A timeless essay on writing by George Orwell.

Here.  It's just marvelous.

Bravo to each university on this list.

Here.  And here's an opinion piece worth reading.

Long overdue but very happy news.

Alan Turing has finally been given a posthumous pardon (here).  Too many wonderful people have been punished for being gay--just for BEING gay.  Very happy to see this news.

Bravo, Brandeis and Penn State Harrisburg!

Both universities said no to the boycott (here). 

Bravo, Michael Roth (President of Wesleyan U)!

For his response to the American Studies boycott of Israeli universities (here).

Bravo, Robert Brown (President of BU)!

For his response to the American Studies boycott (here). 

Bravo, Jonathan Marks!

His take on the ridiculous American Studies Association boycott of Israel (here).  Where is the American Studies Association's boycott of China and other nations that make academic freedom a myth? 

I'm sorry, but I can't help but believe that anti-Semitism is at the root of this boycott. 

Bravo, Larry Summers!

For speaking up about the academic boycott of Israel (here).

Something funny, on this eve before grading exams.

From the NYT (here). 

Boyd School of Law's upcoming Conference on Psychology and Lawyering is coming up early next year.

Info here.  Should be excellent.

A feel-good donation opportunity for you from The Bloggess.

See here.

Really? An academic boycott of Israel? Why the leaders of the American Studies Association are misguided.

Here's the news story.  Rather than either (1) trying to learn about the nuances of what's going on in the Middle East or (2) trying to engage their Israeli counterparts in a real discussion of the issues, the American Studies Association has voted in favor of an academic boycott.

What on earth IS an academic boycott?  Will the American Studies folks stop reading scholarship produced by Israel academics?  Will they stop teaching things that are based on Israel academics' research?  (Even though there are some typos, this listing of Israeli contributions gives a flavor of what Israelis have contributed to the world.)

I'm willing to admit that good-hearted people on both sides of the Israeli-Palestinian issue have important and valuable things to say, and I'm willing to listen.  I'm not willing to listen to academics who prefer to turn their backs, shut their eyes, and plug their ears in a grown-up version of "I'm not listening to you" behavior.

Geez.

New to practicing bankruptcy law? Where to begin, where to begin....

So I received a copy of PLI's Financially Distressed Companies Answer Book 2013, and it's been waiting for me since June.  For folks who have no background in bankruptcy law, it's a nice way to spot the issues and get some citations.  It gives enough of a forest-trees look to be a good intro to the field.  It's one of several books that provide good intros to bankruptcy law, like Charles Tabb's Bankruptcy Anthology, Michael Bernstein & Jack Ayer's Bankruptcy In Practice, and similar good overviews.

I'd be remiss in not pointing out that there are great treatises out there, too, including an upcoming one from Bloomberg....

Today's Throw Grammar From the Train is about "utilize"--yay!

See here.  I've been riding this particular hobbyhorse for a long time.  My guess is that people use "utilize" to sound "educated." 

If I can get lawyers to realize that they write more clearly when they write as simply as possible, I will have done something useful.

Yes, I believe that our law students at Boyd are cooler than your law students.

Proof here.  (These are students in my small section of Contracts.  They have Thom Main for Civ Pro.)

Some thoughts on anti-Semitism.

This New York Times article on anti-Semitism brought back some painful memories.  Growing up in the Bible Belt meant that I met more people than I'd have liked who really did believe that the Jews killed Jesus and that Jews were devils.  Yes, I heard "show me your [devil's] horns--I know you have them."  Yes, I was beaten up regularly (until I learned how to defend myself) for being Jewish.  Yes, even my "friends" would say unkind things about my religion.  The fact that anti-Semitism hasn't declined, and may in fact be on the rise again, is horrifying to me.  But kids learn what their elders teach them, and--like every other type of prejudice--knowing that one of their friends is Jewish, or gay, or otherwise "different" from them may not be enough to help erase all of those years of teaching that "others" are evil.

Yep, I'm bragging about Boyd.

See here--and this is my favorite quote: 

Three schools accredited in the past two decades -- the  University of St. Thomas, Nevada–Las Vegas, and Chapman -- "have already made a scholarly impact that dramatically outpaces their present academic reputations."

Congratulations to Brian Shapiro's FEES program!

The 4th graders in this video did a great job of demonstrating the type of financial knowledge that Brian Shapiro's course teaches.  What a great program!

