The Perfect Storm in University Education and the Birth of the Slackoisie

Thomas H. Benton, in the Chronicle of Higher Education, in “A Perfect Storm in Undergraduate Education, Part I,” writes of a crisis in undergraduate education, observing that “[s]tudents are adrift almost everywhere, floating in the wreckage of a perfect storm that has transformed higher education almost beyond recognition.” Benton identifies numerous reasons for the ineffectiveness of undergraduate education. What concerns me is the remarkable number of ways those reasons overlap with what is going on in law school education.

Thus, for example, Benton writes that “undergraduates are not prepared adequately in any academic area but often arrive with strong convictions about their abilities.” This point rings particularly loudly for me. I teach legal writing, and while a lot of people seem to believe the topic involves nothing more than grammar, style, and legal citation, anyone who has actually engaged in legal writing in practice knows that high level achievement in matters of grammar and style are prerequisites to learning and mastering the sophisticated analytic and persuasive abilities that are part and parcel of the skills of legal writing. In other words, if you haven’t already mastered English Composition, you are not ready for first year legal writing. Moreover, even if you have mastered English Composition, that does not mean you will earn an A in first year legal writing.

Benton doesn’t address the matter quite as squarely as I might, but he does recognize that the huge cost of education is a large part of the problem:

As the college-age population declines, many tuition-driven institutions struggle to find enough paying customers to balance their budgets. That makes it necessary to recruit even more unprepared students, who then must be retained, shifting the burden for academic success away from the student and on to the teacher.

At my law school, tuition is $40,000 per year. As a result, the students are the school’s most valuable resource. Let a student walk away and you let a huge chunk of revenue walk away. Thus, the institution’s desire to retain students threatens to override other institutional goals. Teaching first year law students what they need to know to become effective lawyers often is something that does not make them terribly happy, but keeping students happy often is imperative to keep them from walking away. Would you rather discourage someone who does not have the fortitude to be a lawyer from becoming one or keep him happy enough to pay $120,000 to you over 3 years? The threat to a law school’s legitimate purposes posed by that dilemma is obvious.

Even apart from financial incentives, the importance of student evaluations in making faculty promotion and retention decisions — especially in a system that is increasingly dependent on non-tenure track faculty — can drive professors to value keeping students happy more highly than challenging students to the extent they need to be challenged, as Benton points out: “The common wisdom, for the untenured, at least—whether it is true or not—is to find ways to keep the students happy.”

Finally, it is difficult to maintain rigor in a course when others teach the course from very different foundations of experience and, consequently, have very different expectations. As Benton writes, “[i]t is impossible to maintain high expectations for long unless everyone holds the line in all comparable courses—and we face strong incentives not to do that. A course in which the professor assigns a 20-page paper and 200 pages of reading every week cannot compete with one that fills the same requirement with half of those assignments.”

What precisely is the purpose of a law school? Is it to keep students happy? To train good lawyers? To train legal scholars? I wonder too whether the failures of our universities have something to do with what, as the New York Times recently noted, a couple of lawyer friends of mine are expressing when they criticize younger lawyers as the members of the “slackoisie”:

Two well-known legal bloggers, Dan Hull of What About Clients? and Scott Greenfield of Simple Justice have respectively coined and popularized the term slackoisie to describe Gen-Y attorneys as narcissists who believe:

“that having a job is an entitlement, rather than a privilege … complain about the work they have (if working), opine on the lack of ‘real lawyer’ jobs available in the market, and … criticize the long hours and inadequate pay found at most small firms [while asserting] entitle[ment] to work/life balance [and complaining that] whatever benefits they enjoy are inadequate.”

Free markets and the end of education as we know it

I’ve mentioned it before — I have watched through the course of my professional career as free market ideology has come to dominate legal thought. But it isn’t merely that many legal thinkers and politicians believe that so-called “economic efficiency” is the overriding purpose of law. Capitalist absolutism infects my teaching too because I am now teaching students who have grown up during a time in which they have learned never even to question the belief that markets are better than government at providing anything and everything.

As a result, fewer and fewer students arrive at law school with the kind of education I think is the best preparation. They come as business majors, poli sci majors, accounting majors, finance majors . . . Some come as engineers, and they tend to be the best educated, albeit a bit narrowly, but invariably they believe backgrounds in engineering put them behind the others.

Why this change, this narrowing in outlook? It’s the attitude Stanley Fish writes about today — the unquestioned acceptance that maximizing “student choice” provides the best means of improving education. It’s the same market thinking in another place — students are consumers, and if we leave to them the choice of what to pursue, those educational institutions that are chosen by the most students will be the most rewarded. And, of course, what students choose must be the most valued and therefore the best. Fish explains this thinking while cogently explaining its most fundamental defect — students don’t have the judgment to make good choices. Education is precisely about teaching them such judgment:

Judgment is what education is supposed to produce; if students possessed it at the get-go, there would be nothing for courses and programs to do.” But that objection would be entirely beside the point in the context of the assumption . . . that what students want to get from participating in higher education is money.

But now, under Britain’s new approach to higher education, “government support of higher education in the form of block grants to universities (which are free to allocate funds as they see fit) would be replaced by monies given directly to matriculating students, who would then vote with their pocketbooks by choosing which courses to ‘invest’ in.”

The problem, of course, is that the only measure of value such a mindset accepts is money:

A course’s “key selling point” will be “that it provides improved employability” and students will be asked to pay “higher charges” for a course only “if there is a proven path to higher earnings.”

