Category Archives: The future of American law school

Schooled, In debt, Struggling


Frank Wu, the dean of UC Hastings College of the Law, flutters about his third-floor office adjusting things, making sure his emails are answered and…

Source: Schooled, Indebt, Struggling

An up close and personal portrait of the challenges facing an important Bay Area law school as the “new normal” takes hold in legal services and education. A must read.

Pied piper of law school reform crowd is lost once again

imagesIn a response to my remarks about the relatively thoughtful though narrow comments of Justice Scalia on the future of the legal academy, the leader of the dwindling law school reform crowd  throws up his hands. He just cannot explain the difference between “hyper elite” School A (let’s call it Stanford) and “strong regional” School B (let’s call it Colorado). Nor can he find any reason to justify the increased expenditures at both schools.

And this despite the fact that he actually admits the key variable: the salaries of Stanford graduates have increased.

He does not say how much but since I graduated from a similar school to Stanford I recall starting salaries on Wall Street in the mid-90s to be $85,000. Today they are $160,000. With no disrespect intended towards Colorado I think we can safely assume that their median is substantially lower than that, perhaps 100-120K. In other words, Stanford salaries, at least, have kept pace with the increase of expenditure – both of which have roughly doubled in the same time frame.

Perhaps more importantly what does that salary differential tell us about the per capita expenditure differential between the schools?

Simply that over a career it is more likely that Stanford grads will earn substantially more than Colorado grads. And that makes it far more likely that Stanford will earn back substantially more from those grads than Colorado. That means from the standpoint of the Stanford board of trustees – who have a fiduciary obligation to the institution – it is perfectly rational to spend twice per capita at their law school than they do at Colorado. Anecdotal information suggests their calculation makes perfect sense – it’s why they have one brand new building named after alum William Neukom, former Microsoft general counsel, and another named after Charlie Munger, business partner of Warren Buffet and father of a Stanford Law School alum, while Colorado struggled for years – to the brink of putting their accreditation at risk – to come up with the funds for a new building. (Granted, when they got it built it was pretty spectacular.)

It strikes me as odd that someone once feted at the Cato Institute as the “bad cop” of law school reform (do his colleagues at the allegedly left wing site Lawyers Guns and Money care where he spends his spare time?) seems to have a very weak grasp on the nature of capitalism but there you have it. Stanford makes money from its law school. It does not lose money. It invests in its physical plant and in its human resources calculated against the potential of making money off of that investment. Of course Stanford is an educational institution, a non-profit entity, so it does not and should not look for ways to merely maximize its earnings. But it certainly is not going to engage in activities that throw away the tuition dollars and donations it receives.

In a world of Stanfords, Harvards and Yales, is it any wonder that places like Texas, Virginia and Colorado look for ways to keep up?

And yes even at lower ranked schools like mine this has become essential. We maintained a view that resisted that kind of competition for many years, proudly proclaiming that we were the anti-Stanford (a hang over from the days when Kingsfield ruled the roost). No matter one’s views of the values inherent in this approach (and many felt and still feel they were more appropriate to the practice of law than those at major law schools) it was no longer tenable, particularly when we were located in a setting like Silicon Valley. We may all delight in railing against the rankings but at some level they do reflect market reality and pretending we could live in a world where they do not count only further hurt our reputation.

The school started to change. Not to toot our own horn, as we have a ways to go and we are a Jesuit-affiliated institution after all, but we now have one of the nation’s leading intellectual property programs, recently put in place a startup law clinic that is in great demand from students, and at the university level there are plans afoot for a new STEM center as well as new programs that will link up the law school and business school more closely.

I think one problem the law school critics seem to have is an expectation that all who enter here shall succeed. That has never been the case in professional schools and certainly is not the case in today’s hyper-competitive and highly stratified society.

This new reality is reflected in the battle that occurred at the University of Virginia a couple of years ago. Their board of trustees panicked when they saw the kind of innovation underway at Harvard, MIT and Stanford. They tried, unceremoniously, to fire a very popular (some would say too popular) campus president. The campus erupted and the president was reinstated.

But I have little doubt that concerns remain there and elsewhere that the emerging “Stanford model” (which I wrote a bit more about here) is causing a new division within higher education – and that is a challenge across the board to either keep up or come up with a viable alternative.

I am not happy, for example, about the administrative bloat the model seems to entail. One is reminded of the prescient work of Cornelius Castoriadis on the inevitable and apparently unstoppable bureaucratization of capitalism. But normative considerations should not get in the way of recognizing reality.

