Law and economics and the future

“It’s not an easy year for lawyers.” That was a Greenberg Traurig partner in Bloomberg a few days ago. The layoffs and cutbacks are reportedly just a start. Hourly-rate billing and lock-step associate salaries have been eulogized as relics of a gilded era when clients forked over robust legal fees to swarms of document-reviewing drones. Nowadays, clients insist such work be outsourced to India, where lawyers trained in the common law will review documents for $30 an hour. Their law schools are pumping out lawyers at more than twice the rate of American law schools. (If I had any entrepreneurial inclinations whatsoever, I would be on the phone to Mumbai putting together a cadre of NLSIU graduates to grade American law school exams.)

No one who has given any thought to how large firms operate can be surprised at the retrenchment. It’s amazing this has gone on this long. The big-firm business model depended on scores of young associates generating inhuman timesheets in the hopes of being among the ragged few who survive to be anointed partner and reap income from a new generation of drones. As an insightful article by someone named James Smith notes, the legal academy’s disengagement with reality has everything to do with this:

As all lawyers know, law schools do not fully prepare lawyers for practicing law. While many law schools have introduced clinical courses, the reality is that law school can only lay the foundation for a legal career. Thus, good law firms always have provided training to their associates.

But no one wants to pay for that anymore. The seeds of implosion were sewn in the heady ’90s when the drones began fleeing the hive for Silicon Valley and already pretty high salaries became irrationally exuberant, to use the phrase of the day. Guess what happens when you raise associate salaries to ludicrous levels. That’s right: you get a 15% rise in law school enrollment in less than a decade’s time. (Previously, it took more than 20 years to see that kind of growth.) And now the whole thing is collapsing with lawyers being laid off and entire firms closing.

Guess what happens next. That’s right. The pressure to revamp legal education is building like Diet Coke and Mentos. Law schools that don’t deploy an ambitious clinical and experiential curriculum disserve their students and will not survive. As I observed once before: non scholae, sed vitae discimus.

Disciplina et discipulī

Last week, President Shalala wrote in her missive to the University, “As we head into the holiday season, I want to update you on where we are just over a year into the worst economic downturn since the Great Depression.” That was just slightly less cheery than Queen Elizabeth’s message to the Commonwealth: “Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction; others are best forgotten.”

But, whatever the case with campus and the English-speaking world, it was a big year for the School of Law. First, Captain Jellico’s interregnum of austerity ended none too soon, and we got our coffee machines and automatic doors back. The new Powers That Be dealt with the superfluity of new students inherited from the previous shift by rolling up their sleeves and personally teaching first-year classes. In one move, Elements was revamped and a team of super-gunner 1Ls self-selected for incubation in a new classroom we commandeered. The Legal Reading and Writing program was professionalized. We both furthered and spoiled the Business School’s dream of a snazzy new building by offering to buy half of it. (Negotiations are on-going. We have our best people on it. The President’s gloomy letter mentions it as though it’s just about a done deal.) The Eleventh Circuit approved my new appellate clinic. The adversarial system of justice repelled an assault from the Department of Justice. The influence in the academy of one of our own was lauded. The U became our logo officially. Oh, and I got tenure along with enough comedic material to draft a passable screenplay about academic politics.

’Tis the season

Friends, family, people at the gym all keep asking how my “vacation” is going—as though I teach kindergarten or something. Well, let me tell you: I had basically divided all the time until next semester between making edits to the criminal procedure textbook that West (indeed, the world) is expecting around March and grading the evidence exams. (Only 106 to go!) But then I got a cheery email message from the law review publishing my next article with “just a few relatively minor questions” that I will get to very, very soon, I promise. So, vacation is awesome, and thanks for asking.

The good news is that I got through the tiny percentage of exams that were handwritten already, so it’s pretty much downhill from now until the new year. Kids these days generally type their exams on computers that have to be locked down with special software so the students don’t Ask Jeeves or each other for the answers. And this year we got the good exam-writing software that runs natively on Macs as well as PCs and has this great secret feature that I learned about last year at DU: You can have all the exams converted into PDFs. Then, you just throw them into your Dropbox folder and, boom, just like magic, you can grade them anywhere, even on your iPhone, though I haven’t yet had to resort to that. I did grade a few the other day on the Fourth Floor Faculty Sundeck® using the laptop, which made the chore much less tiresome. (If you’re reading this from up north somewhere: Yes, it’s still pretty balmy here.) You’d be surprised how much time you can save by grading the exams with full-screen Quick Look rather than flipping through actual pages, particularly when it’s windy out, as it tends to be if you’re on the Bay.

