proxy for faculty scholarly impact on a national scale.

With appropriate qualifications and necessary adjustments, a citation-based ranking should be considered in any evaluation of the overall quality of a law school faculty. For the U.S. News ranking of American law schools, an up-to-date, citation-based ranking would have considerable merit as an objective forward-directed control to the subjective past-looking academic reputation survey. ...

In an ideal world of infinitely elastic resources, the eternity of time, and omniscient observers, every individual law professor and every law school’s faculty would be fully known, sensitively understood, and thoroughly evaluated based on complete, detailed, and nuanced information. A dean or faculty committee conducting an annual evaluation of an individual faculty member may conduct a more focused individualized assessment. Similarly, a candidate for a faculty position at a particular law school may have the opportunity for a more targeted exploration of the scholarly culture and activity and arrive at a more specified assessment of that school’s progress as a scholarly community.

When comparing large numbers of law faculties across the country, however, a generalized assessment approach has considerable merit and the imperfections of a robust proxy for scholarly accomplishment will wash out at the macro level. That is no reason to be insensitive to flaws in a particular method or to resist adjustments that improve the accuracy and meaning of the results, even if at the margins. And honesty demands acknowledging the limitations of any single approach, allowing the reader to avoid ascribing perfect confidence.

With those qualifications in mind, a citation-based measurement of law faculty scholarly impact has proven to be a reliable method and should be recognized as a valid if imperfect proxy for faculty scholarly achievement. Citation ranking has established itself as a worthwhile factor in comparative assessment of law faculty scholarly impact.

Heald & Sichelman: The Top 100 Law School Faculties In Citations (Hein) And Impact (SSRN Downloads)

Paul J. Heald (Illinois) & Ted M. Sichelman (San Diego), Ranking the Academic Impact of 100 American Law Schools, 60 Jurimetrics J. ___ (2019):

U.S. News & World Report and rankings-minded scholars have constructed several measures of faculty impact at U.S. law schools, but each has been limited in a variety of ways. For instance, the U.S. News “peer assessment” rankings rely on the qualitative opinions of a small group of professors and administrators and largely mirror the overall rankings (correlations of 0.96 in 2016). While the scholarly rankings improve upon U.S. News by using the quantitative measure of citation counts, they have relied on the Westlaw database, which has notable limitations. Additionally, these rankings have failed to capture the component of scholarly impact on the broader legal community. We overcome these limitations by offering citation-based rankings using the more comprehensive Hein database and impact rankings based on Social Science Research Network (SSRN) download counts, as well as a combination of the two metrics.

Notably, we find a high correlation with the previous scholarly rankings (about 0.88), but a significantly lower correlation with the U.S. News peer assessment rankings (about 0.63). Specifically, we find that many law schools in dense urban areas with large numbers of other law schools that are highly ranked in the U.S. News survey are underrated in the U.S. News peer assessment rankings relative to our faculty impact metrics. Given the relatively low correlation between our rankings and the U.S. News peer assessment rankings—and the fact the U.S. News peer assessment rankings largely track its overall rankings—we strongly support U.S. News’s plans to rank schools on the basis of citation counts and recommend that U.S. News adopt a quantitative-based metric as a faculty reputation component of its overall rankings. ...

Here, pursuant to our suggested weighting discussed earlier, we combine the SSRN and Hein scores equally. Because SSRN download counts are substantially higher than Hein citation counts, we determine the number of standard deviations (z-score) from each school’s score from the mean for that metric, then average the SSRN and Hein z-scores together for a final score.

Table 3. Ranking by SSRN Download and Hein Citation Metrics

Combined Ranking	School	Total SSRN Score	Hein Total Score	SSRN Z-score	Hein Z-score	Average Z-score
1	Yale	18,753	5223	2.56	5.25	3.91
2	Harvard	23,608	3856	3.60	3.53	3.56
3	Columbia	17,820	3075	2.36	2.55	2.45
4	Chicago	19,103	2414	2.64	1.71	2.17
5	Vanderbilt	21,124	1995	3.07	1.19	2.13
6	Penn	18,340	2364	2.47	1.65	2.06
7	NYU	12,569	3114	1.24	2.60	1.92
8	Stanford	11,336	2837	0.97	2.25	1.61
9	UC-Irvine	15,786	2027	1.93	1.23	1.58
10	Duke	12,194	2029	1.16	1.23	1.19
11	GW	14,037	1617	1.55	0.71	1.13
12	Northwestern	11,648	1939	1.04	1.12	1.08
13	Cornell	10,942	1970	0.89	1.15	1.02
14	UCLA	11,956	1782	1.11	0.92	1.01
15	G. Mason	15,120	1150	1.78	0.12	0.95
16	Georgetown	9906	1758	0.67	0.89	0.78
17	Virginia	9325	1702	0.54	0.82	0.68
18	UC-Berkeley	9781	1609	0.64	0.70	0.67
19	Michigan	10,305	1519	0.75	0.59	0.67
20	Minnesota	10,315	1462	0.75	0.52	0.63
21	St. Thomas	11,487	1155	1.00	0.13	0.57
22	Illinois	10,927	1159	0.88	0.13	0.51
23	Texas	6611	1873	-0.04	1.03	0.50
24	UC-Davis	10,805	1098	0.86	0.06	0.46
25	Arizona	9696	1058	0.62	0.01	0.31

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Clinical Legal Education And The Replication Of Hierarchy

Minna J. Kotkin (Brooklyn), Clinical Legal Education and the Replication of Hierarchy, 26 Clinical L. Rev. 287 (2019):

Clinical legal education is now a significant and widely touted feature of every law schools’ curriculum. The 2008 recession, which resulted in fewer law jobs and fewer applicants, spurred law schools to beef up their experiential offerings, both in response to the call for “practice ready” graduates and to enhance law schools’ appeal to potential applicants. This essay explores two aspects of collateral damage that have resulted from the growth and institutionalization of clinical education. They both stem from the replication of hierarchies that have long existed in law school faculties and in the legal profession in general.

