Education-law school

The dean at my law school is a cheerfully optimistic type, a character trait that certainly serves someone in his position quite well. It likely comes as no surprise, then, that he is particularly bullish on people attending law school. So it is always uplifting to hear about his confidence in the ability of law students to pay $40,000 annual tuition, fees, and books (plus living expenses). He and a collaborator have undertaken studies that, he assured me recently, have shown that the law degree is a solid financial investment even at these rates. The bases for his conclusion are that there is (still) a very low default rate on law student loans; that the great majority of law graduates have jobs; that many of these jobs, even for sole practitioners, earn very good money; and that the lawyers are quite content with those jobs and the loan repayment.

I will look forward to hearing more about these findings, and I urged him to get this information beyond the usual dry academic publications. I had twin motivations for that. If he is right, the information is needed to counter the message in the traditional media and the blogs, a message derived anecdotally, that law school debts are creating increasingly distressing—and ultimately unsustainable—burdens on lawyers that distort their life choices. But moving the information beyond the echo chamber of publications read only within the legal academy would also subject it to what Justice Oliver Wendell Holmes called “cynical acid” of outside commentary.

This post certainly does not mesh with the reality the dean described. Reflecting on law graduates’ debt burdens, the author compares law school tuition inflation and lending practices to the subprime mortgage-induced housing bubble. She asks what the future of law school pricing will be, and whether someone will create a financing model that does not depend on third-party financing.

The problem with the financing is that student loans are not dischargeable in bankruptcy, which lessens the risk to lenders and makes them more willing to lend without considering the likelihood of repayment that is the usual lending criterion. Add to that government subsidies and grants, and the law schools can capture most of these distortions and use them to increase tuition. The students, meanwhile, are stuck with a large, and increasing, bill even if their job prospect turn out to be too meager due to ability or low ranking of their law school to justify such an investment.

The prescription is to make law school loans dischargeable in bankruptcy, so that lenders tighten the terms of the loans based on likelihood of repayment. That will force the law schools, particularly those in lower tiers, to compete more rationally on the basis of price, i.e., tuition. Other alternatives will, necessarily, emerge to cut the cost of legal education, particularly for those lawyers whose careers will be spent mainly filling out form complaints or appearing in run-of-the-mill criminal cases.

Some schools, mine included, are increasing the amount of scholarship money, both on the basis of merit and on the basis of race. In the case of the former, the obvious goal is to attract and retain people who have a high likelihood of passing the bar. That helps with school reputation as well as with the U.S. News rankings (though less than one might expect for the latter). That creates a perverse financial incentive structure. Overall tuition will be increased more than otherwise in order to pay for the subsidies to the top students. It is those top students who can get the highest-paying jobs to repay their loans. It is the lower-performing students who get no such grants and scholarships who have to borrow even more to pay the higher tuition, but who will get lower-paying jobs, if they get law-related jobs at all.

The problem might solve itself if students applying to law school were told the hard truth (and were willing to listen) about employment chances and debt burdens (and law schools were willing to provide answers not attuned to gaming the U.S. News ranking system). The lower-qualified students might think twice before applying, which would reduce the student pool and rebalance supply and demand for lawyers at earnings levels that can sustain debt burdens. Those burdens, too, might be lowered as law schools began to compete for students. But I am not optimistic that the market distortions locked in place by government intrusion into the student lending market and various oligopolistic practices of law schools can be broken that easily without a top-to-bottom restructuring or abandonment of the existing law school education system.

Speaking of bubbles, there is the higher education bubble fueled by easy student loans. With the administration determined to increase the quantity (if not the quality) of college students, and with the pending take-over of student lending by the feds (as part of the Senate’s health care “reform”), this bubble will inflate further. But increased aid just increases costs, as colleges adjust tuition accordingly. Having even larger portions of the population incur staggering student loan debts will only hasten the bursting of the bubble.

The trends have already been set in motion through the availability of more and more on-line courses and degree programs. The move to test-based certifications and degrees is coming. As lectures presented by the elite, name-brand universities proliferate, this cannot but have an effect on brick-and-mortar institutions. Some, namely those same elite institutions (Yale, Princeton, Stanford, Harvard), will survive as teaching and research institutions. Same for smaller traditional elite liberal arts colleges (Swarthmore, Pomona) and specialized scientific/engineering schools (CalTech, MIT). Also some of the religious schools. But the operations of public universities and less highly-ranked run-of-the-mill private institutions will have to change radically, or they will go out of business. The current business model won’t work.

Many of those schools will have to develop new ways to deliver education to the expected masses. The junior college model comes to mind. Many junior colleges offer “distance learning” that can be supplemented with a few meetings during the semester for discussion. There will be lab courses and, perhaps, some seminars. If the Credits ‘R Us model of post-secondary education that Obama envisions takes hold, there may be a need to revamp colleges to do away with general education requirements and focus on specialization. The classic liberal arts model is designed for elites and will survive at appropriate institutions. For the great mass who are going to college because it’s the next stop after high school, taking courses in which they have no interest and which are not relevant to their goals is a waste of time and money. Colleges are becoming what grades 6 to 8 were a century ago.

Once the colleges go, law schools won’t be far behind. The same elite-everyone else dichotomy will strike those schools, too. Business schools already follow that model. There is no reason law schools shouldn’t. In fact, California already has a version of that model in that it has three tiers of law schools: the most selective law schools (approved by the American Bar Association), the next group (accredited by the State Bar), and the least selective, “unaccredited” law schools (licensed by the Commission of Post-Secondary Education). There is even an on-line law school, a glimpse of the future of non-elite lawyer training.

There are other teaching models that law schools can adopt to reduce the tuition burden. It would be unfortunate to lose the benefits of on-site education and the pedagogical benefits that classroom instruction brings. But the current educational model continues on its ever less-sustainable path. Administrators and faculty remind one of the French aristocracy in 1788, oblivious to the gathering storm of revolution that consigned the ancien regime to the dustbin of history.

A few weeks ago, I finished grading the latest batch of final exam answers. As would be expected from classes that exceed 30 or so students, the individual performances ranged from the excellent through the acceptable to the “have you considered getting an education degree, instead?” Just kidding on that last one. Mostly.

The Wall Street Journal’s Law Blog decided to celebrate the exam season by offering the views of several law professors from more-or-less prominent schools on what constitutes a good exam answer. Their responses ranged from excellent through acceptable to “have you considered actually providing useful information?” Not kidding on that last one. And it is the last of the responses I am most looking at here. From my law school alma mater, I note with chagrin. Some of the comments to the post are enlightening, as well.

Oddly, I was not included in this survey. But, this being my blog, I will ask myself to offer an opinion. Mirabile dictu, I have agreed to respond. My answer is similar, understandably, to the more thoughtful responses from the legal Socrateses queried by the Journal. I agree substantially with Professors Gerken and Friedman.

Law school exam questions typically pose a problem with a number of facts in evidence. Students are then asked to identify and evaluate various legal claims raised by the fact pattern. One problem that students have is that they do not answer the question. That takes two forms. They may ignore the facts presented and, frequently, make up new ones. That might be described as “soft” avoidance of the problem. The students have no answer for the question, so they reshape it more to their liking. Or, worse, the students violate clear instructions, such as, “Do not address any issue of [            ] that you might see.” Or, “Be sure to consider the parties [             ].” When those explicit instructions are not followed, this might be described as “hard” avoidance of the problem. The “soft” version is more prevalent than the “hard” version. It may be a more unconscious action. The latter shows that the students simply have not read the question, even though I warn them repeatedly that the instructions are the most important part and need to be read first and then followed.

Either form of avoidance is a problem, not just on my final exam. The state bar examiners make it clear that a failure to answer the questions or address the legal problems raised in the questions will be fatal to success on the exam. Once in practice, a failure to answer the problems raised by a client’s case is at best a waste of the client’s money. Similarly, the attorney’s failure to address the actual legal issues in a hearing will doom the client. So, answering the question posed is a critical start.

Moreover, the exam answer needs to be organized. This is not the time for free-form flow-of-consciousness writing. Just as a book uses chapter headings, and a formal legal complaint uses a heading for each claim and remedy, the exam answer should have a heading to introduce the specific legal issue. It is not enough to say, “What are B’s rights against A” or “Is the law constitutional?” That’s about as helpful as analyzing the client’s problem by saying, “Can the IRS come after you?” “Did A commit a battery when he flicked the lapel of B’s jacket,” or even “B v. A: Battery,” works; “Can B sue A” does not.

Another, practical, reason is that the exam reader is reading many exams. It always helps to make the answer easily readable. A good rule: Make the grader your friend. Non-descriptive issue headings (or none at all), illegible handwriting, failure to use paragraphs (or even sentences), and abbreviations requiring the use of a decoder ring or a knowledge of shorthand do not make the reader one’s friend.

After a proper recognition of the appropriate legal issue to be addressed, I next look for a thorough and clear statement of the proper legal/constitutional framework. I need to see that the student knows the appropriate elements/factors/analytical talking points that the courts would apply. That doesn’t necessarily require verbatim regurgitation of what was learned in class or what is in an outline. It does require that the student be able to figure out the relevant concerns those elements, etc., address and setting those forth adequately. This “rule statement” is the general “formula” by which the problem will be solved. It explains to the reader/client/judge what authoritative legal standards/rules apply.

But the general formula does not solve the specific problem. That requires an analysis of the relevant facts that are problematic for a resolution of the issue. Those facts have to applied to the relevant parts of the legal test. There is no need to analyze the obvious, but there needs to be a discussion of the facts that might cause the client difficulties or result in contested arguments, even if, at the end, the facts lean in the direction of one party or the other.

Analyzing those facts is not the same as simply restating them. I need to see how the student relates the facts to the law, the specific issue to the general formula. Phrases such as “In this case,” make the general rule specific to the facts. Even more significant than that are connectors, such as “because,” “since”, and “as.” Those show an analytical connection.

Moreover, exams are usually a “closed factual universe.” It is important to focus the analysis on the given facts and not to make up new ones. If the problem involves the constitutionality of a statute, it is important to look at what the statute says, not at what the student would like it to say. In this manner, exam questions are like motions to a court. The facts are given. On the other hand, real world advice to clients, in estate planning, for example, might start with an analysis of the facts but then move to recommendations about how to change those facts in the future to achieve a desired result.

In the issue analysis, students should also avoid a robotic “A will argue,” then “B will argue,” then “A will argue,” then “B will argue,” etc., approach. First, it looks stupid and grates on the reader. I once counted 46 such phrases in the course of an essay exam. Second, it tends to lead to a point-by-point approach that becomes an unduly miniaturized analysis, rather than a comprehensive analysis. Third, it prods the writer into making up facts or concocting weak or meaningless opposing arguments (e.g., “B will argue the opposite”) just so that he has something to say in opposition. Sometimes, the facts really are strongly in favor of one side. If the facts regarding a legal issue favor one side in one part and the other in another part, the analysis can reflect that in a more elegant manner than the “will argue” ping-pong. For example, “On the one hand, A has met the standing requirement because the invasion of his privacy rights by the government’s agent hiding under his bed constitutes a concrete injury in fact. On the other hand, the agent’s subsequent death prevents the court from effectively granting relief to A, which might fail the third prong of the standing test.”

Fact-law analysis is a significant component of a good answer. Conclusions are less important on my finals, in the sense that some conclusions cannot readily be predicted. In that case, if further analysis of the problem depends on an answer to a preliminary issue, the student may have to argue in the alternative. A Sometimes that might be quite simple. For example, if there is a disputed preliminary issue whether the plaintiff even has standing in court to bring the suit, a matter that often depends on highly nuanced and unpredictable fat weighing, the student in the end has to assume that the plaintiff has standing in order to get to the merits of the legal argument. Indeed, that is true even if it looks to the student that the plaintiff likely does not have standing. After all, if this were a contested case, the defendant likely would not rest his case solely on the gamble that the court will deny the plaintiff his day in court. Rather, the defendant would also prepare to address the merits of the plaintiff’s case.

A good answer also will avoid being distracted by irrelevant, non-legal considerations. This is particularly true in my main area of teaching, constitutional law. The exam answer is not the time to get on a political soapbox or to launch into economic/sociological/critical theory-based arguments how the proposed law “won’t work” or is “unfair.” In similar vein, the student must avoid trying to divine what response I would like from an ideological standpoint. I am only interested in seeing a legal analysis as the courts would undertake it, not what I would like to see politically in a world where I was a Platonic demiurge.

Students also should be aware of the oldest professor’s trick in the world. For whatever reasons, students tend to be very much pro-plaintiff in civil cases and pro-defendant in criminal and constitutional cases. Just as there is a need for a certain detachment when it comes time to addressing clients’ problems, students need to learn personal detachment from the parties in exam fact patterns. It is not unheard of for professors, ahem, to load the dice. I might write the facts so as to have a sympathetic-appearing defendant with various constitutional claims against the government but write a statute that, under current law, is clearly constitutional. It is important to resist the temptation to do anything but analyze the problem soberly.

Beyond that, there is something to be said for using common sense. While common sense is not a guarantee of success, it is often enough. If the argument really sounds weak or leads to utterly preposterous results, it is probably a dead end. If the student finds it necessary to say, “This is a weak argument,” as happens with disturbing frequency, the argument is best not made.

Finally, address most carefully the issues that jump out from the facts. I am reminded of a story from a former acquaintance whose ex-husband took the bar. She told me that a criminal law question on the bar exam involved a bank robbery. Among other facts, the robbers got into a shoot-out with the police and one of the robbers was killed by police. Before escaping, the robbers let out the air from the police car’s tires. The question’s main focus was on the defendant’s guilt for the policeman’s killing of the other robber, under the felony murder doctrine. The genius bar applicant wrote nothing about felony murder, but was proud about his thorough discussion of the “larceny of the air” from the tires. Perhaps needless to say, he failed the bar.

So, for a good answer, the student should identify the precise legal/constitutional issue, recount fully the applicable legal/constitutional rule, actually analyze and apply the relevant facts to the law, and avoid emotional, unreasonable, weak, and concocted arguments. Most certainly, the student must not fall into the trap of either hard or soft avoidance of the problem; in other words, answer the question.

Via Instapundit, law review circulation continues to plummet. This parallels a persistent decline in citation of law review articles by courts. The decline is not due to computerization, as it began earlier.

As one commenter put it, “The problem with law reviews is they are of little value to the attorneys that practice everyday law. Of course, if I get a transgender client facing incarceration and placement [in] the general [prison] population and who is [to] be deprived [of] the freedom to practice the Wiccan religion and of [sic] special dietary needs, I can access 25-30 articles on that[,] no problem. Now, if I want some assistance on the problems with offsets when multiple uninsured motorist carriers [are] involved, something that implicates 5-10 of my cases a year, there might be one or two out there, but [they] are way out of date.”

The commenter’s description is exactly right. Professors need to publish, and law reviews need articles. Young professors need to publish that which the academic culture wants them to publish to give them tenure. They speak a certain language within a fixed world view that has attracted them and that molds them into remarkable conformity. There are exceptions, and those will be the ones to break out of the mold and move the academy in a different direction. Whether that direction will be more consistently useful to the profession remains to be seen. But the current system certainly does not reward as “scholarly” articles that might help the legal profession with practical information. For that, the profession (and the courts who deal with “real” legal matters) must turn to other sources.

A provocative topic (for some of us) from the Wall Street Journal Law Blog. There is the stereotype, which I have run across with some (ignorant) family relations: You just have to teach X hours a week? The WSJ blog is a little less off-the-mark: “They teach a few hours a week, host office hours for an hour a week, and spend the rest doing whatever else they do out of students’ sight — write law review articles and blogs, attend conferences, interview potential colleagues and, well, frankly, we’re not entirely sure.”

Now, to be sure, law professors are unlikely to die prematurely from excessive physical exhaustion or emotional stress. Moreover, if the term is intended to mean that people will do the least they can get away with, there are some who probably are “lazy.” Of course, in that last quality they are hardly different from some individuals in any other vocation. It is even possible, though much more dubious, that there are more lazy law professors than lazy people in some other groups. That would be most plausible when compared to neurosurgeons, but much less so when compared to other pedagogues or to government workers, union members, and entertainers.