It has been said that at Stanford when you are hired as a junior professor in the sciences they don’t care whether you stay to get tenured or leave to found a new biotech firm. The school is happy with either path – every entering professor gets a base salary, a lab and shared ownership of their future IP. It’s an incubator model. In fact, their current President, John Hennessy, sits on the board of Google and Cisco and himself founded a highly successful and path breaking technology company while on sabbatical.

(There are, of course, alternatives to the Stanford approach – at least in California. Prospective lawyers need not attend law school and need not attend an ABA accredited school. Many choose not to do so, taking advantage of the lower cost teaching-dominant model that many law school critics espouse yet seem not to believe really exists. They need to get out more.)

This culture has spread widely. A friend who was a graduate student in computer science at an east coast Ivy had trouble finding a dissertation advisor because each faculty member told him his dissertation topic had to be the basis of a new startup (upon whose board the professor would sit) or else they were not interested. He left but many others stayed and are no doubt building new companies as we speak.

How shocked can we profess to be that Stanford is happy to continue subsidizing its law students to the tune of 100K per capita (when sticker tuition is 50K) in the happy prospect that every few years a Peter Thiel (a founder of PayPal and early lead investor in Facebook) will emerge from their graduating class? It is analogous to the model they use in the hard sciences – in fact they likely hope that their law students will become counsel to the graduates of their hard science programs. Or even more compelling – find ways for their students to start their own alternative legal firms incorporating technology from across the campus.

Personally I think this approach is both exciting and has serious longer term potential pitfalls. It is, in many ways, a symptom of what I call an emerging new era of “insider capitalism.” But there is little doubt about its impact and importance.

Perhaps it is time for young JDs to consider alternatives to their whistling muse.

 

Justice Scalia throws red meat to law school critics

Relying heavily on some of the more data challenged members of the law school critics’ camp (see here and here) and ignoring the only serious study of the long term economic value add of a JD, conservative Justice Antonin Scalia made headlines this week for a relatively moderate law school commencement speech. Frankly, it came across as closing the barn door after the horses had escaped.

One of the two main themes of the speech was his view that a two year JD does not make sense. Quite sensibly he points out that the three years is critical to preparing young people for a lifelong profession. While reasonable minds can differ on his view that the curriculum has become too diverse, he is certainly on to something when he suggests that we think carefully about sacrificing “legal learning” for other reforms driven by short term market considerations. As someone who teaches bread and butter corporate law courses like securities regulation and corporate finance, I certainly wonder how these can be taught if students must use up their only time in law school to take bar tested courses.

In other words, it is a mistake to think narrowly about complex economic considerations. That means, of course, that universities have an obligation to step up and defend the place of law schools as part of their institutions when they are under economic pressure. As it is only sensible to conclude that the current downturn is cyclical not structural that view also happens, happily, to coincide with the economic rationale of law schools.

That important point is lost on the critics of course, and, unfortunately, seems to have eluded the Justice as well who makes the high cost of law school the second theme of his remarks. The critics do not seem to realize that it is expensive to create an effective modern law school. The actual cost of doing it right is vastly underestimated. At HYS for example sticker tuition is now north of 50K per year but that is, as far as I can tell from publicly available information, about one third of the actual cost spent per student each year. Other lower ranked schools have to try to get the job done with far less, of course, and most are effective in doing so. But it is no surprise, is it, that the schools with the most resources continue to dominate in the rankings?

This cold economic reality has not stopped the critics from seizing on the few morsels the good Justice threw out to the parents who have already spent significant sums on their childrens’ educations. He suggests that cost cutting may have to lead to lower salaries for law faculty. There is little in depth analysis here, however. And that may be because even critics acknowledge that cutting faculty salaries would have little more than symbolic impact on the cost picture.

Far more important in the cost structure has been the riskier bureaucratic trend found across academia of beefing up the hiring of all sorts of “academic staff” who help lower faculty-student ratios and boost per capita student spending but may be doing very little to improve educational outcomes. At the same time these efforts dilute heavily the academic and policy impact of traditional tenure track faculty. This is great for deans and provosts and presidents who like to have chess pieces they can move around – something of a challenge when it comes to tenure track faculty. But the value to the profession of law is very much more in doubt.