I agree with a lot of the points in this post about law reviews.

Here.  Law reviews are good for giving students more experience with good and bad writing (and good and bad analysis).  But law students are still novices and can't be expected to have the same level of understanding of a given field that tenured professors have.  (I seem to recall the wonderful Jack Ayer having written once about the irony of someone who couldn't get a C in a course telling an author that the author didn't understand the subject, but I can't find the quote.)  We really should rethink the law review system.

UPDATE:  Found the quote.  John D. Ayer, Aliens Are Coming! Drain the Pool!, 88 Mich. L. Rev. 1584, 1587 n. 15 (1990) ("If you have never tried it, imagine what it is like to encounter the mixture of incredulity and greed that you inspire when you, as a law professor, tell a professor of English (say) that we let students make publication decisions. Surely, it is an exquisite form of humiliation to have some infant who can't earn a C in criminal law tell you that you really don't grasp the contours of mens rea. But for anyone who has suffered under the vengefulness and pomposity of a peer review system, the regime of the law review must look like a sinful indulgence.)

Another great post from LawProfBlog.

Here.  ROFL.

Impressively bad customer service from Republic Services of Henderson, NV

All we want is to know our new dates for trash pickup.  Seems easy, right?  Go to the website, search by address, get info.

Nope.  We can get info on recycling (but we know our recycling dates).  We can't get info from Republic Services about our trash pickup dates.  We tried emailing.  The first time, we got a very polite response saying "we'll be back in touch."  That was on 10/15.  Radio silence since then.

I followed up and got this: 

So responding to the email saying "we'll be in touch" leads to a bounceback saying, essentially, n'il exist pas.

Interesting approach.  Want to place a bet on when (sorry, if) Republic Services cares to tell us when to put our trash cans out?  Or should we just try the 1/7 chance and guess?

Boyd School of Law's Conference on Psychology and Lawyering (Feb. 21-22, 2014)

Information here.

I hate disagreeing with so many smart people, many of whom are friends of mine, but I really do disagree with the 500-law-professor letter to the ABA.

Many good people signed this letter to the ABA (hat tip to TaxProf Blog) suggesting that the proposed change to Standard 405 (there are two different alternatives being proposed) would "cause a negative impact on academic freedom, the creation of safe space for dissenting voices, and recruitment and retention of minority law professors."  I'm not convinced that those statements are accurate.

Here's a description of the proposed changes:

Alternative 1 requires, in 405(d), that all full-time faculty have a form of security of position sufficient to ensure academic freedom and to attract and retain a competent full-

time faculty. It does not require that all full-time faculty have the same form of security of position, and it does not require tenure. Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-harbor for satisfying the security of position required in Standard 405(d). For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

Alternative 2 requires a law school to maintain conditions adequate to attract and retain a

competent full-time faculty sufficient to permit the law school to comply with the Standards. It requires policies to protect academic freedom of its faculty and provide for meaningful participation of full-time faculty in the governance of the school. Alternative 2 does not require tenure or security of position for any full-time faculty.

Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-

harbor [sic] for satisfying the attract and retain provision and the academic freedom provision of Alternative 2.  For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

The egalitarian in me doesn't particularly like the fact that Alternative 1 "does not require that all full-time faculty have the same form of security of position," but that's an issue for another day.  

I'm trying to figure out why I'm so bothered by the 500-professor letter.  I think part of the reason stems from statements like this:

• "[C]reativity and innovation in the classroom will be stifled if a teacher is overly concerned that her job may be jeopardized if she asks her students to tackle provocative topics."
• "Without the protections of tenure and its underlying value of academic freedom, the ability to write about potentially controversial subjects, such as racial and intersectional discrimination, civil rights, criminal justice, affirmative action, structural inequities in the tax system, and the role of corporations in public life, without fear of reprisal will be threatened."
• "Without a system of tenure, these teachers and scholars [who "engage in advocacy on behalf of unpopular causes"] could become subject to dismissal based solely on their views.
• "[Without the protection of tenure, s]tudents will go through law school without exposure to diverse, exciting, and enlightening ideas."
• "Quite apart from the diversity of voices that tenure has promoted, it protects minority
  professors in another fundamental way: it makes the perpetuation of discrimination more
  difficult. Discriminatory discharge is the most frequently litigated claim under federal
  workplace antidiscrimination laws."