Not only is this attitude remarkably narrow about what constitutes value. It also assumes that the only people interested in the results of our educational system are people who go through it. There’s no social interest in education apart from the sum total of the financial interests of those student-consumers:

The logic is the logic of privatization. Higher education is no longer conceived of as a public good — as a good the effects of which permeate society — but is rather a private benefit, and as such it should be supported by those who enjoy the benefit. “It is reasonable to ask those who gain private benefits from higher education to help fund it rather than rely . . . on public funds collected through taxation from people who have not participated in higher education themselves.” No one who has not been to a university has any stake in the health or survival of the system.

I couldn’t agree with Fish more on the pathetic narrow-mindedness of this “logic of privatization”:

There is no recognition . . . at all of the value of learning; quality is a measure nowhere referenced; civilization, as far as one can see, will have to take care of itself.

But at second thought this paean of self-praise is merited once we remember that that the report’s relentless monetization of everything in sight has redefined its every word: value now means return on the dollar; quality of life now means the number of cars or houses you can buy; a civilized society is a society where the material goods a society offers can be enjoyed by more people.

I was a double major in Latin and Ancient Greek. Classics departments are disappearing, and the “privatization” of education will only accelerate their disappearance. I did not pursue a Ph.D. merely because my job prospects after the 6 or so years I would have loved getting that degree were virtually non-existent. But I wouldn’t trade my education for anything. It made me the successful lawyer I am. I find myself returning again and again to what I learned and to further study in my current professional life about matters that I first discovered in my undergraduate years. And I genuinely think that my education taught me that value is something money can barely begin to measure in any meaningful way.

John Lanchester’s I.O.U. is a book I would encourage all my students to read. One more piece of conventional wisdom too many of them accept without question is that what happened and continues to happen in the financial markets (matters I learned of first-hand in the course of my near 12 years in practice) are too difficult for even the brightest people to understand. That is a piece of mystification that people who profited from the financial markets (at the profound expense of the rest of us) would prefer my students not look behind. Lanchester does a terrific job of explicating the causes of the 2008 financial crisis and the persistence of those causes today.

But what’s disturbing about what Lanchester writes in the context of this post is his realization that the financial crisis resulted from precisely what I am writing of — a generation during which we have come to really believe that communism fell and capitalism triumphed because of the unalloyed power of free markets. It’s not at all that Lanchester (or I) are advocates of communism. He is explicit in arguing that the liberal democracies of the 20th Century’s 2d half were the best societies that ever existed. But the pressure communism put on those societies to balance market forces with programs that promoted social justice were an indispensable part of those societies’ enormous success. With the fall of communism and the removal of that pressure, free markets have found an ideological open field in which those programs promoting social justice are being dismantled. As Dwight Garner explains in his review of I.O.U.:

It’s a story that begins, as these stories are wont to do, with the fall of the Berlin Wall. The capitalist West won its “ideological beauty contest” with the communist East, Mr. Lanchester writes, which was good news except for this: Suddenly “there was no global antagonist to point at and jeer at the rise in the number and size of the fat cats; there was no embarrassment about allowing the rich to get so much richer so very quickly.”

Once upon a time in America and Britain, he observes, “the jet engine of capitalism was harnessed to the ox cart of social justice, to much bleating from the advocates of pure capitalism, but with the effect that the Western liberal democracies became the most admired societies that the world had ever seen.”

Then the Wall crumbled, and “the jet engine was unhooked from the ox cart and allowed to roar off at its own speed. The result was an unprecedented boom, which had two big things wrong with it: It wasn’t fair, and it wasn’t sustainable.”

And it leads to poorly educated students and unhappy people.

Richard Posner: Law Schools need to hire more professors who identify more strongly with legal practice.

From Richard Posner writing in honor of the memory of Bernard Meltzer:

What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed. Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer. . . .

By the late 1960s this model was almost a century old and ripe for challenge. The challenges came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. . . .

These challenges to the conventional model of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came a novel emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history, and from the challenge mounted by the Left came a reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually cogent answers to legal questions. These ideologically opposed challenges complemented each other by agreeing that the traditional model was narrow and stale.

The model was largely buried in these twin avalanches, especially in the elite law schools. . . .

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy,or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

Why don’t law professors know how to be lawyers?

I’ve made plain my disdain for the ways law schools neglect what anyone outside law school faculties would presume is the central purpose of law schools — to train law students how to be lawyers. Among the ways this neglect manifests itself is the second class status accorded most clinicians and legal writing professors — those professors whose focus is on teaching practice — in most law schools. Now Brent E. Newton, an adjunct professor at Georgetown and the Deputy Staff Director of the U.S. Sentencing Commission) has written Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (2010). Here’s a taste of Newton’s article:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. … Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L’s, and preferably ones taken at elite “national” law schools. Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students’ needs – academic or otherwise. …

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW [Legal Research & Writing] professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

Khan Academy: an invaluable new resource in your effort to learn everything

As I’ve written before,  good lawyers need to know everything. In other words, your professional life is  a constant and endless process of learning. One of the foremost skills you bring to your clients is an ability to become fluent in their affairs and to be able to communicate your understanding of those affairs clearly, concisely, and persuasively to audiences who may never have encountered those things.