But I do not believe that to be an accurate description of law professors as a group. While moving from the individual to generalization of the group is always problematic, I will start with myself. The WSJ description is itself problematic, with normatively-freighted phrases such as “a few hours,” “an hour,” and “doing whatever else they do.” First, I typically teach 8-9 hours in the classroom each week during the academic year. Those are medium to large classes. So the teaching load is not insignificant. My colleagues do not teach that kind of full schedule, so it is fair to say that some of them could readily teach a heavier course load than the more typical 5 hours per week without suffering exhaustion. But that is not the extent of the classroom commitment. I have taught these subjects for quite a number of years. Yet, I still need to review the cases and materials before each class. This easily adds, say, 6 hours per week.

Second, I hold office hours 3 hours per week, in light of the large number of students I teach. Around exam time, I increase my availability further. Most of my colleagues have a comparable number of office hours.

Third, I have administrative responsibilities on committees and as faculty adviser to student groups. Including faculty meetings, these responsibilities probably take up an average of about 3 hours per week, sometimes more, though usually less. That work is drudgery.

Those are the most open and notorious hours. They are the tip of the iceberg. Class topics don’t learn themselves. I teach in the areas of business law (agency; partnerships; corporations; securities), constitutional law, and legal history and theory (including jurisprudence). Constitutional law, especially, is prone to new applications and interpretations. That requires a constant keeping abreast of new developments. Reading advance sheets, law review articles, books, and blogs soaks up a lot of my time. Now, some folks might say that is leisure. True, I find (most) of those readings interesting, but they still take up time. They are still work, and I find that I have far too much to read and far too little time to read it (as I stare at 7 books piled in a stack in front of me).

Then there are the incidentals of classroom work: Writing and grading exams. Law professors have to write the exams and read every student essay answer from beginning to end. At least half the final must be essay. No teaching assistants permitted for those tasks. Again, I take those tasks seriously. Writing one final exam will take all or almost all of a day. Reading and correcting essays takes about 45 minutes per essay, as I make lots of comments. Not all professors take that kind of time or go into such detail, though I believe that professors owe their students that attention and guidance. I grade close to 300 finals during the academic year.

Moreover, those who work in a cubicle (or at any other job), don’t work for eight hours straight (or even four hours). Studies have shown that an employer is lucky to get four hours of real work out of the typical employee during an eight-hour day. That is to say, shopping or gambling online doesn’t count as “work.” So a forty-hour work week does not mean forty hours of actual work each week.

When I grade papers, those are hard hours. I take breaks to rest and refresh my mind. Even with breaks, a mind-numbing boredom threatens to set in after reading thirty or forty similar answers. As far as in-class teaching, it is physically and mentally exhausting, though in a different manner than grading papers. Plato described the erotic element of philosophy. Without taking this too far, there is an erotic element both in experiencing knowledge and in teaching. When a class goes well, there is a sense of culmination and consummation. Mostly mental, to be sure, but with a physical aspect, as well. The better the class goes, the more that sense. And the more the need for a mental and physical refractory period. Put another way, a one-hour class takes a lot more than one hour.

There are also the extra exam and course review sessions with students; the moot court judging (both the first-year students’ competition and the upper division honors program); the panel discussions for student groups or for one’s colleagues; attending lectures, seminars, or academic conferences; various receptions for alumni, prospective students, and current students; letters of recommendation for worthy students and academic assistance for those in trouble.

Finally, there is the writing part of the job. Many of my colleagues write a law review article every couple of years. I tend to write shorter pieces more frequently (I get bored with a topic once I have done the basic research). Also I write a blog, which is partly a creative outlet, but partly related to my work.

Some professors might hide behind tenure to do little work. I suspect that few do, though, at least at law schools. I know that I like to be productive. I like the intellectual challenge. I consider it my obligation to be as prepared and informed as I can for my students. All of those take time and effort if done conscientiously. I suspect that my colleagues feel the same.

The great advantage of being a law professor is flexibility. I do not sit in a cubicle from nine to five. It is easy for me to take off an afternoon to do personal things. But I also work until late at night and on weekends, as the need arises. But flexibility in work schedule does not mean that work is not done. Just because I am not in class does not mean I am not working, any more than the fact that a basketball player is only on the court a few hours a week does not mean he is not preparing for his game. Or that an actor who appears a couple of hours a night in a play is not working on his lines or other aspects of his craft.

Another point a critic might raise is that law professors “get the summer off.” Yes, and no. Most law professors do research for their publications during summer. Some teach as visiting professors or at the school’s programs overseas. I teach during the summer. Indeed, the special two-year program in which I teach some classes, requires so many hours in the summer that July and August are the two busiest months on my schedule. Yes, like others, professors do take vacations, though I have not taken anything longer than ten days as far back as I can remember.

A different question is whether law professors are overpaid for what they do. That is an intriguing and, ultimately, unanswerable query. Certainly we are paid far more than a lettuce picker for far less backbreaking work. On the other hand, we are paid far less than someone who can play basketball well. I look at that question as follows: Law professors could certainly teach a few more classes for their pay, perhaps at the expense of some publishing. But we earn far less than most of us could have earned had we become (or remained) practicing attorneys. Most law professors come from a fairly thin layer of law students in the upper echelons of well-known law schools. Those students are much desired by prestigious law firms. They have six-figure salaries as beginning associates that rise, not infrequently, to seven-figure partnership draws. If they work for the government, they are likely to rise to the upper levels of bureaucracies. They typically earn impressive amounts of money. Many law professors made a trade-off in exchange for a lower salary. It is that comparative independence in performing one’s job, the flexibility of life-style, the intellectual challenge and the joy of knowledge, and the opportunity to help students become lawyers (together, I’ll admit, with the prestige and satisfaction that brings) that is the attraction of being a professor.

Being a law professor is a wonderful career. With certain qualifications, such as faculty meetings and grading exams, it is personally very satisfying. More than most vocations that I can imagine, it provides that fulfillment and sense of accomplishment, characteristics of a life well-lived, that Aristotle and other Greek ethicists called eudaimonia. But, as the Greeks warned, eudaimonia requires effort and commitment. So, becoming a good professor (and it truly is a continuous ”becoming”) requires those two ingredients. I would reject the notion that law professors as a group are “lazy,” as it accuses them of lacking that essential human striving to excel.

Following up some previous posts about whether it makes sense to get an undergraduate or one of various graduate degrees, there are some questions about the value of a law degree in light of educational expenses and lost opportunity costs. Many of the expenses are financed through loans that require a substantial debt service. The dean of Northwestern University School of Law calculates that amount to be $65,000. The average/median starting salary for attorneys is only $57,000, though that number varies depending on location, type of practice, and law school attended.

The Northwestern Dean, David Van Zandt, makes a compelling argument for changing the business model for law schools, something I wholeheartedly endorse. But he does not go far enough. Law schools must significantly reduce costs. There are some obvious ones that I have repeatedly mentioned, such as having professors teach more units and publish fewer articles on topics on the order of the latest critical theory implications of statutes of limitations or yet another whine fest about this or that identity group underrepresentation. The whole law school curriculum needs revamping, as I had the pleasure of discussing yesterday with a couple of my students and as I have posted before.  The problem is that schools will continue to embrace high cost programs and policies because many of those influence the U.S. News rankings. Even good faith attempts that I believe the dean at my law school would endorse have to consider the malevolent influence of magazine rankings on the attendance choices of students.

I do like the details of Northwestern’s two-year approach, which I consider in some ways at least superior to my school’s 2-year SCALE program. Some of the other components of the Northwestern program are also good ideas, such as the third-year practical focus and the enhanced admissions requirements. Again, though, I do not think they go far enough, especially in proposing specific solutions to developing more practical skills. In that regard, at least, I think that my school’s SCALE program is superior.

Another study, using more complex calculations, was done by a professor at Vanderbilt Law School. He concludes that, depending on a range of assumptions, a starting salary close to, or higher than, $100,000 is necessary for the average law student to realize a solid return on his or her investment. The variables considered in that study are so great, however, that one cannot calculate with precision the required starting salary. Moreover, as the professor appropriately points out, there may be intangible factors such as a passion for the law or the pride in the prestige of a professional degree that are not readily quantifiable that may make the law degree a good choice for a student even if a pure dollar-and-cents calculation might not.

The current law school model is not sustainable. The question is what will replace it. It has to be something that ties into what law schools can reasonably deliver without a cost that puts students into indentured servitude for decades.

In 2005, the long-time dean at my law school retired. The new dean is an outwardly friendly and a scholarly man with an engaging personality who, like his predecessor, has the best interests of the institution at heart. Not surprisingly in this professional environment, he is a political liberal, thereby matching up well with the faculty. Moreover, unlike his predecessor’s top-down model of governance with strong decanal control, the new dean has embraced a more formally decentralized faculty-participation model of governance. That endeared him to the faculty, though the jury is still out about which model, if either, actually produces better administrative results overall. But there are certainly strong voices among the faculty who declare that the atmosphere of collegiality has improved overall.

With strong faculty support, the new dean changed several long-standing policies soon after his arrival. For one thing, the traditional grading curve at the school for classes was changed from a median of C+ to B. The range of the mean was changed from 2.3-2.5 to 2.95-3.05 for most courses. The academic dismissal line was raised from C to C+. That latter change was one grade-step less than the change of the median, with the result that more people who would have been disqualified under the old approach now were retained. This has reduced the attrition rate for students at the end of the first year, a change that has made students feel less stressed about their studies. Indeed, the attrition rate has declined to the negligible and is less significant than at even some institutions ranked higher than my school.

The purpose of the grade inflation was to bring our scale more in line with that of other law schools. Myopic employers look askance at any grade point average below B and indeed at any course grade below B. They expect to see A grades. Anything less than that creates a disquieting aesthetic for these employers, it appears. They would rather have appearance of acceptable performance than evaluation based on the actual merit of the performance. Grading our students under the old system put them at a disadvantage compared to other students, based on transcript appearance.

Moreover, it was made clear at faculty meetings, and by the general tone towards grading as a mere ranking exercise, that attrition was to be minimized. In true post-modern understanding, grades have no intrinsic meaning of merit, or lack thereof, but are merely relative. To assign intrinsic merit to an A or a B was an impossible task. In some tension with that paradigm, though, papers that did not meet minimum competence were to be given below satisfactory grades. That required at least some determination of what constituted a meritorious paper, and its opposite. But there are low grades and there are low grades. Giving a C is not the same as giving a D-, and it was clear that the former were to be preferred over the latter, as the former was less likely to result in attrition if the student received only otherwise mediocre grades. One justification given for this change in grading and attrition was that rewarding students with better looking grades and allowing them to complete courses successfully would give them confidence in themselves. That, in turn, it was proposed, would help them succeed on the bar exam. Interesting concept.

Some of us faculty dinosaurs, such as T[oken] C[onservative] rex, supported the grade changes, such as the increase in A and B grades, that placed our students on a level playing field with students from other schools. But I opposed raising the academic disqualification level to only a C+ and the informal push to lower attrition. I understand the cosmetic change of the median from C+ to B, but not the failure to raise the academic disqualification line at a same rate, i.e., to a B-.

In addition, since the new dean’s arrival the school has reduced the number of units of required subjects. As a result, topic coverage has suffered. Again, the reason given was that many other schools do it this way. Once more, the intention was to make law school a more nurturing and student-friendly environment and a less stressful course of study. Moreover, giving students more electives would allow them to focus more on areas of interest and let them make decisions about their education. These changes were done with the best of intentions and fit well the non-judgmental liberalism that most in the faculty and the administration follow.

On top of that, an externship program has been expanded even beyond its prior scope. Externships allow students to get practical experience working in government legal offices (such as the District Attorney’s Office), judges’ chambers, or certain law firms or company legal departments (especially ones connected with entertainment law). The laws school collects tuition and reduces class sizes; the students get credit; the offices get “free” help. Everything’s great.

Or is it? The externship programs do not follow any clear progression of learning practical skills or substantive coverage before venturing into the offices. Moreover, according to informal discussions I have had with students, many of these (especially among the judicial clerkships) produce less than satisfactory learning experiences. Put another way, there is a concern that the time students spend in the externship program exacerbates the deficiencies in core course subject matter coverage. Needless to say, I am not at all impressed by the school’s proud announcements that the externship programs involve ever greater numbers of students and outside legal offices. That may help the bottom line and allow those who administer the program to gain new titles and hire more staff. But it doesn’t address the question whether the program, at least as currently structured, actually helps the students more than taking a course of study and working part-time for pay would do. The deficiencies of subject matter coverage have been waved off under the new faculty governance regime by placing some mild restrictions on who qualifies to participate in externships and by claiming that students can make up the deficiencies by taking a bar review course.

As to that last point, I want to leave aside the indictment this represents of the role of the law school and its educational mission, at the cost of $1225 per unit. Whatever may be the merit of that argument for students at a Top Ten law school, it does our students little good to be introduced to an area of law that is covered on the bar exam just a few weeks before that test.

Rather, I want to take a look at bar statistics themselves. Southwestern is an American Bar Association-approved law school. The last class that graduated under the old grading and attrition structure scored a 66% California bar exam passage rate for first-time takers. This was 4% below the average for first-time California bar exam takers from all ABA-approved law schools in the state. Our full-time day division (the most appropriate comparison to other schools) scored 72%, or 2% above the California ABA schools’ average. This placed us 11th out of 19 ABA-approved law schools in California.

The July, 2006, exam included students who had been largely unaffected by the grade inflation and the other changed policies, but had been exposed in their course work for one year to these laxer rules and the change in intensity (seriousness?) those rules signaled. Our bar passage rate dropped slightly to 64%. Unfortunately, the overall ABA rate climbed to 74%, for a difference of -10%. Our full-time program again did somewhat better, but at 67% had dropped below the ABA average, as well, to -7%. We were now 14th out of 20 ABA schools in bar passage. (One new school, Univ. of La Verne, was approved and had its first group of graduates as an ABA-approved school take the bar.)

The next group, in 2007, had two years under the new grading and attrition rules. First-time bar passage held steady at 64%. Unfortunately, we still lost ground slightly, as the overall first-timer rate from California ABA schools was 76%, for a -12% difference. Our full-time program improved slightly, to 69%, and a -7% comparison to California ABA schools overall. These statistics placed us now at 16th out of 20 ABA schools in California, yet another drop.

The next group, in 2008, saw a surge in Southwestern’s graduates passing the bar, for a 72% rate. Unfortunately, the overall ABA average shot to 83%, so that our difference was still -11%. Our full-timers passed at 74%, now with a -9% in relation to the ABA schools. This dropped us to 19th out of 20 ABA schools in the state, despite the apparent improvement over prior years. The improvement was a mirage, as it was for other schools, because the bar examiners scaled the exam more leniently because of disruption caused by an earthquake on one of the exam days. This benefited many of those who were on the borderline. Not surprisingly, our students in the lowest quarter improved their performance from 28% to 41%. Our lower performing divisions (the part-time evening students and, to a lesser extent, students from the intensive 2-year SCALE program) improved most markedly, from 38% to 55%, and from 57% to 68%, respectively. The generous bar scaling also seemed to benefit other usually lower-performing schools such as Western State, Whittier, Thomas Jefferson, and La Verne, who are likely to have higher proportions of marginally-qualified students than other schools.

Leaving aside the anomaly of the 2008 exam, the 2009 exam may provide a glimpse. In response to earlier bar exam shortcomings, Southwestern introduced several programs intended to prepare the students for the bar. Oddly, among them are exam writing courses and some substantive bar review-type courses. Why these matters were not covered in the traditional courses during the preceding two and a half years, is a bit of a delicate question. Moreover, these students, including the part-timers have been fully subject to the more lenient attrition and relaxed course coverage policies. The result? A drop in first-time bar passage to 62.5% for Southwestern students. The California ABA law schools’ overall passage rate also dropped, but only to 79%. The result is a -16.5% rate for Southwestern compared to the overall rate for ABA schools in California. Even our day division dropped substantially, to 65%, or a -14% comparison. One bright spot was that some of the other lower-performing schools, saw their rates plunge even more from 2008 to 2009 than did Southwestern. As a result, we moved up to 16th out of 20 California ABA schools. Another bright spot was that the evening program held steady (though still well below the full-time program), but the collapse of the SCALE program’s statistics offset that partial success.

