Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Contract Attorneys and the Commoditization of the Legal Profession

June 15th, 2011

Two new articles in the WSJ on our changing legal profession.

First, an article about the explosion of use of contract attorneys.

For 10 to 12 hours a day—and sometimes during graveyard shifts—contract attorneys such as Mr. Aponte sit silently in a big room, at rows of computer monitors. Each lawyer reads thousands of documents online and must quickly “code” every one according to its relevance in litigation or an investigation.

Supervisors discourage talking and breaks are limited. The computer systems count each lawyer’s speed. Some law firms use their own contract attorneys, while others hire them through third-party agencies.

The increasing reliance on temporary workers comes as the industry continues to struggle from a downturn that has produced a glut of unemployed U.S. lawyers, including crops of indebted recent law school graduates. About 10% of all private practice jobs accepted by last year’s law school graduates were reported as temporary, a steady increase from 5.4% in 2007, according to the National Association for Law Placement.

Why the need for contract attorneys? Because associates bill too much and clients are not willing to pay this anymore.

Temporary legal staffing in the U.S. is projected to increase by 25% cumulatively over the next two years, according to Staffing Industry Analysts, a temp-industry tracking group. The hourly rates that temp agencies charge for contract attorneys are just a fraction of what a first-year associate at a big law firm typically bills per hour.

Large firms are billing $325 to $550 for an hour’s work this year by freshman associates, while smaller firms bill them as low as $100, according to research firm Valeo Partners. Temp staffing agencies, in contrast, might bill around $50 an hour or less for document review work by contract attorneys.

Skeptics often criticize my forecasts of the legal profession. All of their arguments focus on the need to develop young associates. What they forget (shockingly for practicing attorneys) is that attorneys only earn a fee at the indulgence of the client. If a client is no longer willing to pay high fees to young associates, that work will be shipped out to contract attorneys, overseas, or to information systems. Perhaps that will result in a lost generation of skilled attorneys, and clients will have to deal with that later. But, that is not a reason to fight against these changes.

The article also explores the commoditization of the legal profession, something I have written about as the key to the future of legal markets.

This new “third tier” of the legal world illustrates the commoditization of the legal profession, which once offered most new entrants access to prestige and power, as well as a professional lifestyle. It also shows how post-recession belt-tightening is permanently altering some professions.

The second article explores the legal framework for contract attorneys, and whether federal overtime laws should cover them.

“They should have one single benefit of getting paid like a normal person, which is time-and-a-half overtime,” said Maimon Kirschenbaum, the lawyer for a contract attorney who sued plaintiff firm Labaton Sucharow LLP. Mr. Kirschenbaum said he was speaking generally of contract attorney work and not specifically about Labaton.

Labaton was sued last year in federal court in Manhattan by a temp lawyer alleging the plaintiff firm violated federal labor laws by failing to pay overtime. Labaton had argued the temp lawyer was exempt from overtime obligations of state and federal law. Underlying the plaintiff’s case is the theory that, in document review, the temp wasn’t really acting as a lawyer. The case was settled, but the terms weren’t disclosed.

Interesting. A contract attorney, who went to law school, and is doing “legal” work has to argue that he is not acting as a lawyer.

Professor Larry Ribstein, as usual, has insightful commentary about the evolution of the legal practice.

But it could get worse, because even these jobs may be replaced by machines. . . . If law firms can’t bill contract lawyers at associate rates, they may as well try to keep their costs down by mechanizing.  As for malpractice liability, machines don’t get tired or sloppy.

But all is not lost.  There are other jobs out there for lawyers, including designing and programming the products and machines that will replace the lawyers of the past.


Supreme Court Information Markets, Timing the Stock Market, and Ted Frank Putting his Money where Mouth Is

June 5th, 2011

Ted Frank, the macha of the Center for Class Action Fairness, knows how to put his money where his mouth is. Ted is so confident that the Supreme Court will reverse the 9th Circuit in Wal-Mart v. Dukes that he made a leveraged bet–of 10% of his net assets–that WMT (Wal-Mart’s symbol) will bounce.

I’m very confident that Wal-Mart v. Dukes will result in a reversal of the class certification in the enormous multi-billion dollar class action against it. But the things that make me confident in that result—the briefs, the tenor of the oral argument, the language in AT&T Mobility v. Concepcion about the importance of protecting the rights of unnamed class members—did not produce movement in the market price of Wal-Mart stock. This leads me to suspect that the market is undervaluing the probability of reversal, and will be surprised when the Supreme Court does reverse later this month.