Libraries, of course, are therefore invaluable. And the internet is a miracle. But still, finding the right resources to learn a particular topic is difficult. I came out of college and law school knowing Latin and Ancient Greek and a lot of history and literature, but I needed to learn an awful lot very quickly about things like finance, insurance, economics, and business, and the effort to educate myself was an adventure. The internet has, of course, only multiplied the tedious, obscure, and downright erroneous “authorities.” So I am always thrilled to find a source that speaks to me and genuinely teaches me. And I am thrilled to have found Khan Academy. As the home page explains:

The Khan Academy is a not-for-profit organization with the mission of providing a high quality education to anyone, anywhere.

We have 1400+ videos on YouTube covering everything from basic arithmetic and algebra to differential equations, physics, chemistry, biology and finance which have been recorded by Salman Khan. . . .

The Khan Academy and Salman Khan have received a 2009 Tech Award in Education. The Tech Awards is an international awards program that honors innovators from around the world who are applying technology to benefit humanity.

Here is Mr. Khan’s introductory video:

Students don’t like professors who teach them the really difficult things.

As I wrote the other day, one of my most difficult tasks as a teacher is to get students to focus on learning rather than on grades, to try to master the skills I am teaching rather than insist on being told what they need to “know” in order to get an A. In doing so, I may be insisting on what I ought to be insisting on if in fact I am trying to advance my students on the exceedingly difficult road to becoming excellent lawyers, but I may also be undermining my own professional advancement. How can that be? Well, it’s been clear to me for a long time that I pay a price with students when I am unable to simply tell them that they need to know and do “A, B, and C” to get a good grade. Those students give me terrible evaluations. And, indeed, I’ve found students tend to either love me or hate me. Those students who get that I’m pushing them to learn and do things they’ve never been taught to do and learn before love me. They realize learning is the result of the work they put into learning, not the result of what I give them in nice, neat packages to regurgitate to me as information they’ve memorized. But the bad evaluations not only hurt; they have an impact in the evaluation of my performance that would perhaps astonish those outside academia. (Why in the world would an organization give credence to the evaluations of terrible students — (whose evaluations, done anonymously, cannot be distinguished from the evaluations of excellent students?)

And now I have evidence that my deep doubts about the reliability and use of student evaluations are well founded. In a study entitled “Does Professor Quality Matter? Evidence from Random Assignment of Students to Professors,” (pdf) Scott E. Carrell of the University of California, Davis and National Bureau of Economic Research and James E. West of the U.S. Air Force Academy conclude that students give good evaluations to professors who teach students what they need for a good grade in their course but punish professors who teach subject matter that provides knowledge and skills that have long-term value:

[S]tudents appear to reward higher grades in the introductory course but punish professors who increase deep learning (introductory course professor value-added in follow-on courses). Since many U.S. colleges and universities use student evaluations as a measurement of teaching quality for academic promotion and tenure decisions, this latter finding draws into question the value and accuracy of this practice. (emphasis added)

Addendum: Stanley Fish expresses feelings similar to mine about students’ abilities to judge the quality of teaching in connection with proposals in Texas “for college and university teachers to contract with their customers — that is, students — and to be rewarded by as much as $10,000 depending on whether they meet the contract’s terms. The idea is to hold “tenured professors more accountable” (“A&M regents push reforms,” The Eagle, June 13, 2010), and what they will be accountable to are not professional standards but the preferences of their students, who, in advance of being instructed, are presumed to be authorities on how best they should be taught”:

[S]ometimes (although not always) effective teaching involves the deliberate inducing of confusion, the withholding of clarity, the refusal to provide answers; sometimes a class or an entire semester is spent being taken down various garden paths leading to dead ends that require inquiry to begin all over again, with the same discombobulating result; sometimes your expectations have been systematically disappointed. And sometimes that disappointment, while extremely annoying at the moment, is the sign that you’ve just been the beneficiary of a great course, although you may not realize it for decades.

Needless to say, that kind of teaching is unlikely to receive high marks on a questionnaire that rewards the linear delivery of information and penalizes a pedagogy that probes, discomforts and fails to provide closure. Student evaluations, by their very nature, can only recognize, and by recognizing encourage, assembly-line teaching that delivers a nicely packaged product that can be assessed as easily and immediately as one assesses the quality of a hamburger.

And I don’t mean to suggest student evaluations are pointless. Like at least one commenter, I have gleaned very valuable things from my student evaluations. But I know too that they are also rife with the kind of hostility and irrationality that can only come from anonymity and the kind of profound discomfort that can come from genuinely educational experience. Finally, I know too that everyone gets negative student evaluations. The biggest problem is that the process of evaluating teachers has become so dependent on evaluations that the availability of negative evaluations means that the evaluators always have available “evidence” to support their desire to refuse promotion to a faculty member they don’t like for reasons that have nothing to do with the quality of their teaching.

Law students: what you learn is more important than your grade!

Ray Ward is a wise man. He sums up in a sentence what I often spend a year trying to get through to my students:

What you learn in a course is more important than your grade for that course.

It’s a particularly difficult point to get across to law students. One reason is that law school itself is packed almost entirely with people who feel that there’s a strong correlation between what you’ve learned, your intelligence, and your grade. Virtually all law professors had the highest or near the highest GPAs in their graduating classes from elite law schools. In my experience, people who succeed in an institution tend to believe that institution is very good at measuring success. Thus, law professors tend to think law school grades are good measure of success at learning law. And law students don’t know any better. They have no way to measure their success but grades. There is virtually no other feedback on their performance and their progress.