I think that these statements, and many others in the letter, go too far.  Many, many pre-tenured people and people on long-term contracts challenge their students, write on controversial issues, and engage in advocacy.  Maybe those without tenure are holding their breath and hoping that they don't get fired for challenging conventional wisdom, but they're still out there, challenging it.  So it can't be the case that tenure is the magic wand that suddenly gives someone permission to have independent and challenging ideas. 

Yes, I know that tenure provides all sorts of freedom for those who hold it, and I realize that I benefit from having tenure.  Tenure protects everyone, not just people of color (another problem that I have with the letter), from being fired for exploring controversial ideas--or at least from being fired without plenty of due process first.  But there are all sorts of non-tenure-based protections against discrimination.  I'm no employment lawyer, but I'm pretty sure that a contract that spells out someone's job duties provides some protection for a person hell-bent on performing those selfsame duties to the best of his abilities.

And tenure has its costs, too.  There's an inherent contradiction between the desire to keep the costs of law school down in order to increase access (a good thing--setting aside the issue of whether the job market for graduates will rebound) and the insistence on maintaining a system that is responsible for much of a school's fixed costs.  We are in a time where demand for law school has dropped precipitously, and we are merely tinkering around the edges of adapting to the new normal.

Let's explore those costs of tenure.  I happen to be blessed by being in a school in which pretty much everyone is fully engaged in good teaching and research.  Like Harold Koh's well-known story about being able to point to each Yale professor's office door and identify what "idea" that person has contributed to legal scholarship,* I can walk down our halls and identify what each of my colleagues is writing about (some just by general topic area and some in more detail).  Because I'm in a school where we really do value teaching and scholarship, I think that what I'm about to say isn't sour grapes.**

Tenure protects the good and sincere, but it also protects those who are just "phoning it in"--who haven't written in decades, or who produce bad scholarship that has no hope of moving our understanding of law or the legal system forward,*** or who don't think of new ways to convey their knowledge to students.  Barring meaningful post-tenure review, we are one of the few enterprises without any repercussions for malfeasance or non-feasance. 

I guess I just don't see why 10- or 12-year contracts with a presumption of renewal are so much worse than lifetime tenure, and what bothers me about the 500-professor letter the most is that I wanted to read arguments that were nuanced.   Instead, I read lines like this:  "Every school that grants tenure currently has the ability to reduce its fixed costs by curtailing hiring or declaring a financial exigency, among other options."  Really?  The way to solve the problem of fixed costs is to declare academic bankruptcy?  That's just not a realistic option.

So I'm disappointed and frustrated by the letter, in much the same way that I was disappointed and frustrated by some of the points made by the recent Task Force on the Future of Legal Education (also a subject for another day).  I think that the people who wrote the letter are frustrated and scared that the inroads we've made in legal education risk being subverted if their schools end up with deans who don't treat the academic enterprise with respect.  The solution likely comes with some hard thinking about how governance should work.  The only good news I have is that folks on both side of these debates are coming to the debates with good intentions.  That's not a bad start.


*  When I first heard Harold Koh tell this story, I spent a fair amount of time during the rest of his speech asking myself, "Do I even have an idea?"  It took me a while to be able to identify mine (which, if you're curious, involves the intersection of lawyer behavior with a variety of topics), but then I was able to tune back into what he was saying.

** Of course, I write about cognitive biases, too, so the irony here isn't lost on me.

***  And by "bad scholarship," I don't mean "scholarship that doesn't agree with my own world view."  At every school at which I've worked, there have been people whose scholarship I didn't really understand (and there have been people who didn't understand mine).  Most of the time, what I see is a general and accepting attitude of "well, it's not MY thing, but it seems well-reasoned and, in that person's field, I think it's moving the discussion forward."  (And those few times at conferences when I do hear professors discuss some scholarship in derogatory terms, I more often hear them call it "doctrinal"--as if doctrinal analysis is worthless--or critique it for not being "inclusive" enough.  I'm not particularly conservative, but I worry that some of the diverse voices that we're missing in the academy are conservative ones.  If it's true that we tend only to hire people who are most like us, shouldn't we be worried that there seem to be way more liberals than conservatives on our faculties?)  So I don't think that "writing controversial scholarship" is at risk with the ABA's proposal.  Writing doctrinal or conservative pieces might be, if a school's governance structure is intolerant of the diversity of viewpoints.

