Does Congress need law clerks?

Larry Kramer says yes after a conference on the proposition in April. I question the reasoning somewhat--doesn't Congress already have hundreds of attorneys employed by committees? Still, more clerks could give Congress bright "young lawyers [who] would spend a year researching and drafting laws before moving on to other legal endeavors." In a way, new law students offer a unique perspective to the drafting process. From Law.com:

"The legal profession as such is extremely court-centered," Kramer said. "One of the reasons for that, I think, is that court clerkships are the first job out the door for many graduates of the best law schools in the country. They move on and become leaders in the profession, and it's incredible the extent to which that first job shapes their thinking and understanding about the profession."

Advocates of congressional clerkships are dreaming big, but starting small. The Daniel Webster Congressional Clerkship Act of 2011, a bill introduced in April by U.S. Rep. Dan Lungren, R-Calif., and co-sponsored by U.S. Rep. Zoe Lofgren, D-Calif., would create a pilot program with 12 clerks. The Committee on Rules and Administration of the Senate and the House Committee on House Administration would select clerks from a centralized pool. Each chamber would get six clerks, to be divided between the parties.

The article further elaborates on the proposed pilot program:

Legislators and committee would compete for the clerks by offering the most attractive type of work. The clerks would choose where they want to spend their year.

Keeping the pilot program small will help ensure that competition for clerk spots is stiff, said Yale Law School professor Bill Eskridge, a leading authority on the legislative process. The plan will have succeeded, he said, if the congressional clerkships carry prestige equal to that accorded to federal court clerkships. The long-term plans calls for the program to expand after the pilot phase.

Supporters acknowledge that getting the bill passed during this legislative session may be difficult, given that Congress is in budget-cutting mode. The cost of the pilot program is relatively small -- about $1 million per year, with clerks earning the same salary as clerks in the U.S. District Court for the District of Columbia -- but the cost has been a hurdle in the past.

Senator Chuck Schumer has sponsored a sister bill in the Senate on the measure. It will be interesting to see how this shakes out.

A Response from UT Law and a Clarification

A few days ago, we posted a story about the relative shortage of practical legal education opportunities at many U.S. law schools, as well as the according need for change. In that article, I cited an op-ed in the Daily Texan written by three University of Texas Law students on how UT Law does not currently offer a mandatory brief writing course for first years. A few other outlets--including the Legal Writing Prof Blog--picked up the story. Well, UT Law has chosen to respond to the articles. Specifically, Wayne Schiess, director of the Legal Writing program at UT Law, said in a statement to the Legal Writing Prof Blog:

It is true that the University of Texas School of Law has a first-year legal-writing curriculum without brief writing. When the law school administration removed credits from the required course five years ago, brief writing was lost. Needless to say, the legal-writing faculty thought it was a mistake. So we’ve been teaching a brief-writing elective that only some 1Ls can get into. We're optimistic that brief writing will return to the required first-year curriculum. Indeed, a proposal to do that comes before the faculty this week.

We applaud the changes the school is making. However, I want to emphasize that the article was not meant to single UT Law out. It is obviously a fine institution that provides its students with fantastic opportunities (so, Hook 'em Horns!). And thus, despite the intimations of numerous posters on message boards around the internet, I do not have a problem with UT Law as an academic institution; I do have a problem, however, with the law school system as a whole. If one takes a full glance at the article I wrote, as well as the February 2009 article it cited, one will see that many of us on this blog believe that we need substantial reform in the current law school model because it is simply failing students.

2009/2010/2011 BigLaw Class Years: The Gilded Ones?

Look around your law school campus and you will see the carnage left behind by the financial crisis. Classes of 2009/2010/2011 are left jobless and debt ridden. Among the detritus scattered around campus, however, there are the lucky few who have successfully secured gainful employment at some of the nation’s premier firms. It is my belief that these “survivors” of sorts are poised to have the most market (and hence financial) leverage in the medium- and long-term. There are two phenomena that support my assertion: 1) the seemingly unmovable law firm profit model; and 2) demographic destiny.