So, where are we after four years of grade inflation, drastically reduced first-year attrition, reduced substantive coverage in favor of an expanded range of specialty electives not covered on the bar, expanded externships, various remedial “student success programs,” some quasi-bar review courses, post-graduation exam writing courses, a consciously student-friendly and nurturing environment, and (happily) greater student contentment? The first-time bar passage rate has dropped steadily (excepting the freakish year 2008) from 66% to 63%, withthe full-time program dropping from 72% to 65%. Leaving aside other considerations in favor of a rigorous law school experience, perhaps a 3% drop is a price well worth paying for increased student comfort and happiness while attending law school. Perhaps even a 7% decrease for full-timers is worth it, although the price is getting steeper. But this has occurred while the California ABA schools’ overall bar passage rate for first-timers has increased from 70% to 79%. Can we justify our changes when our relative positions to the other schools has declined 12%, from -4% to -16.5%?

Schools whom we outperformed in 2005 or whom we once considered our competitors are now well ahead of us. Though using the overall rates would not change the following comparisons significantly, I am using only full-timers for better comparisons in most cases: Cal Western (2005, Southwestern +14%; 2009, Cal Western +16%; relative decline of 30%); Chapman (2005, Southwestern +13%; 2009 Chapman +16%; relative decline of 29%); Golden Gate (2005, Southwestern +28%; 2009, Golden Gate +3%; relative decline of 31%); Loyola (2005, Loyola +3%; 2009, Loyola +20%; relative decline of 17%); McGeorge (2005, Southwestern +8%; 2009, McGeorge +16%; relative decline of 24%); Pepperdine (2005, Pepperdine +1%, 2009 Pepperdine +15%; relative decline of 14%); UC Davis (2005, UC Davis +2%; 2009 UC Davis +24%; relative decline of 22%); USF (2005, USF +2%; 2009, USF +16%; relative decline of 14%); Santa Clara (2005, Southwestern +7%; 2009, Santa Clara +17%; relative decline of 24%); USC (2005, USC +10%; 2009, USC +26%; relative decline of 16%). Even those schools still below us are catching up: Thomas Jefferson (2005, Southwestern +34%; 2009, Southwestern +19%; relative decline of 15%); Western State (2005, Southwestern +47%; 2009 Southwestern +12%; relative decline of 35%); Whittier (2005, Southwestern +32%; 2009 Southwestern +4%; relative decline of 28%). All of the schools below Southwestern received ABA approval after Southwestern did. At least one school that received ABA approval well after Southwestern, Chapman, has surged ahead in its bar success. We used to compete with Santa Clara, McGeorge, Loyola, Pepperdine, USF, and, if lucky, UC Davis. Now, it’s neck and neck with Whittier.

Obviously this begs the questions, “Why?” and “How?” There may be a number of intangible reasons or reasons that are unique to each institution that explain part of the statistical changes and comparisons. But, spread across the number of institutions (and I did not include those, like Stanford and UC Berkeley, that consistently outstrip schools such as Southwestern), most of which we once considered our peers, there seem to be troubling forces at play. One cannot help but think that the relaxed atmosphere with the forgiving grading; the genteel attrition rate; the emphasis on “sexy” and “relevant” entertainment, media, environmental, and international courses and concomitant reduction of core course coverage; and the emphasis on externships has something to do with the decline.

Our lowest quartile has always performed poorly. But they have moved from poor (28% in 2006) to abysmal (16% in 2009). If that quartile were rigorously eliminated (to attend a non-ABA school, for example), the bar stats would go to 77% for 2009, just under the ABA average, a position that Southwestern occupied over many years in the past. If the bottom half were eliminated, our bar passage rate would exceed UCLA’s and UC Hastings’s, and rival that of UC Davis, USC, UC Berkeley, and Stanford. But that might be overreaching. We know anecdotally that Cal Western, McGeorge, and Chapman have intensified their attrition, with the predictable bar success.

Now, perhaps we should just not care about bar statistics. Sweep them off the table, and let’s relax. But the students who go into debt well into the six figures to complete law school might beg to differ with such laxity and casualness. We have an obligation to them to take bar statistics seriously. If this were Harvard, Yale, or Univ. of Chicago, the quality of the students might allow for such a devil-may-care nonchalance.  Well, actually not for the last. On the 2009 exam, the Univ. of Chicago bar passage rate in California was 79%. But our students need our assistance and expertise in maximizing the likelihood of success for those we graduate. That includes the merciful act of barring those with little chance of success, as demonstrated by the end of their first year at the latest, from continuing to graduation.

The administration is working hard to find ways to reverse these trends without resorting to much attrition, though after several years of contrary messages, there have been less than subtle hints that professors should grade poorly written and analyzed exams more strictly, especially in first-year courses. I wish the administration luck. I applaud those efforts, and I hope very much that they succeed. But I am doubtful that they will make significant strides in reversing the comparative decline without resort to significantly more attrition and a change in the curriculum to a more comprehensive presentation of substantive law to all students. Or at least to all those who are endangered, which means all those who get below a B in a rigorously graded course. In bar terms, a B- grade is effectively a D in the subject, and anything below that is effectively a Fail. Becoming a lawyer is training for competition and conflict. It often is a stressful profession. Yes, it that also often includes negotiation and transactions. But even then, the parties are to some degree in conflict of interest. These are not hugfests, and law school is not a training ground for kindergarten teachers. So we should not be afraid of introducing some stress and competition into law school. It focuses the mind wonderfully.

There may, of course, be other changes that might be made, for example, in regards to admissions policies. But the best overall predictor of success on the bar and as an attorney is performance in law school. So, I am not against a relatively lenient admissions policy. But it must be supported both by programs to help the students succeed and a rigorous culling of those who are not succeeding at the end of the first year. Being unsuccessful in the study of law is neither a personal failing nor a sign of stupidity. There are careers other than being a lawyer, for good people of above-average intelligence. But if law is the dream, it is possible to attend a non-ABA law school in California. So the school should not be unwilling to cut students loose and help them avoid going into massive debt, when they are in a group that has less than a one out of six chance of passing the bar on their first try. These are hard decisions, and academics and school administrators are notoriously unwilling to make hard decisions. Perhaps, in general, their personality traits are unsuited to the task. But it is our job.

This is a follow-up to this post, which addressed an article that averred that Blacks and Mexican-Americans were losing ground in law school enrollment, although they supposedly had achieved near-parity with other groups (Whites and Asians) in LSAT scores.

The study discussed in the Times is implausible. As mentioned in the preceding post, if LSAT scores for those groups were nearly identical with those of Whites (and assuming the number of applicants has not fallen), the ideological liberalism and reflexive political correctness, as well as the lack of assertiveness to challenge the melanin-focused status quo within their peer group, means that law school administrators would be falling over themselves to admit Blacks and Hispanics. That leads one to believe that Black and Hispanic LSAT-takers continue to perform substantially less well than Whites and Asians.

Chief Justice Rehnquist and Justice Thomas in their dissents in Grutter v. Bollinger, the 2003 case that upheld the constitutionality of the race-based affirmative action program at the University of Michigan Law School, devastated the statistical basis for the Court’s decision to uphold the “holistic” program. They described it properly as a sham, a facade. Justice Thomas pointed out that none of the filings by supporters of law school affirmative action contain “any evidence that the purported ‘beneficiaries’ of this racial discrimination prove themselves by performing at (or even near) the same level as those who receive no preferences.” Moreover, in 1993, Blacks constituted 11.1% of LSAT takers (close to their proportion of the population), but only 1.1% of those who scored 165 or higher (out of a scale of 120-180). By 2000, they constituted 11.3% of the test-takers, and 1.0% of the 165+ scores. He correctly predicted that there is no reason to believe that this lag in performance will change within the next few decades. And the disparity in performance continues, though it shrinks, through the middle ranges, only to reappear, but in reverse, in the lower score ranges. Overall, the cohort of Black and Hispanic test-takers performs less well than do Whites and Asians. I emphasize again that I am describing overall group performance, not that of every individual Black or Hispanic student.

There are two consequences from this disparity in performance. First, the elite schools, seeking to maintain their “exclusionary” and “elitist” admissions systems, use a “faddish slogan” to attain a “racially aesthetic” student body (all in Justice Thomas’s words), rather than true educational achievement. Because these elite schools delve deeper into the ranks of “preferred racial group” applicants and admit people with lower academic potential, as measured by the LSAT, those students perform less well, on the whole, than their higher-performing colleagues from groups that lack the preferred racial aesthetic and have to compete more for admission. That, according to Justice Thomas, in turn requires the “aestheticists” to cover their tracks and “this cruel farce of racial discrimination must continue—in selection for the Michigan Law Review [a student honors program]…(noting the presence of a ‘diversity plan’ for admission to the review [similar to Harvard Law’s under which Barack Obama was selected], and in hiring at law firms and for judicial clerkships until the ‘beneficiaries’ are no longer tolerated.” Justice Thomas’s analysis is spot on, as this study by UCLA Professor Richard Sanders of the effects of affirmative action admissions at law schools and this Sanders study of the fate of law firm hires from racially preferred groups show. Blacks may get admitted to a school under an affirmative action program, but they are less qualified and perform less well overall than their peers from non-preferred groups at that school. They may get hired at a firm for “aesthetic” reasons, but, when push comes to shove and partnership decisions must be made, the reality of their actual or perceived inferior performance cuts them off.

The second consequence of the elite schools’ color palette fetishism and the resulting admission of lower-performing “preferred groups” is that lower-ranked schools have to dip deeper into the pool of applicants from such groups. Once more, then, such applicants overall perform less well than do applicants from other groups who are not as insulated from open competition. Indeed, abandoning affirmative action would not cause enrollment at such schools (unlike at elite schools) to decrease, because currently they replace their appropriately-qualified applicants who are lost to the elite schools with lower-qualified affirmative action admittees who would otherwise go to schools in a lower tier than they. Without admissions based on melanin preferences at the elite schools, Blacks would be competing with similarly-performing Whites at those second and third-tier schools. The quality of the pool might change for the better for such non-elite schools, but the quantity would not.

Of course, the latter still could simply abandon racial bean-counting, regardless of the elite schools’ policies. But school administrations are not known for choosing the sensible solution. Second and third-tier schools engage in the same ritual as the elite schools, and for the same reasons: The same ideological commitment to racial preferences, the same fetish for a melanin-based aesthetic, peer group pressure and search for peer group approval, and rules of accrediting agencies and governmental bodies.

It is undeniable that affirmative action then forces the more poorly qualified admittees into competition with better-skilled individuals, a competition that they disproportionately lose. That causes these candidates to take longer to complete a degree or to fail to get it altogether. It also means psychological shock and discouragement to people who might do just fine in an environment just a bit less challenging where they are among their intellectual peers. That demoralization itself can contribute to failure, all to satisfy the “enlightened” quest for the melanin-based aesthetic at the core of the school administrators’ ideological preconceptions and their personal needs for self-congratulation.

The distortion of affirmative action in terms of SAT scores is undeniable, as well. From the link to Robert VerBruggen three paragraphs above:

“After academic performance and demographic factors have been taken into account, black applicants are more than five times as likely as whites to be accepted at [elite] private schools, and 220 times as likely to be accepted at [elite] public schools. Asian applicants, meanwhile, are only about a third as likely as whites to get big envelopes from private institutions, and one-fifth as likely to gain admission to public ones.

“Putting preferences in terms of test scores, at private schools, blacks get an advantage, compared to whites, worth 310 SAT points (out of 1600), Hispanics an advantage of 130, and Asians a disadvantage of 140. At public schools, the authors present the difference in ACT points: blacks 3.8 (out of 36), Hispanics 0.3, Asians –3.4.”

The “academically correct” response to the inconvenient truths of the failure of affirmative action is to engage in various manipulations of the rules. The different success rates of different racial and ethnic groups and the performance gap between Blacks and, to a lesser extent, Hispanics on the one hand and Whites and Asians on the other must be due to some faultiness in the statistics. Or of the SAT. Or of the LSAT. Or of the bar exam. Therefore, those should be altered until they produce the right proportional result with no annoying gaps. Or, if the performance gap and the scores prove to be too stubborn as facts, those measures should be abandoned. Instead, we’ll substitute only interviews, or evidence of adversity overcome or of “true lawyering skills” such as empathy and cultural sensitivity. After all, according to this thinking, these bourgeois tests of merit don’t truly measure anything, or at least not anything valuable; moreover, “merit” is so illusive. Better to substitute a socially relevant set of criteria in this Maoist-type selection. That will produce the “correct” result.

To these good administrators, the cause for the racial performance gaps cannot possibly be personal choices and background, various cultural dysfunctions endemic to the group such as the comparative weakness of the Black family structure compared to that of Asians, the fact of being minorities in a school, or even possibilities so politically incorrect they dare not speak their names. Best, then, to change the tests that are used, as the University of California did with the SAT. Or, better yet, as the ABA appears to be getting ready to do, abandon the LSAT. A few months ago, there was some prominence given to a proposal from a pair of collaborators (one of them a former UC Berkeley law professor) to do away with the LSAT and to use “real” factors to predict how the applicant will do as a lawyer. Such “real” factors would include the predictable politicized considerations, such as empathy and commitment to the underserved. Presumably that would produce, by subjective selection, the “right” mix suited to a racial spoils system, never mind the educational merit. Since schools already consider such factors (however determined) as part of the evaluation process, the proposal is to rely on them exclusively instead of test scores. If schools nevertheless maintain exam grading integrity, these admissions are highly likely to produce comparatively poorly-performing students. They would still be weeded out by the bar exam. Thus, the next step necessarily would call for a change in the bar exam to reflect these new considerations. One then wonders why the bar exam should not be abolished. Or, for that matter, why there should be a requirement of completing an educational program at institutions regulated by a cartel-light structure such as the ABA, a requirement maintained by the legal profession’s leadership in many states (though not in California).

Reliance on undergraduate grade point average may continue, as that number can be manipulated by the applicant and the school. The manipulation may be through selection of a major that relies less on skill or knowledge (hard science courses) and more on attitudes and commitment (any _________ Studies course). Or, it may be through the different grading standards that might be applied at lower-performing (based on test scores) schools (such as Cal State Dominguez Hills) than at higher-performing schools within the same system (such as Cal Poly San Luis Obispo).

However stubborn the facts, one thing is clear. Professors enamored of their liberal-leftism, turf-and-grants-protecting interest groups within the professional educational establishment represented in various organizations, and administrators (happily) unwilling to buck either of them will see to it that fantasy will trump reality, ideology will control facts. So don’t look for any solutions that will actually benefit the “protected” groups while avoiding the injustice, social friction, and racial balkanization of affirmative action. Instead, look for continuing the melanin-based aesthetic that deals with appearance rather than substance, as is the wont in our post-modern academy.

My colleague Ken Williams sent me this article from the New York Times that describes a study that claims that the percentage of entering Black and Mexican-American law students has declined from 1993 to 2008, both in terms of percentage of all students and in absolute numbers. The study avers that this is occurring despite improvement in the undergraduate grade point averages and Law School Admissions Test scores for those groups to the point that they are very close to those of White applicants (although a statistic showing changes in LSAT scores for Mexican-Americans compared to Hispanics/Latinos puts that matter in some doubt). The article quotes rejection rates of 61% for Blacks and 46% for Mexican-Americans at all law schools to which they applied, contrasted with only 34% for Whites. From that the study authors and others conclude that Blacks and Mexican-Americans are being excluded, though no specific cause is assigned.

Some other persons quoted in the article put the blame on the admissions personnel using LSAT scores rather than looking at the applicants’ “chances for success as lawyers.” According to that theory, the concern of law school deans about the U.S. News rankings drives the overreliance on LSAT scores. Why that would affect Black and Mexican-American admissions rates, if the study’s assertion that those groups’ LSAT scores are essentially the same as those of White applicants is correct, is puzzling. It is downright astounding, given the fetish that the overwhelmingly liberal law school administrations have, just like their counterparts at other educational institutions, to engage in racial profiling and bean-counting to maximize melanin-based diversity.

