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Ribstein on Richard Fallon’s article about academics joining scholars briefs.

PEAPs’ significance as a distinct category of amateur journalism is that they connect both with journalism and scholarship. While PEAPs involve the same sort of activity as professional journalism, scholar-journalists gain an advantage over professionals by leveraging their expertise. This has three implications. First, the posts are more informed than other blogs that engage in self-expression. Scholars can draw from their expertise to make immediate and timely posts without engaging in the significant new research that generalist journalists would have to perform. Second, the post is likely to be more disciplined and objective than other selfexpressive blogs because it derives from a body of prior ideas developed without specific public policy objectives. Third, the blogger stakes her scholarly reputation on the post, and therefore has more incentive than other amateurs to carefully support her position. These differences between PEAPs and other forms of amateur journalism relate to the impact PEAPs may have on the nature and quality of professional journalism * * *

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PEAPs are bloggers who derive credibility from their scholarly perspective.  This supports standards of academic blogging that are similar to those Fallon suggests for participation in amicus briefs.

Larry Ribstein reports from the in-house counsel conference, inquiring whether a different model should be used to train in-house lawyers.

Today’s Times had a front-page piece on the state of law schools.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.

And there’s this:

Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital.

And this concern about law schools being viewed as trade schools:

“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”

This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.

A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice.

Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

And the shortfall in legal education:

Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.

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To succeed in this environment, graduates will need entrepreneurial skills, management ability and some expertise in landing clients. They will need to know less about Contracts and more about contracts.

And the opposition to change

Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law?

But those pushing for more practical content aren’t looking for a bunch of classes in legal minutiae, nor do they expect client-ready lawyers to march off their campus. Instead, they would like to see less bias against professional training and more classes that engage the law as it exists today.

A lot of the change is that profs don’t want to do new prep. As I prepare for my first round of classes, I will incorporate some practical elements. I already started giving it some thought. Perhaps a tour of the town to show sites where eminent domain was used to build baseball stadiums?

But there were limits. Professor Rubin failed to sell his faculty members on a retooled first-year Contracts class.

“Some members of the faculty got a little overstressed by all the change,” Professor Rubin says. “Planning a new course, you have to move out of your comfort zone a little in terms of teaching. And there is always the fear that your school will wind up being seen as an oddball place.”

Another problem he encountered: there are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.

And on the cost of legal scholarship:

Of course, much of academia produces cryptic, narrowly cast and unread scholarship. But a pie chart of how law school tuition is actually spent would show an enormous slice for research and writing of law review articles.

How enormous? Last year, J.D., or juris doctor, students spent about $3.6 billion on tuition, according to American Bar Association figures, accounting for discounts through merit- and need-based aid. Given that about half of a law school’s budget is spent on faculty salary and benefits, and that tenure-track faculty members consume about 80 percent of the faculty budget — and that such professors spend about 40 percent of their time producing scholarship — roughly one-sixth of that $3.6 billion subsidized faculty scholarship. That’s more than $575 million.

Much of that comes from taxpayers in the form of federal student loans. Steven R. Smith, dean of the California Western School of Law, described this sum as “the equivalent of an involuntary fee” that students must pay to get a diploma. “It is not obvious that students are the ones who should be paying the cost of legal scholarship. They are generally borrowing the money to do this and they are the least able of all those in the profession to pay for it.”

And on the AALS market:

About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.

At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.

Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”

Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of  law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).

And on the lack of experience (something which I suffer from ):

This might seem a paradox — experienced people need not apply — but the academy views seasoned pros with a certain suspicion. In fact, a number of veterans of legal practice who failed to land tenure-track jobs say that experience was a stigma they could not beat.

“It can be fatal, because the academy wants people who are not sullied by the practice of law,” said a longtime lawyer and adjunct professor, who did not want to be identified because his remarks might alienate colleagues. “A lot of people who are good at big ideas, the people who teach at law school, think it is beneath them.”

I did not have those credentials.

There has been a massive reaction in the blogosphere.

From Larry Ribstein:

Well, yes, law schools should pay more attention to the market for lawyers and offer more value.  But as I’ve written in my article Practicing Theory, this doesn’t mean teaching what lawyers traditionally do.  Lawyers now don’t draft agreements from scratch.  There’s an app for that — software templates modified by user input.  A technological tsunami is sweeping over legal services.

Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains.

Law students also will need business skills that law schools don’t traditionally teach.  Indeed, Segal himself notes that “graduates will need entrepreneurial skills, management ability and some expertise in landing clients” without considering the implications of this observation for legal education.

The real problem, as discussed in Practicing Theory, is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands. Segal’s article, like others in this series, ignores such nuance, preferring to string together well-worn criticisms and to eschew coherent analysis in favor of attention-getting quotes.

As usual, I agree with Larry.

Jeffrey Kahn writes this, which I thing is symptomatic of what the Times criticzies:

Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

 

I previously blogged about Harlan, a Siri-like litigation assistance tool that I hope to develop in the future. A few more thoughts based on this article discussing how Siri poses a legitimate threat to Google.

This is because Siri transforms computers from “passive” participants in the search process to “active” ones and in so doing urinates all over Google’s model. Instead of taking queries and then passively spitting out 10 blue links—which you then have to mine for the correct information—Siri actively goes and gets the correct information, herself. If you don’t give Siri the input she needs, she’ll ask you directed questions until you do. If the goal of your search is a specific action (like buying a movie ticket, reserving a table or calling a taxi), Siri can skip all the steps Googling would require and just do it.  At least that is the idea.  Siri is still quite limited in what it can do, but the writing is on the wall.

