The University of Louisville's law alumni magazine

The vast majority of MoneyLaw's readers will never see the University of Louisville's law alumni magazine. I don't believe in law porn. Even if I did, I don't have the money to transmit any substantial amount of law porn in interstate commerce. But I am proud of the magazine and invite you to download the 2008-09 edition.

Sun deviled

Arizona State University Research Park

Arizona State University, under president Michael Crow, aspired to become the New American University. ASU would enroll 100,000 students by 2020. It would eliminate disciplinary boundaries, spur research, fuel the economy, and serve the deserving and the underserved. Then the bottom dropped out:

[President Michael Crow] increas[ed] enrollment by nearly a third to 67,000 students, lur[ed] big-name professors and start[ed] interdisciplinary schools in areas like sustainability, projects with partners like the Mayo Clinic and Sichuan University in China, and dozens of new degree programs.

But this year, Mr. Crow’s plans have crashed into new budget realities, raising questions about how many public research universities the nation needs and whether universities like Arizona State, in their drive to become prominent research institutions, have lost focus on their public mission to provide solid undergraduate education for state residents.

These days, the headlines about Arizona State describe its enormous cuts.

The university has eliminated more than 500 jobs, including deans, department chairmen and hundreds of teaching assistants. Last month, Mr. Crow announced that the university would close 48 programs, cap enrollment and move up the freshman application deadline by five months. Every employee, from Mr. Crow down, will have 10 to 15 unpaid furlough days this spring.

Describing the $88 million hit that ASU has been asked to sustain since June 2008, the ASU Sun Devil declared, "The New American University has died; welcome to the Neutered American University."

Michael Crow and Arizona State are not alone. Jane Wellman, executive director of the Delta Project on Postsecondary Costs, Productivity and Accountability, identifies a nationwide "trend line" in “states disinvesting in higher education.”

Read the rest of this post . . . .Prestige and the idea of the public research university may be the first victims of multilateral educational disarmament. As Tamar Lewin of the New York Times reports,

not every university can be in the top 20. And in a time of shrinking state budgets, undergraduates at public universities will most likely pay the price in higher tuition, larger classes and less interaction with tenured professors. So it is a real question how many public research universities the nation can afford, and what share of resources should go to less expensive forms of education, like community colleges.

Say it ain't so, Joe!

Jane Wellman is even sharper in her criticism: “Universities aspire to prestige, and that is achieved by increasing selectivity, getting a research mission and having faculty do as little teaching as possible, not by teaching and learning, and taking students from Point A to Point B.”

Legal education is by no means immune to the clash between academic ambition and economic reality. Law schools over the last generation have increased selectivity, identified or sharpened their research mission, and endeavored to have faculty do as little teaching as possible. Here are some of the things we have done in the legal academy, mostly in pursuit of prestige and rankings:

• We've slashed enrollments, to the extent that endowments or cash on hand (rarely) or our parent institutions' failure or reluctance to adopt resource-centered management (more often) has enabled us to trade forgone tuition revenues for marginally lower student-teacher ratios.


• We've created centers, institutes, summer programs, dual-degree programs, LL.M. programs, and lecture series, often without regard to return on investment and, indeed, most typically as unfunded mandates.


• We've doubled down on these expenditures by sending out tons of law porn to demonstrate just how conspicuously we can engage in extracurricular consumption.


• We've dived headlong into an extremely expensive interdisciplinary movement whose benefits are uncertain but whose long-term costs (especially in tenured faculty salaries) are substantial and possibly crippling.


• We've lowered the expected teaching load, at least at (relatively) elite institutions, from twelve to ten semester hours per year — so aggressively that some top-tier teaching candidates refuse to interview at schools that retain, for understandable economic reasons, the twelve-credit norm.

And all of this in the face of ever stronger evidence that the legal academy's current lifestyle is unsustainable. Mindful that a thousand days and a hundred thousand dollars of debt no longer buy what they used to, would-be students tarry in the wings before rushing into law school.