I have serious doubts about these findings. Let me start with anecdotal and impressionistic evidence based on personal experience. I have had quite a few charming, intelligent, competent, and eloquent Black students in my classes over the years. I have several now. However, on the whole, Black students have performed less well than their classmates. Assuming that my anonymous grading experience is no different than that of my colleagues (and there is no reason to believe it would be), the difference is enough to affect their law school grade point average. Performance in law school is a good predictor of bar exam success. Hence, the higher bar exam failure rate of Blacks is hardly news. Although I am not privy to those students’ LSAT scores, and even though, by itself, the LSAT is not a very good predictor of how an individual student will perform in law school, as a general tool LSAT scores (and even more the LSAT-UGPA index scores) are broadly predictive of performance. I would expect, therefore, that, on the average, the LSAT scores of our entering Black students are lower than those of White students. I have also heard from one of my colleagues on the Admissions Committee that racial preferences are a definite factor in the initial admission decisions made. This, too, would suggest lower entry scores on the whole for Black students (or racial preferences would not be necessary) than for their classmates, which, in turn, would explain the overall poorer performance of that group if the data for the school match those for my class (again, based on anonymous grading).

Lower academic qualifications at time of entry lead to lower performance in school (and, eventually, on the bar exam), which likely should lead to higher rates of disqualification. That is not necessarily so in the world of melanin-based preferences, as is reflected in my experience on the Academic Standards Committee. While I was on that committee, which has jurisdiction over the readmission petitions of academically disqualified students, there was more than one occasion when sentiment was expressed to give a Black student a chance to continue because of the effect his/her dismissal would have on the school’s racial diversity. Although each case was individually considered, race was definitely a factor in considering petitions for readmission. As I have not been on that committee for some years, I cannot say whether the same process now applies. But there is no reason to believe that it does not. If anything, the focus on racial diversity numbers has intensified over the last ten years.

Another colleague’s response to the Times article bemoans the study’s revelations and predicts that, within two years, the ABA will allow law schools to do away with LSAT scores. Even now, the ABA permits law schools to use other testing devices than the LSAT to admit students. In effect, this will allow schools to pick and choose scores that will justify their decisions to offer admissions on a racial basis. Students will not be subject to the same measurements. The reaction of the ABA and the schools is not surprising. It reminds me of the reaction of the University of California to the voters’ decision to bar, among other things, race-based admissions. The University undertook a strategy to avoid the strictures of the law through various subterfuges. One of those was to offer admission to the top 4% of each high school, even though that 4% might have lower SAT scores than non-qualifying students at other schools. This article accuses UCLA administrators of conspiring to avoid (and avoiding) Proposition 209’s racial preference ban and then covering up the actions by preventing access to the evidence that would expose such malfeasance.

A favorite method at schools who are not covered by the California state constitutional ban on racial preferences (such as private schools and out-of-state public schools) is to use race as part of a “holistic review” process. That approach theoretically requires each application (or at least all above a minimum level) individually to be looked at as a whole package. Objective criteria, such as performance on required admissions tests and grade point average, would count. But so would subjective factors, including economic difficulties or personal difficulties overcome (the result of which already has been to encourage each applicant to make himself or herself out to be a victim of something or other) and personal achievement (which leads to making mountains out of molehills of “accomplishments”). Finally, race/ethnicity can be blatantly considered, though, to make sure that most (though not all) Asian subgroups don’t get those spots any more than Whites do, the group must be on the approved list often characterized as groups “historically underrepresented in the profession.” A useful tool for this discrimination is the personal statement, though even a checkbox approach can be utilized.

The holistic approach is best used by professional and graduate schools, or by small colleges, as large undergraduate institutions do not have the manpower to engage in such a labor-intensive process. The Supreme Court specifically authorized such racially discriminatory preference policies in the 2003 Grutter v. Bollinger case, at least where each individual applicant’s file is considered under the holistic review. Since there is no set weighting of values—nor can there be, with such subjective factors as race and personal disadvantage—the whole process becomes a rather arbitrary set of judgments by members of the committee. Though the collegial process theoretically rounds the edges of arbitrariness, those edges do not disappear. Moreover, the process is less collegial than might appear, due to personnel constraints and the number of applications, as well as to political influence from members of the administration, as demonstrated in the dissenting opinions in Grutter.

In the next post, I am going to address some of the defects of affirmative action-based “solutions.”

There has been a lot of handwringing recently (well, for a couple of years) among our faculty about the inattentiveness of students in class. Surveys purport to show that students at our school more so than at other schools report that they consider their tasks to be memorization of legal principles. One professor has had his research assistant tell him that students read no cases whatsoever, and that those who appear prepared have only looked at canned briefs. Professors observe that they too often rely on lectures because of the breadth of material that has to be covered. Students, in turn, have come to expect that mode of instruction and to get everything from the professor through lectures or, worse, powerpoint presentations.

Or so goes the complaint. First, I think that the student who alleged that no students read cases is engaging in hyperbole. Second, leaving aside a professor’s dull presentation style, a significant part of the universal problem of student inattentiveness today is the presence of wireless internet in the classrooms. Third, I don’t believe that, to the extent that a failure to read cases or an emphasis on rule memorization exists, this is unique or even more prevalent at our school compared to schools with a similar caliber of students. Whatever might be the case at Harvard, Yale, or Stanford, there is no reason to believe that our students are different from those at Golden Gate, McGeorge, or Cal Western, to pick a few. Nor is it likely that our professors in large numbers teach differently or cover different material. So it could be some statistical aberration. Or it could even have to do with some difficult-to-pinpoint factor such as cultural or economic differences (we are a very urbanized school that prides itself on an unusually high minority and immigrant enrollment), fatigue and commuting distances (our students also report that they study less than their counterparts), the foregoing study habits, or something odder still.

As a more general observation not focused on differences among schools, if students are not reading cases, but using study aids or canned briefs, that may be due to generational changes. People who graduated from college as recently as ten years ago had learned primarily by reading books. Electronic media were increasingly varied, but computers did not have the tremendous effect they have had on the development of learning and study skills of the students who have graduated from college since then. Computers, video games, and the expanding influence of TV arguably have led to a shortened attention span and a certain intellectual laziness. The ever-expanding law school enrollment may also cause people to go to law school who, in the past, would have pursued other, less intellectually demanding paths.

That said, there is always a tendency by an older generation to look back and exaggerate differences and extol the virtues of the past. There often is merit to that; but, often there is not. Perhaps I was a worse student than my colleagues were, but I used commercial outlines, Nutshell Series summaries, and hornbooks, as well as read the cases. So did my fellow students. We memorized the rules and used them on the exams. I still have some of my class notes and test preparation outlines. If the complaint today is that there is not enough deep analysis of underlying jurisprudential principles discovered through a close reading of case facts, the notion that, in our student years, we habitually engaged in thoughtful Socratic “unpeeling of the onion” and uncovered contract principles one by one under the gentle prodding of our professors or by rigorous debates among the students is nonsense. The latter actually did take place, but may have arisen out of frustration. That wonderful renowned scholar who taught the class too often had the oral presentation dynamics of the typical nerdy male of television comedy trying to get the attractive female protagonist’s attention. My first year section at Harvard Law School (before I transferred to Stanford later) had almost 150 students who were taught in large lecture halls. This was not a throw-back to wandering with Socrates around the streets of Athens finding Sophist blow-hards to slay with metaphysical arrows, all the while uncovering the truth that we don’t really know very much, if anything.

Another topic of pedagogical debate among my colleagues is the breadth versus depth of coverage conundrum. Should we sacrifice coverage of the various topics of, say, assignments and third-party beneficiaries in contract law in favor of deeper coverage of the remaining topics? As a constitutional law professor, this is an issue with which I have long wrestled. My life in that regard would be made a lot easier if the Supreme Court took a decade or so off for a well-deserved long vacation and stopped writing opinions. There is significantly more innovation in constitutional law doctrine than in, for example, real property. But I generally hew to the position that, in an introductory course, I should cover as much material as possible, and thereby to expose students to as much doctrine as possible. In an advanced non-survey course, or, even more appropriately, in a seminar, emphasis on deeper reflection and creative research is more justified.

Well, comes the response, students can get the doctrine through their bar review course. I don’t even know where to begin with that. First, even Harvard students may be taken aback if their core courses did not cover material the bar examiners expect them to know. And our students are (supposedly, based on test scores and college grades) not on the level of those Harvard students. I hasten to add that I have met many, many extremely accomplished students at my school. I always find it a particular pleasure of teaching to be associated with them, and I learn a lot from my exchanges with them. But I think it does a disservice to them to face the pressures of the bar exam with the added burden that what they are studying in the review is entirely foreign to them. I also don’t think it helps the school to have students believe, rightly or wrongly, that they have just spent over $100,000 in tuition so they can have a $5,000 bar review teach them legal concepts. If the professor covers the subject and the students fail to read the cases, the onus is on them. I have heard too many complaints from students (not just at this school) about the poor morale produced when too much material is foreign to them until a month or so before the bar.

Second, what kind of indictment of legal education is this? If students can just learn all the doctrine they need in a two-month bar review course, why not change the model of legal education to an old-style apprenticeship? The past becomes the future. Have students do a year or two of writing pleadings and points and authorities, learning legal research, and developing oral advocacy and trial skills. Our externship programs could drop the judicial externships and just focus on practical law office experience, perhaps in a more rational and systematic manner as is done in our two-year SCALE program. Students would get their license with a far more manageable debt burden. Such a program would eliminate the school’s concern about memorization of legal principles. Same for the students, at least until the bar review.

Third, the school has just initiated several remedial-type programs to help students with understanding of legal topics and exam-taking. These courses are not designed to help them contemplate more deeply the broader currents of the law. Nor is that the goal of the third-year bar review type courses the school has begun to offer. If that type of coverage is good enough in the third year (and intended, once again, to help primarily those at the lower end of the academic spectrum), why not in the first and second?

Fourth, if the problem is one of not having enough time to cover topics in depth while also covering the breadth of the material tested on the bar, why did we decrease the number of units for core courses, and make them elective? To be clear, constitutional law was not affected by that. But the point remains. If I had seven or eight units of constitutional law courses (which could be broken down into topic segments), I could cover the subject and spend more time on the cases than I can with the current six-unit weight. To address this issue, I would ask professors to review the material covered on the bar exam and have them determine how much time they need to cover that material to their satisfaction. I suspect that, if all bar courses were made mandatory, and professors were asked those questions, students would still have a third of their units available for writing, research, seminars, electives, and various clinical and other skills courses. True, they probably couldn’t spend quite as many units being judicial externs, but the reports I receive from students raise doubts about the consistency of quality of at least the non-specialized judicial externships.

It is ironic that the one program our school has, the two-year SCALE program, was originally set up in just such a fashion. The hand-picked students would focus on the development of practical skills, with substantive coverage a complementary objective. There was a sense that coverage would be learned at the bar review, and that students consciously and openly would have gaps in substantive knowledge leaving school. In exchange they would have more training in the practical aspects.

That is a hard system to maintain, as there are not a lot of students who truly want to tackle the challenge and uncertainty of such an approach and can be expected to be successful at it. As the program became more bureaucratized, and as the number of applicants who were truly adapted to such a program (self-starters who needed some guidance, but little hand-holding and nudging) declined, the push became more and more to standardize the program with the traditional curriculum, so as to accommodate students whose qualifications generally did not exceed those of traditional students. That push has become particularly strong in the last two or three years, often due to students who want the same opportunities at a cafeteria-style law school model (electives, summer abroad, subject specialization, transfer opportunities) as students in the traditional three-year program. Rather than a conceptual and pedagogical alternative, the program has come to be more and more of a merely temporal alternative, two plus years of study versus nearly three years for the traditional program. Rather than maintaining the model of disregarding substantive coverage for lawyering skills, that model has been abandoned as unworkable in favor of more consistent coverage.

I actually think that it would be beneficial to adapt much of the remaining practical approach of the second year of this “new” SCALE model to the traditional curriculum. I also think that the emphasis on substantive coverage in SCALE through its required courses is preferable to the more haphazard traditional approach. But, other than the period of completion, that now seems to be the main alternative of SCALE to other law school programs.

Returning to the complaint that students believe they need to memorize legal principles, I am not sure why this is bad. Their expressed perception may not be how they actually act. If they also analyze the facts of hypotheticals in addition to memorizing basic substantive principles, that may be the most that one should expect from the average student. After all, he or she aspires to be a craftsman in the legal trade, rather than a scholar of jurisprudence or even an appellate judge. I have found that students often are weak in applying the facts to the legal principles, but that is a matter beyond just discussing cases. Lack of skill in analyzing facts has been a problem for many students as long as I have been reading exams. The major difference that I have noticed over the years is a decline in the background necessary to understand many of the constitutional law or business law cases. There has been a deterioration in the state of knowledge of history, philosophy, political studies, and economics. But that is a function of the broader decline of core liberal arts education in many high schools and colleges, matters far beyond my control.

Be that as it may, given the time constraints, the subject matter of my course, and my obligation to my students to give them a grounding in a particular topic, I intend to continue to offer breadth of coverage in my survey of constitutional law. We still discuss many cases, some of them in great detail, others much more cursorily. I have hypothetical problems I ask. A few topics I address entirely through lecture. Each I typically introduce through a brief lecture. In a few cases, I am able to get more deeply into underlying doctrines and concepts that I introduce in my first several classes. Had I more time, I’d probably address more cases in more leisurely fashion. As it is, I have found this balance to work overall, though the fast pace of the course forces students to work more diligently.

I have asked my students about these matters. What I have heard so far tells me that students do read the cases. They certainly try to read them. And they prefer breadth of coverage in a survey course, even though it makes the experience more intense. The anecdotal evidence gathered from those students of course may be only a statistical aberration. It may be just a self-selected group of the most committed students who have responded. Or, maybe I have communicated to students what I believe, only to scare off those students who disagree. That is why I plan to continue to extend the invitation to students to talk to me about their opinions. Ultimately, as a professor I have to do what my years of teaching tell me is best for the students. But I want to make those decision on the best information I can have. So, at least for now, I am going to continue to believe that students read most parts of most cases and that they do, in fact, want a broad exposure to the topics of constitutional law. And I continue to encourage my students to let me know their views on this topic, as it is their education that is at stake.

Law school graduates who never pass the bar should not go to law school. That’s the conclusion of a study conducted at UCLA law school of 150,000 law school grads who have failed to pass the bar exam. While they have lower earnings initially than even college graduates who never received any advanced degree, their earnings eventually surpass those college graduates and rise to the level of the 25th percentile of attorneys. It is not clear how many of these people never intended to take the bar, but used legal education for other professional advancement, such as in business. Perhaps they account for the relatively better performance of such non-attorney law school grads as their careers progress. It also is not clear how many of them gained those career advantages because they were the mayor of Los Angeles. (Reference to the lack of success of the current L.A. mayor in passing the bar.)

I am not sure that I agree with the quoted researcher who says that such individuals are readily identifiable at the time they apply to law school. LSAT scores and undergraduate grade point averages do provide some measure of predictability, but the better measure would be to admit students and weed them out after their first year. That approach has its own problems of damage to student morale and lack of acceptability to many law school licensing agencies. But this is a sobering bit of information for those who attend non-ABA-approved law schools or who are very weak candidates otherwise.

It should be no surprise that I am an opponent of affirmative action. It is one of the two things that drove me away from the Democratic Party in the 1970s, the other being its emerging anti-American security policies after the McGovernites took over the party. The racial spoils system that inevitably had to emerge is not grounded in sound constitutional theory, then-existing statutory authority, or broad principles of justice.