When a technology comes along that eliminates the need to follow previously-required processes, we call it disruptive. There’s no other way to slice it.

The Westlaw/Lexis model is like Google (just not quite as good). Even WestLaw next is passive. The user has to enter in a series of search terms, and know where to search to find the right answer.

I see Harlan as a product that leads the user through the legal wilderness. Knowing nothing more than a few facts about the case, Harlan could ask a series of question, and rather than just spitting out lots of cases the user would have to read, it would narrow and winnow through the law, and find just what the person needs.

This would be a disruptive technology.

I just got a draft of Larry Ribstein’s new article, which I will be reading shortly. It looks like another winner.

Following up from my post about Harlan–the virtual litigation assistant of the future–here is a section I wrote for my forthcoming article on FantasySCOTUS:

Admittedly, in its present form, FantasySCOTUS 1.0 is not particularly reliable for making important legal decisions. Further, while, the eighty or so cases the Supreme Court decides each year are no doubt quite significant, and of broad interest, the 280,000 civil cases commenced in District Courts and the 57,000 appeals commenced in Courts of Appeals in 2010 affect far more people. A prediction market that can provide accurate predictions for the vast number of cases filed, and appealed, in federal courts each year could prove invaluable to lawyers and non-lawyers alike.

Building on an idea developed by Professors Kobayashi and Ribstein in Law’s Information Revolution, a future version of FantasySCOTUS could shift from using a crowdsourced model—it is not likely that enough people will be intimately familiar with the thousands of cases decided in the inferior courts—to a super cruncher model with an improved decision engine, that could analyze data from previously decided cases to offer predictions for cases not yet filed.

It would be quite conceivable for a bot to crawl through all of the filings in PACER —which stores every brief, opinion, and order filed in the federal courts, reportedly around 500 million documents —and develop a comprehensive database of all aspects of how each court works. Using sophisticated text-recognition and natural language searches, a database could automatically index all of the cases—no need for fallible research assistants to laboriously tag cases—noting the parties who filed briefs, the courts they filed in, the judges who decided the cases, what type of case it was, what were the damages or relief sought, what were the merits of the case, how long it took to decide, what types of briefs were filed, how the case was resolved, etc. This process would be instantly performed with every new filing, so the database would constantly be up to date with the latest jurisprudential and litigation trends—no need to resort to outdated data sets from the past.

With this data, a prediction engine could determine the various traits of successful and unsuccessful actions of various types, in various courts, under various circumstances. With enough data the prediction engine could provide, ex ante, a prognosis of how a case will likely proceed. Telling a client how a case will turn out—usually any client’s main concern—is something that attorneys, no matter how well qualified, can only do imprecisely. As Professor Ayres remarked, “[t]rolling through databases can reveal underlying causes that traditional experts”—even pricey, experienced lawyers—“never even considered.” If lawyers can ascertain in advance what the likely results of litigation would be, they could “avoid[] disputes altogether” and settle out of court. Even if the dispute cannot be avoided, a realistic prediction of probable damages could yield ways “to contain disagreements amicably and to avoid unnecessary escalation”

But what if the engine could tell an attorney not only what will happen, but also how it should be accomplished? Imagine a program similar to the iPhone’s Siri app. Call it Harlan. A would-be litigator could tell Harlan the relevant parties, the facts, the merits, and the remdy sought; any relevant documents would be shared. Harlan could generate a roadmap of how the case would be resolved with different judges in different courts, and perhaps even recommend an ideal forum (call it fantasy-forum-shopping). Harlan could explain how best to structure the litigation, what types of motions would be most successful, and how to arrange arguments. With advances in artificial intelligence—Google has developed cars that drive themselves, and IBM’s Watson defeated the Jeopardy world champion —it is not much of a stretch to suggest that Harlan could even draft the briefs (many sections of briefs today are copied from boilerplate anyway), or at least check the persuasiveness of the arguments against other successful arguments already accepted by courts. Harlan would also work wonders for non-lawyers. A person could download the app, talk to Harlan in plain language, explain the problem, and listen to possible remedies—that may or may not involve paying a lawyer. Harlan would improve access to justice, at little to no cost.

Such a product would transform the legal profession, and our society. This change would require a fundamental rethinking of approaches to legal education, the practice of law, and broadly speaking, our system of justice. It will likely first be first met with doubt—computers can’t replace human lawyers! This technology would not be about replacing lawyers—at least lawyers who adapt —but rather providing advocates with information and knowledge in order to serve clients more effectively at a lower cost. Next, there will be fierce resistance to change from entrenched interests in the form of ethical and regulatory challenges —computers can’t follow the rules of ethics, and they will provide ineffective assistance! These criticisms are fair, but they serve as opportunities to improve the quality of representation all around, rather than instinctively oppose any change that upsets the status quo. Reforms to the regulatory regime will come, followed by gradual acceptance of this technology. We hope that FantasySCOTUS will serve as a first step in the evolution from today’s time-consuming, customized labor-intensive legal market to tomorrow’s on-demand, commoditized law’s information revolution

I see the last paragraph as basically a roadmap for my career over the next decade or so. I’m sure at some point I, or others, will go back to this post and say something either (a) Damn, he was right; or (b) Damn he was a fool. I’m hoping for the former, but I wouldn’t be surprised if it’s the latter.