First, the expansion of clinical offerings has not resulted in more clinical tenure-track positions—their number has steadily decreased. Instead, hiring has been largely through short-term fellowship, visitor or staff attorney appointments, or at best long-term contract eligible positions, without voting rights on the issues that shape the future of the institution—appointments and tenure. Thus, instead of increased integration of clinical education into the academy, a new underclass has been created within faculties, without job security or long-term academic prospects.

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Merritt & McEntee: Gender Equity In Law School Enrollment

Deborah Jones Merritt (Ohio State) & Kyle P. McEntee (Law School Transparency), Gender Equity in Law School Enrollment: An Elusive Goal, 68 J. Legal Educ ___ (2020):

Women finally make up more than half of law students nationwide, but that milestone masks significant gender inequities in law school enrollment. Women constitute an even larger percentage of the potential applicant pool: for almost two decades, they have earned more than 57% of all college degrees. As we show in this article, women are less likely than men to apply to law school — or to be admitted if they do apply. Equally troubling, women attend less prestigious law schools than men. The law schools that open the most employment doors for their graduates enroll significantly fewer women than schools with worse job outcomes and weaker access to the legal profession.

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Villanova Hosts Symposium Today On Gender Equity In Law Schools

Villanova hosts the Annual Law Review Norman J. Shachoy Symposium today on Gender Equity in Law Schools:

Despite the significant demographic change in the gender composition of law faculty during the last 25 years, persistent questions of unequal treatment and unconscious bias continue to hamper the ability of female faculty to achieve full equality in law schools.

The symposium will examine a broad variety of issues relating to gender equity in law schools, such as:

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Foreign Law Students In The U.S.: A Preliminary Assessment

Kathryn Hendley (Wisconsin) & Alexander Straka (Kirkland & Ellis, Chicago), Foreign Law Students in the U.S.: A Preliminary Assessment:

Foreign students have become a growing presence in U.S. law schools. The scholarship to date has focused on their experiences. This paper shifts the emphasis to the law schools. It is based on an on-line survey distributed to all U.S. law schools in late spring 2019. It sets forth an overview of the sample and lays out the preliminary findings from the survey. 

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Grit, Growth Mindset, And The Path To Successful Lawyering

Megan Bess (UIC John Marshall), Grit, Growth Mindset, and the Path to Successful Lawyering:

Research increasingly reveals the need for law students and new lawyers to possess a broad range of characteristics, skills, and professional competencies in order to succeed. Moreover, employers indicate that new lawyers’ ability to navigate a professional environment is far more important than their legal skills.

Two constructs borrowed from the social sciences—grit and growth mindset—serve as promising mechanisms for students to develop these necessary characteristics and professional competencies. While few studies have applied these concepts directly to legal education and practice, generalized research demonstrates they are directly correlated with success and well-being.

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Understanding The Impact Of Range Restriction On LSAT Correlation Studies

Richard Gardiner (AccessLex), Understanding the Impact of Range Restriction on LSAT Correlation Studies:

Several empirical studies have found a link between LSAT score and bar exam performance. AccessLex is currently seeking to gain a better understanding of factors, both LSAT score and others, that influence bar passage through the Bar Exam Success Initiative in partnership with LSSSE. So far, our work suggests that there may be a tenuous relationship between the LSAT and bar exam outcome. At 5 of the 19 schools we studied, LSAT scores had some predictive relationship to bar exam performance. These relationships usually faded by the second year of law school, being overshadowed by law school grades. At the other schools, no relationships between LSAT scores and bar exam performance were found. However, there is a reason why the relationship between LSAT and bar passage may be difficult to detect—that being the influence of range restriction. ...

As before, you only accept students with a 155 or higher. But you have never been able to yield those students above 165. You can guess what happens—the correlation drops even further (though very small changes do not necessarily lead to changes lower correlations). Figure 3 shows the new graph, which results in a correlation of 0.14.

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Professional Formation And Development From Law Student To Lawyer

Neil W. Hamilton (St. Thomas), The Major Transitions in Professional Formation and Development from Being a Student to Being a Lawyer Present Opportunities to Benefit the Students and the Law School, 72 Baylor L. Rev. ___ (2019):

Curricular support during the significant transitions each student experiences in law school will provide substantial benefits to students as well as the law school. What are the significant transitions? The distinction between the situational changes a law student experiences and the significant transitions of law school is important. During law school, each student experiences a number of situational changes like physically moving to a new city to attend law school or starting a new class or a new year of law school. A significant transition, however, is a psychological inner re-orientation and self-definition that the student must go through in order to incorporate the situational changes into a new understanding of professional life’s developmental process. This article will make clear that the major periods of inner re-orientation and self-definition for a law student are exceptional opportunities for the law faculty and staff to foster student growth toward later stages of the school’s learning outcomes. This benefits both each student and the law school itself.