The rock star in our midst

Every January, law professors from all over the country fly to one of America’s great cities and spend four or five days wandering around and bumping into each other at one of those giant corporate hotels that all look the same. This January we’re all going to a Marriott or a Hilton or a Grand Hyatt or something in New Orleans. (As I’ve said before, my being a team player doesn’t mean I’m not going to do everything my way. So, I’ll be staying at a nice little place nearby but not too nearby.) The conference is put on by the Association of American Law Schools, whose other big contribution to society is to stage annually what is called the “meat market”—a speed-dating-type event in Washington, D.C., at which law schools interview prospective law professors ad seriatim for about 15 minutes each to decide whether they should be flown to campus (just like on-campus interviews). The January event always has a theme that is abstract enough to be meaningless (this year’s is “Transformative Law”). The vagueness of purpose makes it possible to offer a packed schedule of pontification on anything the law professors want to lecture about.

I know, I know: you’re all set to book your ticket. Don’t bother. I’m afraid these events are not open to the public. Last year in San Diego, officious AALS dweebs tried to keep Reuben Camper Cahn, the Federal Defender of San Diego, from attending a lecture given by Professor Edwin S. Cahn, his very own father. Needless to say, the schoolmarms were unsuccessful in holding that particular line, but the fact remains that these are V.I.P. events with appropriately sophisticated crowd-control measures in place.

Now that you’ve been warned about trying to crash this party, you’re ready for the really big news, which is that the School of Law’s own rock star, Professor Francisco Valdes, is being honored in The Big Easy by the Society of American Law Teachers (yes, there are way more law-professor organizations than you thought strictly necessary) with their Great Teacher Award. SALT’s effusive press release may yet be an understatement regarding Professor Valdes’ work: “His self-styled ‘outsider jurisprudence’ is perhaps the most robust intervention in questions of racial justice, sexual self-determination, gender equity, and economic emancipation.” The School of Law, of course, bought a table and the Powers That Be have confirmed my seat at it. This is important because SALT reports that its dinner feting F. Valdes completely sold out about a month or so after the announcement. And, SALT reports, that is completely unprecedented and caught them somewhat by surprise. I told you he’s a rock star.

Too bad Kressel lacks criminal contempt power

Grading exams being even less fun than you think, I started pulling together materials for the appellate clinic today. The dozen students were selected a few weeks ago, and they seem more or less genuinely enthusiastic. Still, there was some resistance to the idea of their posing for a Christmas card picture. Anyway, it would look pretty much exactly like this. Beatriz reports that the AFPDs are enthused as well, so the clinic won’t go wanting for cases to brief.

As I was gathering materials, DOM coincidentally sent me this article with no explanation, I assume to bait me into posting something about United States Bankruptcy Judge Robert Kressel’s new guidelines for proposed orders. There are only two remarkable things about said guidelines: (1) that they became necessary and (2) that their dissemination is reported with the unmistakable implication that United States Bankruptcy Judge Robert Kressel must be a really nutty style-and-grammar fetishist for taking the trouble. On the contrary, every judge in the nation should enforce said guidelines, especially No. 5, and maybe even strike motions that violate them. That United States Bankruptcy Judge Robert Kressel was driven to this signals something disconcerting: Some sizable percentage of bankruptcy lawyers in Minnesota can’t consistently distinguish between plurals and possessives and think that the atrocity “and/or” is an acceptable coordinate conjunction.

If you think that railing against such things is just some snooty, persnickety frolic, consider that convictions get reversed because juries are instructed that the defendant is guilty if he “and/or” his co-defendant committed the offense. See, e.g., Garzon v. Florida, 980 So.2d 1038 (Fla. 2008); Morton v. Florida, 8 So.3d 483 (Fla. 1st DCA 2009); Davis v. Florida, 804 So.2d 400 (Fla. 4th DCA 2001). To further illustrate the problem, here’s a little true-or-false quiz: Students in the clinic will use “and/or” as a conjunction and/or will fail the course.

Why didn’t somebody tell me about this?

Christmas has come early this year. I was just sitting here working out important clinic details, like what reading I’m going to assign and how I am going to get WordPerfect running on the Macs of the clinic students, when I found a magical, transformative little miracle on the Internet. Say you’re a lawyer savvy enough to use WordPerfect because nothing else makes sense. Naturally, you’re running said program with some sort of Windows virtualizer like Parallels or Fusion on your Mac because you wouldn’t use a Dell or a Sony or a Hewlett-Packard any more than you would drive a Prius. Your only problem is that you have a whole bunch of WordPerfect documents stretching all the way back to law school that are not searchable using Spotlight or (pre)viewable using Quicklook. This is really annoying when you know you’ve already researched an issue but can’t remember where you put the motion or when you wrote it or for whom because, let’s face it, we’re not getting any younger, not any of us. Well, some guy—some freakin’ ingenious, Santa Claus-like wizard—has solved that by making two free plug-ins that allow Spotlight to index and Quicklook to preview WordPerfect files. I know, I know. I couldn’t believe it either. The clinic kids are going to totally flip.