Our latest book, Law Firm Job Survival Manual, is out now!

We're happy with it, and we hope that you will be, too.  You can get it here, and our blog accompanying the book is here. 

Newest guilty pleasure.

Here.  Hat tip to The Faculty Lounge and Michelle Meyer. 

Just one day after the anniversary of JFK's speech at Rice, this great news from NASA.

Here.  For JFK's speech, see here.

Congrats to my buddy Sherri Wattenbarger!

She's receiving the 2013 Michael R. Roser Excellence in Bankruptcy Award from the Commercial Law Committee of the Missouri Bar, which recognizes an attorney who manifests the highest standards of excellence in bankruptcy practice, who contributes distinctively to the development and appreciation of bankruptcy law, and who has made an outstanding contribution in the field of bankruptcy practice or administration.  The award is named in honor of the late Michael R. Roser, a prominent Kansas City bankruptcy lawyer.

Congrats, Sherri!

Well, THIS was a nice surprise about my latest Connecticut piece.

See here.  In case that link is hinky, here's the text:

Article of the Month

August 2013

Nancy Rapoport, Rethinking U.S. Legal Education: No More Same Old Same Old, 45 Connecticut Law Review 1409 (2013).

Professor Rapoport begins this article with the well-supported premise that, "Teaching students how to think about the law is no longer-and probably never was-enough." But she doesn't stop there. The article presents a well thought out, empirically supportable, alternative to the current, typical (and empirically unsupportable) law school curriculum.

Law School, according to Professor Rapoport, should be divided into three distinct phases, each with a specific outcome in mind. This outcome based curriculum provides lawyers with the actual skills they need to be practicing lawyers rather than the very limited skill of gleaning fine details from court opinions honed by the Socratic Method."
The aim of the first year of law school should be dedicated to "Creating the Skilled Novice." The second year of law school should result in students becoming "Novice Problem Solvers." Finally, the third year of law school should be devoted to "Creating a Novice Professional with Basic Judgment." Professor Rapaport describes in detail the aspect, aims, and characteristics of this three-phased law school curriculum.
The empirical bases of Professor Rapoport's suggestions are well documented in detailed and comprehensive studies such as Best Practices, Carnegie, and McCrate (which most of legal academia has blatantly ignored thus far). Professor Rapoport suggests the following reasons why legal academia continues to ignore solid education:

1. "Law Professors have a cushy life." In our current, high-salaried jobs, "we get to study what we want" and we don't have to worry about putting "the client's interest first."
2. Most law professors are blissfully ignorant of education theory and research.
3. Law schools reward the production of scholarship rather than the "painstaking amount of time it takes to think seriously about the curriculum, develop new courses that reflect the building of skill sets over time, determine better ways to evaluate whether a student is actually developing those skills, and recalibrate the curriculum," if outcomes are not being achieved.

The larger and more troubling question is whether perpetuating the inertia driven Socratic, legal education charade has now become an ethically questionable endeavor in light of the sound and copious educational research compiled against it. A colleague of mine suggested that the real reason for the adherence to discredited methodology in legal education is laziness. Surely that can't be right, even though I have not heard a more credible alternative for the resistance to change.
[Read fulltext at Connecticut Law Review website (1.2 MB PDF)]

Submitted by: Rory Bahadur
Washburn University School of Law

Interesting new blog....

Here.

A short interview about bankruptcy fees on Morning Marketplace.

Here.  Thanks, Ann Heppermann!

Some great new tools by my buddy Walter Effross.

Here and here.  I think they're both "must reads" for law bloggers.  Bravo, Walter!

A shout-out to a wonderful lawyer.

Patrick Driscoll took on a case that I feared was hopeless, thanks to the client's former lawyer.  Patrick stepped in, fixed the multiple mistakes that the prior lawyer had made, and got the client's plan confirmed.  BRAVO, Patrick, and thank you!

Robin Roberts is one classy person.

See here.

An answer to those of you who make fun of my email signature on my UNLV email.

Here.  Hat tip to MoneyLaw and Jeffrey Harrison. 

Awesome promo w/my buddy Larry "Bubbles" Brown!

Here. 

And thank you for the shout-out, TaxProf Blog!

Here.