It’s always bothered me when economists make clever predictions but aren’t willing to bet on them, Julian Simon a notable exception. Here’s a hypothesis that won’t take twenty years to resolve; if I’m right, aren’t I stupid if I don’t make a quick profit on this predicted market inefficiency. So I’ve put my money where my mouth is: with the dip in stock prices last week, I invested a bit over 10% of my net worth in a leveraged bet that WMT stock will bounce this month when the Supreme Court releases its decision through purchases of July and September out-of-the-money call contracts.

Kudos to Ted for taking this risk based on his sense of how the Court will act. He bases his decision on “the briefs, the tenor of the oral argument, the language in AT&T Mobility v. Concepcion about the importance of protecting the rights of unnamed class members.”

While I commend Ted, his individual gut instinct is less than perfect. Like Yogi Berra said, people are very bad about making predictions; especially about the future. A Prediction Market, with a proven track record, that taps into the wisdom of the crowds would be a more sound basis to make such a big investment. Fortunately for Ted, such a market exists–, and currently 76% of members predict a reversal.

Larry Ribstein has more along the same line, with respect to information service products.

I agree with Ted about the risks, particularly including the risk the market’s already priced this given Wal-Mart’s huge float and analyst following, and about the costs of making the bet.  On the other hand, Ted’s post illustrates the costs of arbitrage, and therefore why markets could be wrong. It also illustrates how making betting against the market cheaper would increase market efficiency (and, as Ted notes,counteract a trial lawyer strategy).

But my main point here concerns my views about a potentially expanded role for legal information experts in capital markets. Here’s an excerpt from Kobayashi & my Law’s Information Revolution (footnotes omitted):

Law-related matters generate many types of information which can have significant market value because of the potentially high stakes of legal outcomes. In particular, litigation significantly affects asset values.  All firms have some litigation risk, and some firms have a lot riding on actual or potential tort or intellectual property litigation.  * * * This suggests a market demand for legal analysis in connection with firm valuation.

I look forward to Ted’s newly-found fortune, and his gumption for relying on the Supreme Court to bolster his net worth.

Evolving Towards the Law Classroom of Tomorrow

June 1st, 2011

Are the law schools of today preparing new attorneys for the legal profession of tomorrow? The Carnegie Foundation’s Educating Lawyers: Preparation for the Profession of Law provided a strong critique of legal academia, and contended that new attorneys are not taught the practical, real-world skills, that attorneys need. As the report noted, to the extent that professors can “bridge the gap between the analytical and practical knowledge,” new attorneys would be better situated to compete in the marketplace and obtain the ever-so-important first job. A 2010 study by NALP similarly found that “experiential learning opportunities,” “hands-on” or “simulated learning opportunities,” are “instrumental in preparing new associates for the demands of the practice of law.”

Putting aside any disagreements over these studies, most in the academy and in practice would probably agree that there is a gap–of some size–between what is taught in law schools today, and what students today need to work as lawyers.

What about the skills that lawyers will need in the near-future? That, is a tougher question. The legal profession has remained largely the same for some time. Attorneys, as a bunch, are generally resistant to change. Sure, new areas of law come into vogue (e.g., international law), and new tools are introduced to make research easier (e.g., WestLaw Next), but for the most part, the legal profession consists of a lawyer, or group of lawyers, providing a one-off, customized service–such as a brief, memo, will, contract, trust, etc.–to a single client. Law schools aim to prepare students for this manner of work.

The future of the legal profession may look different. Richard Susskind in The End of Lawyers? Rethinking the Nature of Legal Services, augurs an evolution–enabled by advanced technologies, outsourced labor, and weak demand for expensive associates–from a time-consuming, customized labor-intensive legal market to an on-demand, commoditized information-based legal service. Professor Larry Ribstein, co-author of Law’s Information Revolution, similarly writes “that much of law’s future isn’t in how to price one-to-one customized legal services, but in the development of legal information products.” Many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity. Think of a hybrid of, Google,and Facebook: instantly obtain legal services customized to your personal situation with the click of a mouse. To preempt many objections, don’t be so certain your practice of law will be excluded from this automation. This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.

To repeat the question I opened with, are the law schools of today preparing new attorneys for the legal profession of tomorrow? In many respects, the law student depicted in Norman Rockwell’s 1927 classic portrait (pictured above, I call him Abe) is not too different from the law student of today. Students are taught (hopefully) basic legal research skills, how to write, how to make oral arguments, how to read cases, and how to “think like a lawyer” (whatever that means). If Susskind, Ribstein, and others are right about the progression of how law is practiced, I ponder whether law students–as well as the Professoriate–will be prepared for the future legal profession. Will the gap between academia and practice grow even further?