One analogy made by defenders of affirmative action is to “legacy” admissions in colleges or to diversity based on athletic ability or similar personal achievement. Whatever problems there are with such policies (and I do not favor legacy admissions), there is no constitutional doctrine or civil rights statute against them. For good reason. The 14th amendment and the Supreme Court’s hostility to invidious discrimination correctly recognize the self-evident difference in kind between legacy admissions and admissions based on the color of one’s skin. In similar vein, admissions that recognize truly personal achievement in athletics, music, or science are a far cry from the accident of race that gives everyone in the favored racial groups an advantage based on the accident of irrelevant genes.

Another justification thrown up by the defenders is that those who have been disadvantaged in the past should now be advantaged, that one does not expect someone who has been handicapped as a racer to start at the same starting line as someone without such a handicap. As to the latter, which was a justification made by President Lyndon Johnson, the inevitable end is a proportionality of result, meaning that, regardless of the starting point, the race (and racial) results are fixed in advance.

As to the former, the point is well taken as a remedial measure for that particular individual, as Justice Scalia agrees. But to disadvantage members of a group solely due to the color of skin and to advantage others solely due to that color just because other members of those groups once were in reversed positions lacks any connection to concrete remedial justice or to abstract natural justice. Both the injury and the remedy are simply too speculative. That does not even address the practical problem of deciding just whose group qualifies and for how much. What these arguments lack in justice, they make up in appeals to liberals’ white guilt as Shelby Steele and others have described it and in simple old ethnic power politics. Affirmative action ward heelers such as ”diversity officers” at universities and in government agencies have an incentive to perpetuate these programs out of sheer self-interest. Being able to pretend that there is a moral dimension is purely Macchiavellian as it, again, dupes successful liberals to jump aboard in order to expiate their sense of racial guilt and to affirm for themsewlves their moral superiority on the backs of their less well-placed and economically secure racial brethren.

Yet another justification is that this is not a racial advantage, per se, but a process to find that “diamond in the rough” whose objective qualifications do not match his or her hidden qualities. Unfortunately, the indiscriminate and massive scope in which such programs are carried out destroys that purpose, even if one were to believe it actually to be the point of affirmative action. At the college level and beyond there are simply not enough objectively qualified individuals from the racially preferred groups to fulfill the slots that deans and admissions officers need to create the palette through which, to paraphrase Justice Thomas, universities like to create an aesthetic appearance of racial diversity. So this “critical mass” has to be achieved not by searching painstakingly for that diamond in the rough, but by dumping loads of gravel into the system in the hope of having dredged up some quartz crystals in the process.

Quite often in recent years the flights of fancy and rickety scaffolds of academic justification for this socially divisive and morally noxious policy have run into the real world politics of popular initiatives. Voters, exhibiting a basic sense of practical justice more closely attuned to broader principles of natural justice, have prohibited the use of affirmative action by government agencies, including universities. That does not mean, of course, that the universities have abandoned something as dear to the identification of self among “right-thinking” academics as affirmative action is. Rather, in the finest tradition of Southern legislatures and school boards of the 1950s and 1960s who sought to evade prohibitions against racial segregation, they have set about to nullify these more recent proscriptions of race discrimination. After all, how dare the gun and Bible-clinging masses dare to oppose enlightened liberal race discrimination?

Thus, the UC system suddenly wanted to eliminate reliance on the SAT. Instead of targeting the top performers of all Californians, suddenly the top 4% at any school, no matter how decrepit its performance and inflated its grades, were admitted to the University. At the law school level, the big new thing is to disregard such factors as grades and LSAT scores (or policies of open admissions with first-year attrition) in favor of a “holistic” approach that targets other characteristics, such as empathy and service. The common denominator always is that certain favored racial groups cannot compete under more objective standards of competence.

That is not to say, of course, that no members of such groups can compete. Plenty do. But not enough to satisfy the racial bean counters. That in itself, says a lot. It destroys the notion that the whole project is anything but a racial spoils system. Certain racial groups are underrepresented in college? The problem must be the admissions system, not social or cultural conditions within those groups. Those groups are then underrepresented in law schools? It must be the LSAT as an inadequate measure, not the dearth of qualified applicants. They disproportionately flunk the bar exam? It must be the exam, not the fantasy path of politicized college and law school admissions and distorted retention policies that delivered them there.

In a must-read article in City Journal, Heather MacDonald describes the ways that the University of California, in particular its old flagship campuses in Berkeley and Los Angeles, have sought to evade anti-affirmative action state constitutional law. In a wonderfully apt comparison, she points out that, “Stasi apparatchiks disappeared more meekly after the Soviet Empire’s collapse than California’s race commissars have retreated after voters tried to oust their preference regime.” MacDonald pulls no punches, and neither do her interviewees, about the unmitigated disaster and cesspool of lies and pretense that is affirmative action at institutions of higher learning.

Just a couple of quotations from the article to get a sense of the strength of MacDonald’s assertions about the University’s intransigence:

“UCLA law professor Richard Sander was on a committee to discuss what could be done after 209. ‘The tone among many of the faculty and administrators present was not “How do we comply with the law in good faith?” but “What is the likelihood of getting caught if we do not comply?”’ ” he says. “’Some faculty observed that admissions decisions in many graduate departments rested on so many subjective criteria that it would be easy to make the continued consideration of race invisible to outsiders.’” [Sander, by the way, is currently trying to get the State Bar of California to give him access to data so that he can analyze why those same racially-advantaged groups disproportionately flunk the bar exam. Needless to say, the Bar is blocking every attempt Sander makes, and neither the law schools nor these racial groups want that information to be analyzed any more than does the Bar.]

“Other schools created pretextual institutions in the hope that they would be minority magnets. UCLA’s law school established a specialization in critical race studies, a marginal branch of legal theory contending that racism pervades nearly every category of the law and that writing about one’s personal experiences grappling with that racism is real legal scholarship. College seniors who say that they want to specialize in critical race studies on their UCLA law school applications get a boost in the admissions process: as the school discreetly puts it, a student’s interest in the program ‘may be a factor relevant to the overall admissions calculus.’ In 2002, UCLA rejected all white applicants to the program, even though their average LSAT score was higher than the average score of the blacks who were admitted.”

I have previously written about my contempt for “critical studies” of all stripes. They are merely excuses for political venting, not attempts at systematic construction of useful analysis. In the case of critical race or other identity-group studies the endeavor becomes little more than justification for hate-mongering or raging at real or, more likely, imagined bogeymen to hide personal failure or group dysfunctions. But the reactions of administrators and faculty at the UCs that MacDonald describes matches the mindset about these issues at other institutions. From the many articles I’ve read and from personal discussions and experiences, the particulars may differ, but the general mindset is well-nigh universal in public and private institutions of higher learning. 

This is a piece from last year that I have been meaning to post, on the suspicious race-tilted admissions process at UCLA. A former admissions committee member, (tenured) professor Tim Groseclose has published a report on the shenanigans of the racially-tilted admissions process there. The description of machinations by the admissions directors and committee is eye-opening. One of my favorites is the manipulation of data when the admissions people decide to do a study on whether there had been illegal admissions actions.

Here is more commentary about Professor Groseclose’s study of the obnoxious UCLA admissions process.

Of course, highly-qualified Whites are often the victims of such policies. It is interesting that all Whites are treated alike, regardless of their personal history or history of discrimination against the group with which they are ethnically affiliated. But another group is often disadvantaged, due to their own superior qualifications overall, when compared to the racially-favored groups such as Blacks, Hispanics, and American Indians. That group is Asians.

This is a revealing article from last year that describes Asians as the “new Jews.” The reference is to the practice of decades ago, under which elite schools placed formal or informal quotas on the admission of qualified Jewish applicants. Such restrictions have been placed to some extent on Asians today. Without such restrictions, Asians, like Jews, would be overrespresented in colleges and professional and graduate schools in proportion to their numbers in the population at large. Blacks and Hispanics would be greatly underrepresented. Therefore, universities seek to restrict the admission of Asians. But, as a result, Asians are underrepresented based on their qualifications, while Blacks and Hispanics are greatly overrepresented.

The solution for the universities? Redefine merit by using “holistic methods of evaluation,” which the Supreme Court accepted in Grutter v. Bollinger, the case that challenged the University of Michigan Law School’s admissions process. But holistic evaluation is a joke with the tens of thousands of admissions applications that flood UCLA each year. It may be a realistic undertaking for much smaller institutions such as law schools. But wherever it is used, it is a way to give racial preference to favored groups at the expense of disfavored ones, and it consistently exacerbates the gap in performance between such groups, based on more objective standards. It exacerbates the failure rates of members from such privileged groups. If internal grading standards are inflated in part to minimize the number of flunk-outs, and if such students are re-admitted in disproportionate numbers for a second or third bite at the apple, the result is to exacerbate the bar failure rate. At some point, the piper has to be paid, at least if the tune is a broad and relatively standardized measure of qualification.

The article also notes one irony about the subjective “holistic” selection method:

“It is ironic that advocates of racial preferences have taken refuge in an entirely subjective, idiosyncratic decision-making system. Michael Rossman, general counsel of the Center for Individual Rights, notes that civil rights advocates in the employment realm railed for years against subjective selection processes, suspecting that, when decision makers are left to their own devices, ’subconscious opinions lead to choosing people who look like them.’ Civil rights advocates opined that more objective criteria were needed to ensure everyone was fairly considered and the best candidates were selected.”

That is also the irony in the Ricci case, the New Haven firefighters case that got now-Justice Sotomayor in difficulty before the Senate Judiciary Committee. The supporters of the city’s decision to scrap the test after political pressure due to an inadequate number of successful Black test takers argued that the city gave too much weight to the “objective” test and should have given more weight to the “subjective” interview process (where there also were proportionately more Black interviewers).

With the new school year starting, it is time for the conscientious law professor to give his students some tips for academic and professional success. In no particular order of significance, a how-to and how-not-to guide for you, dear (and dearly-paying) students.

1. Laptops in the classroom. They’re a fine thing, unless you’re using them to surf the web while I’m speaking. You’re paying nearly $40,000 per year in tuition, fees, and books. That’s about $90 per class hour in tuition alone. Why would you be using that time to bid on Ebay, rearrange your photos, email your friends, post on Facebook, etc.? Unless you’re reading my blog, pay attention to what’s going on in the classroom. If you don’t understand that, let me invite you to come to my house. Pay me $90 per hour, and I’ll let you do those tasks on a comfortable couch in my living room. I’ll even throw in coffee and pastries.

2. Laptops, part 2. Some think that professors don’t know that students are web-surfing. Leave aside the fact that sometimes professors visit each other’s classes and sit in the back of the room, which affords great views of students’ computers. Instead, let’s agree that I deliver quite humorous lectures and enjoy witty repartee with my students. But come on. When you (and typically more than one of you in short order) are broadly smiling while gazing at your computer screen, sometimes with shoulders heaving, I know that my remarks about the privileges and immunities clause or about the incorporation of the Bill of Rights into the due process clause of the 14th Amendment are not the cause.

3. Laptops, part 3. If you are going to engage in extra-curricular “research” during class, at least sit in the back of the room, so that your classmates behind you are not distracted by your selection of dating prospects on e-harmony.com or on other, more questionable websites that test for age limits through credit card information.

4. Lack of preparation. If you are not prepared to participate, tell me ahead of time. I give you three opportunities per semester to opt out. If you are unprepared on more days, you should reconsider your choice of profession. Again, why are you paying $90 per classroom hour not to be prepared? Funny thing, but to hear students tell, I have a keen sense of only picking on them for the one case for which they are not prepared all year. Sure. Whatever you do, don’t engage in breezy speculation when asked a question. The halting speech, the beads of sweat, the nonsensical formulation of the response, the reading of the wrong parts from the case (usually picked from the first paragraph), all betray a desperation that envelopes the room like pheromones at a sorority party. While you flail about, others are laughing at you, though usually silently. Or worse, they feel pity. You’re going to be a lawyer. Show a sense of responsibility. Have the backbone to admit you’re unprepared. And, next time, be prepared.

5. “I read this for last week’s class.” This is a passive-aggressive variant of number 4. Sometimes we don’t get to a case that was assigned for the preceding week until the next Monday. When called on, the student tries to excuse his or her performance by invoking this semi-accusatory plaint. Think about how idiotic this sounds. Imagine you are in court. The client is with you. You are prepared to move forward on the motion or hearing. The opposition announces that they need a week’s continuance. (Assume the opposing counsel was unable to get your consent for the continuance because you are playing tactical games.) The judge is likely to grant that continuance, and the case is reset for a couple of weeks hence. At the new date, all parties appear, and the matter moves forward. The judge asks you a question. Will you respond, “I don’t remember. I was prepared for this a couple of weeks ago”? I doubt that the client wants to hear such a limited commitment to his or her case from you. The judge won’t be forgiving of your predicament. Your opponents will not be singing your professional praises in respect. In fact, having had the extra preparation time should make you even more knowledgeable. In the same way, you should be prepared in time for every class.

6. “Please repeat the question.” A docile version of number 4. This reflexive response is the classroom equivalent of the “flight” part of human “fight-or-flight” reaction to perceived threat. It has been parodied in print and song. You hope to buy time for a rescue, or better yet that I, the “predator,” will pass over you for some more attractive prey. When I ask a question that is directly on the point I have been making for the past three minutes, and you offer that response, it is painfully obvious to everyone involved that you have not paid the slightest attention. Your act is both derivative and trite. You need to get new material.

7. Late entry. One aspect of the professionalism we try to teach is to be on time. You are not in the scenario found in certain “romantic comedies” where the frustrated suitor eventually gets his perfect but clueless girl by invading the ongoing wedding ceremony and snatching her from the clutches of the would-be groom who only would have made her miserable. So, don’t cause a scene and disrupt the class by entering late and, worse, squeezing to your seat in the middle of the third row in a six-row room. Follow the protocol I have set up, where all those who are late for whatever reason (no questions asked), come in at a point 10 minutes into the class for one disruption, instead of a stream of disruptions.

8.”Feel.” It is generally considered inappropriate, indeed, uncouth, to utter four-letter F-words. In a law school classroom, well, in my law school classroom, that means “feel” or any version thereof. The word has lost all meaning since it has become a substitute for think, reason, analyze, believe, opine, conclude, and a multitude of other verbs. I blame movies like Star Wars, but then those are merely a reflection of our non-thinking, but very feeling times, where reason and analysis, the brain if you will, have taken an epistemological back seat to feelings and emotions, the heart one might say. Just to be clear: It isn’t only I who thinks so. Some years back, a former student of mine sent me a memo her district judge had circulated among his law clerks advising them never to use the word “feel” when another verb from a long list he provided would apply. That said, I see too many judges use the word in their opinions. ”Feel” should only be used to describe a sensory reaction. Or when describing the impact of something being evaluated for its obscene nature. Oh, and, unless you are describing a procedural due process analysis, don’t get me started on the use of another four-letter F-bomb, “fair,” or its fancier relatives, such as “just.”

9. Briefing cases. I have been teaching constitutional law in some manner or another for, well, let’s say quite a number of years. So, I have read and discussed these cases many times. Yet, I have my case briefs to which I can refer if I cannot remember a point. Even granting students that they are much smarter than the ol’ prof, why would they, who are reading these cases for the first time, think that they can avoid briefing cases in preparation for class, the tests, and the practice of law? Case briefing is a valuable research skill that has to be learned, but it can be tedious particularly until one gets enough practice to be comfortable. Instead, students underline in a rainbow of markers and write notes in the margins. Then they wonder why, when called on, their performance is, ahem, “marginal.”

10. Using commercial outlines. Students use commercial outlines. Some professors express shock and horror at such a practice that, likely, they engaged in when they were law students. I really don’t care. But, here’s some advice. Do not bring them to class, especially not blatantly left on the desk and ostentatiously used to see whether the prof is getting it right. I’d rather you bring in Hustler magazine or similarly sordid publications and left them on the desk. I am more likely to get the law right and the commercial outline get it wrong (they aren’t updated as frequently as my lecture notes) than the other way around. Also, use them for what they are designed, as study supplements, not substitutes. You take vitamins as food supplements, not substitutes. Like any concentrated and refined product, they should be used with caution. By themselves, they won’t prepare you for the questions asked in class or on the test. But, hey, it’s your grade.