Scalia ignores as well the logic of the faculty labor market. Critics love to claim that faculty salaries can be lowered because current faculty are not as mobile as is sometimes thought. But that focuses on the wrong issue. Indeed as any experienced faculty member can tell you (and as some of the law school critics no doubt know themselves) the only leverage you have with a dean or provost is the threat to leave for a competing school. When I was engaged in negotiations to become the CEO of a large non-profit some years ago (at a salary more than 3x my faculty salary) I certainly was not operating under the illusion my University would try to match it.

What will keep current faculty salaries relatively stable and motivate movement in the direction of other cost cutting measures to deal with the downturn – and in fact already has at many schools – is that universities have longer term concerns. They may not have to be too anxious about keeping current faculty unless a competitor comes calling, but they do have to think about future recruitment. At some tipping point it will be more attractive for top tier faculty candidates to stay in the private sector. The fall off in top tier law school applicants noticed recently suggests this may already be an operative factor.

A second consideration for universities is that once the current cycle is complete, as has happened several times in the last thirty years (recall the prior cycles associated with the real estate crisis of the early 90s and the dot com crash in 2000-01), law schools will once again generate significant net earnings for their campuses. That comes both in the form of current tuition flows as well as future donations. The per capita dollar value of a member of a professional school will always be far higher than that of the English department (of course, it must be granted that indirectly that is not a completely fair view as it is helpful if students come to law school knowing how to read and write). That is one reason why even while they are an expensive investment it remains rational for universities to have professional schools.

It is also worth noting that Justice Scalia, a captive perhaps of the beltway, ignores the structure of one of the country’s largest legal markets – California. We already have here a multi-tier legal education market with faculty salaries that match. And, in fact, aspiring lawyers are free in this state to not attend law school at all, thus not helping pay any faculty salaries. They can – and some do – apprentice and then sit for the bar exam. And we allow JDs who do not attend ABA accredited schools to also sit for the bar. The interesting result of this experiment is that most of those students with the highest test scores and grades still flock to the highest ranked schools with – wait for it – the highest faculty salaries!

Certainly that suggests that one lesson of this tempest in a teacup that we have called the law school crisis debate is that aspiring JD’s are far more thoughtful about what choices they are making than we give them credit for. Getting caught in a 100 year economic storm was not something they had counted on, of course. That is why it would have been a far better expenditure of the critics’ time to agitate for debt relief and innovative training programs to bridge the gap between the graduation dates of recent JDs and an economic recovery.

Given all of this, I do wish Justice Scalia had cast his intellectual net a bit wider than friends of the Cato Institute when crafting his recent remarks. Well, at least he kept it short.

ABA does the right thing in keeping tenure standard for law schools

At a weekend meeting the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted (pay wall) to retain tenure as a condition of becoming an ABA accredited law school. In light of an earlier call by a majority of the Council’s members to change that requirement, this is a significant victory for academic freedom and quality at the nation’s most important law schools.

The decision is being justly celebrated, as well, by the American Association of University Professors (AAUP), which helped create the modern interlocking institutions of academic freedom, tenure and shared governance. The AAUP commented on the proposed cutback to tenure and helped law faculty weigh in in defense of tenure.

While some law school critics argue that requirements like tenure are a barrier to affordable legal education, in fact, it is tenure that insures that law students get what they pay, sometimes dearly, for: quality faculty who must demonstrate to their peers over several years their ability to teach, engage in relevant scholarly research and give back to their universities and surrounding communities through various forms of service. In several states, of course, California included, it is possible for students to pick non-ABA law schools and still sit for the bar, thus offering lower cost alternatives.

It is an important sign as well that the ABA leadership listened to the many faculty from law school academia who spoke up in defense of tenure. A culture gap has long existed between practicing lawyers, who dominate the ABA, and the legal academy. Hopefully with this battle behind us, new constructive efforts to bridge that gap can be made. Our best and best known legal scholars should make a point of being available on a regular basis to the bar for discussion of their work.

Legal academics can listen and learn from the practicing bar as well. In one of my fields, business law, it is almost not possible to tackle complex research problems without being close to the experience of the practicing bar but no doubt even there we could do a better job.

State bars, together with law school deans, could take the lead in developing such relationships. It can potentially benefit all constituencies that make up the broader legal community. As an example, I recently wrote an article on insider trading and the startup world of Silicon Valley. It was first written for a California state bar audience and then was seen by a leading corporate law scholar and I revised it for inclusion in an academic collection that scholar edited. Both the academic world and the practice world benefited, presumably, as did I by working through the issues first for that real world audience and then for a more academic audience.

