MauledAgain

An article in this month's ABA Journal, "Stuck in the Rut: It's Time to Stop Handling Cases as if You're in Law School" (94 A.B.A.J. 24 (March 2008), caught my eye even though it appeared to be about litigation. That's because the tag line suggested that the chasm between law school and law practice would be scrutinized. It was.

The author, Jim McElhaney, is a litigator who turned to law teaching several decades ago. He has written several books on trial advocacy, and writes a monthly column on litigation for the ABA Journal. Several years ago, his columns were bundled into a book. He travels widely, lecturing at CLE and similar programs. He lives in that borderland between law school and law practice, a place few practitioners and few academics inhabit. That is why I was elated to read what he wrote in his latest column.

McElhaney's point is, to quote him, that "a legal education can actually turn into a rut that leads to the kind of mediocrity" often seen in law practice. How does that happen? In part, says McElhaney, because "law schools are not interested in teaching their students to communicate with laypeople, so they leave the job half-done." He makes a point so obvious it boggles my mind that outside of clinical courses and an occasional course here and there taught by someone living in that borderland, law school courses don't focus on questions such as those I ask, including, "What does one now ask the client?" and "How would you explain this to the client?" Those questions bring some of the most vociferous objections from law students, chiefly, I think, as some have explained, because they are unaccustomed to being so challenged in a law school classroom. They're accustomed to, and have become adept at, something else. Why is that?

McElhaney explains the flaw in how law schools prepare students. "In law school, finding all the issues in the case -- not saying how the case should be decided -- was the right way to answer almost every exam question. The students who never understood what the teachers were after didn't last very long. The winners were the people who could list both sides of all the issues in every question." He's absolutely right. When I ask students questions such as "What additional facts must be identified before the client's question can be answered?" I often get recitations of black letter law, replete with identification of issues many of which are not relevant to the inquiry. Worse, students too frequently use the IRAC (issue, rule, analysis, conclusion) approach in their writing, rather than restricting it to where it belongs, namely, their thinking. I deliberately frame most, though not all, of my examination and semester exercise questions so that students need to demonstrate something other than issue recognition skills, black letter law regurgitations, and dual-sided analyses that do not reach conclusions.

McElhaney then digs deeper into the problem. "Throughout law school," he notes, "you had to accept the facts as stated -- whether in the appellate decisions you read, the hypothetical questions the teachers spun in class or the final exam questions you puzzled your way through. In school, the facts were a given and the question was, what are the rules? Now, that's all reversed. In a trial, the rules are given and the question is, what are the facts?" Why is this so difficult for law faculty to understand? Years ago, when I discovered that my upper-year law students were skilled in issue recognition and black letter law regurgitation, but not much else, I redesigned my courses so that they students had ample opportunity to develop other law practice skills. About ten years ago, a very bright student, ranked near the top of her class, came to my office several times, each visit after a semester exercises, bewildered and frustrated by her low scores. It made no sense to her that she, obviously gifted and successful during her first year, was doing so poorly. We talked about how lawyers think. Finally, she returned, about four weeks into the semester, and proclaimed, "I figured out what you are doing. We're used to being told, 'Here is A and B, what does it get you?' and were expected to find C, but you're telling us we have A, need to get C, and must figure out what's missing." She articulated for me, in a way that I had not formulated, what I was trying to get students to do. I borrowed her words. She didn't mind. Not only did her scores then rocket back to the top end, but she also explained that it changed how she thought her way through exams in other courses, and caused her to refine her writing to the point that the law firm where she was clerking made her an offer for a permanent position. She went from being most dissatisfied with my teaching to thinking I was brilliant. It wasn't a joking matter at the outset, but by the end of the semester we laughed about it.

Though she and I can see the smile-generating value in her epiphany moment, law students don't find humor in the frustration that confronts them when they discover the limited utility of black letter law regurgitation and issue spotting. Yes, those skills are important, but are they so important that they dominate law school to the point of pushing other skills out of the picture or, at best, into clinical courses and a few other small-enrollment, practice-like experiences? As McElhaney puts it, "But the practice of law -- in or out of court -- is not a law school exam." He's absolutely correct. Why, I ask again, does that reality go unnoticed by most law faculty? One might think that a person who decides to fork over $120,000 or more in law school tuition would receive in return education that guides the student through the process of learning all the intellectual skills required to practice law, rather than an education in which two of many skills are emphasized to the point of ad nauseam. Fortunately, curricular reform proposals once again are sweeping through law schools. Though calls for reform and pledges to restructure curriculums have popped up every 20 years or so in the legal academy, this time law schools had best get it right. The cost of failure might be far more than dissatisfied hiring partners, unhappy legal employers, and a few griping law professors willing and able to criticize from within the legal education system. This time, it may be the clients, who should be the ultimate focus of legal education, who rebel against paying huge fees to fund large salaries for law school graduates who don't know how, as McElhaney puts it, to do what they need to do by "turning everything you learned in law school upside down."

Overshadowing all of these thoughts about teaching law is the explosion in online education, a phenomenon that has not left legal education untouched. In fact, law schools across the country are offering online courses and online programs. The advantages of online education are well known, bringing opportunities to people otherwise unable to attend courses on campus, presumably reducing costs though that is debatable, and creating flexibility in terms of scheduling. On the other hand, the challenges of online education are daunting. Though it is easy, from a theoretical perspective, to propose “putting a course online,” the practical reality of making that work, from technological requirements to pedagogical concerns, means that the developer of the course must invest much more time in preparation than is required for a traditional in-classroom course.

My foremost reaction to what I have observed as several of my colleagues created online courses is that the process of creating the course requires implementation of mechanisms that had not been considered necessary in on-campus courses. It is one thing to go into a classroom and present problems to be discussed by students, but it is an entirely different proposition to craft the problem ahead of time, word for word, along with whatever response choices are presented. The logistical challenges, from attendance to review, from synchronous communication to effective methods of asynchronous interaction, are complex and interesting, but beyond the scope of this series, because they deserve an entire series of their own (hopefully written by someone much more immersed in the process than I have been).

What flows from my foremost reaction is the notion that many of the techniques adapted to online teaching have great value in the on-campus courses. In many instances, they improve those in-classroom experiences. Of course, some of the techniques adapted to online teaching were developed for on-campus courses before and at about the same time online learning began to get attention. For example, providing students with a means to communicate with faculty other than in the classroom or after a trek to the faculty member’s office has multiple advantages. From something as simple as email to something more refined such as an online discussion board, some years before the idea of putting the entire educational experience of a course online gained traction.

Will online education change teaching law? Yes, it already has and will continue to do so. Will there eventually be, as some have predicted or feared, on person teaching a particular subject to all law students in the country? Hopefully not and probably not. Just the idea of grading tens of thousands of exams, or answering hundreds of thousands of emails is mind-numbing. Certainly there should be no support for the time-worn undergraduate approach of having one person lecture to a thousand or more students while leaving the interaction to graduate students responsible for several dozen students. Having been enrolled in a course of that nature while in college, I would not be among those advocating bringing its features into the world on online legal education.

While I was away a friend and colleague forwarded an email that he had received from an outsourcing company in India, offering to do legal research and information. The company claims to produce high quality, low cost work, with excellent delivery schedules. On the side, I think they do atomic fusion, too.

Sorry about the sarcasm, but despite the company's guarantee of highest quality and accuracy available anywher, I just don't follow the logic. I'll skip over the claim of highest quality because I don't have time to pit my research skills, the research skills of people I know, and the research skills of the best lawyer-librarians with the employees of this company.

But I do want to share why I have more than just a few doubts. Doing research, in terms of gathering information, isn't very difficult. Of course, compiling legal information (not unlike what uninitiated law students think law school teachers) doesn't do much most of the time for most clients.

What matters is analysis. And it is in the analysis that a researcher finds the clues to develop the second and third layer of research. It's the reason that those teaching "legal research" in law schools end up teaching a fair bit of legal analysis.

Now, to do American law research and legal analysis, one needs to be educated in American law. Oh, a few Einsteins might teach it to themselves, but they won't be hiring themselves out to a company that is going to make the money from their efforts.

So who has that education? People who have graduated from American law schools. Now, will those graduates ship themselves off to India to work for "low cost" wages so that the owners of the company can gather profits on their efforts? NO!! They will ship themselves off to law firms that will pay them commensurate with their education and accomplishments (though perhaps not as much as the graduates would like to receive), and though their employer law firm will gather profits on their efforts, those law firms will provide guidance, mentoring, and client experience (even if not as intensely as in years past) that will refine the research and analytical skills of these newly hired attorneys.

Could it be that this company is sending its Indian employees to American law schools to learn American legal research and analysis to bring back to the company? I doubt it. The company would need to shell out at least $120,000 per employee (which makes "low cost" a bit more difficult to achieve). And once someone comes to America, as much as it is held in disdain by so many of the world's people, they tend to want to stay. Why? BECAUSE INCOME IS HIGHER, the quality of life is better, and opportunity abounds far beyond the confines of a partitioned cubicle grinding through the compilation of legal information.