So how do we prepare law students for the legal profession of tomorrow? The answer is well beyond the scope of this post, which I provide as food for thought. Though, for starters, banning laptops in the classroom is probably not going in the right direction. I hope to blog about this topic more in the coming month, but for now check out my liveblogged Google Doc article work-in-progress, as well as here, here, here, and generally here.

Crossposted at

A Proposal for the Law Classroom of Tomorrow

April 24th, 2011

This rather lengthy post synthesizes a number of my previous posts about the use of technology in the classroom. This post, however, adds to the equation how technologically proficient students will be better situated for the legal marketplace of the future. Rather than incorporating technology in the classroom because students today are wired to learn this way (I still think that is an important reason), technology in substantive doctrinal clases can actually help bridge the gap between theory and practice by engaging students in cognitive tasks that lawyers today require. I also sketch, in part, how I view the classroom of tomorrow.

The Gap Between Theory and Practice.

A 2010 study from NALP found that “experiential learning opportunities,” “hands-on” or “simulated learning opportunities,” are “instrumental in preparing new associates for the demands of the practice of law.” Yet, there exists a pedagogical schism in academia between so-called doctrinal classes (such as Contracts, Torts, or Criminal Law, etc.) and practical, or clinical courses (Trial Advocacy, Legal Writing, Externships, etc.). Professors teaching substantive classes focus extensively on the theoretical aspects, and often give short thrift to the practical implications of the subject matter. This, in part, stems from from the traditional Langdellian case model approach to education, tied with the Socratic Method, employed in one form or another since the late 19th Century.

An influential 2007 report from the Carnegie Foundation observed this trend, and proposed a framework to narrow this schism. As the report noted, to the extent that professors can “bridge the gap between the analytical and practical knowledge,” new attorneys would be better situated to compete in the marketplace and obtain the ever-so-important first job. The report, which suggests an “Integrative Model” for law schools seeks to combine the “[t]eaching of legal doctrine and analysis,” “several facets of practice,” and a focus on the “identity, values, and dispositions” of the legal profession.  The “teaching of legal doctrine needs to become fully integrated into the curriculum,” rather than as a mere addenda. Indeed, with the legal market becoming more competitive–as more law schools churn out more lawyers–the skill set with which new attorneys graduate, becomes more and more important as a means to ensure employment.

What exactly are these ‘facets” of practice to be integrated? More importantly though, what are the “facets” of practice that attorneys of tomorrow will require?

Professor Larry RIbstein, in a very significant article titled Practicing Theory: Legal Education for the 21st Century (I blogged about it here) echoes my theory. He writes that law schools should encourage students to be “creators,” and not mere “mechanics.” “The only thing that is certain is that law schools may face, for the first time, the need to provide the type of education the market demands rather than serving lawyers’ and law professors’ preferences. Legal educators must respond to these demands by serving not just the existing U.S. market for legal services but also a global market for legal information.”

How does Ribstein suggest theory and practice should be incorporated? Building on the “Integrative Model” proposed in the Carnegie Foundation Report, Ribstein notes that substantive “courses should be taught with a view toward integrating even traditional lawyer work with the latest theory, either by practice/theory teams or by practitioners who have advanced degrees.”

Using Technology to Bridge The Gap

Law schools have been late to evolve. “Legal education significantly lags the rest of higher education in integrating online learning and other educational technologies into its programs,” Southwestern Law School Dean Bryant Garth said in a written statement announcing the formation of a consortium of six law schools that agreed to consider working on technology initiatives.

The legal service industry is evolving, and so must the legal education market. A recent article in the Times remarked that many legal jobs historically performed by attorneys (namely document review) could now be outsourced to computers, as well overseas. Despite Paul Krugman’s fears of this competition from our new robotic overloads, I am not as concerned as I noted that “the nature of legal jobs will change,” and new “Attorneys will have to think of how to create value, either through assembling good transactions or engaging in smart litigation.” This, in my mind, represents the “facets” of practice that can, and should be developed, particularly in doctrinal classes. A 2007 HLS report noted that lawyers who “find ways to exploit technology to mange” their work to “gather knowledge, manage teams, automate their practice, or some other opportunity as yet unidentified will see tremendous gains.”