AAUP national elections: why I am voting to re-elect the “Organizing for Change” slate

National elections for the American Association of University Professors are now underway. An incumbent slate called Organizing for Change is being challenged by the Unity slate which is led by AAUP figures who used to be in power. I am voting to re-elect the Organizing for Change slate and I think if you are an AAUP member in good standing you should do the same.

The reason I support OFC is straightforward. The challenges facing faculty across all sectors of higher education are dramatic and are taking on a momentum that we have probably never experienced in this country. We need a national advocacy group that wants to respond to those challenges aggressively and with creativity. Most importantly we need the AAUP to have real meaning and impact on the ground where it really counts. I think that is the basic goal of OFC and it represents an important and relevant shift in the orientation of the organization. I think for the first time in many years (I have been an AAUP member since I joined my faculty as a junior professor in 1999) the AAUP feels like a real presence not just in Washington but on our campuses where it counts.

Part of what OFC is trying to do is strengthen the collective bargaining arm of the organization. That likely creates some tension in the AAUP because it means a shift in culture and even resources. There is a suggestion by some that this means giving less attention to academic freedom, the issue for which AAUP is best known historically. In reality these two efforts are two sides of the same coin.

This does not mean that collective bargaining is always the right approach or even necessary but it must be a viable part of what we do if we take academic freedom seriously. Why? Because the greatest challenge we face in academia today, whether at the junior college level, or at Berkeley and Harvard, is the change in organizational structure of the university.

A permanent new administrative, if not bureaucratic, caste is taking hold of managerial authority in the universities. Instead of an experienced faculty member spending a few years as a dean or even provost or president and then returning to the teaching faculty, today individuals who take on  those positions have almost uniformly left teaching and research behind forever.

Inevitably, these individuals develop a skill set and outlook that matches that of the corporate executives who now control most university boards of trustees. In turn the trustees and administration increasingly treat faculty not as partners in the governance of an academic institution but as employees of a giant corporation. And indeed as government funding for higher education has receded corporate and foundation spending has ramped up making it appear as if we do work for corporations. Corporate executives, of course, feel more comfortable with deans, provosts and presidents who can talk their language and that often means reassuring the trustees that they can get their faculty “under control.” That has led to a wide range of conflicts with faculty as well as to developments like the widespread use of contingent faculty and the waning of the tenure track.

This turn of events is not healthy for the fundamental purpose of our system of higher education: to generate knowledge in order to help solve social problems while preparing young people to join our society prepared to confront those same problems. Employees or, worse, automatons are not good at original thinking. Control and creativity rarely go well together.

In such a situation the AAUP needs to be a living, breathing organization that has a meaningful presence on campus. In my experience with the OFC leadership they have been successful at helping build that kind of presence. I teach at a relatively small and private institution. While collective bargaining might be helpful there it is not a likely outcome given the legal and political constraints we face. But there is a role for our chapter to raise that issue and even pursue it if our colleagues wish to do so. And a “union outlook” on issues is not a bad way to motivate fellow faculty and stir up discussion of important issues even shy of actual bargaining.

At a minimum AAUP chapters can play an advocacy role that makes issues clear and signals to the administration the limits of their ability to manage the institution without robust shared governance. Right now on our campus it is the only forum for just faculty members to assemble and discuss important issues independently of the administration. And the OFC leadership has been very helpful to me and my fellow AAUP chapter members in understanding how to play a constructive role in an ongoing governance crisis on the campus. They have been there when it counted several times in the last two years.

So, in sum, I think OFC has breathed new life into the AAUP. It does not have all the answers and I have a great deal of respect for the traditions of the organization. I hope that the Unity slate will continue to be an active force but for now I think OFC deserves more time to help  move us ahead as we confront the significant changes impacting higher education today.

 

Before you let the ABA ruin your law school, listen to this talk by Dean Harry Arthurs

As the pressure on legal education and new JD’s from the fallout of the worst financial crisis in the modern era continues, there are efforts underway to transform the nature of American legal education. As I have suggested elsewhere in some depth, the goal of this effort is the death of the autonomous law school as an academic institution in favor of what can, at best, be referred to as “training.”

Thus, the recent ABA Task Force Report on the Future Legal Education calls for a substantial weakening of tenure, and by implication, academic freedom. (Notably, the words academic freedom do not appear in the Report, as if the members of the Task Force are unaware of its centrality to the success of the law school. There were efforts to bring this problem to their attention, both by me and the AAUP.)