Thanks for the shout-out, Law Librarian Blog!

Here.

The more things change, the more they stay the same.

There are lots of stories about the DLA Piper partner who has been charged (not yet adjudicated, though--just charged) with charging clients for unusual expenses while he was a partner at Sidley Austin (see here, here, and here).  They remind me of the dynamic surrounding John Gellene at Milbank (see my paper reviewing Mitt Regan's book, Eat What You Kill, here). 

All organizations get the behavior that they reward. 

New studies on rate increases at law firms--UPDATED

The Wall Street Journal's Jennifer Smith reports that law firms are increasing rates again (here).  I'd love to see those studies mentioned in her article.  The issue of raising rates is, of course, tied to whether those higher rates are collectible.  I could raise my rate to $10,000/hour, but I don't think I could collect any fees at that rate.  And in those practice areas in which rates are reviewed by courts (like my own area of bankruptcy law), raised rates are not a slam dunk.  I'm looking forward to following this story.

Now compare that story to the one that just broke about Weil, Gotshal & Manges laying off sixty associates (here).   That leads credence to my suspicion that, although rates may be going up, the ability of any law firm to collect 100% of the bills based on those new rates may not be going up. 

Best Practices for Working with Fee Examiners

Lois Lupica and I just published an article in the ABI Journal on how best to work with fee examiners in chapter 11 cases (here).  Given the recent publication of the new USTP fee guidelines in larger cases, we think that our article is particularly timely.  We hope that you do, too.

Hey, thank you, Credit Slips!

Lois and I had a blast guest-blogging (and Lois did all of the heavy lifting). 

Today's post on Credit Slips--the ABI National Ethics Task Force's Report on compensation via section 328

Here.

This morning's Wall Street Journal article on the costs and benefits of bankruptcy examiners.

Here.  Among the article's points is that the cost of an examiner has to be compared to the benefits.  That's different, I hope, from demanding that the examiner find enough "bad things" to completely offset his costs.  The idea of "funding by bounty" creates a bad incentive to look at trees instead of forests.

But I've seen good examiners (and good fee examiners) in action.  The ability to figure out what went wrong is a necessary part of a reorganization that's successful in the long term.  And to do that, someone needs to be tasked with taking a good, hard look at what happened to create the need for a bankruptcy filing.

I particularly enjoyed the quotes from William Snyder, now at Deloitte, who's been one of the best CROs I've seen over the years.  His common-sense approach, and his ability to deflect what is often very nasty and personal comments as he's working out causes and solutions, is what makes him good.

But back to costs and benefits.  I'm an occasional fee examiner (yes, and a law professor who studies fees, among other things).  I don't think of myself as saving a lot of monetary costs.  Do I find things that should be cut or reduced?  Sure.  Professionals make mistakes, either clerical or in judgment, and typically they're comfortable fixing those mistakes themselves before I have to bring them to the court's attention.  What I do save is time--the amount of time that my team and I spend going over fee applications is time that a busy and understaffed court really can't devote to the same line-by-line review.

That time savings is also true of examiners generally.  If they do their job well, and if they're mindful of what they are costing the estate, then they can get to the bottom of things in a way that other players in a bankruptcy case just won't have the time or financial resources to do.  There is a law of diminishing marginal returns, of course, and examiners who chase down rabbit holes for too long are overspending other people's money.  But a court can take a gander at interim reports versus fees to see whether an examiner is getting out of line.  (And yes, fee examiners can chat with examiners about their bills, too.)

Bottom line?  Look at the need for an examiner and figure out in advance what goals you want that examiner to achieve.  Make sure that those goals are in the order authorizing employment, and monitor the progress of the examiner's work.  And make sure those goals are aligned with the incentives for compensating the examiner.  Avoid a bounty approach, and you're likely to get what you need to get from your examiners.

A law firm that has given up on hourly billing.

I thought that this post might raise some eyebrows (in a good way).  The law firm that announced its rejection of hourly billing is Juan R. Gonzalez PLLC. 

National Ethics Task Force Report--Duties of Counsel for the DIP (up on Credit Slips)

Here.

This mock deanship application letter cracked me up.

Here.

ABI National Ethics Task Force Report--Limited Scope of Representation (up on Credit Slips).

Here.

My Conn. L. Rev. piece on legal education is out.

Here.