Even reality can’t be this demoralizing

I have this great idea for a new reality show. I’m going to invite a cable channel to follow around the 12 appellate clinic students as they correspond with clients, look up cases on Westlaw, and format their briefs. There will be fiery arguments between teams fighting for scarce resources: “Your case has nothing to it. It’s just a sentencing issue. We have to reargue a motion to suppress. That’s constitutional.” And squabbles between partners: “I told you not to cite that case! It’s been abrogated. Ah…bro…gae…ted. Idiot!” You can just imagine a weepy twentysomething sobbing into the camera, “I told him that it has to be 14-point Times New Roman, but he printed and bound all the copies and it’s 12-point Calibri. Twelve point!”

The thing about reality is that it’s mostly tedious. That’s why in movies all the hard work gets rolled up into a montage with a catchy song playing in the background. We don’t have to watch Rocky train in real time for the big fight. Can you imagine how dull that would be? We don’t have to listen as Vinny painstakingly interviews all the witnesses he cross-examines about the murder at the Sack of Suds. Not only would that be mind-numbing, but it would make the cross itself anticlimactic. But, boring as it would be to watch, the montage is the heart of the story; it’s where greatness lives.

It follows that a reality show depicting anyone doing anything remotely worthwhile (other than talent contests, I suppose) would be as much fun as people-watching at the library. So, instead of following 12 law students briefing cases for indigent defendants, television offers up the animalistic self-indulgences of a pack of semi-literates. I don’t know how much more public approbation—even celebration—of an ignorant and dogged refusal to aspire to anything beyond self-gratification the Republic can survive.

What’s on your mind?

A couple of 3Ls who took Evidence last year have been enjoying the “status messages” of the current class. (These are little blurbs on their Facebook pages where they tell no one and everyone what their mood is right now.) And, of late, the status messages have logged their anxiety over the final. Unfortunately, when they saw the exam this afternoon, they weren’t able to update the void because the exam-writing software disables access to the Internet. It’s sad, but nothing can be done about this little gap in human history. Posterity will have to settle for their post-hoc attempts to recollect and convey their feelings.

Oh, that “status message” thing—that’s another problem with laptops in the classroom. We have reached a point where every laptop is a portable broadcast station. So, anything that gets said within range of one of these things—say, anything I might say in class—can become someone’s little status message. Which, if that were to happen, would almost undoubtedly impact someone’s “class participation”. [N.B. Class participation is the only non-lethal weapon in the arsenal. The only other threats for deterring contumacity in the classroom involve failing grades and tattling to the University or the Bar or whomever. Those weapons are all way too blunt for keeping day-to-day order. The only laser professors are issued is “class participation,” which one can define however one likes.] And when I say, “if that were to happen,” I mean, “can you believe that happened?”

Speaking of Facebook, if you find yourself in trouble with the law, try “friending” the judge. Apparently, this puts the judge in an awkward position, even after she “unfriends” you. And not only is “unfriend” apparently a horrible new verb, it’s the controversial new word of the year. As if things weren’t bad enough.

Game time

It’s review-session-tension time. Time to learn all the law in just a few hours. I don’t ever make any attempt to recap a course during a review session. I just show up and answer questions until there are no more questions. Then I go home. (If I didn’t do this, then I might feel a little bad turning students away when they show up at my office in ones and pairs to ask all the same questions.) I think some other faculty offer some sort of Cliffs-Notes version of their courses at review sessions. I heard that there’s a four-hour review session somewhere in the building tomorrow. Well, marathon-review-session-colleague, my hat is off to you because I was thoroughly beat after fielding questions for just two hours last night.

The review session always draws a particularly rapt and engaged lot. Students I would swear I’ve never seen before were raising their hands and firing off queries. I had to run a queue of names in three columns on the board to make sure I got to everyone. The stress is pretty evident. At one extreme, you have the very nervous people who at some point fell woefully behind and have damaged themselves by trying to cram everything into their heads in too short a time. At the other are those who have been more or less on top of things throughout but give in to their compulsive selves and show up to the review session on a better-safe-than-sorry rationale.

I had a six-essay-question exam walking in there and was thinking of cutting back the time from four hours to three or three-and-a-half because I thought it was a little too easy (although DOM read it and thought it was too hard). But, some of the review questions delved pretty deeply into areas that the exam did not comprehend. So, I added two more questions. Everybody wins: I’m absolutely sure the exam is sufficiently challenging; the students who immersed in the material and came up with interesting questions will be able to apply what they know; and the better-safe-than-sorry crowd will have their compulsive tendencies reinforced.