Now a prominent former dean and university president, Harry Arthurs, has laid out a critique of the effort to enforce a new pedagogical regime on the law school environment. You can watch Dean Arthurs present his views here at a recent conference on the future of law school hosted by the University of Alberta and read the paper upon which the talk is based here.

As he makes clear the fundamental goal of the law school, which is firmly situated in an academic environment, is to pursue knowledge. It is not a substitute for “training” lawyers whether under the guise of producing “practice ready” graduates or steeping students in so-called “experiential learning.”

While it makes sense to have a certain amount of hands-on activity available for students in law school (I, for example, use mock negotiations and drafting a part of my securities law and corporate finance classes) it is impossible to replicate in the law school setting the process of skills building needed in daily practice of law.

Law schools, fundamentally “knowledge communities” as explained by Dean Arthurs, are not cut out for this task and should not be forced cookie cutter-like into a mold shaped by external market forces. The tension this effort creates is brought home sharply in the final moments of the talk when Dean Arthurs has an interesting exchange with an individual who it appears is the new dean of another Canadian law school.

In Dean Arthur’s words, “law schools should play a leading role in the creation and transformation of legal knowledge, legal practice, and the legal system — a role that requires them to provide their students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers.”

Although Dean Arthurs is Canadian and was dean of Osgoode Hall, one of Canada’s leading law schools, and later president of York University where Osgoode resides, it is clear that the pressure from Canadian law societies on law schools is identical to the pressure being exerted by the ABA to cut the cost of law school at the expense of its academic mission.

It becomes equally clear after listening to this elegant and thoughtful presentation how utterly incoherent the reform agenda is. Thus, his views, echoed in part recently by the faculty at Yale Law School, are well worth considering.

 

More evidence that lawyers hate economics – the myth of “financial exigency” at Albany Law School

I teach corporate finance, business law and securities regulation – in a law school. And that means I have as students each year many folks who would rather, I suppose understandably, be debating Roe v. Wade and Brown v. Board of Education instead of listening to me explain, as I did briefly last week, how synthetic collateralized debt obligations work. Of course, those synthetic CDO’s are far more important to what is going on in legal education and the legal job market today than almost any major Supreme Court case of the last 50 years.

Why? Because it was the creation of ever more complex and, as it turns out, fictitious forms of capital that led, in part, to the credit bubble we experienced in the wake of the dot com bubble. Now we are experiencing in law schools and the legal job market the impact of the collapse of that bubble. The downturn in jobs and the consequential downturn in applications to law schools will eventually bottom out, and it may be doing so already. And, slowly it will turn upward again. This will happen, unfortunately, too slowly for many recent JD’s who got caught in the updraft and applied to law school thinking the credit bubble was a permanent expansion of the economy and now have been caught in the downdraft.

But the big risk now is that many law schools will be tempted to make the same mistake some made during the bubble phase – rapid expansion of spending on staff and clinics then (as opposed to tenure track hiring, which has slowed overall in higher education dramatically in recent years) – but now in reverse, unwinding that over-spending by over-cutting including threatening layoffs of tenure track faculty.

The most recent example is occurring at Albany Law School, a very old (by US standards) independent law school, with a long tradition of serving upstate New York (and not far from where New York State’s very first law school was established in the Hudson Valley.)

From reports on the web it appears Albany Law School, facing the same decline in applications and enrollment that almost every other law school in the country outside of the world of Harvard and Yale and Stanford and Chicago are facing, is threatening its tenure track faculty with layoffs. Yet Albany is committed to academic freedom and derives its definition from the AAUP’s 1940 Statement on Academic Freedom which more than 200 colleges and universities support.

The AAUP has developed a set of derivative procedural standards that help guide universities in protecting academic freedom. Among these is a commitment that faculty not be threatened with dismissal absent cause or what is known as “financial exigency.” This has led the law school critics, in their typically opportunistic manner, to declare that indeed ALS is facing such a financial exigency.

Apparently, these critics are no more familiar with the basics of accounting than they are with those of finance.

The AAUP’s guidelines define a “financial exigency” as “imminent financial crisis which threatens the survival of the institution as a whole.”

(See AAUP letter to Albany Law School here. The AAUP National President has also issued a strong defense of tenure’s place in the accreditation of the American law school to the ABA here.)