I was tempted to waste a few dollars and send along an "interesting" American income tax question. But once I re-read the advertisement email, and noticed that legal research and information is one of "a number of services" that are provided, I decided to use the few dollars for something more fun than playing tax research and analysis games. After all, that happens every semester in the normal course of teaching.

All of that aside, I can't imagine a legal professional putting the fate of a client in the hands of an unknown, unseen, and unmet researcher thousands of miles away, who lacks American legal education, who lacks access to the state and local materials that are the more difficult even for domestic researchers to find, and who surely have a minimal command of the necessary language. Oh, I know that professionals in other fields are doing this, but will it make sense for the lawyer who is representing the patient, client, customer, or associate who is harmed by the use of off-shore resources to be exposed as doing the very thing of which the plaintiff is critical?

No, it would not.

Nor does it make sense to pay someone else to do one's thinking. That's what gets politicians in trouble. And we know that lawyers don't want to come across in the same light as do politicians. Ha.

It's that time of the year again. Yes, it's law school ranking season. After U.S. News and World Reports issues its compilation, the critics and analysts jump in, with no shortage of comparative charts to extract, things not to like, suggestions and questions on what law schools should do to improve their position, and alternative ways of measuring a law school's position in the hierarchy. It is indeed unfortunate that prospective students, and others, give any deference to the fact that one school is ranked sixth and another fifth, a point nicely made by David Bernstein.

Paul Caron has posted summaries of the biggest jumps up and down in the latest rankings. Bill Henderson, in a Conglomerate analysis questions the emphasis placed by law schools on cranking out more and more scholarship when his comparison of the numbers indicates that law schools rarely move much from year to year in the U.S. news rankings despite the shift in emphasis to scholarship. Dan Filler, in his Conglomerate post compares the newly released rankings with those from 1995 and 1998, and concludes that little movement occurs in the academic reputation component of the U.S. News rankings. An interesting de-cluttered version of the U.S. News rankings has been compiled by J. Gordon Hylton. But those in turn have been criticized, as in this review by Andrew Morriss andthis followup.

Brian Leiter, in his comparison of reputation rank with overall rank, discovers several "oddities" with the explanation perhaps resting on things such as public v. private status, size, and expenditures. Dan Solove, in his Concurring Opinions take on rankings labels the U.S. news rankings as "stupid" but then gives the editors credit for coming up with a magazine-selling gimmick that ends up influencing legal education because law schools play along rather than develop alternatives.

Dave Hoffman, in a Concurring Opinion pieces asks law school deans to identify where the money should go: scholarship? facilities? marketing? scholars? Alfred Brophy concludes that the money should be spent on law journals, because he has determined that as the number of citations to a law school's journals by other journals increases, the school's position in the rankings similarly begins to rise.

Speaking of alternatives, Brian Leiter has an extensive system in place which uses different factors and different weights. Whether or not one agrees with his methodology or results, one must admire someone who does more than gripe by trying to create something better. David Bernstein shared his idea at The Volokh Conspiracy that publishers from every corner should do law school rankings. Yet Ann Althouse questions whether Princeton Review's competing rankings can dislodge U.S. News.

An interesting discussion has gotten underway between those who think citations to a law school's journal is indicative of some component of quality, and those who prefer using statistics on downloads from SSRN, as nicely explained in this post by Alfred Brophy. Brian Leiter, among others, has carefully explainedthe flaws of using SSRN as a measure of too much.

Personally, I think the entire business of ranking law schools is not only stupid and silly, but dangerous. Graduates of allegedly top-notch law schools have been known to be professional failures in all sorts of ways. Graduates of schools ranked in the lower tiers, shunned by the supposed elites when it comes to hiring faculty, have joined the ranks of successful lawyers, business entrepreneurs, public servants, and law reformers. As I was told years ago, once someone is more than a few years out of law school, what counts among practitioners, and should count among academics, is what the person has accomplished. If rankings are defended as useful to employers of law graduates, my response is that employers need to find better ways to evaluate talent.

If, however, rankings are to exist, and I admit that they surely will continue to be published, then the metrics need to be fixed. The idea of using SSRN data disturbs me. It measures very little that is informative to the legal profession. SSRN data measures a very, very narrow bundle of a certain type of legal writing. It does not measure legal writing directed to the legal profession. It omits scholarship not published in student journals, though some elites think that the only writing that can be classified as scholarship is that which is published by third-year students who know little or nothing about what the legal profession needs to read and who rarely can get anything published in a timely manner. In specialized fields, where practicality must trump the philosophers, timely publication in professional journals is the mark of someone making a contribution to the law that should be reflected in the reputation of the author's institution.

In some ways, the debate between those advocating SSRN download counts and those tallying law review citations to other law reviews are living in a very isolated and increasingly irrelevant world. It is 2006. Law is being discussed, analyzed, and influenced not only by professional publications but also by blogs, listservs, wikis, and a variety of other channels that are at least as indicative, if not more indicative, of quality reasoning, excellent writing, and outstanding teaching.

Think about it. The debate concerns the ranking of law SCHOOLS. Yet rather than measure the effectiveness of the teaching, the evaluators put much of the emphasis on a very narrow slice of legal scholarship. SSRN and law review citation counts might be helpful in rating think tanks. Law schools should be, and are, much more than think tanks, though during the past two decades they have slid precariously away from their primary mission as the race to "out-Harvard" Harvard (or is it "out-Yale" Yale?) shifts faculty time and resources from innovative teaching to running in place on the "convince third-year students to publish you or forget about tenure" treadmill.

The true measure, though admittedly tough to get, is what judges, lawyers, and clients think of a school's graduates during the three-to-five-year window of law practice following graduation. Why 3 to 5 years? By the time someone has been in practice for 6, 7, 10, or more years, that person's reputation and accomplishments are no less a function of the mentoring and education experienced after graduation than they are of the school from which the person has his or her J.D. degree. Surely bar examination pass rates matter, though many law schools usually claim they aren't "teaching for the bar." Assuming bar exams are decent gateways for determining who can practice law, then what are law schools "teaching for?" Well, I've been told that law schools exist to train legal philosophers. Excellent. The world is just craving more legal philosophers. There's such a shortage, they command such salaries, it's amazing that anyone can find some to hire. Sorry for the sarcasm, but if there's something the world doesn't need, it's more legal philosophers.

Yes, even if everyone agreed that the metric should be a reputational evaluation of law school graduates in the few years after graduation, it is unlikely agreement could be reached on how to measure it. That's very true. Yet it also proves the stupidity and silliness of ranking law schools. Every law school in this country offers a quality legal education. Law schools should strive to be different rather than trying to fit the U.S. News (or any other rank maker's) mold. A school that emphasizes trial litigation preparation very well could be the ideal place for a gifted applicant who could qualify for admission to an elite school but whose goals are consistent with the education offered by the school focusing on litigation. In other words, what's a fine school for one person might be an inappropriate place for someone else. The notion that LSAT scores, undergraduate GPAs and similar predictive characteristics should match in lock-step with the hierarchy of law school rankings is nonsense.

The law school ranking business, unlike hierarchical sortings that reflect objectivity, is absurdly subjective. The outcome of the rankings is no different from those lists of "most beautiful women" or "most handsome men" that certain magazines and newspapers publish. Yes, someone could do metrics on distance between eyes, degree of eye roundness, curvature of cheekbones, density of hair, shape of nose, and other things that some researchers claim predicts "attractiveness" but ultimately I may think beautiful someone you think plain, and vice versa. Even if we might agree generally on categorization, trying to pick between two people who are similarly attractive is like trying to decide if Harvard or Yale is the better school.

And, ultimately, who cares? No one cared until the editors at U.S. News found a money-making gimmick, disservice that it is to the nation. I surely don't care. Nothing in the U.S. News rankings is affected by or affects the quality of, or demand for, my writing, my blog posts, my listserv messages, or my courses. And I do hope that the rest of the law faculty in this nation can adopt the same attitude. Do what is right, and don't sell out to the rankings game.

Thanks to a posting by my colleague Lou Sirico on the Legal Skills Prof Blog, I found my way to an Austin-American Statesman article describing plans at the University of Texas to cut the total number of years required to complete college and medical school from eight to seven. Designers of the plan, which has been implemented in similar ways at other schools, want to make medical school education more efficient, increase the number of physicians in Texas, reduce the time and costs required to earn the M.D. degree, eliminate redundancy, and make medical education more suitable to practicing medicine in the twenty-first century. Advocates of the plan point out that students who major in health-related disciplines in college end up taking the same science courses a second time when they enter medical or nursing school. One idea is to test students in particular subjects and if they earn a “proficient” grade, they are released from the obligation to take that course again.

So it’s not surprising that in his Legal Skills Prof Blog post, Lou suggested, “The plan: admit top undergraduate students at your college to your law school after three years of college and thus shave off a year of college expenses.” Is this possible? Would it work?

Admitting students to law school after three years of college is feasible if certain conditions are met. Testing for proficiency would make it more likely to succeed, but for the fact that unlike medical school faculties, law school faculties adhere to the questionable practice of not requiring any specific courses as a prerequisite to admission. It’s difficult to imagine law faculties agreeing on a list of courses in which proficiency should be tested.