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Call For Proposals: Inequality Of Wealth, Race, And Class, Equality Of Opportunity

The University of St. Thomas (MN) Journal of Law and Public Policy is hosting a symposium on March 27, 2020, entitled “Inequality of Wealth, Race, and Class, Equality of Opportunity.” Topics include “Student Loans;” “Social Mobility;” “Housing;” and “The Public Good.”

Please submit proposals of 250 to 500 words to Professor Charles J. Reid, Jr, by November 15, 2019. We shall notify those who have submitted successful proposals shortly after that date. Successful submissions can expect a modest honorarium. Successful submissions will be published in our Journal of Law and Public Policy. The deadline for final drafts is July, 2020.

For those who wish to present in person on March 27, in addition to the honorarium, we shall cover travel costs, food and lodging.

The Problems Of Measuring Scholarly Impact (‘Stuff’)

Following up on last week's post, The U.S. News Citation Ranking Is A 'Rigged Metrics Game' That 'Imperils Legal Academia':  LawProfBlawg (Anonymous Professor, Top 100 Law School), The Problems Of Measuring Scholarly Impact (‘Stuff’):

If we’re seeking to adopt some measure to assess scholarly impact, there are serious caveats that need to be addressed before we begin.

Professor Robert Anderson at Pepperdine Law School (place from which I wouldn’t mind a job offer — HINT) [How can we make you an offer (or measure your scholarly impact or teaching effectiveness) if we don't know who you are?] asked me a series of questions on Twitter, all of which are important.

If you don’t know Professor Anderson, you should.  His Twitter feed is a discussion of scholarly impact, and things related to problems of measurement and hierarchies in academia.  I’ve found his tweets cause me to think.  I blame him for this blog post.

His tweet that got me to thinking was this one:  “My pal @lawprofblawg has got some points here, but I think at some point s/he has got to get a little more concrete with an alternative. Is the status quo working? Why would citation-based metrics be worse? Should law schools evaluate scholarship at all? How should hiring work?”

All good questions.  There was some discussion in that thread about the fact that we ought to have some measure of stuff.  In fact, we already do when we hire people to join the faculty, when they go up for tenure, and even (to varying degrees of noneffectiveness) when we review them post-tenure.  They are imperfect, filled with biases, and are often deployed in an arbitrary fashion.  Sometimes they are hardly metrics at all.

Nonetheless, Professor Anderson is correct: I am in favor of having some metrics.  However, the current metrics aren’t working.   My coauthor and I have explained the biases and entry barriers facing certain potential entrants into legal academia.  Eric Segall and Adam Feldman have explained that there is severe concentration in the legal academy, focused on only a handful of schools that produce the bulk of law professors.  While in the academy, barriers block advancement.  And those barriers are reflected, in my opinion, in current citation and scholarly impact measurements seeking to measure stuff.

But if we’re seeking to adopt some measure, whether it is a global standard that could ultimately replace U.S. News or just a standard at one’s own law school, I think there are serious caveats that need to be addressed before we begin to measure stuff.  When I have seen these issues raised before, I have seen them too quickly dismissed.  So let’s try again.

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The Gig Academy

Adrianna Kezar (USC), Tom DePaola (USC) & Daniel Scott (USC), The Gig Academy: Mapping Labor in the Neoliberal University (Johns Hopkins University Press 2019):

Over the past two decades, higher education employment has undergone a radical transformation with faculty becoming contingent, staff being outsourced, and postdocs and graduate students becoming a larger share of the workforce. For example, the faculty has shifted from one composed mostly of tenure-track, full-time employees to one made up of contingent, part-time teachers. Non-tenure-track instructors now make up 70 percent of college faculty. Their pay for teaching eight courses averages $22,400 a year—less than the annual salary of most fast-food workers.

In The Gig Academy, Adrianna Kezar, Tom DePaola, and Daniel T. Scott assess the impact of this disturbing workforce development. Providing an overarching framework that takes the concept of the gig economy and applies it to the university workforce, this book scrutinizes labor restructuring across both academic and nonacademic spheres. By synthesizing these employment trends, the book reveals the magnitude of the problem for individual workers across all institutional types and job categories while illustrating the damaging effects of these changes on student outcomes, campus community, and institutional effectiveness. A pointed critique of contemporary neoliberalism, the book also includes an analysis of the growing divide between employees and administrators.

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What Snowflakes Get Right: Free Speech, Truth, And Equality On Campus

Ulrich Baer (Vice Provost, NYU), What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus (Oxford University Press 2019):

Angry debates about polarizing speakers have roiled college campuses. Conservatives accuse universities of muzzling unpopular opinions, betraying their values of open inquiry; students sympathetic to the left openly advocate against completely unregulated speech, asking for "safe spaces" and protection against visiting speakers and even curricula they feel disrespects them. Some even call these students "snowflakes"-too fragile to be exposed to opinions and ideas that challenge their worldviews. How might universities resolve these debates about free speech, which pit their students' welfare against the university's commitment to free inquiry and open debate?