Lawyers I know genuinely do feel differently — that law school grades are poor predictors of success as a lawyer, and what studies there are confirm that the typical predictors of law school success are not good predictors of success in legal practice.

But it’s not easy getting that message across to law students, especially when your law professor colleagues don’t agree.

Is Elena Kagan’s “thin” record of legal scholarship a disqualification for the Supreme Court? Only if you’re a law professor.

My one reservation about Elena Kagan as a Supreme Court justice has been her extensive experience in legal academia. As readers of this blog know, the disconnect between law professors and law practice is a matter of grave concern to me. I do not understand why the great mass of legal academics consider legal practitioners lesser beings who really don’t belong in law schools and, if they are there, certainly don’t deserve the same status that the pure “scholars” do.

But now I can rest easy — law professors don’t consider Kagan one of them. Why? Because she’s practiced law too much!

Kagan taught at the University of Chicago Law School before going to work for the Clinton White House. During her time at Chicago, as the Chicago Tribune reports, “[s]he did publish several articles and won tenure in 1995, and was even chosen by students as teacher of the year. . . . [Se left to join the office of legal counsel in the Clinton White House shortly after that. As fellow West Wing veterans tell it, she quickly became an aide Clinton would pull aside for hallway conversations about his legislative initiatives on the Hill.”

In 1999, she sought to return to Chicago, but was unable to do so because, the law faculty decided not to give her an offer. They rejected her because her talents were as a lawyer and an administrator! We can’t have any of them cluttering up legal faculty:

“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.”

The truly perverse thing is that in retrospect the Chicago professors don’t consider what they did a mistake. Rather, they are proud of it. As Richard Epstein — one of the most respected “scholars” in the U.S. — explains that her talents as a lawyer and an administrator don’t qualify her to teach law students:

Her papers were well-done, but they show exactly the same qualities of mind that prevent you from reaching the top ranks in academia. . . She is good at advising people, fixing things, putting programs in place.

I am not suggesting that legal scholars don’t belong on law faculties. I am suggesting that there are talents other than those of legal scholars that do deserve to be on law faculties and deserve equal status and respect. Why would you not want people who are good lawyers teaching law students who are in law school to become lawyers?

But most of all, I’m suggesting that the criticism of Obama’s choice of Kagan on the grounds that she is not sufficiently “scholarly” is a bunch of b.s. Why wouldn’t being a great teacher, a great administrator, and a great lawyer qualify you to  be on the Supreme Court?

What is the best preparation for law school? I’d suggest it is a liberal arts education.

I am often asked what type of undergraduate education best prepares a student for law school. Most of my life I’ve been completely baffled by the question. It never occurred to me that my very Classical liberal arts education — I double majored in Ancient Greek and Latin — would be something to recommend, and while I have always been a huge supporter of liberal arts education, I never felt confident in recommending it as preparation for law school. But neither was I ever persuaded that my students who had thought long and hard about choosing the “right” major to prepare for law school — and ended up thereby majoring in political science, business, or economics — were any better prepared than those students who had not chosen an undergraduate major based on a desire to “prepare” for law school.

I was reminded of this question in reading Rebecca Mead’s commentary on the views of certain economists that an undergraduate degree is not an economically wise way of earning a living. As Mead explains, this conclusion is based in part on the fact that the greatest opportunities to earn money in the near future are in fields in which a college degree is not required:

Economics majors aren’t doing badly . . . : their starting salary averages about fifty thousand a year, rising to a mid-career median of a hundred and one thousand. Special note should be taken of the fact that if you have an economics degree you can, eventually, make a living proposing that other people shouldn’t bother going to college. This, at least, is the approach of Professor Richard K. Vedder, of Ohio University, who is the founder of the Center for College Affordability and Productivity. According to the Times, eight out of the ten job categories that will add the most employees during the next decade—including home-health aide, customer-service representative, and store clerk—can be performed by someone without a college degree. “Professor Vedder likes to ask why fifteen percent of mail carriers have bachelor’s degrees,” the paper reported.

In addition, “[a]nother economist, Professor Robert I. Lerman, of American University (Ph.D., M.I.T.), told the Times that high schools, rather than readying all students for college, should focus on the acquisition of skills appropriate to the workplace. According to the Times, these include the ability to ‘solve problems and make decisions,’ ‘resolve conflict and negotiate,’ ‘coöperate with others,’ and’listen actively.’”

These opinions awoke in me a gnawing feeling that has been building in me the past couple of years — the feeling that the best educational preparation for being a lawyer is a liberal arts education.

One particular moment in the last 2 years stands out form me in considering this question. I was reviewing an exam with a student and explaining a clever argument another student had come up with in connection with the interpretation of ambiguous contract language. The contract called for the supply of sweetener to the manufacturer of a soda being marketed to the types of buyers who would be interested in “healthier” alternatives to mass market sodas. The contract provided for the supply of “sugar,” and the dispute arose when the supplier substituted high fructose corn syrup for granulated sugar as the sweetener. The other students argument was based on the greater attractiveness of granulated sugar to the buyers the soda manufacturer was targeting to argue in favor of an interpretation that would limit “sugar” to granulated sugar even though high fructose corn syrup is also, chemically, a “sugar.”  The student with whom I was meeting thought about this point, realized the argument was a good one and one she herself had not come up with, but still felt my point was objectionable because the argument was grounded in facts about the world she didn’t know. So she told me, “You’re not testing us on Contracts. You’re testing us on what we know about the world!”