What matters is not the number of years invested in college, but the amount of learning that takes place. Simply chopping off the last year of college makes no sense, because in many instances there are important courses that are left for the student’s last year, and unless the student has the foresight to take these courses during the first three years, something that might not be permissible in some universities, the student will enter law school with even less sufficiency of undergraduate education. I phrase the issue in that manner because I do not think that undergraduate education, in general, prepares students for law school as well as it could and should. These are deeper questions I’ve addressed in posts such as Bringing Practical Awareness Into Law School Education and Undergraduate Majors and LSAT Scores: Chickens and Eggs.

An example demonstrates what I mean when I claim that what matters most is the amount of learning, not the number of years. When I was enrolled as an undergraduate at the University of Pennsylvania’s Wharton School, I was required to complete 120 credit hours, or 40 courses, to earn the degree. My friends in the College of Liberal Arts were required to complete 96 credit hours, or 32 courses. This meant that each semester, Wharton students were taking five courses while their colleagues in the College were taking four. Were those four courses equivalent to Wharton’s five courses? No. Wharton students were enrolled not only in Wharton courses, but were required to complete two semesters of Physics, two semesters of Calculus, two semesters of Statistics, and a variety of courses in other colleges, for the purpose of obtaining a well-rounded education, but not at the expense of cutting into the core Wharton courses. Students in the College were permitted to take courses in other schools but did so as replacements for, and not in addition to, whatever their core course load happened to be. Someone I knew at the university’s radio station, where I worked, decided to take five courses each semester while enrolled in the college, and with two summer school courses, completed college in three years, saving not only a year but knocking down tuition by 25 percent. She did not, however, give up on the amount of learning she experienced. There is no reason today’s students cannot increase their semester course loads and thus cut down on their college tuition while retaining their education experience. I’m all in favor of that approach. I’m not in favor of reducing tuition by reducing the education experience. Students arrive in law school sufficiently deficient in education and in need of remedial experiences that exacerbating this condition would not bode well for their professional success.

Yes, three years of college might be enough. Or perhaps two, for the very energetic and talented student. Law schools can make this tuition reduction dream come true by designating education that students need before entering law school and providing proficiency examinations to identify the students who are ready to take advantage of the time-saving, tuition-lowering approach. Whether law schools and their faculties can let go of the “we can teach you to be lawyers (or legal philosophers) in three years no matter what you studied in college” delusion remains to be seen. Law schools that truly care about making the legal profession more accessible to students who are stretched in terms of financial resources will find ways to do what is right even if it is bold, risky, and innovative.

A thought-provoking suggestion from Rob Nassau at Syracuse has turned attention to the question of whether it would make sense for the IRS to hire law school graduates to be tax auditors. Nassau suggests that if the IRS hired 2,500 law school graduates and “put them to work auditing people and corporations, ... 2,500 well-paying jobs that more than paid for themselves” would be created.

Let’s look at this from the perspective of the IRS. We need to assume that the IRS has the funds to hire 2,500 new auditors or else the idea goes nowhere. If the IRS had the resources to hire 2,500 people to audit tax returns, would it make sense to hire law school graduates? I don’t think so. Aside from perhaps one or two law school graduates who worked as IRS auditors before entering law school, students graduating from law school have not learned the skills required to audit tax returns. There simply are no courses in which law students are taught tax auditing. That’s because people don’t go to law school to become tax auditors. So the IRS would need to put these 2,500 law school graduates into training programs. But if the IRS is going to do the training, then why hire law school graduates who are going to command salaries high up on the GS pay scale? It would make more sense to hire college graduates who have accounting degrees, because they’re at least part-way to where they need to be to become tax auditors, and thus require less training than would the law school graduates. College graduates would not be earning salaries as high on the GS pay scale as would law graduates. In the past, the IRS has even hired people to be tax auditors who did not have college educations, and although that is probably an unwise choice in this day and age, but it demonstrates that in terms of tax auditing, the marginal utility of a law school education, especially one shallow in tax law and replete with theoretical courses, isn’t very much compared to the alternatives.

One of the comments to Paul Caron’s posting on the suggestion hit the nail on the head. Someone with the username save_the_rustbelt noted, “Hire lawyers to do audits? Sorta like using a screw driver to pound nails.” Exactly. This commentator then described a deposition in which a trial lawyer did not know the difference between revenue and income. Strange, because that’s something all lawyers should know whether or not they decide to practice tax.

Someone named Bma shared a desire for clarification, with this comment: “If the good professor means create attorney jobs (requiring Bar admission) in Chief Counsel, they would not be ‘auditing people and corporations.’ I'm confused....” I posted a response to Bma suggesting that Chief Counsel could not absorb or use 2,500 attorneys, even with the huge regulations backlog and the number of cases being litigated. How could the Chief Counsel’s office deal with training 2,500 new attorneys? I’m guessing that the nation’s law schools graduate only a few hundred students who, because of prior work experience, enrollment in a law school Tax Clinic, or a summer job, would be ready to take on the tasks facing Chief Counsel attorneys under circumstances requiring minimal training by the office. The overwhelming percentage of law school graduates leave their alma maters having taken no tax courses or one tax course. And too many who have taken one tax course are far more expert in arguing about what the tax law should be, rather than learning and understanding what the tax law is. Not only are they not ready to be tax auditors, they’re not ready for much else.

Jefferson VanderWolk correctly asserts that there is a “lot of tax due that the IRS doesn’t collect,” claims that the IRS has a shortage of good field agents, and claims that “its current field agents don’t fully understand a lot of what they are seeing, especially in the files of well-advised taxpayers who have done complicated tax planning.” Let’s assume this is true, and it probably is to some extent though I’m not ready to tag every field agent as deficient in the manner VanderWolk suggests. VanderWolk then argues a point that is almost impossible to rebut, namely, that law graduates “who can’t find jobs would rather be employed with a non-law salary than not employed at all.” Somehow, he then takes these premises to this conclusion: “And their legal education would certainly make them better candidates to deal effectively with audits of well-advised taxpayers.” I totally disagree, but for the few law graduates who because of other experience are capable of dissecting the complex transactions that are involved in the sort of tax planning to which VanderWolk refers. Even law students who have worked in Tax Clinics, though perhaps ready to audit tax returns with earned income tax credit, innocent spouse, dependency exemption, and similar basic issues, are totally incapable of dealing with tax returns filed by taxpayers whose tax planning has been put together by tax practitioners with years and years of experience. Yes, they could be trained, but that brings us back to the problem that people with accounting degrees or tax practice experience would require less training.

The person posting under the name save_the_rustbelt concluded, “There are too many law schools and the real solution is becoming very clear.” Again, I disagree. There are too many people in this country who do not get the legal advice that they need. The problem reflects the inability of many of these potential clients to pay attorney fees at levels that attorneys need to charge in order to service the huge debt they incur from attending law school. They incur huge debt because they are financing the “scholarly” writing of law faculty many of whom spend far more time writing than teaching, and when they are teaching, aren’t preparing their students to be of use to law firms or the IRS or anyone else when they graduate because those law firms, or the IRS, must then do the training that is required. The problem isn’t that there are too many law schools. It’s that there are too many law schools not giving the practice world graduates who are ready to do what needs to be done. I’ve discussed these issues in posts such as Evolutionary Changes in Legal Education, How A Transformative Recession Affects Law Practice and Legal Education , and Graduation Day: A Time to Think.

The point isn’t that law schools should teach students to become tax auditors. People don’t need to go to law school to become tax auditors. Law schools should not be teaching people to be tax auditors or rocket scientists. Nor should law graduates be funneled into tax auditing simply because they need jobs. They should be funneled into legal jobs in which their skills are required, and in order to maximize the number of legal jobs in which their skills are required, they need to leave law school with more skills than they currently do.

For years, a few of us stood alone, teaching our law school classes in a way that resembles what students will do as practitioners: solving problems and preventing problems. Many students chafed. The problem approach requires work to be done throughout the semester. It requires more than looking at an outline from the previous iteration of the course. It requires more than the night-before-exam cramming that feeds into the closed-book memorization and regurgitation approach to measuring ability.

Teaching through the problem method is challenging. New problems must be created each semester, because using old problems presents at least two problems. First, in some areas of law, such as tax, last year's problem may be obsolete, and this year's problem requires adaptation to a new or amended law. Second, students raised on the memorize-and-regurgitate formal that permeates much of K-12 and undergraduate education, exacerbated by the No Child Left Behind campaign, think that if they can find the answer to last year's problem from someone who previously took the course, they can earn high grades by sharing what they have "discovered." Finding information on the Internet or on last year's course outline is not a hallmark of an A student, other than (perhaps) in legal research courses.

Law schools claim to teach students "how to think like lawyers." The irony is that lawyers don't think much differently than do accomplished people in any other field, be it engineering, music, cancer research, or design. Find the facts, determine what additional facts are required, outline the issues, ponder alternatives, do some trial-and-error application, take a position, argue for one's conclusion. Engineers are trying to solve and prevent problems. So, too, are cancer researchers. So, too, are lawyers. That is why law schools, despite what they claim, are in the business of teaching their students to think. That's it. To think.