11. Canned briefs. These are variants of number 10. Stay away from them. They are not substitutes for the actual work of briefing the cases. If you use them to state the case in class, you are misrepresenting someone else’s work as your own. Worse, you are not learning a skill you need. Going back to the food analogy, you don’t have others pre-chew your food for you. Do you? Well?

12. Talk to the professor. You don’t pay loads of money for a fancy car and don’t race it on an empty road, drive it with the top down, take it to impress your dates, right? Why would you pay huge amounts for a legal education and not take advantage of one of the perks, talking with the professors? Some students are intimidated, others are the strong silent types who are going to do this themselves. They’ll finally show up after the first semester’s grades are bad, dejectedly uttering lots of “shouldas.” Not a winning strategy. If you have a question, ask. After class. During office hours. Just don’t wait for the Thanksgiving rush. I can’t offer you as good service then. And write practice exams. Better to find out what you don’t know when it doesn’t count. Critiquing your effort may call for some tough love (or not), but the goal is to succeed and learn, not just to get by. Isn’t it?

Ed Whelan at NRO’s Bench Memos comments on the 1100 law professors who have signed a letter urging the speedy confirmation of Judge Sotomayor to the Supreme Court. Among other things, the letter notes that her “rulings exhibit unfailing adherence to the rule of law” and “reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution.” Whelan is skeptical that all 1100 signers have studied her record sufficiently closely and assiduously to make that judgment.

I concur. I note that only three of my colleagues signed that letter, and it may well be that they possess that expertise. I just don’t know. So my comment is not directed at any particular person. But it is unlikely that there are 1100 people who have spent time engaged in scholarly investigation of an appeals court judge of previously middling notoriety. If there were even 100 such experts on her, it would be a lot. She is no 2009 equivalent of Judge Learned Hand, or even of Judges Henry Friendly or Minor Wisdom (I had to get his name in there). She is not even the equivalent in notoriety of Judge Stephen Reinhardt and nowhere close to Judge Alex Kozinski.

I also wonder how many of those 1100 law professors signed a similar letter on behalf of then-Judges Samuel Alito or John Roberts, individuals whose intellectual prowess outshines Judge Sotomayor’s. Indeed, one wonders how many would sign it if it came to them and involved a conservative nominee. I frequently see these kinds of petitions on some position or another, or some personality or another, circulated among law professors. One of my colleagues seems to be particularly active in that regard. It is probably superfluous to point this out, but, just in case, here goes: They inevitably favor some liberal/left person or position. I cannot imagine that all these professors are experts on the topics or persons involved. One has to conclude, as does Whelan, that these efforts are not intellectually-rigorous conclusions about ideologically neutral matters of judicial temperament and qualification, but political posturing. As such, I would give them no more weight than if they were signed by the first 1100 pedestrians passing by the subway stop near my school. And that would include those with the shopping carts full of cans and bottles.

I recently called on a student in my summer school class to answer a question about a fact hypothetical. The question directly connected to the legal principle we’d been discussing. Both the question itself and the appropriate answer were rather straightforward. Yet, the student clearly was taken by surprise because she had not been paying attention. So she asked me to “rephrase the question.” Given the simplicity of the question, this was not really an option. So I assumed she had not been listening at all and took her question as a request for me to “repeat the question.”

This is a recurrent problem in law school and, if I had my druthers, I’d like to give points (plus and minus) for class participation and web surfing. It is clear that she was doing the latter, not delving into legal authorities to explore the deeper meaning of the legal principle at issue. The problem is so widespread that it has become the source of general gallows humor among faculty and even produced articles and opinion pieces, scholarly speculations, and a Doonesbury comic strip.

This is a particularly creative riff on the topic, by NYU law students using Billy Joel’s We Didn’t Start the Fire as their artistic framework. Maybe our SBA could have a revue like this. Are our students less talented than those at NYU?

Please Repeat the Question from Amanda Bakale on Vimeo. Via Professor Jim Kushner.

Our school is pleased with the latest U.S. News rankings that show we have moved from the top of the fourth tier to somewhere in the third. One suspects that it is near the bottom of that tier, as movement up or down tends to be minimal. No matter. Any detectable improvement, no matter how cosmetic, is grounds at least for institutional relief.

The problem, as everyone understands, is that the rankings are manipulable and do not convey much information except a very impressionistic and stylized view of how these institutions relate to each other. They are not useless, but, as U.S. News never tires of telling people, they should be used only in conjunction with much other information. So, the rankings are analogous to popcorn. There is not much nutritive value, it’s mainly air, but we eagerly chew on them (figuratively).

It is vexing, though, that, judging by their reactions to movement in their school’s ranking, students look at these rankings as great sources of information and status. Having been made aware of the value students place on them, law school administrations are forced to take them into account in forming school policies. That attention, in turn, creates greater visibility for the rankings, as everyone talks about them. Deans years ago gave up the tactic of ignoring (or pretending to ignore) them.

In fact, law schools have teased out the various components of the ranking formula and have turned to discovering ways to, ahem, game the system. Some schools are more creative and innovative in this manner, whereas others more reactive. That itself accounts for part, if not most, of the year-to-year movement in rankings. This manipulation by now is an open secret that U.S. News considers in adjusting its formula periodically.

One of the problems is that a school can actually improve various components, such as, say, bar passage, but that improvement may be outweighed by other, more ambiguous factors, such as “reputation” judges by small surveys of people who don’t really know much about institutions other than the top five or ten. Another problem is that schools can improve their raw scores over time, but if other schools do likewise, that improvement will not register, as this is a relative ranking. At the same time, small changes in the formula or in the success of a school in improving (or gaming) this part of the evaluation can, at times, have a significant effect on the rankings, as many schools are separated by very small score differentials. One suspects that the warm feeling over making the jump to a higher tier must be tempered by the recognition that, due to no real fault of the school, next year’s ranking can drop. U.S. News is correct, whether or not they are sincere about this. Stop paying so much attention to the ranking. Focus on factors more directly relevant to success, from quality and relevance of the instructional program to one’s career goals, to bar passage, to financial aid, to general ambiance. Oh, and ideological diversity of the faculty.

Professor Brian Leiter describes some problems and proposes some changes in the methodology of the rankings.

A week ago, I wrote two posts about the history of American legal education. The second, which focused on my law school’s history and how that fit within the patterns of legal education, aroused considerable student interest and became a topic of discussion at a forum that the dean had planned for students. Not having read the posts, the dean became the unwitting target of students who read my second post as an attack on Southwestern. Since then, the administration has released a memo that seems to respond to concerns raised by the students reading my post. I am going to make a few further comments about this issue.

As a preface, I want to iterate that I am not in general critical of the school or of the administration. I think that Southwestern is a solid institution, and I have certainly enjoyed my time here. I immensely enjoy teaching and studying the law. Both Dean Leigh Taylor and Dean Bryant Garth have been collegial and supportive of my teaching. The dean and the administration, I believe, are focusing on what they think is best for the students and for the school. Indeed, I think that to the extent I am critical, it centers on my belief they may be bending over too far not to make students feel uncomfortable. The dean and others in the administration are intelligent, dedicated, and decent persons who take their positions seriously, and I agree with them in the particulars of what they are doing well over 90% of the time. But, using a biological analogy, humans may share 98% of the DNA of other primates, and more than that with each other. But it is that 2% or less that makes us different—and interesting. So, I want to focus, and did focus in my post, on the differences between the administration’s views and mine.

I also want to emphasize that some of the approaches I questioned may well have merit standing alone. But I am not sure they work in our particular environment. As my post points out, I see as a fundamental problem that the school is torn between the elite education and the democratic education models. Thus, some of the policies are in conflict with each other. I believe that the school’s overall demographic of evening students, part-time students, and students who generally are not in the top 20% of LSAT and undergraduate grade point average is not as suited to the elite education approach as are students at Harvard. That doesn’t mean our students are not of above-average intelligence and, often, very bright and accomplished. Even those who don’t succeed are not stupid. They may just not be suited to the law, or perhaps just not to taking law exams. By the same token, I don’t know that I would be a successful classical musician or an engineering professor.

I am gratified to see that the memo released by the administration confirms much of what I wrote. It is not surprising, then, that I agree with almost all of what is in the memo. Indeed, of the programs mentioned to help students pass the bar, I voted in favor of all of them. As I noted in my earlier post, many of the proposals were adopted last fall, in response to the concerns about what the relaxed scholastic standards of the institution might mean for bar passage. Again, that is the correct response, if you are trying to do what the administration is doing, that is, to reduce attrition to almost nothing and carry everyone along. The doubt I have is that this is feasible.

The bar statistics the memo cites are misleading, however. It is true that Southwestern’s bar stats have not dropped in the last three years. But the statistics the memo uses to make its point are an odd comparison. They compare SW’s passage rate for first-time takers (72%) with all first-time takers (62%). The latter figure includes a large number of non-ABA-approved law schools. Those law schools have a lot of graduates from evening programs. Many of their graduates, for whatever reasons, do not attend the traditional full-time, three-year program at most ABA-approved schools. Non-ABA-approved schools have considerably lower bar statistics than ABA-approved schools such as SW.

I am astonished that SW is not comparing itself to other ABA schools’ first time bar passage rates (83%), as I did in my post. Judged by those more appropriate statistics, SW’s position has declined, relatively speaking. True, SW’s absolute bar passage rate for this year is 8% higher than last year. But the problem is that for other ABA schools, their bar stats improved more (10%). This was probably for everyone an aberrant bar result. One should be hesitant to conclude anything about anyone’s absolute numbers this year. But the relative numbers and standings are more troubling. Still, as I wrote in my earlier post, no definitive conclusions can be drawn from one year, especially since SW is within five percent of several other ABA schools.

The statistics used in the memo bring up something else. If one compares SW’s day students and the evening students, one finds that the latter perform significantly more poorly on the bar. Indeed, if one just compared SW’s day students to other schools’ day students, the bar passage differential might be less. Most ABA-approved schools do not have evening programs, but some do. Those that do are usually SW’s “peers,” so, without more numbers, comparisons are difficult to make.

One might also ask why SW’s evening students have bar passage rates that are below the overall statewide average for first-timers and below SW’s day students’ average. The answer might be that the evening students are too preoccupied with work and family to focus on the study of law. They might not absorb the subject matter over the course of their four years of part-time study. Or, they might not have the time or resources to spend on post-graduation bar exam preparation. Or, speaking in a generalization, for reasons beyond the scope of this post, they simply might not be as qualified as students in the full-time day program. But SW could probably bump up its statistics by eliminating the evening program. I should add that is not a recommendation, as I see great merit in the part-time evening opportunity. After all, the historical origin of evening programs was to make a legal education accessible to groups, such as immigrants and members of underserved ethnic communities, who could not readily attend day programs full-time. Those were the original and serious affirmative action and diversity programs that were not merely tools for what Justice Thomas has called an aesthetic approach to having just the right palette of colors as one looks over a classroom of students.

I am pleased to see that the memo agrees that attrition can have significant effect on bar statistics, as witnessed by the experience of other schools cited. As I pointed out in my post, having relatively open admission and rigorous first-year attrition is the best way of insuring bar stat success. That isn’t just my observation, it is one made to the faculty several times over the years I have been here. My source is a psychometrician who has done statistical analysis for the State Bar and for Southwestern. The school has hired this expert to make such analyses, so I am inclined to trust his expertise, in the absence of contrary evidence. Neither he nor I have said that this should be the policy the school adopts in extreme form. But attrition does do the job of raising bar passage rates.

As the memo points out correctly, attrition has its costs, like everything else. The cost may be the negative effect on student morale and psychological comfort. One suspects, however, that the burden on student morale of lower bar passage weighs more heavily, especially when we are talking about the bottom 30-40% of the students who are passing at roughly the rates of some of the non-ABA-approved schools. The statistics in the memo bear that out. That said, I am encouraged slightly by the rise in bar passage rate in the bottom quartile, which gives some weight to the administration’s argument that intensified academic assistance to those students may bear fruit. I hope so, but, as I said in my post, it is too early to tell.

I see nothing in the memo that contests my post that the bottom 30-40%, that is, those below a B, are at serious risk, and have less than a 50-50 chance of passing the bar the first time. Indeed, at least implicitly, the adoption of remedial programs confirms that point. Again, the low passage rate of that portion of the students approaches non-ABA-approved schools territory. (I should note in mitigation that even those who fail the first time, usually pass the second or third time around.) I can see that in my classes. The bottom 40%, despite the attention paid to them in various programs instituted last year, usually do not write well. The problem is one of basic organization of thoughts, analysis, and clarity of writing. As I wrote in my post, I cannot blame this lack of competence on SW. Our school has a tremendous writing program. But SW cannot fix in a few semesters what biology has wrought and sixteen years of pre-law school education have not corrected.

That brings me to a fundamental difference of outlook that I think I have with the dean. I am not convinced that everyone can be taught to do everything competently. I am willing to admit up front that this difference in vuews may make him the nicer person, and that it would be better if he were correct and I were wrong. But I think biology has a lot to do with our talents. In my case, I doubt that, however many art classes I took, I could be a successful painter. At law school, we are dealing with a rather high level of competition. The innate capabilities of the bottom 40% might place them in the top 10% at schools of education, but it just isn’t enough here. Again, that doesn’t mean that those folks are stupid or failures in life. It just means they aren’t suited to law school. Arguably, they might even make decent lawyers, if all they were required to do was fill in forms and make repetitive arguments in uncontested cases (the “law-as-a-trade” model in full force). But that isn’t what we are purporting to train at SW.

I find another part of the memo odd. The author, Associate Dean Parrish (another serious, intelligent, and decent guy dedicated to the success of the students, in my opinion), spends most of his time touting the many programs SW has instituted to prepare students for the bar exam and, more specifically, for writing bar exam questions and reviewing bar exam topics. The memo strongly advises, indeed seemingly tries to compel, students to take a professional bar review course. Yet, the memo then says that students should not take every course that has any relation to bar-related topics, and that law school is not a three-year bar preparation course.

Fine. But I think the last part of that assertion is undercut by the message of the rest of the memo. In any case, the advice is confusing. If this merely means that students should not take only courses that directly target bar-tested subjects, I agree. In fact, if students did that, I doubt that they would have enough units to graduate. If it means they should not take just courses that somehow relate to bar-tested subjects, it is difficult to take seriously, given the idea of “law as a seamless web,” where all aspects directly or indirectly relate to each other. If the message means not to worry about taking bar-subject courses, just to go ahead and take whatever one likes, it is both ironic and dangerous. It is ironic in that, as I said in my earlier post, it confesses the irrelevance of the modern law school in educating lawyers as craftsmen. The message is, “Don’t worry about taking core courses, we (through our transparently bar review-style offerings in the third year) and the professional bar review courses will teach you all you need to know about the subject matter.” As I suggested in my posting, why not bring back a modern version of the law-apprenticeship model fortified by some bar review-type lectures, similar to the old Litchfield Academy approach? On-line legal lectures and law office practice will do just fine, then. We certainly don’t need three years of full-time curricular residency at a professional law school. It’d be a lot less expensive for those just interested in becoming legal tradesmen.

On the other hand, if we do believe that formal legal education (in a physical teaching environment, not on-line) has something to offer in terms of intrinsic pedagogical value as well as extrinsic efficiency in delivering a service (imparting knowledge), that observation is dangerous. This brings me back to the point I raised in my post that I disagree with the decision to curtail topic coverage and cut back the number of units of required courses, so that students would have more room for electives. I voted against that change a couple of years back. Of course, for some, that loss of units and subject matter coverage now goes to pay in part for essentially remedial offerings to cover subject matter tested on the bar.

When I was in law school, my professors typically did not much concern themselves with breadth of topic coverage. They said that we could learn that on the bar review courses. Instead, we would discuss extensively their particular research interests.  Whatever the merit of that approach at Harvard and Stanford, it seems ill-placed at Southwestern. Our faculty has had that discussion, and there is a general sense (but by no means unanimous and not an official policy) that we should follow the elite school model and not worry too much about course coverage. I disagree. I think that topics that are likely to appear on the bar exam must be covered in the basic courses, which should also be required courses. I don’t think students are comfortable hearing about topics the first time when they are a few weeks from the bar exam. That is not likely to instill confidence. Even if basic bar subject courses were all required, and with the number of units they once had, there would still be many elective courses. For those courses on non-bar subjects or more advanced coverage of bar subjects, there is no similar pressure to cover all the topics, and the pace can be more relaxed and the analysis more in-depth.