Yet a cursory review of just the publicly available information suffices to demonstrate that this situation is nowhere near reaching that standard.

In 2010-2011 its revenues exceeded expenses by $10 million and while this declined to a $3 million positive margin in 2011-12 it is hardly a suggestion the School is no longer a “going concern.”  And Albany has an endowment of $47 million, far larger than most law schools (granted it does not have a parent institution it might turn to so it has, prudently it would appear, built up an endowment for precisely the situation it now faces.) Some $43 million of its assets on hand are unrestricted and it has most of the endowment in liquid securities.

(See financial data here and here.)

Of course, turning to the seed corn in a crisis is a challenge but one has to call into question any conclusion that suggests the institution is threatened with closing its doors unless it starts laying off faculty. This suggests the Dean and Board of Trustees of the School may be attempting to engineer a reform agenda while using the temporary financial problems of all law schools as an excuse.

Yes, Virginia, judges do read those law reviews, after all

Much of the attack on law schools over the last few years has focused on the alleged irrelevance of legal scholarship. At times the level of rhetoric has been so intense one feels as if the “anti-intellectualism in American life” so eloquently described fifty years ago by Richard Hofstadter has once again raised its ugly head. Things are not helped when prominent jurists like Chief Justice Roberts pile on.

Research is a tough road, good questions are hard to specify and methodology can be challenging to develop. It is hard enough when one is dealing with the physical world so imagine trying to fashion a reliable scientific method for the constantly shifting social world.

In response to this challenge, legal academia has over the last few decades gone down two separate roads, one that can largely be characterized as quantitative and the other as qualitative. Both have their advantages and limitations.

Fortunately, legal academia enjoys one distinct advantage: peer review is largely absent and so the heavy reliance on “prestige” journals has not stifled innovation. Law school publishing is in many ways an analog precursor of the open source world. Much work that is not all that good gets published but the very best can rise to the top. And there are often nuggets of value even in work that is not terribly important – and that’s where databases like Lexis become invaluable.

Arguably, law and social science are ahead of the physical sciences in this game having supported the creation of new online sites like the Social Science Research Network. Paul Krugman, a Nobel prize winning economist, weighed in recently in favor of the online world.

Of course, many deride the lack of peer review as a serious problem and point to the demanding review process of the world of physical science. But it turns out that the way good work gets done in legal academia is not far from what happens in the physical or other social sciences (I speak with some exposure to both arenas as I am married to a physical scientist, am cross trained in political science and have been working closely with an economist for several years).

And it turns out that within the world of physical science there is a concern, expressed most recently by this year’s Nobel Prize winner in Medicine, cell biologist Randy Schekman, that the traditional system has rewarded too highly publication in certain “luxury” journals in a manner that, in today’s online world, stifles innovative work.

Michael Jensen, a founder and Chairman of SSRN, tells me he “share[s] Schekman’s views completely….I am committed to changing this crazy system that we have backed into.”

And SSRN Managing Director Bernard Black of Northwestern Law School and the Kellogg School of Management emailed me the following comment:

“SSRN doesn’t solve the problem, but it helps. In areas where posting working papers in SSRN is the norm, a near-final working paper provides a respectable substitute. I’m also involved right now in launching a new peer-reviewed Journal of Law, Finance, and Accounting, where the business model contemplates that submitted papers will remain available on SSRN from submission through publication, and will automatically be replaced with the true final version 6 months after publication. Unfortunately, there are areas – including health care and medicine — where the idea of publishing a ‘working paper’ online remains verboten.”

The so-called “luxury” hard science journals (Schekman points to Cell, Science and Nature, in particular) are loath to have work they want to publish subject to any criticism prior to publication that an open system like SSRN might entail. This is the kind of problem Schekman wants to take on because of the fear that the current system stifles innovative thinking in the hard sciences.

(This only underscores the inexplicable and reactionary effort underway in Kansas to stifle academic freedom through the suppression of the use of online media as explained by legal scholar and economist Bill Black here, here and here and as explored by me here. Update: There is some indication now that the KU Regents may back down.)

In other words, just as the law school critics have opened up two barrels on allegedly weak academic work in the world of law schools, that world has already incorporated a form of review akin to so-called “hard” science, while the world of “hard” science is developing models that take advantage of what Schekman calls the “new breed of open-access journals that are free for anybody to read.”