Ulrich Baer here provides a new way of looking at this dilemma. He explains how the current dichotomy is false and is not really about the feelings of offended students, or protecting an open marketplace of ideas. Rather, what is really at stake is our democracy's commitment to equality, and the university's critical role as an arbiter of truth. He shows how and why free speech has become the rallying cry that forges an otherwise uneasy alliance of liberals and ultra-conservatives, and why this First Amendment absolutism is untenable in law and society in general. He draws on law, philosophy, and his extensive experience as a university administrator to show that the lens of equality can resolve this impasse, and can allow the university to serve as a model for democracy that upholds both truth and equality as its founding principles.

New York Times op-ed:  What ‘Snowflakes’ Get Right About Free Speech, by Ulrich Baer (Vice Provost, NYU)

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The Sad History Of American Business Schools

Steven Conn (Miami University), Nothing Succeeds Like Failure: The Sad History of American Business Schools (Cornell University Press 2019):

Do business schools actually make good on their promises of "innovative," "outside-the-box" thinking to train business leaders who will put society ahead of money-making? Do they help society by making better business leaders? No, they don't, Steven Conn asserts, and what's more they never have.

In throwing down a gauntlet on the business of business schools, Conn's Nothing Succeeds Like Failure examines the frictions, conflicts, and contradictions at the heart of these enterprises and details the way business schools have failed to resolve them. Beginning with founding of the Wharton School in 1881, Conn measures these schools' aspirations against their actual accomplishments and tells the full and disappointing history of missed opportunities, unmet aspirations, and educational mistakes. Conn then poses a set of crucial questions about the role and function of American business schools. The results aren't pretty.

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A Law School Course On Presidential Impeachment

Gregory S. Crespi (SMU), Developing a Law School Course on Presidential Impeachment, 72 SMU L. Rev. F. 41 (2019):

This short essay discusses my motivation for and the process that I went through over the past two years developing a law school course on presidential impeachment and related topics. I recommend that those law school faculty members who may have only a modest constitutional law background, but who feel as I do that more sustained discussion of the questions that would be presented by an attempt to remove President Trump from office through impeachment is called for, consider also developing and offering such a course.

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Meet the Researchers Fighting Back Against Rogue Peer Reviewers And ‘Citation Cartels’

Following up on my previous post, The Network Of Law Reviews: Citation Cartels, Scientific Communities, And Journal Rankings:  Chronicle of Higher Education, Meet the Researchers Fighting Back Against Rogue Peer Reviewers and ‘Citation Cartels’:

Eric A. Fong’s manuscript had been conditionally accepted. The editor said Fong needed to ensure it conformed with the journal’s style and to shorten it to meet the word limit. That was easy enough. But the third condition gave Fong pause.

He’d cited only one source from the journal he’d submitted the article to. The editor wrote in an email that that was “unacceptable,” and told him to “please add at least five more.”

Adding citations to articles in the same journal, as the editor had requested, would inflate the journal’s impact factor, which often dictates a journal’s importance. It’s a phenomenon some scholars call “coercive citation,” but Fong, then an assistant professor of management at the University of Alabama at Huntsville, had never heard that term.

Still, he felt what he was being asked to do was wrong. And yet publishing this paper would be an important part of his case for tenure. Conflicted, Fong printed out the email and headed to Allen Wilhite’s office. Wilhite, Fong’s mentor and an economics professor, was stunned. Most of their colleagues were, too. A few, though, said they had received a similar request from an editor.

Coercive citation has drawn increased attention in recent years. Last month two researchers at the Dutch publishing giant Elsevier published a study, titled “When Peer Reviewers Go Rogue,” that examined the citation patterns of nearly 55,000 reviewers for its journals. They found that 433 of those reviewers — less than 1 percent — consistently had their own work cited in papers they reviewed. ...

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Racial And Gender Inclusion In Clinical Law Faculty

Deborah Archer (NYU), Caitlin Barry (Villanova), G.S. Hans (Vanderbilt), Derrick Howard (Valparaiso), Alexis Karteron (Rutgers), Shobha Mahadev (Northwestern) & Jeffrey Selbin (UC-Berkeley), The Diversity Imperative Revisited: Racial and Gender Inclusion in Clinical Law Faculty, 26 Clinical L. Rev. 127 (2019):

The demographics of clinical law faculties matter. As Professor Jon Dubin persuasively argued nearly twenty years ago in his article Faculty Diversity as a Clinical Legal Education Imperative [51 Hastings L.J. 445 (2000)], clinical faculty of color entering the legal academy in the 1980s and 1990s expanded the communities served by law school clinics and the lawyering methods used to serve clients in significant ways that enriched legal education and the profession. They also broadened clinical scholarship to include deconstructions and reconstructions of clinical teaching, offered crucial role modeling and mentorship to students of color, and helped to elevate cross-cultural communication and multiracial collaboration as core lawyering skills.

Professor Dubin catalogued these contributions while pointing to data that showed that clinical faculties remained overwhelmingly White, and he urged law schools to recognize the urgency of diversifying clinical faculty. While there has been some research and scholarship devoted to the gender composition of clinical faculties, to our knowledge, there has been no substantive reexamination of the importance of racial composition since Professor Dubin’s article in 2000, nor any examination of clinical faculty diversity beyond race, ethnicity, and binary gender.

The Clinical Legal Education Association created the Committee for Faculty Equity and Inclusion to draw attention to the crisis of diversity among clinical faculties, and to urge law schools to take proactive steps to remedy this longstanding failure. This Essay from the Committee assesses what progress has been made since Professor Dubin’s intervention and interrogates historical trends in the racial and gender composition of clinical faculty from 1980 to 2017, using existing data.