ABI National Ethics Task Force's Report -- post on Credit Slips about new proposed rule 2014

Here. 

Lois Lupica and I are guest-blogging at Credit Slips about the ABI's National Ethics Task Force Final Report.

Here's the first post, and here's Bob Lawless's very kind intro. 

Update on my Gonzaga piece on law schools, lying, and Enron.

After I published this piece, Robert K. Vischer, the dean of the University of St. Thomas Law School (Minnesota), gently suggested that I might want to clarify St. Thomas's restatement of its employment data: 

[Y]ou refer to St. Thomas Law School as having done “the right thing and ‘fessed up when it discovered that it had been misrepresenting its placement data.”  This is an important paper on an important topic, and I’m glad you’re tackling it head on.  I fear, though, that this line may lead readers to lump St. Thomas in with other law schools that have shown a pattern of deliberate misrepresentation.  Our oversight was a one-time occurrence that resulted from an erroneous entry of data.

Specifically, on line 169 of our Class of 2010 U.S. News Employment data report, the number of graduates known to be employed at graduation was correctly listed as 51 graduates (or 32.9% of our 155 total number of 2010 graduates). Unfortunately, on line 164 of the report, we incorrectly listed 125 graduates (or 80.6%) as employed at graduation.  U.S. News listed that incorrect number in its law school rankings.  We immediately contacted U.S. News to alert them to the error. The nine month graduation rate of 86.5% was correct in the rankings.

We did make a one-time mistake, and we paid the price by being unranked for a year.  I’m hoping to avoid leaving the impression that we are another example of law schools trying to fudge the truth over a period of years.

I'm happy to help Dean Vischer clarify his school's role.  There's a huge difference between making a mistake and engaging in a pattern of deception.

It's official--the new bankruptcy fee guidelines are rolling out on July 1.

Today's Wall Street Journal has a big article about the U.S. Trustee Program's new fee guidelines for lawyers in larger bankruptcy cases (here).  The rollout of the guidelines isn't a surprise.  The USTP published the proposed guidelines, received comments, revised the guidelines, received more comments, and then promulgated the final version (see here).  As the Wall Street Journal article points out, the next stage of promulgation will address the fees of the non-attorney professionals in the larger cases.

Lois Lupica and I, as part of our follow-up as Reporters for the ABI's National Ethics Task Force Final Report, will be publishing our Best Practices for Working With Fee Examiners in the next issue of the ABI Journal.  (Special thanks go to three people who gave us very helpful comments in our development of our "best practices":  Andy Vara, Robert Keach, and Brady Williamson.)  We think that our suggestions will be useful as people see an increased use of fee review committees and fee examiners.  

When I've had a tough day (and no, today wasn't tough), I read this blog.

Here.  I also read my friends' blogs, too....

How to make a teacher feel wonderful.

See here.  Thanks, Tori (and Jennifer)!

(And yes, my post-deanship portraits are better....)

Thanks, Wall Street Journal Law Blog and TaxProf Blog!

Nice to be in the spotlight (here and here).

Paul Horwitz on the legal education crisis.

His article (here) is a good read.

Fascinating video on the changes in legal practice.

Here.  Hat tip to The Legal Whiteboard.

For my law faculty colleagues--something free.

Jennifer Robbennolt & Jean Sternlight's book, Psychology for Lawyers, is a marvelous way to introduce students to the way that people (yes, including lawyers) perceive the world.  It's useful for students who plan to be litigators and for students who want to do deals.  Like every other ABA book, though, it's pretty pricey.  But here's the good news:

The ABA will provide you with some individual chapters for FREE to you and your students.

If you're interested, contact Jean at jean.sternlight@unlv.edu.

A "user manual" for a person is a great idea. Here's a first draft of mine.

This piece in Sunday's NYT (here) got me thinking:  most people are mysteries to each other, except maybe to their loved ones (and, even then, there's still some mystery left).  So here are some random thoughts about my working style, and my friends and colleagues are more than welcome to tell me that my opinions of my working style bear very little resemblance to reality.  Of course, I'm a lame duck dean at this point, and perhaps this manual would have been of more use at the beginning of my term.