The HLS report focussing on the “integrative” approach noted that one parter in a major law firms remarked that “The win-win-win situation is thinking about technology . . . not as an end in and of itself, [but] to train students in law.” Professors should strive to “enrich existing activities with appropriate technology learning opportunities.”

Bridging The Gap Between Theory and Practice in Doctrinal Classes

In Law School 2.0, Professor David Thomson predicted that “[l]ong-brewing dissatisfaction with law school programs and profound alterations in legal practice will combine with a new and different generation of students leveraging advances in web technology to produce changes in legal education of a sort that we have never seen before.” Thomson also notes how “the legal profession is increasingly driven by technology and efficiency,”–skills students but are lacking. “Clients are demanding immediate access to their attorneys and more and more legal work is conducted via e-mail. The days of the long opinion letter on expensive letterhead stationery are fast fading into the past.” Indeed, the opinion e-mail, written in a short period of time (at a much lower billable cost) is the desired form of client communication. The future composition of the legal profession is largely unknowable–“legal careers enjoyed by today’s students will change direction because of yet more sophisticated technologies developed during the course of their careers, and likely more than once.” What is certain, however, is “[t]he current forms of teaching in law school are not sufficient to prepare students for the technological challenges they will face in the 21st Century.”

Professor Thomson recognized that many of the proposed changes are not properly focused:

Further, many of the more significant curricular changes are reaching small groups of students and show no evidence of being scalable to larger numbers. Worse, none of these curricular changes leverage technology in any coordinated fashion as part of the curricular design. And none of them seem to recognize that law schools are dealing with a new kind of student, the Millennials for whom technology is central to their lives, and for whom technology will be vital to their lives as practicing attorneys.

The 2007 Clinical Legal Education Association Report “call[ed] on law schools to make a commitment to improve the preparation of their students for practice, clarify and expand their educational objectives, improve and diversify methods for delivering instruction, and give more attention to evaluate the success of their programs of instruction.” Specifically, law schools should “develop competence, that is, the ability to resolve legal problems effectively and responsibly.”

The 2007 report from the Berkman Center for Internet & Society at Harvard Law School, titled “New Skills, New Learning: Legal Education and the Promise of Technology,” made a number of important findings about the state of technology in legal education today, concluding that “today’s workplace demands skills that the traditional law school curriculum does not cover.” Unsurprisingly, “legal educators seriously under-utilize new technologies.” Even though “many attorneys work in complex teams distributed across multiple offices,” only “12 percent of law students report working in groups on class projects.” Law firms a “role to play in ensuring that attorneys are prepared for a technologically-mediated world.” Students who engage in “class-oriented computing activities are more likely to participate in class discussions, synthesize concepts form different courses, and work hard to meet faculty expectations than students who frequently participate in diversionary computing activities.” Indeed, students in the former category are “slightly less likely to come to class unprepared.” (Interestingly, “90% of first-year students regularly come to class unprepared,” while “25% of 3Ls frequently come to class unprepared.”) Unsurprisingly, 3Ls are more likely to use laptops for “diversionary” uses. The 2010 Annual Survey of Student Engagement in Law School, titled In Class and Beyond found that “academic engagement declines over the course of students’ three-year tenure in law school.”

Laptop Usage in the Classroom

Articles on whether laptops in the classroom distract students are premised on an environment where all of the information is coming from the professor–“the sage on the stage.” The 2008 LSSE survey divides usage of laptops in class to “class-oriented use” and “diversionary use.” This dichotomy is false.  The 2008 LSEE titled Preparing 21st Century Lawyers, found that “when used for academic purposes, computers in the classroom can be an asset to student engagement.”  The study found that “class-oriented computer use correlates highly with self-reported student gains in a variety of areas, including critical and analytical thinking.”

But what if the professor, recognizing that students can receive information from other sources–utilizes the laptops in the class discussion, and promotes the information gathering and meta-lawyering skills that practicing attorneys need. Now, professors have opened up a new world of pedagogy.

Yet many of these proposals focus on using technology in clinical, or practical classes. It is often unclear “who should teach desired [technological] knowledge or skills.” For example, the 2007 Harvard Law School report suggests that schools utilize “authentic practice technologies to support law school clinical programs” and students should “learn[] through computer simulation [that] mirror . . .  legal practice settings . .  . to experience . . . real-world casework.” The 2011Future Ed Conference, co-sponsored by the New York Law School and the Harvard Law School (article here) awarded “fictional” funding for the sole purpose of building such a simulation, dubbed Apps for Justice. In the HLS report, several interviewees “expressed skepticisms that law school professors, who may lack significant practice experience, could teach such skills competently or keep up with the state of the art.” What about in doctrinal classes that teach substantive topics?