Problem solving and problem prevention requires people to think. Thinking, in turn, requires independent thought. The problem approach to teaching nurtures these skills.

So it came as no surprise, and yet as somewhat of a surprise, to learn (as reported here) that Harvard is considering injecting the problem approach into its curriculum. And it surely was no surprise to read confirmation of what already was known: A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach. After all, back in 1992, an ABA Task Force on Legal Education concluded that law students should have instruction in problem solving. Has that happened? Yes, for students who enroll in the few courses that use problem solving as part of the pedagogy. Some students manage to float through law school on a theoretical and philosophical track that exacerbates the bewilderment and disillusionment greeting them on their first job (a topic unto itself that I plan to address in a subsequent posting).

I share a few quotes from each article. To those who know me, trust me, these quotes are not mine. Yet they paraphrase things I've been saying for years. I've tossed in a few editorial comments. I just couldn't resist.

From A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach:

"I have found it to be a wonderful thing," says Peggy Cooper Davis, an ethics professor at New York University School of Law, "because it gets students thinking about their responsibilities as a professional, and it gets them struggling with what it means to represent someone."

.....

"The [Socratic] method is a great way of teaching, but case method alone is a bit one-sided," says Lewis [Oliver Lewis, a 2006 Harvard Law graduate], who clerks for a 9th U.S. Circuit Court of Appeals judge. "One of the big problems is that the exams are done by the problem-solving method, but the teaching is done by case method, so it feels like you’re looking through the other end of the telescope."

.....

Some Harvard graduates say some faculty members would probably be resistant to incorporating real-life aspects of the practice into first-year courses. [Surprise!]
.....

Michael Meltsner, a professor at Boston’s Northeastern University School of Law, [who] was a visiting professor at Harvard Law [and who assembled what was known as the First-Year Lawyering Program [at Harvard] explains why the program did not last: .... Meltsner says faculty complained the program took too much student attention from regular courses. He also says many faculty members were not comfortable with the intense involvement of practice-related training because they see their role as more scholarly. [Translate: can they design and solve practice-related problems? Are they capable but unwilling to invest the time and effort?]

.....

Lawrence Rosenthal, a 1981 Harvard Law graduate, sees faculty members’ lack of law-firm experience as the problem. "So many faculty members at so-called elite law schools don’t have any significant practice experience, so they manage to convince themselves that you don’t need to know much about the practice of law to teach it," Rosenthal says.

From Twas a time for change:

Many law schools, with their century-old teaching methods, do not prepare graduates for the day-to-day realities of law practice. [When I said this at the outset of my teaching career, I was dismissed as an unlearned rookie. When I said this ten years into my teaching career, I was told I lacked humility and tact. When I say it now, I get strong messages of support from some folks and sharp rebukes and retaliation from others.]

.....

''When a human being walks through a lawyer's door, they don't say, 'I have for you a tort problem' 'They say, 'I was walking to the office this morning and a car came by and knocked over this garbage can and it hit me and I fell off the sidewalk and I twisted an ankle and what are you doing to do about it?'" [One of my favorite questions to students, "So what now will you say to (or ask of) the client?" brings not only stares but on one occasion an email that asserted "You are scaring the h** out of us. This is the first time we've heard a reference to clients" —- clearly from students who had not been in the Legal Profession course nor in a clinic (which, if I were a Dean, would be sufficient in number so that every student would be required to enroll in at least one].
.....

"Young lawyers often find that law practice is starkly different from law school, contributing to high attrition at many law firms." [Another one of my oft-rejected observations]

.....

"The cost to firms of associate attrition is substantial: more than $300,000 per departing lawyer in unrecoverable recruiting, training, and replacement costs" [and clients have tired of paying for the education they expect associates to bring with them to the representation].

.....

"'The case method..... falls pretty far short of actually training people to know how to be a lawyer."

.....

''A lot of lawyers do work .... that reading appellate cases doesn't help you get at." [But because many law professors go from law student to clerkship to law faculty, what else can they do? Lawrence Rosenthal, quoted above, nailed this one, didn't he?]

.....

"Law schools ought to be aware that they're training people for practice" [many faculty disagree, and proudly say so].

.....

''If we get them to think of themselves as problem-solvers, that brings them closer to the realities of law practice." [But the students don't realize that so long as the faculty using the problem-solving approach are in the minority.]

.....

"[The problem solving approach helps students] draw connections between classroom theories and actual practice.

It's so nice to have others wander over to the problem-solving side of the legal education street. Yet the bulk of the crowd remains afraid or unwilling to cross over. The battle for what 21st legal education will be has heated up.

Yes, blogs can be "heard" around the world. Recently an attorney in India responded to my post on outsourcing. He didn't mention the first followup post. He has agreed to sharing our email exchanges and to being identified. I learned, for example, that outsourcing enterprises in India are now being challenged by outsourcing enterprises in Romania.

The man's name is N. Ramaswami. He wants to "accept the challenge that Indian lawyers cannot do what American attornesy can do." He has a good point. He and I, and anyone else, can debate and run theory at each other all day, but the ultimate test, of course, is in the practice world. In the dialogue you'll see why I'm not in a position to provide the practice opportunity that Ramaswami seeks, but perhaps someone in American law practice disagrees with me, and welcomes the opportunity to prove me wrong. Or perhaps someone simply is curious, and sees an opportunity to try an alternative approach to legal research. You can reach Ramaswami at ramaswami2000@yahoo.com. Tell him you met him here. I'm sure he'll be letting me know what happens.

So for those interested in a dialogue between a U.S. law professor and an attorney in India, who come from different cultures and yet share some things in common, read on to see how the power of the Internet is reshaping how the world operates, not only in terms of outsourcing, but simply in terms of dialogues taking place between people who otherwise surely would not have communicated with each other over such vast distances. It is, yes, the 21st century.

The email came from Ramaswami Natarajan on 9/2/04:

Dear Prof. Maule:

I'm pleased to write this mail to you. Please do not consider this as spam as this mail is a challange to you due to your postings at http://www.mauledagain.blogspot.com/

I'm an Indian Advocate and a Patent Agent. I have learned American Legal Research while working for www.citethelaw.com I had been trained by Mr. James P. Kimmel, Jr., Esq. President of Citethelaw.com. Mrs. Chris Kimmel who now works in Pepper Hamilton studied in your Law School and possibly she is one of your students.

You can find my resume at www.tmpsearchers.com/resume.html and two of my legal writing samples at www.tmpsearchers.com/sample1.htmland www.tmpsearchers.com/sample2.html. Please go through the samples and my resume.

I have been mainly trained in Westlaw and I do not have a copy of the Blue book. Therefore you might find that my legal writing is not as per
rules. I'm trying to improve that.

I find that your criticism of outsourcing legal research to India a bit far fetched. Actually if you put a Lawyer to learn the basics and then focus on one area of law, all that you need is about 6 to 9 months. Of course the lawyer must have had his training in India very well.

Let me give a challange to you. Let me do one project free of cost for you. I do need a Westlaw password to do it and you can expect me to do the legal research and analyse it accurately but fall short in legal writing. After all I have to write for both India and America and this coupled with the absence of blue book has made my legal writing not as good as it should be.

I have given this challange to few other Attorneys and they have refused to take it even when it is offered free of charge and obligations. I hope and trust that you would do take it. If I succeed please do let me introduce to others known to you.

The few Indian firms that offer to do legal research outsourcing have refused to take me either for they consider me to be a potential competitor and my efforts and time spent are being wasted.

* * *

Best Regards,

N. Ramaswami
Advocate & Patent Agent

I replied:

Sir,

Your offer, with its implicit and explicit limitations, proves the case I am making. What you offer is what I might expect of a first or second year law student, but not what I would expect of an attorney. If and when I need the sort of assistance you wish to sell, I can obtain it by having the Law School hire one of our students to do the research. There is no economic efficiency in exporting the work to India, and there are many disadvantages to having the work done by someone who is not physically present and unable to be present at the school.

I totally disagree that one can learn an area of the law in 6 to 9 months. As someone who advocates the lengthening of law study from 3 to
4 years, I surely do not find any support for the idea that someone can attain professional forensic ability in less than a year. I thnk what you are describing does not even rise to the level of what we expect from research librarians who are not lawyers.

This is not to condemn you or to insult your training or those who taught you. You have learned some American legal research, but that alone is insufficient to do what lawyers do. At best, you are finding information, a task which digital technology makes easier for lawyers to do without assistance. For example, though in years past, in the 80s and early 90s I had one, two, sometimes five research assistants, I now have none, and only occasionally have a need for one. Yet my scholarly production has not diminished, and arguably, depending on how one measures it, has increased. Why? Because I can do research sitting at my desk that once required me to walk to the library and dig around for hours.

Understandably the companies that provide outsourced legal research consider you a competitor. So, too, do the students who would lose an opportunity to work with one of their professors because the work has been shipped elsewhere. The opportunity to work for a professor is not simply a matter of earning an income but an opportunity to enrich a piece of their legal education by digging into a specific area under the guidance of omeone expert in that area.