It is in this area that the school wants to leave the design of the curriculum to the students, whereas in so many other areas the school is acting like it needs to attend closely to the students’ every need. I think this is backwards. We are the experts on the curriculum, not the students. It is not enough to invite students to stop by at a table at lunch a couple of days during the year for some voluntary counseling. They rely on us for structure and that we have covered the topics they need to know for the bar, as well as what they are likely to run across in their every-day practice. The best place for that is in the broad survey courses taken mainly in the first two years, not in some bar review course.

On the other hand, we are not a kindergarten. To give an example. After I return exams, I tell students that those who have done poorly should come see me to get it right the next time. I even write that request on their exam papers sometimes, if the paper is particularly miserably written. But the suggestion was made that faculty should call up the students personally. I suppose the next thing is that I should host them with champagne and hors d’oeuvres. At some point, these students in their mid- and late-twenties need to take responsibility and initiative for their success. We are training lawyers, after all!

Nor am I opposed to curricular reforms. Southwestern has an excellent writing program and, for the most part, a good approach to practical skills. Still, I would like to see more practice-oriented courses combined with substantive subject matter in an organized manner, such as a third-year “track” that leads to a “certificate.” Such tracks could be in litigation, real estate, or business law transactions, for example. There is something akin to that already in SW’s innovative two-year SCALE program.

To conclude, I hope that the administration’s approach is successful, and, given the concerted drive for a student-friendly environment, the memo lays out exactly what they must do. But I am afraid that some of the policies counteract each other. I lay that conflict at the heart of the push and pull in legal education between the two competing views of the practice of law and of the function of legal education. Also, at some point, it may become necessary to recognize that education can only go so far to temper basic realities of innate capability, and to adopt a different plan to improve the bar statistics of the school . That, or stop worrying about bar results.

Every once in a while, the New York Times goes against type and produces a gem. Of course, I had to go back to 2005 to find this. Even the title is great: “If the Law is an Ass, the Law Professor is a Donkey.” Wish I had written that.

A couple of years ago, I wrote an article for the student newspaper pointing out the obvious lack of intellectual diversity on campus. I thought that ideological homogeneity was a disservice to students and not good for intellectual debate among the faculty. There is also the concern that hiring decisions are affected by ideological bias. In one case of faculty recruiting this term, I had some serious concerns about that. But I give my colleagues the benefit of the doubt, and I do not think that there is such a bias rampant at my school.

Another professor responded to my article, and, though he didn’t (and couldn’t) contest the main point, he mocked my suggestion that schools reach out more to conservatives (not a hiring quota), just as they do with every favored group blessed with the officially right kind of skin color, sex characteristics, and sexual behavior. Well, my suggestion is not far-fetched, if other professors quoted in the Times are to be believed:

“Whatever may be said about particular schools and students, professors and deans of all political persuasions agreed that the study’s general findings are undeniable.

“‘Academics tend to be more to the left side of the continuum,’ said David E. Van Zandt, dean of Northwestern’s law school, where the contribution rate to Democrats was 71 percent. ‘It’s a little worse in law school. In other disciplines, there are more objective standards for quality of work. Law schools are sort of organized in a club structure, where current members of the club pick future members of the club.’

“‘That can do a disservice to academic values,’ said Peter H. Schuck, a Yale law professor and the author of ‘Diversity in America: Keeping Government at a Safe Distance.’ ‘We have a higher responsibility to our students, ourselves and our disciplines,’ he said, ‘that our preference for ideological homogeneity and faculty-lounge echo chambers betrays.’”

Indeed, the liberal bias of law school faculty goes beyond that in many other discplines and undergraduate institutions in general. It also goes beyond the views of people with similar academic qualifications and similar pay who work outside academia. Law professors are twice as likely to be liberals than those others.

How to remedy this?

“But the study does note an arguable inconsistency in the way law schools approach student admissions and faculty hiring.

“When the United States Supreme Court endorsed race-conscious admissions policies in 2003, it based its decision on the importance of ensuring the representation of diverse viewpoints in the classroom.

“Law schools that take race into account in admissions decisions, the study says, ‘open themselves to charges of intellectual inconsistency’ if they do not also address the ideological imbalances on their faculties. ”

Alternatively, law schools (and other institutions of higher learning) face the very real prospect that their research and advisory functions in regards to policy will be taken over by developing parallel institutions, particularly the “think tanks” whose diversity spans the ideological spectrum. One might also consider that intellectual movements that were revolutionary at one point will become “establishment” at another. The current Left has been in control of institutions of higher learning for at least three decades. Every year brings closer the end of their ideological relevance.

A couple of days ago, I wrote about the history of American legal education. That was an introduction to address a matter that has arisen at my law school, a sudden drop in bar passage ranking. First, some history. Southwestern opened in 1911. It was a pioneer in legal education in Los Angeles in that it had a woman among its first graduates. Similarly, it extended the opportunity to study law to various ethnic and racial minorities. It is true that Howard University in Washington, D.C., opened a law school in 1869 for Blacks. Other schools also enrolled some women and racial minorities. But across the country such opportunities were limited. Southwestern also eventually established a thriving night program and a part-time day program in addition to its regular day program. For a long time, there were few admissions requirements, typically some minimum number of college units. True to the experience of other such “opportunity schools,” many politicians and lower court judges around Los Angeles were graduates of the school. At one point, 25% of the lower court judges in the county had gone to Southwestern, as had mayors, district attorneys, and police chiefs.

The school did not seek approval from the American Bar Association until much later, gaining it in 1972 under the leadership of Dean Paul Wildman. This began a number of steps to shed the image of Southwestern as an “opportunity school” and to make it more like an elite professional school. After the appointment of Dean Leigh Taylor, the school tightened its admissions requirements, expanded and modernized its physical plant with the purchase of the landmark Bullock’s Wilshire building, and decreased enrollment in its evening program. Dean Taylor’s focus was on lifting academic standards and securing the financial vitality of the school, along with modernizing the physical plant. Although admissions standards rose somewhat as the number of applicants increased, the school’s bar passage rates remained quite steady in relation to the other ABA-approved California law schools.

In 2005, after 28 years of service, Dean Taylor retired, and Dean Bryant Garth arrived. Under his tenure, Southwestern has attempted to make the school more “student-friendly” by reducing stress and competition. The grading curve was eased, and the median grade point average inflated to a level higher than that at Harvard and Stanford when I attended those institutions. Student attrition, which was never even close to the high levels imagined by the more paranoid among the students, dropped to negligible amounts, close to those for elite institutions. Course requirements were dropped, and the coverage in the remaining required courses often was reduced. These are all subjects tested on the bar exam. Again, this follows the model of elite institutions where required courses are few, and most courses by far are elective.

Continuing a process initiated during Dean Taylor’s years by a certain faction among the professors, the new faculty that has been hired has come to be selected for its “scholarly potential” of publishing law review articles that will attract the attention of other professors at elite institutions. Needless to say, the subject matter of those publications too frequently tends to be obtuse and the writing less than brisk. Less attention has been paid to teaching excellence, though certainly that criterion is not ignored.

Dean Garth himself has a very strong research and publication background and is sympathetic to the new hiring emphasis that imitates elite institutions. The latest development in law study has been the “law-and-” movement of interdisciplinary studies. As a result, many faculty applicants have not only a law degree, but another advanced degree, often a Ph.D. Under Dean Garth, the new hires have fit that mold quite well. Two years ago, we already had three professors, yours truly included, who taught legal history, though that subject was not our primary topic of study. Since then, the school has hired three more professors who are Legal Historians as such. They may teach another class, but legal history is their main focus. Do we really need six legal historians, while tax law and business law courses are left wanting for professors? Whom have we hired so far this year? Someone who has a law degree and a Ph.D. in philosophy. Whom else are we considering? Someone with a law degree and a Ph.D. in economics who gave a lunch presentation that was monotonous and almost inaudible. I shudder to imagine this person as a professor in a large basic law class.

Now, I have nothing against law and interdisciplinary study. Indeed, the Langdell method of isolating the study of law to discover its internal mechanics seems to me myopic and sterile. Law is part of a broad field of inquiry into human institutions. I, too, do a lot of reading in interdisciplinary fields related to law. My field, constitutional law, is particularly suited to that. I also have nothing against people with advanced non-law degrees. I still hope to finish my Ph.D. in political science. But I think that there has been too much focus on attracting professors with such areas as their primary interests, rather than on finding teachers in tax and business law.

Also building on efforts begun under Dean Taylor, the administration has emphasized practical training through an increased number of “practice” courses and an expansion of the “externship” program where students spend the semester in whole or in part working for a judge, a governmental agency, or selected law firms doing unpaid legal work for school credit. This reminds one of the old legal apprenticeship manner of training for the law. There is also a strong emphasis on voluntary trial advocacy and moot court (appellate argument) competitions with other schools. In addition, the school has approved the creation of legal “clinics,” where, under the supervision and with the guidance of a professor, students represent poor persons in certain legal matters, such as immigration proceedings. Again, the students are not paid, but receive class credit. This program costs a lot of money, but provides practical experience to the few students who are selected to participate.

I have nothing against students gaining some practical experience during law school. After all, one of the criticisms directed early at the Harvard model under Dean Langdell, is that it did not prepare students adequately for the practice of law, the legal “craft.” I believe that is a valid criticism and, in retrospect, was a shortcoming in my education at elite institutions. So, in general I support aspects of this approach. Two areas where I curb my enthusiasm are the clinics and the externships. While not an inevitable result, law school clinics have a tendency to become left-wing political tools. Moreover, they are very limited in subject matter scope and student participation because of the expense of staffing. The externships are fine, except that our school allows students to use them to complete too many units. Especially when combined with the reduced number of required bar subject courses, I think that the school is short-changing coverage of legal doctrine that students must know to pass the bar.

The administration was shocked when the latest bar results came out. Southwestern has traditionally had a bar passage rate for first-time students somewhat below the median of all the ABA-approved law schools in California, typically around the 30th-40th percentile. This last exam, we sank to number 18 out of 19. With UC Irvine Law School opening in the fall, we are looking at another school surpassing our bar passage rate.

The response to this has been a flurry of activity to establish more “academic support programs” to build on those already in existence at the school. Basically, these are attempts to carry along those students who are likely to fail the bar exam. Southwestern students have a pattern of bar exam performance. Those in the top half of the graduating class pass at better than a 90% rate, on a par with the best schools in the state. The third quartile does less well, but still about half of the students pass. The bottom quartile is a disaster. Overall, it is the bottom 40% that are at serious risk of failure. This is a pattern that I see repeatedly in class. The bottom 40% of the final exam papers usually are poorly organized, reasoned, and written. Those in the bottom 10%-20% should disqualify the writer from even coming near any institution of higher learning. Yet I am required by the grading curve to give students in the top of that bottom 40% at least a B- grade. I tell students that a B- may look fine, since the school’s academic retention policy only requires a C+. But, in reality, a B- means that you have at least an even chance of failing the bar exam. And a C+ means that you likely will flunk it.

The school has now also resorted to teaching bar review courses to third year students for academic credit. The theory is that, since many Southwestern students pass the bar exam the second or third time around, giving them a bar review course and a simulated bar exam in addition to whatever private bar review course they might take, will eliminate the experience of “failing the first exam” and take them directly to a successful “second exam.” Taken together with the on-campus clinics and the off-campus externships, these “reforms” are a confession of irrelevance of the university law school model of education. If the only doctrine needed is a series of brief lectures in a bar review course, while the important skills can be learned in a semester or year of skills practice, why not dispense with law school altogether, except for those who would be legal “professionals” in the upper rungs of lawyers? Those people can be trained at a much smaller number of highly-selective elite institutions. Is there really any longer a justification for a three-year curriculum at a university-type law school that targets those who would be the craftsmen of the law practicing a repetitious trade in helping ordinary folks navigate the shoals of basic legal rules and procedures?

The excuse for the school’s sudden drop against numerous institutions that used to have a lower bar passage rate than Southwestern (Golden Gate, Cal Western, Whittier, Western State, Thomas Jefferson, and sometimes McGeorge and San Francisco) is that those schools have had several years of such intense bar preparation courses. Only by digging further does one find a grudging recognition that Whittier suddenly having a more than 10% higher bar passage rate than Southwestern is also due to a muscular first-year attrition rate, precisely the model Southwestern abandoned three years ago when the new administration arrived. Those first beneficiaries of the relaxed policy at Southwestern were the ones taking the bar exam that produced Southwestern’s drop in performance relative to its competitors. It is certainly too early to conclude that the inflation of grades and the easing of retention standards have caused the decline in bar performance. Perhaps this is a statistical aberration and merely coincidence. Perhaps the remedial courses will have the desired effect. But one may be permitted some measure of doubt. The answers should be available within a year or two.

By the way, those courses are euphemistically termed “success” courses and allegedly “by invitation only” as if they are a reward. The point is not to “discourage” marginally-performing students by telling them that they are marginally-performing students in front of everyone else. That reminds me of another euphemism of which pedagogues are so fond, that of the “special” student. While this designation is intended to boost someone’s self-esteem and to eliminate any stigma from those who are mentally retarded (a worthwhile endeavor in the abstract), the rest of the children are unmoved. Calling someone “special” became another sarcastic comment among the middle and high school crowd. Adults may think that they are pulling the wool over others’ eyes with these euphemisms, but no one, certainly not cynical teens, is ultimately fooled. Rather, a perfectly good word attains a distorted meaning. Just think of the word “gay,” which no one any longer uses in its original joyful meaning because it has been bastardized. Indeed, it has moved beyond its euphemistic use for a certain sexual proclivity and increasingly is used as simply a broadly dismissive term.

Some argue that Southwestern should not pay attention to bar statistics. Some complain that the bar exam itself is a device to preserve lawyer scarcity and pay. As to the latter, that seems preposterous, given the more than 200,000 attorneys in California. In any event, the bar exam is not going away, especially as long as California makes it so easy to go to unaccredited law schools. As to the former comment, for better or worse, bar passage statistics affect law school rankings and the perceptions about the school by students, lawyers, judges, and rankings-publishing magazines.

The best way to increase bar exam success is by allowing a wide-open admissions process combined with a strict attrition policy after the first year of study. It has been shown that the best indicator of bar exam performance is law school grade point average. While undergraduate grade point average and Law School Admissions Test scores combined also have some predictive value, they are more indirect and less significant predictors of bar exam performance than law school GPA. We have some preliminary information in the two-year SCALE program in which I teach several courses, that the very first set of exams, given seven weeks into the program, are very strong indicators of bar exam performance nearly two years in the future. Student ranking does not change significantly even after that first set of exams. Certainly by the end of the first year in a traditional three-year program, class rank is pretty much set, unless there is some unusual event, such as a health problem or a divorce, that causes a temporary distortion in a student’s performance. If Southwestern dropped even the bottom 20% of students after the first year, it would increase bar success significantly and put Southwestern at least in the middle of the pack. Dropping the bottom 40% would bring the school in line with the elite schools in the state. And the students that were dropped could still become lawyers by attending a non-ABA school.

Alternatively, the selection process can occur at admission. By increasing admissions standards to mimick the elite schools, Southwestern can approach their bar success. But, by definition, there is only a certain number of “elite” performers. Despite generous scholarship offers, Southwestern can only attract a small number of such students. Yet, the school persists in acting in its attrition, grading, faculty hiring, and curricular decisions as if it is populated entirely by a student body that was also accepted at Harvard, Yale, or Stanford. Put another way, the school pretends to be training a cadre of legal professionals when, at least as to most students, it is training legal craftsmen.