First, to quote Mark Twain, the reports of the BigLaw model’s death are greatly exaggerated. While some firms have moved away from traditional lock-step compensation systems and have outsourced the more mundane portions of their work, the fundamental premise of their business depends on starting large classes of associates at the bottom of the pyramid and slowly winnowing them out either via voluntary or forced attrition before they reach the top layers. Many of the survivors of this process who end up at the top of this pyramid are compensated with a consecrated slice of the partnership pie. So how does this ancient and seemingly indestructible profit model help the lucky few who landed summer associate positions? Simple. Supply and demand.

These lucky few will ultimately succumb to the same pressures experienced by any other BigLaw class year. Some will leave for government, some for mid-size/small law, and some will just leave the law period. This inevitable thinning of the 2009/2010/2011 class years will create an abnormally small layer in the BigLaw pyramid relative to the size of the firms’ respective partnerships. Ultimately, when the economy turns around (yes, one day it will be better; even the Great Depression came to an end after all), BigLaw will have more work than mid-level associates to do it. The result of this excess work and limited supply of experienced attorneys means that there could very well be a financial war between firms for mid-level attorneys. BigLaw firms will be unable to fill these voids in their ranks with attorneys from small/mid-sized law firms and the government because they will simply not have the requisite experience to do the work.

Second, viewing the future with more of a long-term lens, old partners, particularly baby boomers, have to retire at some point. Whether by “age-out” clauses in partnership agreements or simply by partners deciding that they have hit the end of the line, there is a large generation of law firm partners who will be heading for greener pastures in the next decade or so. The generations immediately behind them, particularly Generation X and the Millennials, are quite a bit smaller than their baby boomer predecessors. Come time for partnership promotions, there might very well be a shortfall in available talent to take up the reins of the firm; particularly, a shortfall in talent around the time the 2009/2010/2011 classes are up for partner. Those who make through the eight to ten years of hoops stand (I think) a much improved chance for partner compared to their boomer and Generation X peers.

So what’s the conclusion? Those in the Classes of 2009/2010/2011 who are/were able to obtain a BigLaw position may have some serious market power behind them in the medium- and long-term. So long as these individuals can wade through the next two to three years of economic waters, they stand an excellent chance to develop a skill set that will be in high demand during the medium term (i.e., during their mid-level years) due to limited supply. Further, any members of these Classes who manage to survive eight to ten years in their firms also stand an excellent chance of making partner due to demographic pressures on the boomers.

Obviously this is all just speculation. Should the overall size of BigLaw shrink my predictions will not hold. However, given the ever increasing levels of regulation coming out of Washington, I believe that there may just be an enormous opportunity for these lucky few.

Informational Asymmetries, the Emperor's New Clothes and More Cries For Value

Early in 2009, we noted that the recession has exposed numerous deficiencies in the current legal education system. Accordingly, we argued for a systematic change in curriculum and focus. It appears that law students elsewhere are yearning for the same at their institutions. From The Daily Texan:

[C]riticisms [of the University of Texas Law School] are well-founded. In a survey of accredited law schools, Texas was the only school without a mandatory brief-writing course. In fact, only about half of first-year students surveyed reported being able to get into a brief-writing course. As a result, they will not be trained how to present arguments to a court — one of the most basic legal skills.

Instead of rectifying the problem by meeting national practical skills standards, UT Law instead chooses to steer law students away from taking practical courses by offering grossly grade-inflated first-year electives on such totally impractical topics as Race and Gender in the Constitution.

The first-year curve in all courses is set at 3.3; the average in these “electives” is a 3.8. A student in Race and Gender in the Constitution commented, “The class is a complete joke and a waste of time, but the professor gives almost everyone A’s.” Since law students’ employment is determined by their first-year GPA, creating such an exception to the curve is unfair to other students and misleading to employers relying on the veracity of student transcripts. . . .