I smiled, and I explained: if you don’t know about the world, you can’t understand law. Law doesn’t supply answers that exist independent of the world it answers questions about. In contract interpretation, courts are asked to determine, based on the available evidence, what they believe people  intended contracts to mean. The “rules” that govern those interpretive acts don’t work like mathematical formulas — they constitute a structured way of approaching the question of what people intended, nothing more, and therefore don’t provide any way out of answering the question; what do you think the people entering this contract intended? While the rules might limit the scope of evidence that can be considered, within that scope anything that persuades the court about the intended meaning is fair game for the court to consider. So, in the question I was considering with my student, the attractiveness of granulated sugar to the  manufacturer’s target market was a very relevant consideration — if you could show that both the supplier and the manufacturer knew and understood the marketing strategy, you could argue persuasively that they both intended “sugar” in the contract to mean only “granulated sugar” and not to include high fructose corn syrup.

And so, more and more often I have found myself telling my students that in addition to studying law they should be learning everything they possibly can about everything. I hate to be that vague, but, at the same time, I am quite serious. Would a better education in “decision making” have helped BP decision makers planning for offshore oil drilling than an education grounded in Greek Tragedy? I don’t think so.

Why would a mail carrier consider an undergraduate education worthwhile even if the tuition is economically out of balance with his earnings as a mail carrier? I hate to say it — because I hate the thought it needs to be said — but the education might make him a happier person and the money he will earn is not the only measure of his happiness.

And what should you learn to prepare for law school? Anything and everything, but learn it well.

Is there a connection between the failure of law schools to teach legal practice and the 2d class status of those who do teach legal practice?

I have of course made the point that law schools oddly enough do not emphasize training their students to be lawyers. Some even say law schools are woefully inadequate in doing so.

I can’t help but think there’s some connection between this disconnect of the academy from the profession and the fact that the people in law schools who do focus on teaching students how to practice law are generally not tenure track faculty. They are what Peter D.G. Brown in “Confessions of a Tenured Professor” calls “contingent faculty.” Although he is writing about college faculty, his observations certainly have their analogs in law schools:

I must confess that belonging to the de facto elite minority makes me very uneasy. Most tenured faculty view themselves as superior teachers with superior minds. In this view, the arduous six-year tenure process clearly proves that all of us are superior to “them” and have deservedly earned our superior jobs by our superior gifts and our superior efforts. I must also confess that we tenured faculty really do appreciate the fact that ad-cons have unburdened us from having to teach too many elementary foreign language courses, English composition and the many other tedious introductory, repetitive and highly labor-intensive classes, to which we tenured souls have such a strong aversion that it must be genetic.

And so we have “a two-tiered system where [tenured faculty] make at least three times as much per course as [contingent faculty] and enjoy all the other wonderful perks of tenure: lifetime job security and the academic freedom it provides, regular opportunities for advancement and promotion, comfortable pensions, large furnished offices, telephones, computers, sabbaticals and other generous leave opportunities — the list goes on and on.”

Brown is genuinely shocked at what legal writing professors and clinicians know too well is the predominant view of the “scholars” on law school faculties:

I confess that I must have been overly naïve, but I was utterly dumbfounded when an administrator repeatedly told me that he saw no value whatsoever to the institution in keeping any adjunct instructors more than a couple of years, after which they ought to simply move on and find something else to do. I’m sure my tenured colleagues would find it totally unacceptable if they could be told at the end of any semester that they should simply leave, that there was no value to their accumulated expertise, thank you, because the college wished to hire a fresh young face at a lower salary.

Brown is worried about the effects of this two-tier system on students, just as I am about the focus by law faculties on legal scholarship at the expense of legal practice:

It is time that more tenured faculty woke up to the fact that their entire professional existence, replete with their comfortable incomes, their fascinating research, their coveted sabbaticals, their agreeable teaching loads of less labor-intensive and more satisfying courses — all this is made possible by the indispensable efforts of a million ad-cons doing so much more for so much less. Equitable compensation, health and retirement benefits, opportunities for advancement and professional development: all these should be available for everyone in higher education and are long overdue. Since teachers’ working conditions equal students’ learning conditions, it is a truly deplorable message we are sending our students!

His description of non-tenure track faculty at the college level matches my experience at the law school level: they “are trying desperately to find summer work, praying that their cars will run for another year and wondering if their children will even be able to afford college.” Moreover, these professors “typically focus on teaching, and the precarious nature of their employment drives them to excel in their classroom performance. Not surprisingly, they often have a more lively interest in developing innovative pedagogy.”

And so Brown issues a call for action from his tenured colleagues:

Tenured faculty members across the country need to wake up now and begin to play a crucial role in supporting equity for their contingent colleagues. . . . If more tenure-track faculty would summon the courage to speak out in support of their fourth-class colleagues, it could really make a decisive difference . . . . Not only are tenured faculty members largely immune from retaliation; they possess widespread credibility plus significant monetary and other resources to help tip the scales in favor of equity.

Do you think law schools teach their students how to practice law?

I’m a law professor, but I’ve always been mystified by law school. For one thing, it strikes me as remarkably odd that my experience in full-time practice (nearly twelve years) is more (much more) than the vast majority of the professors on the faculties I’ve been part of. For another, what I learned in law school never made much sense to me until I actually began to practice. I always wondered why the knowledge I picked up in practice that “put it all together” for me hadn’t been there in law school in the first place. I suppose the opinion expressed here is a perfect illustration of why that is, but, still, what has always informed my teaching is my effort to bring into law school those pieces that were missing in my own legal education and that, if they had been there, would have made a world of difference.