While it is conceivable that a law professor may write something and send it out for possible publication without any input from his or her peers, that is often the exception and it certainly rarely happens with very good work that ends up in the most widely followed journals. Instead, papers often go from proposal or rough draft to working draft, to a seminar paper or workshop presentation, then on to conference(s) to posting online for more comments and then, finally, perhaps, submitted for publication in a law review or formally peer reviewed journals. The result is, in fact, a process not dissimilar from that of traditional peer review in other disciplines.

Of course the thoroughness of the process that legal scholars rely on is widely ignored by the law school critics who blithely assume they can better understand the academic work process than those who specialize in it. While, as I explain below, they typically concentrate their attacks on the work of conceptual or qualitative scholars – naively assuming they can more easily pick such work apart – they also have recently attempted to undermine quantitative work as well. The results have not been pretty. In the case of their attacks on the JD earnings premium study by Professors Simkovic and McIntyre the result was downright embarrassing.

As Professor Leiter explained yesterday the critics’ leading advocate, a tenured law professor himself, may have finally jumped the shark when he openly admitted at the conclusion of his specious attack on a fellow academic that his own credentials “don’t actually have much if anything to do with either carrying out serious academic work or training people to practice law.”

One of the arguments of the critics, of course, is that it is the qualitative or conceptual work that is weakest and least relevant to the actual practice of law.  Recently, the critics (who move like a swarm of locusts, first alighting on one target, then another) have made the object of their screeching concern an article by a rising star in legal academia, Professor Nancy Leong, of the University of Denver. Professor Leong visited at UCLA this Fall term even though she has yet to be tenured at Denver (a strong sign of the wider academy’s interest in her work). For those catching up, Brian Leiter summarizes the core of the atrocious attack on her here.

Much, even most, of the criticism of her work, and, sadly, of her personally, has gone way beyond what is appropriate or even civil, apparently because the critics have decided one of her (several) major articles, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (64 Fla. L. Rev. 305) (and available on SSRN here and first “published” as a University of Denver working paper), should be made a kind of poster child for everything that is wrong about legal scholarship. (One bright bulb in the locust crowd actually wrote about Professor Leong: “She is the perfect poster child for what is wrong with legal education in this country.”) A central claim of the critics is that legal scholarship is irrelevant to the actual practice of law and that law professors are featherbedding bums who fit the old canard, “those who can’t, teach.”

How timely, then, it is that a federal circuit court judge recently placed the “Open Road” article at the heart of his opinion in United States v. Mubdi, 691 F. 3d 334 (CA4 2012).

In his partial concurrence with the majority, Judge Davis opens his opinion with a quote from “Open Road” and then in the body of his opinion again quotes extensively from the piece, calling it a “cogent summary of the evolved legal regime” with respect to racial profiling and traffic stops. And then once more relies on Professor Leong for her “correct” observation that “close calls always seem to go to law enforcement.”

Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion.

Granted, Judge Davis himself spent three years as a law professor and so may be more open to the potential value of legal scholarship than those members of the judiciary with more limited backgrounds. And granted, as this is only one example, law faculty might be able to think more carefully about ways to assist the bar and judiciary think through complex social and legal problems with good scholarship.

But it has to be noted that the very article used to ridicule an entire academic discipline for its allegedly weak connection to live legal issues turns out to be at the heart of a federal appellate court opinion about a very live legal issue, indeed.

I recall the poignant moment in a large class of mine a few years ago when one of my students approached me after class to explain why she was late – despite being well within the speed limit, she had been pulled over by a police officer while on her way to campus for a “DWB” infraction – “driving while black.”

No wonder, then, that Judge Davis quotes Professor Leong when she concludes:

“Thus, even an officer with no actual purpose other than to harass and annoy may—according to the Supreme Court—use a traffic stop as an entirely constitutional starting point for such actions, as long as an objectively reasonable evaluation would conclude that the officer had probable cause to believe that a traffic violation occurred at the time she made the stop.”

It is, in fact, hard to find a more compelling and relevant piece of scholarship than this piece by Professor Leong and yet this eludes practically the entire corpus of law school critics. When one sees such a radical disconnect in the locusts’ argument, it has to make one wonder about the integrity and common sense of the critics themselves.

Simkovic schools Steven Harper on basics of valuation

You would think a former BigLaw partner would know better.

Brian Leiter’s Law School Reports.

Mike Simkovic explains basic statistical concepts to law school critics

Brian Leiter’s Law School Reports.

It probably won’t convince the rigid ideologues to recognize the world is not flat but worth a shot.