I propose a more “integrative” approach–incorporate the very skills new attorneys will need in doctrinal or substantive classes.

Millenials in Law School

Students today simply learn differently today. As Professor Thomson notes, this new generation of students should be taught in a manner that reflects their learning styles:

Put another way, the students of the future will need to know not just how to “think like a lawyer” — the traditional pedagogical goal — but how to “act like and be a lawyer.” To effectively do this, we will have to invent “Legal Pedagogy 2.0” where, at a minimum, we teachers become less “the sage on the stage” and more “the guide on the side.” Merely transferring content from the podium to expectant student containers is insufficient. The old approach is based on the out of date assumption that information is scarce when that is no longer true. It will not connect with the new generation of law students, and it will insufficiently employ the benefits of technology for teaching and communicating effectively with them. Worse, and it will insufficiently prepare them for the practice in which they are going to live and grow. The changes being discussed are profound and cannot be accomplished without leveraging emerging technologies. Fortunately, the need and the means are coming together at the same time.

A guide on the side, or as I have dubbed it, an “aggregator” of information, is how I view the professor of tomorrow, rather than the “sage on the stage” or a Langdellian Oracle (see here, here, and here).


Some may worry that promoting electronic communication will be detrimental to attorneys who have to interact with clients in person. No doubt new attorneys will need interpersonal skills, but today the vast majority of communications with clients–if young attorneys take to clients at all (not very common at large firms)–is electronic, primarily via e-mail. “E-mail is the practical tool through which significant legal work occurs.” Instead of teaching students to write legal memorandums, shouldn’t legal writing professors ask students to write short, concise e-mails? In some cases, attorneys are expected to reply to a client’s e-mail within an hour (see here and here). There is no time to IRAC. They cost less, get the message across, and respond to the client’s demands of instant contact.

Intimiate knowledge of electronic discovery tools is essential for all litigation and transactions. In fact, the burgeoning “online dispute resolution (ODR) is emerging as a distinct dub discipline that recognizes how negotiating via an asynchronous, low “emotional bandwidth” medium like email significantly differs from the same activity conducted face-to-face.” Further, “collaboratively editing a document across several offices in different time zones” will supplant the traditional, isolated work product of attorneys of the past.

The Skills of the Attorney of Tomorrow

The HLS report identified four skills that attorneys in a “changing work environment” will need to master. First, “knowledge-generating” skills refers to the “process whereby professionals pann useful information from the silt of data, and then apply that information as actionable knowledge.” Second, “techno-social skills” will “enable professionals to work with colleagues through the medium of technology.” Third, “meta-practice” skills “involve the translation of one-off practice into system of practice.” For example, rather than re-inventing the wheel by writing memorandums or pleadings from scratch, law firms that have in place a repository of ready-to-use documents, or even better, attorneys who are able to find samples available online, are suited for “meta-lawyering.” Additionally, attorneys will need to be able to “filter, assess, and act upon good information,” and learn to “discern valuable information from useless data” as they “convert information into actionable knowledge” (see here). My proposal hones each of these skills during the course of a substantive lecture.

The Law Classroom of Tomorrow

Imagine the classroom of tomorrow.

Before class

I envision using a customized set of readings available electronically for use on an e-reader. No need to purchase or carry around cumbersome and expensive textbooks. All materials would be posted before class; no hiding the ball (see here and here). The readings would consist of edited-down versions of cases, followed by a number of supplemental sources–excerpts from law review articles, contemporary news accounts (to learn how the case affected the people and places involved), and a series of hypothetical questions (that will be further explored during class). Additionally, I will tap into my vast Constitutional Places database of photographs, videos, and podcasts to provide ample media to make the cases come alive. Finally, because the resource is electronic, it can be updated during the course of the year to draw students’ attention to recent cases from the Supreme Court, and lower courts, that touch on these topics.

During class

I would not rely on the Socratic Dialog. My class will enhance collaborative learning.

The Socratic method focuses on grilling individual students. I never understood the purpose of asking the same student question-after-question. There are so many students in the class who are neglected. “Socratic dialogue between professor and student emphasizes and rewards individual work and thinking.” A 2008 Survey conducted by LSSEE found that “about 60% of students report that their school places a substantial emphasis on memorizing facts, ideas, or methods to repeat them in pretty much the same form.” The 2010 LSSE survey found that “24% of students said that their coursework placed a strong emphasis on memorizing facts, ideas or methods from courses and readings so that the student could repeat them in pretty much the same fomr.” Likewise, legal writing projects are accomplished individually, and in some schools, students are prohibited from discussing the issue with anyone else.