In short, learning law cannot be separated from learning the practice of law. And law schools, for some reason, don’t seem to think their job is to teach their students the practice of law.

My views are clearly minority ones within law school academia, but they clearly are not so in the legal practice. As Above the Law reported last week: “United Technologies‘ General Counsel, Chester Paul Beach . . . stood up and told approximately 75 law school deans and legal educators from around the country:

We don’t allow first or second year associates to work on any of our matters without special permission, because they’re worthless.

And last week, at the Harvard Law School/New York Law School Future of Education Conference,

Vielka Holness, Director of the John Jay College of Criminal Justice Pre Law Institute, . . . said that schools need to bridge the gap between legal theory and actual practice. . . . Most importantly, she said that you need to look further up the pipeline, so students go into law school with an idea of what they need to learn in order to be successful practitioners.

Gillian Hadfield, Professor of Law and Professor of Economics at USC, . . . said that law schools weren’t even very good at doing the things that they think they’re doing well. She had some great examples about how bad students are when asked to pick out the important information in the case, or even pick out the information that will be important to a client.

Elie Mystal, the author of the post, concludes, in response to Hadfield’s point:

It’s an important note. The kind of information regurgitation that will get an ‘A’ in torts and help you pass the bar will make your memo bleed red — if you’re lucky enough to find a mid-level that will even bother to read it.

Legal education is monumentally difficult. Legal “rules” are not “rules” in the sense most people understand them; they are, instead, formulations intended to reach just results based on the evidence in individual lawsuits.

In making the point set forth in the title of my post, it is worth repeating the message I sent this morning to my Contracts students, who are in the midst of studying for the first semester exams. My students are in the midst of making the transition from the lay understanding of legal “rules” as “rules” of the sort that govern the outcome of scientific experiments to the professional understanding that legal “rules” are professional terms of art used to articulate arguments intended to achieve justice in individual cases. It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made constructs intended most of all to do justice to individuals.

As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract terms (the last subject of our semester’s study):

In trying to understand the law we are applying, consider the teachings of the teachings of the Chuang-tzu, a collection of writings from the fourth, third and second centuries B.C.:

Great understanding is broad and unhurried; Little understanding is cramped and busy.

Trying to understand the rules that pertain to contract interpretation will not come through a cramped and busy effort to memorize the “parol evidence rule” and the rules regarding when evidence outside of a writing is permitted to interpret the writing.

Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand why each party considers his interpretation the correct one. What evidence does each party have that his interpretation is correct? How persuasive do you consider that evidence?

If one side’s interpretation is more persuasive, that will likely be the correct one. One must first consider the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement. Only after considering all these matters (which can range far and wide) and coming to some individual, human understanding of whether one person’s interpretation or the other’s is more persuasive can on go back to the rules to and use those rules to show how the rules and the evidence together will lead to that more persuasive result.

Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The parties had written the following brief agreement:

AGREEMENT.

Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked ‘‘H. C. A.,’’ cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

The Minnesota Supreme Court concluded that “[t]he written agreement . . . , as it appears on its face, . . . purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties.” Thus, the court concluded that the buyer could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased were supposed to be of a higher quality than those logs the seller actually supplied.

But there really is nothing in the written agreement itself to preclude the reasonable possibility that the parties had also agreed that the logs marked “H.C.A” would be of the higher quality the buyer had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement of all the terms the parties agreed to?

Admittedly, there are a few things you might point to to support the court’s conclusion: the writing states price, it states the identifying marks on the buyer’s logs, and it states the delivery place and times. We might infer that if it includes all of those things it must include everything the parties had agreed upon.

But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyer’s and seller’s minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when, for example, would “winter” begin in Minesota — November, December 21, at first frost? To suppose the seller of logs and the buyer of logs would have put into the writing something they considered important is to be naive about how commercial transactions really take place (even today in the vast majority of commercial transactions, and even among investment bankers in the high flying world of Wall Street finance in which I once practiced).

In other words, if you merely start with the proposition that the parol evidence rule excludes the consideration of evidence regarding the content of a contractual agreement that is not contained in a final and complete written record of the agreement, you hardly have a convincing argument that the decision in Thompson v. Lilly must have been correct.

But if you look at the evidence recounted in the opinion (and the absence of certain evidence) the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent — the buyer is claiming the agreement included a promise that the logs the seller was providing would be of a higher quality than the logs that were delivered. And while the writing in and of itself doesn’t inherently exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that the agreement included a promise of higher quality logs? Only the buyer’s own self-serving testimony. There is no corroborating testimony from, say,  others in the logging trade in 1883 Minnesota that an agreement on quality like that insisted upon the buyer would be expected. There is no documentary evidence outside of the 3 line agreement regarding the parties’ negotiations. There is no evidence that the buyer’s purposes for buying the logs should have indicated to the seller that higher quality logs were what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market price for logs of a higher quality than that which he received.

In short, apart from the buyer’s self-serving testimony, there is no evidence of any sort that any agreement on the quality of the logs had been reached. In the absence of any evidence other than the buyer’s self-serving testimony in support of his position, the court conclusion that the three-line agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other hand, others in the trade suggested the quality of the logs would not have been included in the written agreement or that the price in the agreement reflected a price for higher quality logs, the court would have had a much more difficult time suggesting the three line agreement contained all the material terms of the agreement.