What I do not fully understand is why there is a need for Indian advocates to do American legal research. Is there not a need for Indian legal esearch? In a nation with a population 3 times that of the U.S., I would expect that the need for attorneys and legal researchers to be so great that there would be no surplus available to enter into an outsourcing. Surely the Indian legal system and the citizens of your nation would benefit much from access to your skills and talents.

Good luck with that.

Jim Maule

Of course, a response came my way later that evening:

>>> Ramaswami Natarajan 9/2/2004 9:05:46 PM
>>>
Dear Prof. Maule:

I thank you very much for the very prompt email.

Please just call me Ramaswami in future correspondence please.

1. Every Indian Lawyer now goes through three or five years of intense legal study to qualifiy. What I meant as 6 to 9 months for such a Lawyer
is to specialize in one Area of American Law. This is actually done by Indian students who do their LL.M after graduating from India and the course duration is one year only. Getting a B.L in India now takes five years whereas getting a J.D takes only four years in the United States.

2. Labor Arbitrage is the main reason why all kinds of services are outsourced to India and other countries. Just as you describe that you no longer need assistants and can take information far more quickly yourself, so too can persons sitting at the other corner of the world where the average income level is about 100 times lower than that in the United States. So companies that are losing money can save themselves from a crisis by getting things done offshore. If the economy goes down, businesses go down and to survive they need to cut costs. And they do it by paying some overseas worker 10% of that they pay a worker in the United States. I believe that corporate law departments are going to have to do this now. And I would expect the compensation to go down in future to fresh associates.

3. I do not wish to work for you since you have a large number of law students to train. The only limitation that I have at the moment is on legal writing. None on legal research and analysis which you have mentioned in the blog. I had no hesitation to disclose the limitation for I write for two legal systems and this problem creeps up. And of course I had never been to the United States and have learnt every thing through the internet.

4. However unpalatable this is to all of us, this digital revolution is going to affect us all. I have lost myself some times. Once one firm known to me refused to do a work saying that the price offered was too little. The client posted the project on elanceonline.com and got a lesser quote from a more competent person from Romania. So ultimately even in India we will have a problem five to seven years from now or may be early.

5. Unlike the United States, education in India is not costly. We turn out thousands and thousands of specialists every year around the country. In our state Tamil Nadu alone, the number of seats for admission to the Engineering course which were not taken remained at around 30,000/-. This is just in one year. You can imagine the number of seats filled up across India for all disciplines. Also unlike the United States most of the population here is young and so the competiton and talent levels are high.

6. When you have a strong dollar, you have certain advantages and certain disadvantages. I think this is some thing that has to be accepted or else the United States must radically bring down the value of dollar to remain competitive in services? Can any one agree to this?

I thank you again for the prompt response.

Best regards,

N. Ramaswami

And so, not surprisingly, I continued the conversation:

Dear Ramaswami,

My ability to sit at a screen to do my research provides an advantage over using research assistants in two ways.

First, if I do the research myself, I do not need to invest time teaching the research assistant about the particular project in which I am engaged. That time investment was worth it when the alternative was to go to the library. Now that I can visit the library through on-line research, there is no such advantage to the use of research assistants.

Second, if I do the research myself, I do not need to go back to the research assistant for clarification. I can look at the source materials with the same brain that is holding the entire project.

When I did use a research assistant, I would overcome the second problem by meeting with the person. The person was nearby. There were no
time zone impediments to spoken conversation. Written dialogue was possible, but it is more time consuming, and the ability to measure if the person was "getting" the point I was making did not exist. So I could invest time in writing many paragraphs only to lose the person in the first one.

Thus, I don't think that hiring someone thousands of miles away is the same as hiring someone who is close at hand. Outsourcing can and does work for repetitive tasks that do not change intellectual demand each time through. It can and does work for physical activities, such as manufacturing. It is used, but I think badly, for customer service, because that is an area where, again, each call (or at least many of them) brings a new dimension or challenge.

Thus, I don't think the product is the same. It may be cheaper, in the short-run, but in the long-run I think it will be more expensive than having kept these sorts of pursuits in the hands of those immersed in the culture and legal system in which they arise. To put it another way, I think that if you came to the States and practiced here, after a few years you'd be a totally different lawyer and would bring to the table, research and otherwise, perspectives and appreciations that you simply cannot obtain on-line.

You are right, I think, that as time goes by, the same outsourcing problems afflicting US business will affect India. The question is, what happens where there are no more countries where the currency value difference makes outsourcing tempting in the first place? The answer is the long-term cost to which I refer, namely, the need to re-train people who had left the industries or professions when the outsourcing started.

Although the dollar is strong as to India, it is in fact much weaker as to Europe. So weakening the dollar to "balance" the exchange with India would devastate European trade. Perhaps the problem is that European currency is too strong. Or perhaps the investment decisions of countries investing in the US should change (how, I don't know) so that they are investing in capital, not just labor, in India. An influx of capital into India would provide jobs for the ensuing construction and development, and for the services that would then need to be provided. I don' t think that bringing capital into India by paying what are low wages in the outsourcing country (even though they are higher wages by the standards of India) is going to infuse ndia and other nations with the necessary capital. All that is happening is that large corporations are finding new pools of labor to exploit.

And perhaps policies in India that steer too many people into some professions and insufficient numbers into others needs to change. Surely there are needs that must be met, and labor isn't being funneled to those needs. The same is true, to some extent, here and in some other countries. The long-term risk is that instead of developing their own practice to carry into older age, young professionals in India are holding themselves out for outsourced work, which, as you suggest, won't be there in five or ten years. Then what? The years that could have been spent developing one's own practice, or a practice in a firm, are lost. And a new cohort of people willing to work for less will displace those who are now working for less.

* * *

Respectfully,

Jim Maule

Shortly thereafter, I received this email:

Dear Prof. Maule:

I apologize that I have forgotten to respond to one of the most important points that you raised.

Please see what you wrote in your mail below:

"When I did use a research assistant, I would overcome the second problem by meeting with the person. The person was nearby. There were no time zone impediments to spoken conversation. Written dialogue was possible, but it is more time consuming, and the ability to measure if the person was "getting" the point I was making did not exist. So I could invest time in writing many paragraphs only to lose the person in the first one.

Thus, I don't think that hiring someone thousands of miles away is the same as hiring someone who is close at hand."

I beg to disagree with you with due respect.

I believe that you use the Internet very frequently and I'm some what surprised. I use the Yahoo email account principally for I also use the Yahoo Messenger. Now Yahoo and MSN messengers enable you to have live, I repeat live, video conferencing with any one of your buddies if you make some simple investment in a web cam that costs about $50, and a decent internet connection ( I myself have a 256 kbps connection and so would expect you to have far higher speeds). You can interact with other persons have a voice and video chat live free of charge. Some times the service of these messengers are poor and if you pay about $25 per month you can have a private account with some web servers where you can have a live video conferncing.

Now let me know which is cheaper. A one time investment of $50 plus about $25 per month for video conferencing with no telephone bills to spend or an expensive person nearby. I think that today we can have virtual assistants sitting any where in the world close by. Yes, initially the accent problems in the voice are there but they are over come quickly. I'm not sure if you are aware of these things. Of course you may have different views but it is no longer necessary for some one to sit near you to converse with you live. It can be done easily and cheaply through video conferencing.

Technology has improved enormously.

Best Regards,

N. Ramaswami

I could not resist continuing the dialogue:

Dear Ramaswami,

Only the best videoconferencing provides the same sense of presence. For me, not only eye contact but body language is important. To see the entire person the resolution needs to be high, and that requires bandwidth. The bandwidth I have here at the school (but not at home) is high, but it's shared with a lot of people.

So we end up with videoconferencing that is either the face, or a way too fuzzy look at the entire body to pick up body language. Eventually we'll get there, you're right, but it's not quite the prime time player that I'd like it to be, for me. I may be a bit more demanding than most people in this regard and I know it works well for some people.

I'll look at the things you sent sometime over the long weekend.

Jim Maule

My last reference was to Ramaswami's request that I look at his work product.

Dear Prof. Maule:

I thank you for agreeing to look in to the papers I submitted and I would be very obliged if you could give me your insight and valuable guidance as to how I can improve my legal writing.

I look forward to hearing your insightful comments on my legal writing and analysis.

Best Regards,

N. Ramaswami

When I looked at Ramaswami's work product I did so primarily to evaluate my contention that legal research is not something that ought to be outsourced. That was, of course, the point in my blog post to which Ramaswami had made his objection. With his permission, I share my response:

Dear Ramasawami,

I've looked at the two writing samples that you shared. My reaction is affected by not knowing what you were asked to do. I am guessing that you were asked the question as you stated it, because the memos don't contain any statement of facts. Thus, one very important legal analysis skill, applying law to facts, isn't present.