So law students can game the system and come out Order of the Coif, while not knowing a single thing about the basic exceptions to the hearsay rule? I can vouch for the fact that this is an absolutely accurate characterization of the system as it is constituted both at my institution, and as the authors noted, at others.

But more pertinently, law school seems (oddly enough) to present a sort of transparent information asymmetry cogently illustrated by the student in this article: in many respects, law schools fail to meet the demands and expectations students have upon entering and that employers have when hiring. Yet, it seems like we all know a little bit of what we are getting at the outset; the sales pitch is just all too compelling. In this sense, law school is more like an experience good that shouldn't demand any sort of warranty. But the problems are still exceedingly pervasive. As the authors noted with respect to their institution:

[There is a] deeper problem at UT Law that has drawn criticism from all corners of the legal industry: Lax institutional standards have marginalized the law school’s role in society of preparing its students to be competent, ethical lawyers.

I hate to say it, but this problem is not confined to UT Law. We need major reforms soon, because permitting students to become engulfed in massive amounts of debt with little to no guidance on how to be competent lawyers will (inevitably, I think) continue to dilute the profession's quality, and worse yet, harm students' lives. Law students ought to be more vocal in their cries for change like the authors in the noted article.

Life as a Lawyer...

For those considering law school, be careful to remember that e-mails like these pop into your inbox from time to time once you take the plunge! Of course, your mileage may vary...

Posner on the Legal Profession

No longer a gentlemanly cartel? The legal profession is morphing, says Judge Posner at The University of Chicago Law School's commencement speech last June. I realize that this might be old news, but I just ran across it recently, and thought it would interest our readers.

Cheers!

How to be a Blogger: An Interview with David Lat

What is legal blogging, and why don't law students do more of it? This is a question that has been on my mind over the past few weeks (and really, months). Is blogging merely a hobby? A form of broadcast for the average person? For us, it has practically become a lifestyle. However, this wasn’t always the case; Blackbook Legal was actually conceived over a cup of chili at Potbelly's. Given our whimsical entrance into the blogosphere, I thought it best to seek an “expert opinion” on these important questions. I caught up with one of the legal profession's most notable and distinguished media personalities: David Lat of Breaking Media. David was very generous with his time, and I was grateful to speak with him both about his experiences and blogging in general.

The Legal Profession in the Media

I admit it. I am one of those law students who grew up watching legal shows for fun. Far before Jack McCoy, there was Angela Lansbury as the curious Jessica Fletcher and Andy Griffith as the hot dog loving, ever so clever Ben Matlock. Now, I'm a proud fan of all the Law & Orders, Criminal Minds, Cold Case, Without a Trace, and occasionally Boston Legal. I came across this article about the 25 Greatest Legal TV Shows and thought it was brilliant.

Have a favorite? Feel free to share!

Entering the Academy -- An Update

As a follow-up to Robin's article on entering academia, we received some helpful insight from Dr. Brian Leiter, the John P. Wilson Professor of Law and Chair of the Law Teaching: Placement of Graduates Committee at the University of Chicago Law School. Dr. Leiter pointed us in the direction of a helpful guide he prepared for prospective academics at this website. The guide is extremely informative, and we strongly recommend taking a look at it if you are at all interested in becoming a law professor.

Cheers!

Entering the Academy - One Step at a Time

Law schools work diligently to prepare students for rigorous careers in private practice, prestigious positions as judicial clerks, and/or rewarding opportunities to work in public interest. But if everyone is off practicing law, who will be left to teach it?

The students who often fall through the cracks in terms of career guidance are those who want to pursue academia. To address this problem, I spoke with Professor Richard Craswell of Stanford Law School about what law schools can do to encourage this career path and Professor Theodore Ruger of the University of Pennsylvania Law School ("Penn") to find out what law schools look for in a candidate.