Thus, the parol evidence rule does its job in this case — it prevents the dispute from ending up as a trial in which the buyer’s uncorroborated and self-serving sworn statements will be weighed by a jury against the writing and the seller’s sworn statements. But if we merely considered the 3 line agreement without considering what other evidence the buyer had (or did not have) in support of his position, the parol evidence rule in and of itself would have provided a very poor guide to determining whether there would be any justifiable basis for a trial on the buyer’s claims.

To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a matter of the administration of justice in that there seems no persuasive reason in the first place to believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller). Thus, the court invoked the technical rule — the parol evidence rule — to produce an outcome that seems fair, just, and in accord with a common sense view of the evidence.

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer a question, consider first: what question you are you trying to answer. Then consider what evidence you have from each side of the dispute that helps persuade one way or another in answering that question. Then weigh that evidence and consider what we are primarily trying to determine in contract law: what the parties intended to agree to.

Then, and only then, use the rules to structure the presentation of your understanding of the proper resolution to the dispute. You are likely being asked to present your personal and human understanding as an intelligent adult being asked to solve a previously unsolved problem for the first time in your life. You are not merely being asked to repeat material your professor asked you to learn but to apply that learning to resolve new problems in a creative and original way no one other than you can be relied on to answer — that’s what you’re going to be doing as a lawyer!

I do not mean to minimize the importance of knowing the rules. You must know the rules. The rules are the language the law uses to structure the presentation of your persuasive explanations. Merely to give a recitation of your personal reaction to the evidence without reference to the rules is not to act as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes sense to you as a human being.

You also have to keep in mind that rules in contract law sometimes serve purposes other than merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and expense of full-blown trial in certain types of important cases in which the parties have not supplied either the formal requirements evidencing such agreements or can supply other evidence as convincing as those formal requirements.

Again, this is not to discount the importance of the rules. You must know the rules to articulate your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a member of a profession, and you must communicate in the language of the profession. But you will never persuasively apply those profession-specific rules without first understanding the human disputes, the evidence, and the ways that evidence persuades human beings as to the merits of the disputes. Then, and only then, can you begin to structure your arguments in a manner that usefully employs the technical legal rules.

As a final note, my disquisition here should put to rest the myth — even one propounded by the Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical political show — that applying legal rules to resolve legal disputes is the same as calling balls and strikes.

Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work remains.

Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students to practice law but does a rather poor job of actually doing so: “Law school . . . while pushing the prac tical, does not teach it.” As I’ve made clear, I think his criticism is particularly well placed when it comes to Harvard.

So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge that law students need more. What do they need? I think Minow and Rakoff are right to identify it as “legal imagination”:

[S]tudents need more, and they need more not for arcane or unusual careers, but simply to be good lawyers. While an expert in differentiating mental skills could probably produce a raft of labels for what they also need, when we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.

How will they be taught this legal imagination? By being given “cases” more like students are given in business school than students are given now in law school: complex problems in which the students are required to generate real world alternatives, recommend the best, and be evaluated on the quality of their judgment:

[T]he type of materials we have in mind can be described in general. Students ought to be presented with relatively dense materials that lay out a situation, experienced as a problem for a person, or group of people, for legal treatment. Students should face a choice that challenges them to identify options and that permits multiple resolutions, sometimes within a relatively tight ambit. Such resolutions might include issues such as which settlement offer would make it sensible to forego litigation. Sometimes these choices might be within broader (but still specifiable) alternatives, such as whether trying to get particular legislative language adopted would be feasible and preferable to private ordering. The problems ought not to be situated in one doctrinal area, but should present opportunities for mental maneuvering around the legal universe. Teaching should emphasize generating alternative solutions as well as appropriate grounds for choosing among them. And criteria for resolution should include legal, normative, and practical considerations.

Of course, Minow and Rakoff also believe that “following the business school model, we think that case writers will need to get their materials from practitioners.” Why isn’t this already going on throughout law school? One reason, I’ve always believed, is that law professors are those who have done best in law school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in their belief that if law school has identified them as the best and brightest it must be well designed. Law professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in believing the institution’s promotion procedures are very good at judging genuine merit. 90% of law firm partners will tell you their firm is better than most at judging associates. And Minow even recognizes this impediment to the change she calls for:

Law professors were good law students, and given the history of legal education, this means that they almost universally feel comfortable handling appellate opinions in the classroom even if they have no experience doing so in practice. By contrast, for many of us, the arenas of the legislature, the agency, the political movement, the media— perhaps even the trial courts—are ones we may only remotely watch. Ideally, case studies and teachers’ notes could be crafted so that they could be taught by professors as we know them in law schools as we know them. But, frankly, many of us will need to learn some new things.

I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes virtually every law school in the country. But there is also another piece of the puzzle that needs to be put into place, as I’ve previously written about: how in the world can we measure whether we are effectively teaching “legal imagination”? In many ways I think I’m ahead of Minow in trying to do what she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers better, I’m afraid that I won’t have a ton of influence. Fortunately, Minow, merely because she is the dean of Harvard Law, can have influence even without first proving what she is arguing for works.

What constitutes “good output” for a law school, and how do you measure it?

