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Prof. Steven Lubet on Free Speech and Steven Salaita

Our Northwestern Law colleague, Steven Lubet, published an interesting opinion piece on the Steven Salaita controversy at the University of Illinois in today’s Chicago Tribune. The link is here.


What’s next for ABA Standards Review?

One suspects that the ABA Council is taking a deep breath, and perhaps also a victory lap, after several years in which it reviewed existing standards and made some meaningful reforms. Attention rightly shifts to the implementation of these reforms and, one hopes, to working constructively with law schools to best manage the burdens (and also the benefits) of these new standards.

But we should not lose sight of the fact that there is much more constructive work to do. The multiyear process just completed was described as a comprehensive one. Yet, the most comprehensive approach to reform would look freshly at all the rules in toto, asking simultaneously the questions: What is the fundamental purpose of law school regulation? How do the standards maintain public confidence in legal education while encouraging law schools to revisit their basic instructional and economic models, in light of the changing landscape for students, faculty, and lawyers? And how can these standards be framed as drivers of innovation and of creative reform, rather than as maintenance of a model of legal education that is coming under challenge, and from many quarters, as ill-suited to the needs, wants, and exigencies of the profession?

Drilling deep into these questions can assist the Council and its many stakeholders in opening the kind of dialogue that promises to lead, albeit not in the next few months or even couple years, to important change.

More specifically, the ABA Council might think in earnest about the following (which is not to say that such thinking has been entirely lacking within leadership of the Council and ABA Section headquarters:
1. What is the right regulatory approach to teaching faculty? The Council punted entirely on the matter of job security, in the face of criticism and worry. But the matter has not dissolved in importance. What role is there for creativity and flexibility in the construction of a teaching faculty (tenured, long-term contract, and adjunct)? How can the best approaches to academic freedom and faculty governance be married to a vision of high-quality, innovative pedagogy?

2. What is the role of technology in the delivery of legal education and of legal services? The ABA has taken some baby steps toward flexibility with its new distance education standards. But there are large issues which loom nearby. The Council could take a leadership role in thinking about this issue not solely or simply as one of regulation of novel behavior and activity among member schools, but of how best to incentivize and create a space for law schools to think differently (and in some cases radically differently) about information delivery. A thoughtful standard on so-called flipped classrooms might be a bite-size place to start.

3. What should the ABA Section’s regulatory role be with respect to non-core JD programs, including LLM, Master degrees, and certificate programs? Hardly any law dean craves traditional regulation in this space. On the other hand, the development of sensible, informed standards for evaluation — and, yes, even for assistance to law schools — would aid confidence among the public and various stakeholders that law schools are thinking through the implications of these novel programs and are serving important professional objectives.

4. How can the standards help law schools advance the cause of breaking down traditional silos between modalities of professional education? In other words, as the law-technology-business interface replaces the traditional dichotomy of “law practice” and “business performance,” can there be accreditation standards that both absorb this multidisciplinarity and also reward collaborative change? One specific recommendation: Permit, and even encourage, more dual degree programs, cross-listed courses, alternative admissions tests and criteria, joint faculty hiring, and various efforts to build bridges between law schools qua law schools and other professional departments, including business, engineering, medicine, and the social sciences.

5. What is the role of these standards in assessing alternative legal education providers? And by “alternative,” I mean to include non-U.S. law schools, undergraduate institutions, paralegal, for-profits . . . that is, the whole gamut of institutions that are not regular law schools. There is a “looking for the keys under the lampshade” quality to the existing standards. A comprehensive review, consistent with Dept of Educ guidelines, might look at how there could be coherent standards of all relevant accreditation standards to ensure that there are good approaches to legal education wherever such education happens.

Many more questions, and other welcome perspectives. But here is a plea for the Council not to take too long a break from their standards review. There is much more work to be done.


Fuzzy thinking on JD advantage jobs

Matt Leichter weighs in thoughtfully on the “JD advantage jobs = lousy jobs” narrative. This is part of the swimming upstream various bloggers — usually, but not always, disaffected, anonymous posters — have been doing as part of a strategy of criticizing law schools for not enabling their students to pursue interesting, remunerative careers.