Nothing is irredeemable till it is past. Legal education would do well to heed the lessons that Michael Crow, one of the most visionary academic leaders of our time, has had to learn during times of extreme budgetary retrenchment in Arizona. Let us do our very best to translate dollars into concrete education results, being ever mindful that student tuition is the economic benchmark for everything we do as educators. In Sun Devil country and elsewhere, we may yet find our way out of the desert.

"The best and the brightest"

AIG has gotten more than $170 billion in bailout money from the Treasury and the Federal Reserve. And now AIG has paid about $165 million in bonuses to the executives who brought the company to its knees.

A more politically foolish use of 0.1 percent of available cash can scarcely be imagined.

AIG chairman Edward G. Liddy's defense of these bonuses may be even more outlandish:

We cannot attract and retain the best and the brightest talent to lead and staff the A.I.G. businesses — which are now being operated principally on behalf of American taxpayers — if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury.

Raw intelligence is vastly overrated; elite educational credentials, even more so. But eclipsing these exercises in overpaying is the longstanding assumption that the very best talent in our society responds, in strictly Pavlovian fashion, to overwhelming sums of cash.

And even if you disagree with everything I've written so far, surely you would endorse this recommendation: It is time to retire the phrase, the best and the brightest, in all senses except the ironic, even sarcastic, sense in which that phrase was originally intended.

The Best and the Brightest was the title of a 1972 exposé by David Halberstam of foreign policy miscalculations by the Kennedy and Johnson administrations. For much of the next two decades, American geopolitics, crafted by none less than "the best and the brightest," wreaked havoc throughout Indochina:





It will take years, decades, perhaps lifetimes to shake American business culture of the fallacy that outrageous salaries are what valuable talent truly demands and deserves. In the meanwhile, I'll settle for a split second of humility regarding the true origins of the best and the brightest.

Testing the complete lawyer

Being a lawyer is more than "thinking like a lawyer." So much more.

The LSAT at best tests certain aspects of "thinking like a lawyer."

So why not devise a test to assess the rest of what it means to think and act like a lawyer, what it really means to be a lawyer?

Sheldon Zedeck and Marjorie M. Shultz are trying to do just that:

To find out what applicant traits should figure in admissions decisions at law schools, [Zedeck and Shultz] coordinated individual interviews, focus groups and ultimately a survey of judges, law school professors, law firm clients and hundreds of graduates of Berkeley’s law school.

They asked, among other things, “If you were looking for a lawyer for an important matter for yourself, what qualities would you most look for? What kind of lawyer do you want to teach or be?”

The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.

Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.

Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.

It will be interesting to see what happens when Zedeck and Shultz apply their test over time and to a deeper pool than Berkeley alumni.

Breaking away

It's the thirtieth anniversary of one of my all-time favorite movies, Breaking Away. As this musical tribute suggests, it's an extremely sentimental movie about growing up, intergenerational conflict, class warfare, and an underdog who (in the parlance of European pop music) ultimately gets everything but the girl — and doesn't crash and burn over that outcome. F. Scott Fitzgerald, eat your heart out. Even though I now run the asylum after having served several unhappy sentences in American higher education, and even though the pickup line par excellence has shifted from Posso ofrirti qualcosa da bere, signorina? to Σ'αγαπώ πολύ, κορίτσι μού, I still love Breaking Away. Always did, always will.

Breaking Away also unlocks a puzzle that has long tormented MoneyLaw: how do we know we're winning? Dave Hoffman recently touched this nerve in his response to my post on Shane Battier:

The problem with the Moneylaw approach to faculty rewards is that it has failed to fully define what universities are designed to maximize. That's not an easy question to answer, obviously, and I don't think there's just one approach. For a few law schools, like Florida-Coastal, that answer is obvious: to make money. For others, law school's function as a profit center within a larger university umbrella. . . . But for most law schools, the ultimate criterion of faculty success is just unclear. Giving students a return on their investment is much of it, but it's not the whole story, since tuition doesn't pay nearly all the bills. We've responsibilities to alumni donors, to the State, to the Bar, etc. Shane Battier just needs to help his team win games. We don't know what winning is. We don't know what game we're playing. And who's our team again?