The ABA Journal reports that the part of the ABA that accredits law schools is due to adopt sweeping changes that will radically change the ways it evaluates the quality of the education individual law schools deliver. Most significantly, the ABA will “move away from evaluating law schools on the basis of criteria that measure ‘input’-such things as faculty size, budget and physical plant. Instead, the Legal Education Section would evaluate law schools more heavily on the basis of ‘outcome’ measures. The essential difference is that outcome measures would focus on what students actually take away from their educational experience at a particular law school rather than what the school teaches, and how . . . .”

There is one HUGE question, however, still to be resolved: “Speaking on Friday’s panel, [committee vice chair Margaret Martin] Barry and her fellow committee members said the greatest challenge is to determine the best ways to measure outcome.” 

I’ve got a suggestion on where they should look: Back in March, as I wrote,  the New York Times reported that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and “have come up with a test that they say is better at predicting success in” practicing law than is the LSAT.  The study concluded, as I’ve long been convinced, that “LSAT scores . . . ‘were not particularly useful’ in predicting lawyer effectiveness’. . .”  What does the new test consider factors that contribute to lawyerly effectiveness?

“[T]he ability to write, manage stress, listen, research the law and solve problems.”

When the ABA starts testing law school graduates on those abilities I’ll be convinced the ABA genuinely is measuring “outcomes.” Somehow, though, I suspect that they’ll focus on instead on salaries, clerkships, and professorships, outcomes determined to a significant degree by people with vested interests in the status quo.

The financial crisis is an opportunity for innovation in legal practice and law schools.

This blog is supposed to be about law and innovation — both the ways law affects innovative and creative endeavors and the ways creativity informs the practice of law.  I’m not sure where I go t the nerve to believe I have something worth saying on these matters, but it is gratifying when I find out that I’m not entirely empty-headed.  The New York Times yesterday published an editorial observing that the economic downturn is hitting the legal profession just as profoundly as it is hitting any other occupation.  As the Times notes, The “American Lawyer is calling it ‘the fire this time’ and warning that big firms may be hurtling toward ‘a paradigm-shifting, blood-in-the-suites’ future.” The thrust of the editorial, though, is that crisis is an opportunity for change and that the legal profession is much in need of change: “The silver lining, if there is one, is that the legal world may be inspired to draw blueprints for the 21st century.”

I am not at all happy with the job market, especially for my students.  They are talented, well educated, and hard working people who will do a lot of good for their clients.  But I am gratified that the types of changes the Times are ones I’ve long believed are important.  I do believe the U.S. legal system is a brilliant embodiment of practical justice, but it’s biggest defect in achieving justice is its cost.  It is appalling that achieving any sort of justice against any adversary willing to fight you (regardless of the merits of his cause) will invariably cost you enormously.  The fact someone whose position has little or no merit can make you expend enormous amounts of money to prove the demerits of his claims undermines justice by tilting the entire system radically in favor of the more wealthy members of our society. The internet has brought home this phenomenon to artists who want to make their work available and to people who want to post their family videos, but it will be one familiar to anyone who has called upon the legal system or been dragged into it, whether through divorce, the need to obtain payment from one’s customers, the need to get relief from economic or physical threat, or any of the myriad other ways one might need to call upon legal process to attain justice.

Two ways the economy will force down the costs of using lawyers are (1) the salaries of lawyers at the top end (which the Times notes begin at $160,000 at the wealthiest law firms) will have to be reduced and (2) the reduction of money available to spend on lawyers will mean “more leverage to push . . . for successful outcomes” on the part of those who have traditionally been less well financed.

Moreover, law firms will have to change their billing practices, replacing the “billable hour,” Law firms also, of course, will have to come up with more efficient ways of delivering their services.

The Times also suggests the economic crisis might require law schools to “become more serious about curricular reform,” in particular by “including more focus on practical skills.”  I could not agree more — making clear the inextricable bond between legal theory and legal practice has been central to my work as a law professor.  I don’t understand how you can teach law without understanding how it works.  My conviction is evidenced, I hope, by the school i’ve chosen to teach at this year and (at least) next, the University of Detroit Mercy Law School.

But I am skeptical of the power of the economy to change law schools.  Lawyers and judges have for a long time called for  law schools to focus more on training lawyers (rather than teaching legal theory in a way that makes sense primarily to law professors, not lawyers or judges), and still the changes have been very, very slow and very, very minor.  Law schools do not look to their success at training lawyers to guide their curriculur decisions; rather, they principally look to a rankings system that rewards law schools that admit students most like the students at the schools that are already the highest ranked. That’s a formula to entrench the status quo, not a formula for change. Nor does the critique from within law schools of the most influential rankings system really do much to solve the institutional deference to the status quo.  Brian Leiter, a law professor at the University of Chicago, publishes his own rankings and regularly critizises the most influential rankings, but even he relies principally in judging law schools on the “scholarly reputation” of faculty (which is largely based on where the professors teach and the law reviews in which they publish, both of which are merely indicators of how well those professors fit the prevailing view of quality) and student undergraduate grade point averages and LSAT scores (both of which correlate to success as law students, not as lawyers).

It cannot hurt, though, that the New York Times has joined the chorus calling for law school’s to focus their curricula more on the practice of law.

Detroit Mercy is one of the most innovative law schools in the U.S.

Many people (more often lawyers than law professors) believe law school education is in dire need of innovation. I am very proud to note that the school where I am teaching this year, the University of Detroit Mercy Law School, was featured in the current issue of National Jurist’s PreLaw Magazine as one of the ten most innovative law schools in the U.S.