This makes little sense. In law firms, 78% of attorneys belong to one or more teams. The 2010 LSSE survey revealed that “fewer than 60% of law students generally felt prepared to work with colleagues as part of a legal team.” Why are law schools forcing students to work in silos when professors should be developing collaborative skills–the very skills that web 2.0 and collaborative technology promotes?

I would leave open a live-chatroom during the classroom (perhaps using Twitter, or some other similar service that allows me to easily track participation) (I have blogged about this approach here, here, and here). Students would be able to ask questions, answer questions, and chat with one another during the class. If one student is talking, and another student has a comment, he can politely enter it into the chat without interrupting his peer. As the Professor, I can facilitate the discussion, and decide which comments to bring to the fore and which to ignore. If one student is struggling, students will be encouraged to help our their friends, and share answers. Building this collaborative environment will help prepare new attorneys for practice where they are not expected to work alone, but rather, will come to rely on collegial colleagues. Further, a livechat will enable students who may be “quiet” to participate effectively.

Lectures would consist of a free-flowing (yet structured in advance) discussion with a series of rapid fire questions.

Rather than using a boring powerpoint, I will ask students to copy and paste into the livechat the relevant text (a statute, case citation, or even key sentence in a case). This allows students to participate, feel involved, and enables visual learners to prosper.

I would not call on students to “recite” the case. This is trivial, and wastes time, as students usually don’t get the facts right, and the professor usually restates it. No sense going over the obvious. What I will ask students to do is apply their knowledge in a fast-paced environment to quickly “discern valuable information from useless data.”

For example, assume we finished exploring a Supreme Court precedent that was somewhat vague. I would then ask the students a variation of that holding with different facts. But rather than keeping it abstract, I would ground the hypothetical in an actual Circuit Court case. I would ask the students, in real time, to find that case, and explain how faithfully the Circuit Court followed the Supreme Court precedent. This would require the students to quickly Shepardize the supreme court case, and limit the results with some keywords that I will casually mention. Then, the students will have to quickly scan the headnotes of the case, synthesize the holding, and explain it. This is a skill that any practicing attorney would be well served to know: working quickly to find the info you are looking for!

At the beginning of the semester, no doubt, students will be flustered and find this quite difficult. But this can, if done properly, be done in about a minute or so. Students can even learn to use Google and other free tools to find this info faster than with Westlaw. Students who find the case first can enter the citation to the livechat, and answer the question. If I can teach a student to apply a constitutional principle in a short period of time by finding relevant lower court precedents, I will feel confident that I have bridged this gap. This helps to connect theory and doctrine. This allows students to “generate value in innovative ways.”

I have several more ideas along this line, but this will suffice for now.

After class

The discussion does not end when the bell rings. I would continue to engage the students in discussion after class using Twitter with an appropriate hashtag. This forces students to keep their answers concise (140 characters), and allows them to freely engage in discussion with their colleagues. Additionally, following class I will share with the students additional hypothetical type questions that relate to the precedents learned.

This model requires minimal foundational or structural changes in the way substantive courses are taught. Rather, this approach only requires a tweaking of the traditional case method to adapt to the future needs of the legal marketplace, and nourishes in students the “creator,” rather than the mere “mechanic” mindset of the future. These approaches, unlike simulations, which are “difficult and expensive,”


This post provides a research agenda for an article I am working on, as well as my developing teaching philosophy. I will keep you posted.

Constitution Day at the Cato Institute Tomorrow. See you there.

September 15th, 2010

Every Constitution Day for the past 3 years, I have somehow found myself drawn to the F. A. Hayek Auditorium at the Cato Institute to attend Cato’s superb Constitution Day event. Tomorrow will be no exception.

If you are in Washington, I’ll strongly encourage you to attend. Along with the Federalist Society National Lawyers Conference this is one of the top DC events of the year. The details are here. Massive props to my frequent-collaborator Ilya Shapiro for organizing this excellent event.

Additionally, the article I co-authored with Alan Gura and Ilya, titled The Tell-Tale Privileges or Immunities Clause (SSRN), will debut in the Cato Supreme Review. I’m still stunned to be published in the same volume as Richard Epstein, Nadine Strossen, Larry Ribstein,and others.