It truly is wonderful when you realize that the movement you need is already on your shoulder. The answer to Dave Hoffman's challenge, and to MoneyLaw's conundrum, lies in this classic scene from Breaking Away:

Read the rest of this post . . . .

In a MoneyLaw world, law schools win if their students — at graduation, five years out, whenever — don't ask for a refund. Here's the thought experiment that explains what I mean: Imagine that every law student, upon matriculation, gets a magic button. At any moment, before and after graduation, if a student wishes that she or he had done anything but go to law school, that student can mash the magic button and thereby get a refund. Of course, the legal education and everything it confers — the degree, the subsequent bar passage (if any), the eventual career (again, if any) — will vaporize in that instant.

For every student who would elect this option, MoneyLaw regards this choice as a devastating loss for the school in question. This is what it means to "win" in higher education: running your school so that your students and graduates never regret having set foot on your campus.

In concrete, operational terms, this means that specific law school policies (and corresponding MoneyLaw metrics) are valid to the extent that they advance the ultimate goal of lifelong alumni satisfaction. From this point of view, U.S. News rankings, SSRN downloads, Westlaw hits, and subjective evaluations of law porn all fall short of the gauges of satisfaction in the Law School Survey of Student Engagement. And a MoneyLaw dean would do well to track how effectively she or he is persuading graduates to remain involved, on terms akin to those of the baseball concept of value over replacement player, or VORP.

And with that, I need to sign off so that I can head out for alumni meetings along the Eastern seaboard. Arrivederci amici.

Is There A Dog There?

The tail wagging the dog idea has made it into Moneylaw on a number of occasions. I am beginning to wonder if there is a dog still there. USN&WR rankings determine what law schools do ranging from admitting transfer students, lowering class size, and employing their students, at least temporarily.

SSRN has created the cult of the download. Narrow lists so everyone is on a top ten or gerrymandering a category so you can create your own top ten. Rankings of professors and schools are generated on the basis of downloads which you can manipulate yourself.

Teaching evaluations have result in altering teaching styles not in the direction of ensuring that today's students are even better prepared than their predecessors but so the teacher can score a higher number. Some faculty obsess over a tenth of a point here and there. I've had colleagues freely admit that they decided to be funnier to raise evaluations.

Foreign programs have gone from opportunities for students to products that are sold to them oft times in hopes that the professor will get to go and not because there is some gaping hole in educational opportunities for students.

The writing requirement which I suppose at one time was instituted in hopes that people with freedom to study law would "discover" things much like scientists. has largely been diluted to a hurdle, almost a form of hazing, in order receive tenure. 7000 plus articles a year, few of which are read and even fewer of which are written because of inspiration. Instead there is a great deal of casting about -- what can I write about now? Does this edited book of readings count even if Elgar says they will do it for me? Is it refereed if someone asked me to do it for a symposium?

Grades are inflated in part because, as it has been expressed at my school, 1) We have to give high grades so our students can compete. 2) It hurts the students' feelings to get a C (and increasingly a B). Students ask why not raise grades even more so they can be even more competitive. Maybe they have a point.

If you peel away all of the tails, would we find a dog? I assume this means 1) teachers who do their best to produce students to whom they would entrust the fates of future clients -- even their parents- regardless of the impact on evaluations, 2) writing only when you feel a pressing need to express something that may actually make a difference, 3) honestly evaluating every program to determine what it produces for the students and other stakeholders, 4) admitting students (at least to a state school) so the subsidization is fairly given to those with promise regardless of the USN&WR-affecting LSAT.

My sense is that we would find a dog. My fear is that it may be a chihuahua.

Steady stroke

MoneyLaw likes sports, and it likes statistical analysis. I also think that lessons learned in athletic pursuits can pay dividends in education, in law, and in life.

All of which makes this news item all the more noteworthy, especially as regular season play comes to a close in college basketball. Throughout the last half century in basketball, "one thing has remained remarkably constant: the rate at which players make free throws." Read all about it in The Cardinal Lawyer.