The wave of change impacting the legal profession and also the business sector has opened up opportunities for new law graduates. The business sector — especially, but not limited to, the technology sector — sees the utility of law-trained professionals in a world in which the intersection among law, business, and technology is increasingly useful. Indeed, the traditional silos between “legal services” and “business services” is dissolving in important ways. And while professional associations of lawyers, and perhaps state bars and the ABA, may be resistant to these changes, disruptive innovation is coming fast and furiously.

So why do Matt Leichter and others want to pound once again on the JD advantage drum?

First, he wants to draw the connection between unemployment rates and JD advantage positions, making the true, but banal, claim that when unemployment rises, “the proportion of graduates finding themselves in JD advantage positions is likely to increase.” Huh? No one is insisting that a law graduate will always or even mostly prefer a JD advantage to a JD required job. It surely depends upon the job. And everyone agrees (right?) that employment in a JD advantage position is preferable to unemployment. So what is so fuzzy about the proposition that, in this difficult job market, law graduates are pursuing eclectic professional opportunities. And why is it just labeled, derisively, “scrounging for work?”

Let’s look at the matter the other way ’round, that is, from the vantage point of employers. Presumably indebted law grads will have higher salary needs than, say, grads with a BA or even a post-graduate master’s degree. Why would non-traditional business sector employers then prefer law grads at this higher salary level if the JD degree was not truly an advantage? Is it the position of these critics that employers, too, are being scammed?

Here is the essential point: It is not NALP and not the law schools who are foisting law grads on unsuspecting employers by insisting that the JD degree is an advantage. It is the employers — and here, to be sure, I am focusing in particular on the business sector — who are seeing this educational path as providing value added. In the data described by Leichter, twenty percent are in “other business settings.” Would more precision in describing these jobs help? Well, surely yes. But the main point is that businesses are in fact hiring these grads and presumably across salary ranges. Different schools, different outcomes. Yes indeed. But I can report that Northwestern Law grads entering the consulting and business/technology fields are seeing salary outcomes that are quite remunerative indeed. And these fall squarely into this so-called “fuzzy” category.

Leichter insists that NALP should reshape the category to include only positions which offer “the graduate opportunities for exercising professional judgment while using their legal skills and knowledge.” Even making the heroic assumption that some smart cookies could come up with a useful measure of this, there remains very good reasons to suppose that employers are making this assessment in the real world by pursuing with alacrity law graduates. Yes, not all of these positions are lucrative and Leichter’s point that the salary at the 25th percentile of JD advantage jobs is not very large (still, the question is compared to what??). But trotting out the trope that the lion’s share of JD advantage jobs in the business sector are in fact positions which do not demand professional judgment or legal knowledge and thus we know that JD grads are “scrounging” and settling for these jobs (having been duped by NALP and deans) is not only tired, but is belied by the market.

Educated, data-driven debate by careful thinkers — and, to be clear, I certainly view Mr. Leichter as in this category, as someone with a valuable perspective and useful things to say on this subject — is necessary in this fuzzy climate. But let’s have this discussion in the context of a larger debate about the changing nature of legal services, the increasingly innovative work that law schools are doing, multidisciplinarity in the law-business-technology space, and economic judgments made by rational college graduates. More data and analysis in this realm would be a welcome relief to the scambloggers’ cranky refrain.


Barmageddon and its ExamSoft aftermath

Here is a letter sent to me today, and presumably to every other law dean in the U.S., from the CEO of ExamSoft, followed by my response:

Dear Dean Rodriguez,

As you may have already heard, on Tuesday evening last week, there were delays in uploading answer files following the day’s exam sessions. Please accept my sincere apologies to you, your students, your faculty and staff. We take our obligation seriously, and after many years of supporting bar exams across the nation, Tuesday night’s delay was very disappointing to say the least.

Since that night, our core priority has been to assist and support each student and ensure solid technical performance for any remaining bar-related activities. If you would like, in the near future, we would be happy to send you a more robust account of what happened on Tuesday night, including details about the root cause of the delays, what changes have been made to improve performance, and how we can ensure this doesn’t happen again.