We found that there has been limited progress on racial and ethnic inclusion in clinical law faculties. While the total percentage of people of color has grown from 10% to 21%, the inclusion of Black, Latinx, and Indigenous faculty has been largely stagnant. Black clinical faculty members reached 7% of all clinical faculty in 1999 and have never exceeded that percentage. Latinx clinical faculty representation, at 5%, is the same as it was in 1981. Indigenous faculty have never constituted even 1%. Overall, White faculty continue to hold nearly 8 out of 10 clinical faculty positions.

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New Harvard Study: 'The Dangers of Fluent Lectures' — How Smooth-Talking Professors Lull Students Into Thinking They've Learned More Than They Actually Have

Inside Higher Ed, 'The Dangers of Fluent Lectures': How Smooth-Talking Professors Lull Students Into Thinking They've Learned More Than They Actually Have:

Students who engage in active learning learn more — but feel like they learn less — than peers in more lecture-oriented classrooms. That's in part because active learning is harder than more passive learning, according to a new study in Proceedings of the National Academy of Sciences (Measuring Actual Learning Versus Feeling of Learning in Response to Being Actively Engaged in the Classroom). Based on their findings, the researchers encourage faculty members to intervene and correct what they call students' "misperception" about how they learn. ...

The study, involving Harvard University undergraduates in large, introductory physics classes, compared students' self reports about what they'd learned with what they'd actually learned, as determined by a multiple choice tests. Students were taught using exactly the same course materials -- a key control that many other studies comparing active versus passive learning have failed to establish. But one group learned via active instruction methods for a week at the end of the semester and the other learned via lectures from experienced and well-regarded instructors. ...

At the end of the course, students were given both "feeling of learning" and "tests of learning" assessments (the latter consisted of two, low-stakes quizzes with 12 multiple choice questions each). All of the "feeling" responses showed a consistent student preference for the passive lecture environment while scores on the learning tests -- on statics and fluids -- were significantly higher in the active classroom.

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Symposium: Law Schools In The 21st Century

Symposium, Behind the Classroom: An Examination of Law Schools in the 21st Century, 57 Duq. L. Rev. 1-118 (2019):

• Brandon Stump (Duquesne), Foreword, 57 Duq. L. Rev. 1 (2019)
• Noah Kupferberg (Brooklyn), Democracy Begins At Home: Agreements, Exchanges, and Contracts in the American Law School, 57 Duq. L. Rev. 4 (2019)
• DeShun Harris (Memphis), Office Hours Are Not Obsolete: Fostering Learning Through One-on-One Student Meetings, 57 Duq. L. Rev. 43 (2019)
• Diana J. Simon (Arizona), Cross-cultural Differences in Plagiarism: Fact or Fiction?, 57 Duq. L. Rev. 73 (2019)

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Reflections On Elitism After The Closing Of A Clinic: Justice, Pedagogy And Scholarship

Jennifer Lee Koh (UC-Irvine), Reflections on Elitism After the Closing of a Clinic: Justice, Pedagogy and Scholarship, 26 Clinical L. Rev. 263 (2019):

In this Essay, I reflect upon my experience directing the Immigration Clinic at Western State College of Law for nearly a decade, including my decision to close the Clinic after financial crisis put the law school’s ability to continue operating in serious jeopardy in the Spring of 2019. The Essay focuses on the themes of pedagogy and the viability of non-elite law schools, teaching and doing social justice in the clinical context, and the integration of theory, doctrine and practice in legal scholarship. By memorializing a portion of the Clinic’s work, the Essay seeks to give voice to stories that might otherwise go unheard during a time of institutional crisis.

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The 'Pink Ghetto' Pipeline: Challenges And Opportunities For Women In Legal Education

Renee Nicole Allen (St. John's), Alicia Jackson (Florida A&M) & DeShun Harris (Memphis), The 'Pink Ghetto' Pipeline: Challenges and Opportunities for Women in Legal Education, 96 U. Det. Mercy L. Rev. 525 (2019):

The demographics of law schools are changing and women make up the majority of law students. Yet, the demographics of many law faculties do not reflect these changing demographics with more men occupying faculty seats. In legal education, women predominately occupy skills positions, including legal writing, clinic, academic success, bar preparation, or library. According to a 2010 Association of American Law Schools survey, the percentage of female lecturers and instructors is so high that those positions are stereotypically female.The term coined for positions typically held by women is “pink ghetto.” According to the Department of Labor, pink-collar-worker describes jobs and career areas historically considered “women’s work,” and included on the list is teaching. However, in legal education, tenured and higher-ranked positions are held primarily by men, while women often enter legal education through non-tenured and non-faculty skills-based teaching pipelines. In a number of these positions, women experience challenges like poor pay, heavy workloads, and lower status such as by contract, nontenure, or at will. While many may view this as a challenge, looking at these positions solely as a “pink ghetto” diminishes the many contributions women have made to legal education through the skills faculty pipelines. Conversely, we miss the opportunity to examine how legal education has changed and how women have accepted the challenge of being on the front line of educating this new generation of learners while enthusiastically adopting the American Bar Association’s new standards for assessment and student learning.

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Identity Politics Is Failing Women In Legal Academia

Sahar F. Aziz (Rutgers), Identity Politics Is Failing Women in Legal Academia, 69 J. Legal Educ. ___ (2019): 

Two universal truths about patriarchy: it’s global and it’s tenacious. As women in legal academia, we are not shielded from the consequences of this reality.