One concern is that you are hampered by having English as a second language. Your English is very good, but our legal writing instructors would take their red pens to it. I have the same problem with my French, and that's why I have not tried to spend a semester in Quebec or France teaching tax in French. I suppose that the more you interact in English the more you'll get the technical aspects of using the language in the legal field polished. My French improves when I am in France and then rusts up when I am not using it.

Another concern that I have is that what you are presenting is chiefly a series of quotations from primary sources (statute, cases, etc) Thus, there is little opportunity to evaluate your analytical skills. As for research skills, I don't know the areas well enough to know if you found all the relevant authorities.

Our Legal Writing instructors incorporate legal analysis into their course. They believe, and I agree, that one cannot learn to write well as a lawyer without polishing legal analysis. That's because what shows up on the paper is a manifestation of what is in one's brain. So not only do they focus on the technical stuff (e.g., grammar), which gets polished with use, but they also pay close attention to the structure of arguments, sequence, paragraph clusters, sentence sequence, and application of law to facts. The students write memos, opinion letters, appellate briefs, and a few other short documents. In their memos, they are presented with fact situations for which there is no clear authoritative answer. Those are much more challenging than simply dealing with research into a question for which there is a clear answer.

Most American lawyers who seek assistance need help with the cases for which there is no clear answer. In litigation, they look for predictions of the arguments from the other side, and proposed responses. In planning, they look for the advantages and disadvantages and the factors that favor one alternative over another. When the answer is clear, most lawyers don't need the assistance because they know the law.

I'd characterize your research as what I would see from a law student or a person recently graduated from law school. What the person doesn't yet have is the experience of being in American legal practice. If you practiced in an American firm for a few years, you'd develop as they do, but you've already explained how that option doesn't work for you.

The delay in putting our conversation onto my blog is simply a matter of reacting to other issues. Of course, our conversation about your writing stays between us.

Jim Maule

Despite my offering to keep my evaluation "between us," as is apparent from this posting, Ramaswami requested that I share it, as explained in his next email, in which he also explains the context in which his outsourced legal research assignments arose. Read carefully and you'll note that Ramaswami has yet another skill, as an examiner. He remains convinced that outsourcing legal research to India can benefit both persons in his position and U.S. attorneys. Perhaps our exchange can help readers decide for themselves. Anyhow, here's his response:

Dear Prof. Maule:

I thank you for your very kind assessment and very prompt response as promised during the Labor Day weekend.

A legal research firm gave the fact patterns to me and then the issue was presented to research. I had an understanding with them that I shall not disclose the facts. Since the the fact patterns revealed the identity of the parties (and when I was not hired by them) I had to delete the names of the parties and delete the fact patterns and edit the memos done by me significantly. Unfortunately since I have had prior contacts in the United States, the legal research firm felt that I could pose a threat to them in the long term by putting up an commerce website myself once my skills are polished and so refused to hire me. I apologize for not stating the lack of fact patterns in the earlier emails, as I believed perhaps inaccurately that when the sample law memos are given this is the accepted practice in the United States.

I'm amazed by your humility and openness that you are not exposed to the areas of the Law dealt with in the law memos. The Legal Research is accurate and on point but I suspect that the Legal writing is not in the law memos.

Yes, my legal writing suffers from want of exposure to the Blue Book and the citations style. I have done more complex legal research assignments with www.citethelaw.com that involved legal analysis but we had a clause that I should destroy them when the contract was terminated and I did so promptly. So I have no back up copies.

In so far as analysis is concerned, in the sample memos, the issues asked were simple and direct and so I did not have much of an opportunity to analyze. So I had to leave it at that. The only memo that required an analysis is the Trademark memo but again the aspects for analysis are very limited.

In 1998 I had the kind of evaluation packet that you describe where for a situation you have no clear answer and I was asked to write both for the Plaintiff as well as the defendant. I wrote it and out of several who attempted I was the one among the two selected for having done it correctly. Of course legal writing was perceived as weakness at that time but when we started working, Legal Research and paralegal support became more important than polishing my legal writing. Therefore to this day I have not had a focused training on legal writing alone. The only equivalent of the Blue Book is available online for free at www.cornell.law.edu. At the moment the link is not working and I will send you the link when it works. Yes, if I master the Blue Book and the rule on citations and write correctly I think I can meet their expectations. I just do not know how to get this training on legal writing. I agree that this also needs a sound knowledge of law and when you put words in to writing you put essentially your thoughts in to your writing and so the analysis part is correct.

I agree with your very candid assessment that you would rate me as a recent law graduate without much of an exposure to the practice in a Law firm. This is indeed the truth. I had learned American Legal Research overseas focusing on my practice here and tried learning a foreign practice at the same time and I have not had much of an exposure in the last two years. I believe if I manage to work for a law firm continuously for one year and keep writing these Law Memos and other duties expected of a Junior Associate, well I will learn to do things as done in the United States. But I guess that this continued exposure to the environment that a Junior Associate is entitled to is exactly (the same problem and the situation) which I have not had so far.

I have studied several cases and in most the situation turns out to be a repetitive one. Say on motions for and against summary judgment etc and most legal research firms are asked to do this kind of work only. I guess only 20% of the work done by Legal Research firms is complex. And I have worked here off again on again for four years now. So I think that most Law firms would also need non-complex legal research regularly. Perhaps I'm wrong. Perhaps being at the higher end of the legal profession teaching tax law, you look at it differently. I must however confess that I have not had exposure to Tax law questions and have not studied it just as I have not practiced tax law in India. Your Tax Law and Criminal Law appear to be somewhat different than ours being a far advanced economy and having a different culture. We have a very lenient criminal justice system here.

Please do not hesitate to put my writing to the blog and please do not hesitate to disclose your assessment. I'm honored that you agreed to assess me and made very candid remarks. This proves both of what we are saying. With practice, Lawyers in India can assist the Lawyers in the United States but this requires a constant devotion and continued attention. Not on again and off again kind of experience that I have had so far.

I'm actually trying to find if a small law firm would retain me to assist them online. So far I have had no success but I'm still trying. I was offered a salary of a two way air tickets and $1200 per month for working for 12 hours a day as a paralegal in 2001 beginning and Jim Kimmel ruled it out saying that it would not even enable me to survive on my own. I needed to send at least $1000 to my family to support them here and that was not possible and hence I decided to work online and did not choose to come to U.S.

Ironically I'm qualified to write the exam to qualify for a Solicitor in the United Kingdom but I have not studied their Law.

You can very well ask, why not focus on India? I believe that the essence today is getting to know more people in several places, getting to know several systems and then try to bring in the capital needed whether it is for outsourcing or other projects to benefit my country. I'm trying and I will try to do this by all fair means until I succeed with God's help.

I thank you again for your very kind assessment, very prompt and very candid response and frank statements of your own limitations. I feel humbled. Please do not hesitate to put any one of our conversations on the blog. I do not believe in hiding my weaknesses and only if I learn what they are, I can correct them.

Please let me know when this is posted to the blog and if possible please let me have automatic emails when some one posts a response. No problem if this is not possible.

If possible, and if it is within your powers, please let me compete with your students in one legal research assignment you give them (Unfortunately I have no idea of American Tax Law) and I have no passwords to Westlaw or Lexis for my personal use. If the assignment would test the analytical skill, then I believe you would know first hand whether legal analysis is also possible to be done offshore. I do not know if you would appreciate the idea or would do it given the cry against offshoring. Well, coming back to the benefits for corporate on offshoring, would a fresh Law Graduate, just out of college work for $25 to 30000 per year?. That would be a significant addition to my income here and I would very happily accept it. This is why offshoring works. I doubt if you could hire a paralegal for that salary in your State. This is what actually drives the economics. I hope you would agree with me.

I thank you again for your very magnanimous and kind emails.

Best Regards,

N. Ramaswami

I then brought this particular exchange to a close with an email that explained why there could be no such competition, and that Ramaswami's concept of law salaries in the U.S. was perhaps not unlike the perceptions held by many Americans outside the profession:

Dear Ramaswami,

I do not give my students in my courses research assignments. So there's no opportunity to put you in competition with them. Research assignments are given to research assistants when I have them, but as I mentioned, I haven't had research assistants for several years because I don't need the help. I don't anticipate having one in the near future.

There are law graduates who take jobs paying in the $20,000 and $30,000 ranges. Much attention is given to the top students who go to New York, where salaries are inflated because the cost of living there is so much higher, and start at salaries of $120,000. In the next group of cities (e.g., Philadelphia), starting salaries for the top students are just now reaching $100,000. Salaries in San Francisco and L.A. may be closer to those in NY as those are expensive cities but I don't know for certain.

Students who work in smaller towns start at $30,000, $40,000, $50,000. Starting salaries for law clerks for judges and attorneys in federal agencies are in the $30,000s and a few in the $40,000s.

Students who work in public interest, such as advocates for the poor, or in legal aid (for impoverished criminal defendants) often have starting salaries in the low and mid $20,000s.

So when you hold yourself available for a salary in the $25,000 to $30,000 you're not presenting, to most law employers, a significant financial advantage. For those to whom you would, the counter-balance is their reluctance to hire any law student other than the top students from the top schools.