With that said, I’d like to take this opportunity to share some general information, which you may have already seen, in the hopes that it is helpful to you:
• Tuesday’s post-exam delay did not impact exam day functionality in SofTest, nor did it impact the integrity of exam takers’ answer file content.
• Based on the accounts we’ve received from site engineers, it seems that the exam sessions themselves went well.
• On Tuesday evening, around 6pm ET, as east coast students were uploading their exams, our internal system began processing files at a slower-than-usual pace for a period of approximately six hours.
• Naturally, this led many exam takers to wonder about the status of their uploads and, in some cases, whether they would be able to upload by their deadlines. Therefore, we worked diligently to communicate with applicants via our call lines, Facebook, Twitter, and our website throughout the evening. The state bar examiners were great partners and extended upload deadlines as needed to accommodate the delay, and we communicated such extensions throughout the night.
• On Wednesday, we made several network configuration changes, and Thursday’s exam upload process went smoothly. We are continuing our diligence and will be making further enhancements in short order.
• This week’s overall exam volume was almost the same as last year’s and lower than other weekly periods for final exams, so the volume itself was not the challenge.
Our performance this past week was inconsistent with the standard we’ve set over the years, and we are committed to doing better. Again, more information will be forthcoming as we complete our internal analysis, and please let me know if you would like to talk with me or a member of my executive team.


Daniel Muzquiz
ExamSoft Worldwide, Inc.

Mr. Muzquiz,

Thank you for your note. I assume that this exact note is being sent to every dean of every ABA-accredited law school in the U.S. Nonetheless, it is worthwhile to have a comprehensive accounting of this situation from the perspective of ExamSoft. I believe, and very much hope, that there have been no specific negative consequences on the ability of any graduates of our law schools to process their exam files.

At the same time, there was unquestionably a serious toll taken on the students in their wholly understandable anxiety and worry, perhaps even panic –clearly consequences of the technological problems resulting from your internal systems, just as you note below.

For that reason, it is striking to me that in your boilerplate note, there is no indication that you are making any refunds to any bartaker. Nor is there any indication that you are planning to make financial recompense that would be a tangible, important acknowledgment of what, at the very least, was a serious problem that resulted from technological problems within the scope of control of ExamSoft.

Such a gesture, whether or not legally compelled, would be the right thing to do, in my opinion. While I by no means speak for anyone other than myself, I would respectfully suggest that you consider, if you have not already, some tangible steps that meet this clear moral obligation to make amends. I call upon you to reflect further upon this unfortunate episode and do the right thing.

Dan Rodriguez


Tech innovation, business, and law schools: New York Times reports

Timely write-up in the New York Times that includes a shout-out to what we are doing here at Northwestern Law at the law/business/technology interface.


Pre-law work experience

This article from U.S. News “Law Admissions Lowdown” purports to give pro/con arguments for work experience before law school (noting, accurately, that Northwestern Law is unique in putting a heavy thumb on the scale in favor of such experience).

The “con” arguments rely on a number of false premises:
First, the suggestion that law schools have a more or less set number of spots for students with and without work experience is misleading. Law schools, generally speaking, prefer students with work experience. The difference stems from how high is this preference and, moreover, how the school evaluates the tradeoff between high numerical credentials and such experience. The lesson here is that if a student has credentials within the ballpark of one or another law school, s/he would only be helping him/herself by gaining some valuable work experience before enrolling — and perhaps before applying. I confess that it would be great for Northwestern Law is we cornered the market on such students but, in reality, the other law schools are moving rapidly in our direction.

Second, the idea that students, because they will be older when they graduate, will have a harder time transitioning into the working world is belied by the evidence. Legal employers greatly value work experience and they regard the maturity and exposure to the real world as very valuable traits and skills.

Finally, the notion that students will be less adept at doing academic work with a break between college and law school is false — or, I should say more carefully, is false as a generalization about the college/law school gap. Generally speaking, we see the opposite, that is, students can take a deep breath from the academic pressures of undergraduate (or graduate school), gain some perspective, experience, and energy, and return to school with the resolve to do high-level, intense academic work. Again, that has been our experience with our students; and this tracks with other law schools who are increasingly looking to students with work experience.

So, in the end, the “cons” are not really “cons” at all. And certainly the “pros” outweigh any “cons” that might loom!