Starting from this premise, my contribution to this important (yet perennial) discussion on gender (in)equity in legal academia is framed around three points. First, formalistic identity politics grounded in immutable characteristics is failing our generation of women (and women of color in particular) in the legal profession, including in the academy. Second, women who have managed to overcome the hurdles imposed by patriarchy to reach official leadership positions are as subject to institutional capture and conflicts of interest as their male counterparts. Third, the politics of civility in law schools is a patriarchal tool deployed to constrain women’s ability and willingness to radically reform existing systems of inequality.

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Symposium: Mindfulness And Well-Being In Law Schools And The Legal Profession

Symposium, Mindfulness and Well-Being in Law Schools and the Legal Profession, 48 Sw. L. Rev. 199-412 (2019):

• Diana Winston (UCLA), Contextualizing Mindfulness: Foundations, Practice Guidance, And Cultural Implications, 48 Sw. L. Rev. 199 (2019)
• Garrett Green (USC) & Rebecca A. Simon (USC), Self-Mastery: The Pathway To Peak Performance And Well-Being In The Law, 48 Sw. L. Rev. 207 (2019)
• Richard Reuben (Missouri) & Kennon M. Sheldon (Missouri), Can Mindfulness Help Law Students With Stress, Focus, And Well-Being? An Empirical Study Of 1Ls At A Midwestern Law School, 48 Sw. L. Rev. 241
• Susan L. Brooks (Drexel), Mindful Engagement and Relational Lawyering, 48 Sw. L. Rev. 267 (2019)
• Lisle Baker (Suffolk), Integrating Positive Psychology into Legal Education, 48 Sw.W L. Rev. 295

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How Excel's Automatic Data Formatting Can Cause Errors In Published Research

Washington Post, An Alarming Number of Scientific Papers Contain Excel Errors:

A surprisingly high number of scientific papers in the field of genetics contain errors introduced by Microsoft Excel, according to an analysis recently published in the journal Genome Biology.

A team of Australian researchers analyzed nearly 3,600 genetics papers published in a number of leading scientific journals — like Nature, Science and PLoS One. As is common practice in the field, these papers all came with supplementary files containing lists of genes used in the research.

The Australian researchers found that roughly 1 in 5 of these papers included errors in their gene lists that were due to Excel automatically converting gene names to things like calendar dates or random numbers. ...

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Using Exam Wrappers To Foster Self-Assessment Skills In Law Students

Sarah Schendel (Suffolk), What You Don't Know (Can Hurt You): Using Exam Wrappers to Foster Self-Assessment Skills in Law Students, 39 Pace L. Rev. ___ (2019):

“Where did I go wrong?”

When we fail it’s tempting to forget it and move on. However, reflecting on poor performance and figuring out how to proceed is critical to being a successful student and lawyer. Unfortunately, when students receive a disappointing grade they often lack the ability to understand what went wrong and how to change.

Creating self-regulated learners who can identify what they don't know and make a plan to improve is key to helping students succeed. In order to do so – and in order to produce ethical, productive lawyers – law schools should place a greater emphasis on fostering the skill of self-assessment among students.

I propose exam wrappers as an effective and adaptable tool to strengthen law students’ self-assessment skills.

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Junior Scholars Advance ‘One Funeral At A Time’

Inside Higher Ed, Scientific Advancement, ‘1 Funeral at a Time’:

The life sciences benefit from death — the death of star researchers. So concludes a recently published paper in American Economic Review [Pierre Azoulay (MIT), Christian Fons-Rosen (UC-Merced) & Joshua S. Graff Zivin (UC-San Diego), Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889 (2019)].

But co-author Pierre Azoulay, professor of management at Massachusetts Institute of Technology, warns, tongue in cheek, that it’s not an implicit invitation to plot against life sciences luminaries. Instead, Azoulay said in a recent interview, it’s a reason for journal editors and funding agencies to think even harder about who they’re supporting, and why. ...

[I]n the “circle of academic life,” Azoulay said, superstars may “overstay their welcome at the top of their fields.” So “we should probably think a little bit more systematically about this, and open up our practices in the realms of funding and publishing in ways that create more entry points — and make it faster for new ideas to challenge old ones.” ...

Azoulay and his co-authors examined the relationship between the relatively early or sudden deaths of 452 eminent scientists between 1975 and 2003 and the subsequent “vitality” of the field, measured in publication rates and flow of federal funding. ...

Following the deaths of star scientists, subfields saw an 8.6 percent increase in articles published by those scientists who had not previously collaborated with the late luminaries. Those papers were disproportionately likely to be highly cited. All effects are compared to control subfields, which are associated with superstars who did not die. The effects were more pronounced for those who were previously "outsiders" to the subfields.

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Hatfield Presents Professionally Responsible Artificial Intelligence Today In England

Michael Hatfield (University of Washington) presents Professionally Responsible Artificial Intelligence at the 28th Annual Tax Research Network Conference today at the University of Central Lancashire, England:

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI when it can reliably improve expertise but discourages substitution that undermines expertise.

This Article proposes a solution, using tax professionals as a case study. There are several reasons tax professionals provide a good case study, including that tax practice has a long history of computerization and that AI is already being developed for tax professionals. Tax professionals, including not only lawyers but certified public accountants are directly regulated by the Internal Revenue Service, in addition to their regulation by professional bodies.