None of this is to say that there are not very smart students at Southwestern. There are. Plenty of them. I love teaching to their level. It is fun and exciting. Those students could compete successfully at any institution in the country. But most students are smart enough, but not at the level of the students at elite institutions. Still, that average student can readily be trained in the craft of the law. If he or she has enough drive, by providing that student with a required solid base of instructions in subjects tested on the bar exam, the student is likely to succeed. The problem is when those courses are cut in scope and rigor; courses are made elective so that the students, who depend on us supposed experts to make curricular judgments, are forced to make them instead; and students are made to feel too comfortable so that they spend their class time on their computers emailing or IM’ing their friends and surfing the web. For the bottom students, once they are identified after first-year exams, and barring some documented personal catastrophe that may have distorted their performance in one semester, they should be dismissed from school before they incur more expense. But, again, this “look-at-the-person-on-each-side-of-you” tough love does not conform to the kinder and gentler approach of non-judgment where “failure is not an option.”

Part of the problem is that many students have an appalling inability to write coherently, either in a persuasive or an analytical manner. But that problem is not peculiar to Southwestern students; nor is it something that suddenly happened last year. It isn’t even something that law school can remedy easily, despite Southwestern’s thorough and extensive writing courses. This is a problem that begins with the pathetic and inept education in grammar and the mechanics of writing an essay throughout elementary and secondary education. It continues with the indifference to essay writing at most colleges, especially in exams. By the time the students get to law school the damage caused by this neglect cannot be undone. And the students can hardly be blamed for these systemic failings.

Similarly, I cannot as a professor in constitutional law undo the lack of background in history, civics, philosophy, and economics with which so many students arrive at the school. There is only time for so much remedial work before I have to get to the subject at hand. But, again, students at other law schools have similar academic handicaps.

We shall see whether these efforts to bring along even the weakest students will succeed in re-establishing Southwestern’s bar passage rate at a level higher than next-to-last in the state. I hope they do. But I am skeptical. At some point, I think, it will become necessary to undertake a more serious culling of the herd, so that those who remain after the first year of law school can proceed with some assurance that they will pass the bar immediately upon graduation. Southwestern currently is being pulled in several directions, and it is responding reactively. The school needs to take a hard look at what model it wants to follow, the model of the elite professional law school or the classic legal trade school. Perhaps the administration decides just to muddle along as it has in an ambiguous twilight zone of legal education. But I don’t think that the basic questions have been asked and certain assumptions challenged about Southwestern’s vision of its role in legal education.

The history of American legal education is a history of competing views of the lawyer’s position in society. On the one hand, there is the view of the lawyer as a professional who undergoes special and intense training through the study of opaque precedents and turgidly-written treatises to gain access to the essence of the law and to understand the deeper connections of the law to other areas of human endeavors, such as economics, religion, and philosophy. The lawyer, steeped in the depth of law’s traditions and the breadth of law’s institutional sweep, becomes a natural actor on the great stage of human events. This view of the lawyer’s exalted position may not rise to the level of the old continental European perception of law as the province of outright scholars. Still, it comes sufficiently close, close enough to satisfy the famously large egos of lawyers. After all, law schools today hand their graduates a degree of “Juris Doctor.”

On a much more prosaic level, there is the view of the lawyer as a skilled tradesman. This attorney is little more than a scribe trained to draft basic forms and, for some, to represent clients in court in pedestrian disputes that a judge or jury will decide, if things go well, according to a mysterious cocktail of routine legal authority and common sense interpretation of the facts. No specialized expertise is needed here, particularly with the proliferation of form pleadings and rigorously standardized procedures. No scholar of the law, this. Plumber would be more like it, someone who is called in to clean out the legal detritus that is making the client’s life difficult. On a more genteel level, this is the lawyer signified by the otherwise meaningless designation “Esquire.”

The model of the lawyer-professional came to the fore in this country with the formation of university-affiliated law schools. That process began toward the end of the 18th century with the establishment of a chair in “Law and Police” (Regulation) at the College of William and Mary in Virginia. At the urging of Thomas Jefferson, the first holder of that position was the state’s chancellor, George Wythe. Other universities copied this approach, but it served only to expose students generally to the law, not to train lawyers.

Then came the first separate law school affiliated with a university, when a chair was endowed in 1816 at Harvard. The first holder of that chair was Isaac Parker, the chief justice of Massachusetts. Harvard Law School became a self-governing entity when a chair was endowed in 1829 for U.S. Supreme Court Justice Joseph Story. Before there were these university law schools, the legal elite might go to London to live and study the law at one of the Inns of Court.

Over the course of the 19^th century, the number of university-affiliated law schools increased exponentially. A number of elite schools stressed entrance requirements, such as prior college study or competency exams, to limit the applicant pool to those perceived to be sufficiently disciplined and intellectually prepared for the task of unlocking law’s mechanistic operation. But most schools did not require such preparation.

Since then, the university-affiliated law school has undergone changes in the length of the period of study, standards of admissions, professor qualifications, pedagogy and course coverage. The model of the scholar of the law that the system developed is still with us, particularly after German university-modeled curricular reforms were instituted in the 1870s by Harvard Law School Dean Christopher Columbus Langdell and his former student and academic side-kick, Professor and future Dean James Barr Ames. (For those who know the Harvard Law School, Langdell Hall is the beautiful neoclassical building. The Ames Courtroom is located in Austin Hall, the more ominously massive Romanesque building. I had classes in both buildings, and Austin Hall was depressing in the dark winter and spring days.)

Langdell instituted a number of reforms that radically altered university-based law school education. He hired full-time law professors instead of judges and attorneys. Preferably, these professors came directly from the most promising students, as true “scientists” of the law. He extended the course of study to three years, from the then more typical two-year and even one-year curriculum. He required a set course of study, rather than ad hoc attendance. Most significantly, he introduced the “socratic” method of law study. Compared to the then-prevailing lecture method, socratic teaching is slow and tortuous. It was useful to explore the internal mechanisms of the common law. Langdell banished constitutional law from the curriculum because it was polluted by external principles imposed by the framers at Philadelphia, not built on some internal moving principles that came to be known by inductive logic based on study of law’s operation.

The study of legal theory and the methodology of teasing out the principles of law through “socratic” investigation of judicial precedents demanded intellectual virtuosity unlikely to be spread generously throughout the population. But, anyway, this was law for the upper and upper-middle classes. While lawyers have always been prominent in American politics, this professional legal class was suited best for the classic republican polity of the early United States.

In distinction to this elite professional model of legal education stood the more pedestrian and democratic model of the lawyer-craftsman who “read the law” as an apprentice to an established lawyer. In the early years of the Republic, an alternative version of training such lawyer-tradesmen was the first model of formal legal education in the U.S. This was the proprietary, free-standing law school or academy, typically founded for profit by a judge or prominent attorney who found this to be a better source of income than the apprentice system of free labor. Judge Tapping Reeve’s Litchfield Academy in Connecticut, or the Revolutionary War-era lectures by Virginia Chancellor George Wythe (attended by a young John Marshall) are examples. Both systems continued to be important for training American lawyers until well into the 19^th century.

The methods of training legal craftsmen focused less on the intricacies of legal doctrine and the moving causes of law, and more on practical training to find one’s way through the complicated writs and procedures of early American common law. Lawyers were also taught the rudimentaries of drafting documents, such as wills, contracts, and debt instruments and, very important in a land-rich country with a moving frontier of settlement, the searching of land titles.

In similar vein, as the American polity changed from the classic republic of Hamilton and Jefferson to the democratic republic of Andrew Jackson that drew much of its vitality from the West and from immigrant groups, the more democratic accessibility of training for the law either by apprenticeship or by attending some lectures at a proprietary academy allowed lawyers to retain their leadership and participation in the new order. Some states initially reacted with formal licensing requirements, but those continued to be loosened during the rest of the 19^th century.

A typical and amusing tale of mid-19th century licensing is told about Abraham Lincoln. A man wanted to become a lawyer, and went before the local judge to be licensed. The judge sent him to Abraham Lincoln to see what Lincoln thought of the applicant’s prospects. The applicant presented himself to Lincoln, who was taking a bath. Without leaving the tub, Lincoln asked several questions of the applicant and then gave him a letter to take back to the judge. The letter said that the guy was a great deal smarter than he looked, and that the judge should admit him if he wanted. For getting to the point, it certainly beats the modern California way of sitting in an exam room for three days straight.

As the 19^th century progressed, the proprietary law school became less significant. In its place arose newer versions. In 1866, the Iowa Law School opened as a night school. The University of Minnesota soon followed with both day and night programs. Thereafter, the number of night schools expanded along with the number of university-affiliated day law schools. Particularly in night school, the curricular focus was rigorously practical and eschewed grand theory and universal principles in favor of studying local law and procedure. These schools opened the doors of the legal craft to the children of ethnic minorities, immigrants, and the working class. They were the training ground for many lower court judges and local politicians. But, in response to the growth of these schools came more stringent lawyer licensing procedures through formal bar exams, beginning at the turn of the 20^th century. Additional quality control came when the American Bar Association and the American Association of Law Schools began to approve certain law schools whose curriculum imitated Dean Langdell’s Harvard prototype of the “national” law school.

The dichotomy in legal education is still with us. There remain, of course, the elite university-affiliated law schools that produce the nation’s supply of mega-firm lawyers, law professors, national politicians and bureaucrats, and upper-echelon judges, the intellectual “professionals” of the law. But there is also a vibrant and important collection of lesser law schools, both university-affiliated and free-standing. These schools sometimes have part-time night programs in addition to their full-time day programs. They emphasize the teaching of practical skills, a deficiency in the pure intellectual model of Langdell’s socratic and scientific inquiry that critics recognized early on. Indeed, many law schools of all types to a degree replicate the law office apprenticeship model through “externship programs,” though straight “reading of the law” today is an unusual way of preparing to be a lawyer.

In California, at least, the Litchfield Academy model of the proprietary law school is replicated in law schools that are not approved by the American Bar Association. Such schools may be accredited by the State Bar of California or be “unaccredited.” Typically they are considerably cheaper than university law schools. Unlike the ABA-approved schools, they may require less than a college degree as a prerequisite. They are also usually night schools and often exist in localities not served by a nearby university. This creates access to law study for people with families and jobs and for those who do not have the time or inclination to complete an undergraduate program.

In the future, the development of on-line legal education will serve the function of educating a broader stratum of people in the craft of lawyering. Those programs will simply be the latest in the waves of innovation that have swept over legal education and provide alternatives to the relatively static number of places at elite schools. They will serve to keep access to the law open. Just as their predecessors of legal apprenticeship in the 19th century and part-time education and night law school programs in the 20th century, they will graduate students more likely to serve in legal institutions of local government and in legal services for the middle class and the poor.

Tomorrow I will add comments about how this split approach in legal education relates to a problem of bar exam success at my law school.

So, Obamania is in full swing at my school. On inauguration day, the Student Affairs Office, the Black Law Students’ Association, and The Commentator (student newspaper) are sponsoring an “Inauguration Viewing Party,” with a live broadcast, a playback of the whole event later, live chat with students at the inauguration, and live text feedback on Twitter. Flyers all over the school proclaim the happy event, which is advertised as the “44th Annual Inauguration of President Barack Obama.” WHAT? There is an “annual inauguration”?  And this is the “44th”? And of “President Barack Obama”? Aren’t they getting ahead of themselves here? I remember the Left’s BDS sufferers writing how they were convinced that Bush and Cheney would seize power and never surrender it. I don’t see Bush getting inaugurated 44 times, even annually. Bush only got two inaugurations. Is this a sign of things to come, of what Obama supporters will want from their idol?

The sponsors are displaying the ignorance of American civics that I confront with disconcerting frequency in my constitutional law class. Now on another point, did the school hold inauguration parties in 2001 or 2005 for President Bush? The question is purely rhetorical. We know what a school where three-fourths of the students and more than nine-tenths of the faculty are Democrats will do about the inauguration of a Republican.

For further eye-rolling mirth, I received the latest edition of the Stanford alumni magazine. On one of the pages was a photo with a crowd of students around a bonfire. It was accompanied by an enthusiastic paragraph-length description of the pictured event. The fire was in celebration of Obama’s election win. The paragraph noted that several students expressed that as a result of that event, for the first time in their lives they were really proud of their country. I’m not making this up. It’s not an attempt at humor. And, no, there was not a trace of irony in the paragraph. This channeling of Michelle Obama’s notorious remarks was made in all sincerity. It reflects the state of mind of many people in the liberal academic circles in which the Obamas have travelled. I know. From personal experience.

At lunch today, the faculty had one of those job talks where an applicant for a position gives a presentation about his or her latest research project in the (more often than not, vain) hope of getting a job offer. The faculty then peppers the hapless applicant with questions, some of which are even relevant to the presentation, while others are obviously designed only to hear himself or herself talk. Still others (usually asked by non-tenured faculty)are redolent with the faddish jargon of current academic theory and intended to impress the dean and the tenure committee.

The theme of today’s presentation was the use of “alternative dispute resolution” approaches in international relations. Specifically, how can we get North Korea to compromise on its nuclear and weapons programs? The applicant suggested a focus on process as determined by the parties to allow them to protect their identity (how they see themselves) without seeming to be coerced into the process. As someone who believes that nations act purely in their self-interest even in the great majority of cases when they declare they are advancing values such as democracy, this sounded awfully fuzzy.

The talk started well, when the applicant remarked that there is controversy about the very idea of international “law.” I thought she was going to get into a discussion about the nature of law and how her scheme fits into various definitions. Alas, that was not to be. Basically the talk came down to how it was a good idea for nations to talk to each other, that all participants had to be willing to do so and agree to the process, and that usually, but not always, such talks could be fruitful. Throw in a couple of names of experts in the field, and you sound sufficiently learned in a sufficiently vague topic to escape with your ego intact.

Then the fun began, listening to the faculty’s questions. One of the questions, and from its tone a “rhetorical” one, was whether presidential candidate Obama had not been right to say that he would sit down face-to-face for talks with any leader without preconditions. The questioner was a committed Westside liberal, so no surprise there. I just looked at him and pictured him in the 1930s as an adviser to British Prime Minister Neville Chamberlain telling the P.M. to meet Hitler without preconditions. That’s the liberal mind set. Talking is always good, even if the adversary is using the talks to strengthen his position in relation to yours. What comes to mind is Iran and the endless fruitless negotiations with the West over its nuclear program, even as Iran marches inexorably towards nuclear weapons and missile delivery systems. And, of course, the process is the thing. What comes to mind there is the “peace process” in the Near East that was so precious to Arafat and his political minions making their rounds of Western news programs. Decades later, with thousands of lives lost, that process hasn’t really turned out so well. Never mind that even Obama has abandoned the pipe dream of unconditional immediate face-to-face meetings with thugs. The dream lives on among the enthusiasts in the academy, divorced as they can afford to be from reality.

After some back-and-forth about the applicability of this process to stateless organizations such as al Qaeda, failed states such as Somalia, and civil wars such as Rwanda, Sudan, and Congo, another professor weighed in. The subject of criminal trials to deal with deposed dictators as in Liberia and of “reconciliation commissions” to deal with mass killings such as in Rwanda had been raised. This professor then opined that the U.S. had been violating international law and engaged in torture over the last years and asked whether the U.S. should have criminal trials or reconciliation commissions for those involved. Even Obama has backed off the nonsense of the Left to put Bush administration officials on trial. But the true believers such as this professor equate the American war against Islamic terrorists and their enablers in various governments with genocide in Rwanda and with the mass slaughter of its own citizens by the Liberians in their civil war. I don’t know whether the inability to draw appropriate distinctions is a peculiar affliction of pedagogues. But that would explain the “zero tolerance” bureaucrats that infest our school systems.

There were others, such as the feminist professor who asked, apropos of nothing, whether there would be a change for the better in foreign policy with Hillary Clinton as Secretary of State than with Condoleezza Rice. She obviously expected the applicant to agree that Hillary, despite her total lack of foreign affairs background or experience (except as a consort to her husband), clearly outshone the current incumbent despite the latter’s academic and practical background in such matters. To her credit, the applicant suggested that the lack of a close relationship of trust between Hillary and Obama would probably result in a less smooth operation in the State Department.