The economics of lawyer compensation in the U.S. are complex, sometimes counter-intuitive, and misleading at times. A plaintiff's lawyer will win a big case, get paid on contingent fee basis, and bring in millions from that one case. Suddenly everyone thinks all lawyers earn that amount!! (It happens too with professional athletes, where for every player making big dollars there are two players making far less (though they do earn a nice amount)).

I will let you know when I post up to the blog. It will be soon but not immediately. Late this week, early next week?

Jim Maule

Paul Caron's post today of Advice for the Incoming Law School Class of 2009 on TaxProf Blog, and its reference to the columns in Villanova's Gavel Gazette sharing what Paul called "thoughtful advice for law students," reminded me that I ought to update and repost my Maule on Legal Education posting from September 1, 2004 every year at this time. There's now a sixth column in the series, and the URLs need to be revised because the school juggled the content on the website where the columns are archived.

With my son in the Class of 2009 at Michigan, I have yet another reason for directing another group of law students to things my students claim they wish they had been told before they set forth on their legal education journey. It should be nice for him to have the essence of those oral discussions bundled into a coherent written package. So here they are, in chronological order:

Money for Nothing and Work for Free?, The Gavel Gazette, at 1 (March 5, 2001)

Crumbling Myths & Dashed Expectations, The Gavel Gazette, at 1 (Sept. 3, 2002)

Learning to Teach and Teaching to Learn, The Gavel Gazette, at 1 (Sept. 29, 2003)

Time CAN Be on Your Side. Or at Least by It, The Gavel Gazette, at 1 (Feb. 16, 2004)

Doing Puzzles While Learning & Practicing Law, The Gavel Gazette, at 1 (Sept. 20, 2004)

Up All Night = Grades Go Down, The Gavel Gazette, at 1 (Nov. 7, 2005)

Are they worth reading? Should busy law students, particularly frenzied and disoriented first-year law students, invest perhaps 15 minutes in what I have to say? Consider that there have been three republications in other media, two have been reprinted, one has been quoted, at least six law faculty at other schools distribute one or more of them to their first-year students during orientation or the first week of class, and collectively they have been cited at least 10 times.

A close look at the publication dates reminds me that the seventh in the series hopefully will appear this fall. I haven't yet picked from my topic list.

On Friday, I commented on the tax issues that were raised by the practice of law students at NYU buying and selling places in their law school courses. Though in his TaxProf Blog post, Paul refers to this practice as "cash for class," as do I in my comments, the ABA Journal article on the story notes that not only cash, but also gift certificates, food, and even sexual favors reportedly have been offered for places in an over-enrolled course.

However the tax issues are resolved, the legal education issues are no less formidable and in many respects, much more important. There's probably not much tax revenue at stake, but there are many legal careers affected by the situation.

The articles cited by Paul don't inform us of how many students are trying to get into closed courses. Is it one or two? A flood? No matter the answer, it is reprehensible that law students need to resort to buying enrollment rights from their classmates in order to get the education they need to learn how to practice law. According to the New York Post version of the story, students are looking for spots in Environmental Law and Capital Punishment. The ABA Journal article notes that a spot in Entertainment Law was being sought.

If the situation involves merely one or two students trying to get into a course, in many cases the solution is to permit those students to enroll. I've lost count of the number of times I've acceded to requests from law school administrators to permit more students to enroll in a course than the cap allowed (with classroom space being the only true constraint), so that a student's curricular needs could be accommodated. So I had another exam to grade, and 10 more semester exercises to grade, but as I told the dean (to the chagrin of some), "We're paid to teach, students are here to learn, and considering most of the school's revenue comes from students paying tuition in order to learn how to practice law, the right thing to do is to let this student enroll." If the course is one in which students are teamed up in pairs, adding one student to a fully-enrolled course with a cap of 16 isn't feasible. But those instances are far less frequent than those in which 83 students want to enroll in a course capped at 80.

If the situation involves a significant over-enrollment, then the school has an obligation to offer another section of the course. There have been times when one or another of my colleagues have agreed to an administration request to add a section of a course. This happened, for example, with trial practice, when several classes were larger than expected because of high yield so that the existing number of trial practice sections were insufficient to accommodate the students. Far more often, the school hired adjunct faculty to teach the additional sections of a course that were needed so that students could enroll in courses essential to their education.

NYU claims that the problem exists because it does not maintain waiting lists for courses. Why not? Whatever the answer, NYU plans to institute waiting lists. But does that solve the problem? It might eliminate the cash-for-class market, but it still leaves students unable to take courses in which they need to enroll. I'm not worried about the students who want to take Professor A rather than Professor B for course Y. I'm concerned about students who want to practice tax law who cannot get into an advanced tax course because it is oversubscribed.

So here is my advice to law school administrators and faculty. If it's a matter of a few students needing a course, let them in. If it's a matter of many students seeking a course, open up more sections. To the objection that no one on the faculty has "room" in their teaching schedule to add a course and there are insufficient funds to hire adjuncts, I respond as follows. First, teaching loads at many law schools have been on a downward trend in recent years, probably because teaching interferes with "scholarship" and because schools offer lighter loads in order to attract "scholars" onto their faculties. People express shock when they learn I teach five courses, with one semester of 8 credits, and a total of 13 credits for the entire year. There are many schools where full-time faculty teach roughly as many credits in one year as I do in one semester. Worse, the inequilibrium in course offerings and course enrollments reflects another recent trend in law school education, namely, asking a newly hired faculty member to teach a course that is essential to the curriculum and permitting the faculty member to select two other courses (often one being a seminar) in an area that interests them. Consequently, essential practice courses are oversubscribed or put on the shelf, while interesting but far from essential courses limp along with 3, 4, or 9 students enrolled. If students are over-enrolling in courses J, K, and L, barring a surge in total student enrollment, it means there is a decrease in, or lack of demand for, courses Q, R, and S. Why not put the latter courses on the shelf, even if they are the courses offered because they appeal to the faculty member offering them? Rather than chastisting students for trying to find a way into courses that they want to take because their eyes are on their law practice careers, law school administrations and faculty ought to review their schools' curricular design and make them relevant to preparing students for practice.

In the long-run, this flap at NYU could be an excellent development. It might persuade law schools to offer what students want to take, and what employers need for them to take, rather than being a place where a scholar can earn a salary by teaching one or two sections of what the school needs and another course (or in rare instances, another two courses) of "whatever you would like to teach." Perhaps the pendulum could begin to swing back?

As undergraduates approach the time of the year when they begin thinking about their course enrollments for the upcoming academic year and even about declaring majors, it's a good time to stop and consider the answer to this question: "I want to go to law school, so what should I select as my major?"

For many decades law schools have replied that it doesn't matter. The Pre-Law Committee of the ABA Section of Legal Education and Admissions to the Bar takes the position that it does not recommend, and it is impossible and undesirable to recommend, preferred undergraduate majors for students intending to attend law school. Instead, it suggests these students should seek educational, extra-curricular and life experiences that will enhance development of analytic and problem solving skills, critical reading abilities, writing skills, oral communication and listening abilities, general research skills, task organization and management skills, and the values of serving others and promoting justice. The American Association of Law Schools states that undergraduate education should be focused on "comprehension and expression in words; critical understanding of human institutions and values with which the law deals; creative power in thinking."

Unquestionably, selection of a major does not bear on the chances of getting into a law school, as indicated in this explanation from Peterson's on the Yahoo Education site: "Perhaps the most common misconception about getting into law school is that certain majors are looked upon more favorably than others in the admissions process. Also, since virtually no school has a "prelaw" undergraduate major, many students believe that political science is the prelaw major. Not so. Any rigorous program of study, from anthropology to zoology, is fine. You should major in an area you enjoy, since you'll do better in that subject than in any other. Engineering or physics majors often think that they cannot apply to law school because they lack a liberal arts degree. This is wrong! Law schools are happy to receive applications from engineers, chemists, physics majors or anyone who majored in any of the so-called "hard" sciences."

In one respect, the notion that undergraduate major does not matter is true. A student who is bright, motivated, and disciplined can do very well in law school no matter the undergraduate major. That's no guarantee, though, that the student can do well without investing far more hours than the student can or is willing to invest.

If, however, the question being asked masks a different concern, then the reply that it doesn't matter is misleading. Perhaps the undergraduate is asking, "I want to go to law school, and I want to arrive with a package of educational experience that enhances my chances of success and minimizes the avoidable academic struggles that might otherwise afflict me, so what should I select as my major?"

To that question, I suggest the answer is as follows: "Select a major that teaches you how to think, that compels you to solve problems, that rewards you for communicating effectively and efficiently, that demands you develop organizational skills, that requires you to be disciplined, and that encourages you to examine details in the framework of a larger contextual fabric." That's a positive response. A negative response is as follows: "Avoid a major that encourages mere memorization and recitation of information, or that emphasizes expression of feelings over careful application of logic and analysis." Most majors do the former, if the student takes his or her academic responsibilities seriously. Some majors are more demanding than others. I'm not going to provide a list of "not so helpful majors" because I'd rather students figure it out for themselves. After all, for me, good teaching is motivating and helping students to solve problems rather than handing them answers on a plate.