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The Relationship Between Law School Coursework And Bar Exam Outcomes

Robert R. Kuehn (Washington University) & David R. Moss (Wayne State), A Study of the Relationship between Law School Coursework and Bar Exam Outcomes, 68 J.Legal Educ. ___ (2019):

The recent decline in bar exam passage rates has triggered speculation that the decline is being driven by law students taking more experiential courses and fewer bar-subject courses. These concerns arose in the absence of any empirical study linking certain coursework to bar exam failure.

This article addresses speculation about the relationship between law school coursework and bar exam outcomes. It reports the results of a large-scale study of the courses of over 3800 graduates from two law schools and the relationship between their experiential and bar-subject coursework and bar exam outcomes over a ten-year period.

At both schools, the number of experiential courses or credits taken by a student did not correlate with bar passage, positively or negatively.

Enrollment in bar courses correlated positively with passage, but the correlation was modest and significant only for students whose class rank placed them at heightened risk of bar failure. Even for those students, the marginal benefit of additional bar-related courses was not statistically significant once the student had taken approximately the average number of bar courses at that school.

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2018 James P. White Lecture on Legal Education: The Leadership Council On Legal Diversity — Realizing The Vision

Robert J. Grey, Jr. (President, Leadership Council on Legal Diversity), 2018 James P. White Lecture on Legal Education: The Leadership Council on Legal Diversity: Realizing the Vision, 52 Ind. L. Rev. 95 (2019):

In its first ten years, the Leadership Council on Legal Diversity (LCLD) has grown, and grown rapidly, to a membership of more than 300 corporate chief legal officers and law firm managing partners. These individuals represent the top ranks of leadership in the legal profession. They have each made a personal commitment to the next generation of leaders in the law to build a profession that is as diverse as the nation it serves. Theirs is a compelling vision, but one that they understand will not be realized quickly. Clear-eyed about the challenges, they are committed to action and determined to see results that are profound and lasting.

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How To Give A Great Job Talk

Chronicle of Higher Education op-ed:  How to Give an Excellent STEM Job Talk, by Russ E. Carpenter (Stanford) & R. Parrish Waters (University of Mary Washington):

For Ph.D.s on the job market in the sciences, no element of the hiring process is more important for making or breaking your prospects than the job talk.

At some point in the 2019-20 hiring season — once you’ve made the long journey from application packet to Skype interview to campus visit — you will have to deliver a job talk. It will play a large part in determining the next decade or more of your career.

Yes, other aspects of the campus interview — the one-on-ones, the dinners with professors, the lunches with students, the meetings with administrators — will influence the ultimate decision about whether you are hired. But the job talk is where you can really shine — or very publicly fail. It is where you are given the stage to showcase your lecturing abilities, convey who you are and what you do, and, importantly, demonstrate how you could contribute to the department and the institution.

Given the impact of this segment of the interview, you would think that less-than-stellar job talks were a rare find. Sadly, far too many applicants find themselves in the midst of a cringeworthy monologue, full of disconnected experiments and overly complex graphs with no central theme or story. Worse yet are the applicants who never realize that at all, as their audience struggles to follow along (and mentally moves the candidates into the "no" pile).

In short, regardless of the number of lines on your CV, a poor job talk is the quickest way to sink your chances of landing the position. But, dear reader, you already know that — as we’re not the first to stress the importance of the job talk. A quick search turns up articles stressing practical (a checklist of what to include), professional (know your audience), and obvious (practice, practice, practice) advice.

Here, rather than repackage those tips, we stress points that we see as fundamental to a good job talk.

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Lipshaw: Lawyering Somewhere Between Computation And The Will To Act

Jeffrey M. Lipshaw (Suffolk), Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

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Online Law School Classes Deliver Results For Law Students

Yvonne Dutton, Margaret Ryznar & Kayleigh Long (Indiana-Indianapolis), Assessing Asynchronous Online Learning in Law Schools: Students Say Online Classes Deliver, 96 Denv. L. Rev. 493 (2019):

This is the first article to provide empirical data on the effectiveness of distance education in law schools since the ABA this summer approved increasing the total number of credits that law students could earn through online classes from 15 to 30. Our data, composed of law student surveys and focus groups, reveal not only the success of distance education in their experience, but also the methods that are most effective for them.

Margaret Ryznar, Insights on Online Teaching:

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Delgado: Metamorphosis — A Minority Law Professor's Life

Richard Delgado (Alabama), Metamorphosis: A Minority Professor's Life, 53 UC-Davis L. Rev. Online 1 (2019):

This article is a dark, semi-autobiographical takeoff on a famous novel by Franz Kafka. I use the predicament of Gregor, the central character in The Metamorphosis, as a thematic metaphor to explain a series of events in the life of an outwardly successful man of color teaching law. It proceeds in a series of 37 short vignettes told in the course of a bedside conversation in which my young firebrand Rodrigo turns tables on his usual foil and straight man, “the Professor,” and asks him a few questions about his life and career. Until now, the two had focused on the young man’s ideas and prospects. In an expansive mood, with nothing better to do, the Professor spills the beans. What emerges is a tragicomic description of a middle-aged academic who has come to realize, with a shock, that he is undergoing a jaw-dropping transformation.

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When Does Big Law Work?