Professor Craswell currently serves as the Chair of the Faculty Committee at Stanford in charge of helping students who want to enter the academy. He explained that Stanford assists students both while they are getting their JD as well as after they graduate. During law school, Stanford offers a seminar about selected topics in legal scholarship in which faculty members present topics that they are interested in each week and engage students in a discussion about current hot issues that scholars are writing about. Also, the administration encourages students to sit in on weekly faculty workshops in which similar presentations are given. Professor Craswell stressed the importance of these programs in that students can both start thinking about their own scholarly research and form informal faculty contacts. Finally, Stanford offers an introduction to teaching as a profession workshop on its website where it directs students to helpful and applicable resources.

After a student graduates, he or she can contact the faculty committee, and it will review resumes, offer advice for first round interviews, schedule practice interviews, and give extensive feedback to prepare the candidate to enter the job market. All of these resources enable Stanford to proudly send many graduates into the academy, and hopefully other schools will follow in its footsteps.

On the flip side, Professor Ruger addressed the hiring process from a law school’s perspective. Law schools hire on two different pathways--entry level and lateral. For entry level positions, the Association of American Law Schools creates a registry of candidates that are on the market in a given year. Candidates register their resume with AALS in August, and at the end of the summer, AALS distributes those materials to the member law schools. It then holds first round interviews in November in which representatives from law schools come and conduct 20-30 interviews with various professorial candidates. Schools then choose a handful of candidates to come visit for a callback, which consists of a full day of interviews and a “job talk” presenting a piece of the candidate’s written work.

When asked what top tier law schools look for in a candidate, Professor Ruger claimed that:

in the past 10-20 years, the bar has been raised dramatically in terms of expecting people to write and publish between the time they leave law school and the time they go on the market. Therefore, it would be very rare to hire someone based on nothing but a law school record.

In the time between school and applying for a position, Professor Ruger emphasized the importance of compiling scholarly work and estimated that for a school like Penn, 30 percent of new hires will most likely have either a PhD or another advanced degree along with a JD.

When asked what advice he would give law students who know they want to be academics, Professor Ruger claimed,

[l]aw schools are looking for people who have a real curiosity and spark- so try to find an area of law that really engages you.

He also emphasized the importance of developing strong relationships with professors who can serve as both mentors and references. Finally, he promoted doing as much writing as you can, whether in seminars, on a journal, or as a research assistant.

For those law students who do eventually want to enter the academy, I hope that your schools will effectively facilitate your career path, and I look forward to reading your scholarship in the future.

2,000 Legal Jobs Lost

From Law.com:

According to a monthly jobs report released Friday by the U.S. Bureau of Labor Statistics, the nation lost 263,000 jobs in September as the unemployment rate reached 9.8 percent, the highest in 26 years.

The legal sector wasn't spared. When the data is seasonally adjusted, the sector shed another 2,000 jobs. When not seasonally adjusted, the legal industry lost 13,600 jobs, likely a result of the conclusion of most summer associate programs and the return of students to their law schools.

Click here for the article.

OCI (Unsurprisingly) Bleak at Top Schools . . . Like Harvard

According to Law.com:

Think you've got it tough? You could be a student at Harvard Law School, where big firm recruitment is down 20 percent, the Harvard Crimson reports. . . . HLS administrators and experts hinted to the Crimson that the school might push back the start of its fall recruiting season. And starting this spring, HLS will host
a second recruitment period for "firms whose outlooks have changed" in anticipation of an economic recovery.

A second recruitment period at Harvard? Man, these are weird times.

A Troubling Statistic

Law.com posted an article discussing a very disconcerting--yet perhaps, unsurprising--statistic released by Gallup: roughly 25% of Americans currently have a favorable or "positive" view of the legal profession. This finding is particularly troubling given that, as the article notes, "the banking industry--linked to the current foreclosure crisis and our widespread economic woes--ranked higher than lawyers with . . . 28 percent holding a positive image." Unfortunately, common misconceptions seem to drown out any good that lawyers add to the world.

I guess this begs the question of what good fixating on prestige is if the rest of the country does not fixate with you...