Of course, undergraduate departments are not reluctant to nominate their major as ideal. The economics professoriate point to the higher than average results for economics majors on the standard tests, and on surveys showing that lawyers who majored in economics earn 10% more than the average lawyer (gee, I'm really messing up those statistics!). An interesting report comes from the economics program at Winthrop, and another from the program at Clarion. Similar invitations to major in a particular area come from philosophy departments (e.g, Clemson), history (e.g., "perfect preparation for law school", and "highest rate of admission to law school"), liberal arts generally (e.g., "students who graduate with a solid liberal arts preparation are among the most successful law school candidates"), political science (e.g, "one of the best undergraduate majors for students who want to go law school "), and, I am sure, others that I haven't found yet.

The issue, though, is not so much the selection of the major in terms of its substance, but whether the major is designed so that the student can find time in his or her schedule to balance the courses in the major with courses that broaden the student's educational experience. Because undergraduate students often lack the wisdom or experience to package course selections in ways that are beneficial for the long-term, they should be encouraged to consult with, and learn from, experienced course advisors whose outlooks are in tune with these principles. Selecting courses for reasons of ease in grading, schedule, or other purposes can cause the undergraduate to fall short, and to face remedial burdens while in law school. Quoting again from the Pre-Law Committee of the ABA Section of Legal Education and Admissions to the Bar, and I do love this statement, "Taking difficult courses from demanding instructors is the best generic preparation for legal education." They should add that doing the same in law school is the best preparation for law practice. Can I put that in bold? Paraphrased, "Taking difficult law courses from demanding instructors is the best generic preparation for legal practice."

Putting all of this together generates a conclusion expressed, for example, in these terms, by the folks at Collegeview. They advise, "In law school, students read, write, and think voraciously. As a result, undergraduate majors who work on these skills really include a broad base of possible majors. Consider a combination of courses, regardless of the major you select. For example, if you choose to be an English major (reading/writing), then make certain that you take courses in logic and math (thinking). If you major in history (reading/writing), similarly make certain that you take courses that require you to analyze information critically (computer science, philosophy, math). "

What matters more than major, in many respects, is undergraduate course selection. Students who take courses in a narrow field of study, without reaching out to other disciplines, do themselves a disservice. Even if the requirements of a major leave little room for electives, there no harm in taking more courses than are required for graduation. Schools that require students to take courses from a variety of schools and departments, as was the case with Wharton when I was an undergraduate, set a fine example. Earning a degree in economics while majoring in accounting with a business law minor, I took courses in English Literature, Physics, Anthropology, Roman History, Organization Theory, American Civilization, Sociology, and several others in addition to a long list of business courses. There were so many courses that graduation from Wharton required 120 credit-hours rather than the 90 required for the B.A. from the College of Liberal Arts. Hmmm. I confess that at the time I grumbled a bit, and yet now from the perspective of a few years (decades, really) of experience, I've come to appreciate the benefits of most of those non-business courses.

When it comes to undergraduate course selection, I have no doubt that certain courses are essential, unless the student has acquired a similar exposure through some other experience. Most law courses deal with the application of principles to facts arising in the course of a person's life or entity's existence. Thus, to understand how law is applied one needs to understand the underlying transaction or event. It's no surprise that first-year law students generally disfavor contracts, property, and civil procedure as much as they take to torts and criminal law. The transactions of the latter two courses are common, perhaps much too common, in people's lives, and thus it isn't difficult to visualize the automobile accident, the stop-and-frisk, the physical assault, or the high-speed police chase. In contrast, few law students are familiar with the details of life estates, exoneration clauses, or similar contractual or property matters. Amazingly, most law students have signed real property leases and engaged in bailments, and yet don't quite appreciate the legal significance of what they have done.

From my perspective of teaching tax and probate courses, there's no question that the Decedents' course is less challenging in some ways than is the basic tax course, because most law students have had acquired some awareness of wills, understand that people die and become disabled, and can envision the dynamics of family relationships that shadow these issues. They struggle more with trust concepts. In tax, they can absorb the principles dealing with scholarships, student loan interest, and dependency exemptions far more easily than those applicable to life insurance, annuities, and land purchase options, not so much because the law is less complex or easier to understand but because they've dealt with the former and have had little or no experience with the latter. Is there any reason, for example, why people with at least 16 years of education have not learned SOMETHING about life insurance and annuities, not because they might go to law school but because these are matters that affect everyone no matter what they do in life?

Thus, I suggest this to undergraduate students who are planning to attend law school:

Take a course in business basics, so that you understand the time value of money, the difference between a stock and a bond, the essentials of a corporation and limited liability company, the significance of interest rate changes, the purpose and function of life insurance and annuities, the definition of the trade deficit, the rules of supply and demand, and how to balance a checkbook. Why? Because lawyers deal with these things, and law students encounter them in many of their courses.

Take a course in American history, not so much as to learn events but to understand the significance and context of those events. If you have a chance to take a course in American Civilization, do so.

Take a course in French-Norman-English history. Why? These courses will expose you to the background against which American law developed. It will make it easier to understand the medieval property concepts that pop up in the Property and Decedents courses because they are the foundation of modern property, probate, and other areas of law.

If you haven't had Latin, and even if you have, take a year of French. Why? These are languages that have left their mark in American legal terminology, and not only does knowing some basic Latin or French assist in deciphering the word questions on the LSAT, it spares you interrupting your first-year reading 10 times an hour in order to look up "res ipsa loquitur" or "stare decisis" in your Black's Law Dictionary (which really does slow you down tremendously). Taught well, they also introduce you to appreciating other cultures, something that lawyers often need to do, considering the extent to which law, like many other things, has globalized. And, having a second (or third) language skill will be valuable in your career development (crass translation: job search success), and also give you the opportunity to do public service, as do some of Villanova's students who serve as translators in the School's Immigration Law clinic.

Speaking of looking up things, take an undergraduate law course, especially one that focuses on procedure. Why? Arriving at law school understanding basic legal process and the meaning of terms gives a student an advantage because it means less time need be spent coming up to speed in that regard. And you might get a better idea if law is something that appeals to you as an area of study.

Take a course that involves reading and understanding the Constitution. If you need to ask why, think again.

Take a course in understanding how something complex works and how its parts interrelate. In other words, take a course in one of the "hard" sciences, or engineering, or computer programming. Why? The sort of thinking that goes on in those types of courses is very much like the sort of thinking that goes on in many law courses.

Take a course that requires you to write. No, not necessarily English literature. A course that requires you to take something complicated and explain it. Why? Because that's what lawyers do, all the time.

Take a course that requires you to stand up in front of your classmates and explain something. Why? Because that's what lawyers do, much of the time. Perhaps the American History course, or another of the recommended courses, will require this of you. If so, you'll achieve a double benefit.

Take a course in psychology. Why? Lawyers are de facto psychologists. They deal with people, all of the time. And people bring to their lawyers loads of psychological baggage. Law students are surprised to discover that the human condition has as much to do with how one deals with a client, or opposing counsel, or any other person, and with what one recommends, than do the machine-like patterns of legal principles.

Many undergraduate schools are now putting together pre-law programs or packages. These generally are not majors as such, but bundles of suggested courses tailored to the resources and schedules of the particular school. It is not my intent to examine and critique the various course combinations that are required or suggested as part of these endeavors, though I do invite pre-law advisors and others who design the requirements to read my preceding suggestions and consider them when they next revise their programs and advisory materials. It is my intent to make students aware of the need to think about these issues when they arrive at college, not during their junior year when they decide to contemplate a rapidly arriving graduation.

There is one bit of advice sometimes given to undergraduate students thinking about law school that disturbs me. Because, unlike major, GPA is a significant factor in law school admissions decisions, students are told to take courses that maximize the GPA (in contrast to being told to set priorities so that GPA is maximized). This is a short-term logistical maneuver that leads to long-term strategic failure if it causes the student to enroll in undemanding courses that don't develop good law school skills. Aside from the fact law schools are getting better at distinguishing one A from another based on course description, entering law school with a high GPA earned on an easy path is like a high school graduate trying to play in the NBA after scoring 50 points a game playing against middle school competition. Do your best, put your academics high on your list of priorities, and let your GPA reflect who you are and what you can and cannot do.

I close with one last bit of advice: Major in life. Real life, not the "anything but classes or public service" fun times "life" students can find at most colleges and universities. Yes, there is much benefit in taking off a year or two between college and graduate school. "Life-hardened" individuals tend to do better in law school, and, though I'm no expert on the question, in other graduate programs. Why? First, they're in law school because they want to be in law school, not because they had no other choices and hopefully not because their parents "made" them go to law school. Second, they're more mature. Third, they've seen the reality of life and how it differs from what too often becomes the cocoon of college. Fourth, it's more likely they are paying their own way, and thus they're motivated to "protect their investment." Fifth, they bring life experience, as a paralegal, police officer, health care worker, telecommunications intern, whatever, back into academia, making it easier to understand at least some of the transactional backgrounds against which the law develops.