Abraham J. B. Cable (UC-Hastings), When Does Big Law Work?, 102 Marq. L. Rev. 875 (2019):

Law firms have grown from hundreds of lawyers to thousands of lawyers, and the conventional wisdom is that this trend fuels dissatisfaction among lawyers. This Article scrutinizes that conventional wisdom based on interviews with lawyers who joined large firms through law-firm mergers. These lawyers offer a valuable perspective on firm size because they made abrupt changes from small to large firms. Though some interviewees echoed the conventional wisdom, others suggested that larger firm size has limited or even positive effects on professional satisfaction.

In one counter-narrative, large law firms are relatively diffuse organizations that have limited influence over individual lawyers. In another counter-narrative, large law firms helpfully insulate lawyers from the business risks of smaller firms. I offer a framework to explain these varied experiences. The framework highlights the importance of seniority, practice-area compatibility, local office attributes, and the manner and rate offirm growth. These new perspectives can inform future research and improve advice to law students and lawyers.

Re-Envisioning Law Student Scholarship

Emily Zimmerman (Drexel), Re-Envisioning Law Student Scholarship, 68 Cath. U. L. Rev. ___ (2019):

As law schools face more pressure to prepare students for law practice, develop learning outcomes, and assess the extent to which students are meeting those outcomes, the time is ripe to consider the role of law student scholarship in the program of legal education. This article suggests that we should think more intentionally about how law students’ engagement in scholarship can promote their professional development. In so doing, we should recognize that legal scholarship plays a different role for law students than it does for law professors. Rather than trying to replicate law professors’ relationship with scholarship, the pedagogy of scholarship should focus more intentionally on the value of scholarship for law students—most of whom will not become law professors. This article suggests that much of the value of scholarship for law students lies in process, rather than product. Accordingly, the article suggests that we should focus more on the process of creating scholarship in and of itself, rather than thinking of process largely as a means to the end of students’ creation of a traditional scholarly paper.

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Henderson Reviews American Law Firms In Transition: Trends, Threats, And Strategies

William Henderson (Indiana), Book Review (reviewing Randall Kiser, American Law Firms in Transition: Trends, Threats, and Strategies (ABA Aug. 9, 2019)):

When it comes to empirical research on lawyers, we’re all lightweights compared to Randall Kiser. Over the last decade, Kiser has authored books on lawyer decision making in the context of litigation, Beyond Right and Wrong (2010), the mindset and work habits of trial lawyers who consistently outperform their peers, How Leading Lawyers Think (2011), and an empirically grounded analysis of the skills and behaviors needed to build a successful legal career, Soft Skills for the Effective Lawyer (2017).

Now comes Kiser’s treatment of U.S. law firms, American Law Firms In Transition: Trends, Threats, and Strategies (2019). I doubt any law firm leader could read this book and conclude that Kiser got it wrong.

The portion of the book that is primarily diagnostic (chapters 1-4) includes a detailed analysis of law firm demographics (we’re getting older), hiring practices (invalid, unreliable, underspecified), clients (they’re insourcing and innovating ahead of firms), strategy (preoccupation with firm size and lateral hiring rather than excellence; obsession with premium rates, which props open the door for new entrants), fragility (collapses are commonplace), and the normalization of all things short term (among other things, highly toxic to the next generation of lawyers).

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Law Teaching And Academic Perfectionism

Nancy Ehrenreich (Denver), When Professors Get in Their Own Way: Law Teaching and Academic Perfectionism, 68 J. Legal Educ. ___ (2019):

This article recounts how the author recovered from disillusionment and decreasing effectiveness as a law professor by diagnosing and overcoming her academic perfectionism. Perfectionism is the self-defeating tendency to have unrealistic goals and expectations of oneself. For many, it can cause loss of confidence, frustration with others, and, eventually, worsening performance. In short, perfectionism can lead a law professor to get in her own way, taking things students say personally and failing to recognize the pedagogical (and emotional) needs of the class. Focusing on the author’s experience teaching large, 1L courses, the article describes how letting go of the desire to impress or entertain students can lead to a more confident, comfortable, and effective approach to teaching.

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Abstract 'Spin': Nearly Half Of All Scholars Exaggerate Their Papers' Findings

Inside Higher Ed, Abstract ‘Spin’:

We’ve all been told not to judge a book by its cover. But we shouldn’t be judging academic studies by their abstracts, either, according to a new paper in BMJ Evidence-Based Medicine [Evaluation of Spin in Abstracts of Papers in Psychiatry and Psychology Journals]. The study — which found exaggerated claims in more than half of paper abstracts analyzed — pertains to psychology and psychiatry research. It notes that “spin” is troublesome in those fields because it can impact clinical care decisions. But the authors say that this kind of exaggeration happens in other fields, too.

“Researchers are encouraged to conduct studies and report findings according to the highest ethical standards,” the paper says, meaning “reporting results completely, in accordance with a protocol that outlines primary and secondary endpoints and prespecified subgroups and statistical analyses.”

Yet authors are free to choose “how to report or interpret study results.” And in an abstract, in particular, they may include “only the results they want to highlight or the conclusions they wish to draw.” ...

How often did articles’ abstracts exaggerate the actual findings? More than half the time, or 56 percent. Spin happened in 2 percent of titles, 21 percent of abstract results sections and 49 percent of abstract conclusion sections. Fifteen percent of abstracts had spin in both their results and conclusion sections.

In a word: spin. ...

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