1. My favorite colleagues are the ones who keep me from doing dumb things (at least without thinking things through first).  Please give me your real opinion, not what you think that I might want to hear.  Make suggestions, both about ideas and about how I might communicate them.  I promise you that you'll get my deep loyalty in return.
2. I am much happier with "direct" and "blunt" than with communication that beats around the bush.  I'm tougher than I look, so direct and blunt language will not bother me.  Waiting for 30 minutes for you to get to the point will bother me.
3. A sense of humor is a wonderful thing.  I love being in a workplace that can produce a belly laugh at least once a day, even if the laugh is triggered by being in the middle of a crazy situation.
4. If I've worked with you for longer than a month, it's because I'm happy with what you're doing.  It's totally OK to make decisions without checking with me, but it's also OK if you want to bounce ideas off me.  I operate on a "clearly erroneous" standard on most decisions--even if it's not the choice I would have made, if you made a reasonable choice, then I'm going to support it.
5. I prefer email to telephone conversations.*  I like in-person communications, too.  I've just never been much of a "phone" person; phone conversations make me antsy.  I think that texting is brilliant as a communications medium.  (Note to students:  I don't think that texting professors is a good way to communicate.)
6. I believe that meetings should have a purpose beyond presenting data.  Meetings are for brainstorming or for making decisions (or for keeping me from making a dumb mistake--see point #1 above).  I'm not a fan of folks going around the room in a meeting to tell me what they're doing.  That information is for day-to-day, talk in the hall stuff.
7. One of the things that I've loved about my colleagues this year is that everyone in the administrative suite recognizes that we're all on the same team, and there's not one complainer in the bunch.  Everyone here is busy.  Everyone here is trying hard.  Everyone here is overworked.  And yet, each morning, people come in cheerful, with their sleeves rolled up.  It just doesn't get better than that.

 Part of me wonders what would happen if I asked the folks with whom I worked to come up with their list of what I'm really like.  Hmmm....


__________
* Except with my friends and relatives.  I love hearing their voices.

I am so proud of my dad!

See here.  I'm proud of Dad for about a million reasons:  his career as a talented chemist; his wonderful parenting skills (he and Mom were amazing); his love of current events and of the written word; his sense of humor; his ability to try new things and get out of his comfort level.  This link gives you a glimpse about Dad and his background.

BRAVO, DAD!

I so wish this were an April Fool's Day story.

Last week, I received a notice from SiriusXM radio saying that I owed $4.52.  Given that I thought that I was paid up, I checked my account.  Yep--my account showed a zero balance.  So I thought that I'd scan the dunning letter with a note saying that my online account said that I was paid up, send that letter to customer service, and be done with the issue.

Nope.  The email from the customer service department reiterated that I had a $4.52 balance.  I responded that I had checked my account online, and that I had a zero balance.

You know what happens next, right?  Several emails and phone calls later, I've figured out that:

• SiriusXM's snail mail and email customer service folks never speak to the online or phone folks.
• "Use this reference number when talking with the email customer service people--that will help" comments from other SiriusXM customer service reps don't actually help.
• SiriusXM appears to want to cancel the account associated with my current car, rather than pay attention to the fact that I closed my old account several years ago, when I sold my old car.
• SiriusXM's email that it had, for the purposes of making a long-time customer happy, had credited my account for the $4.52.  This notice was followed an hour later by an automated phone call saying that I had a balance due on my account.
• This morning, I received a phone call from SiriusXM's customer service folks (some sort of ombudsman escalation) that gave me a phone number to call.  Well, it gave me nine out of the ten digits to call.  I suppose that I could try ten different last-digit numbers, but I don't want to spend any more time dealing with this issue today, other than recording this whole experience in today's blog (and then tweeting about it).

Is it any reason that I went to SiriusXM's 10-Q, looked up its corporate address, and sent a letter to its General Counsel?  He should get the letter on Wednesday.  Maybe he can do something about SiriusXM's customer service.  I sure can't.

It's more telling when someone who's been a partner at a major law firm complains about the billable hour than when an academic does it.

In yesterday's New York Times, Steven Harper made some very good points about billable hours (here) in light of the DLA Piper fee litigation (here and here).  I write about fees a lot (see here and here, and I have another piece coming out in a symposium issue of the Akron L. Rev. this summer).  My favorite part of Harper's opinion piece?

Lost in the furor surrounding one large firm’s current public relations headache are deeper problems that go to the heart of the prevailing big law-firm business model itself. Regrettably, as with previous episodes that have produced high-profile scandals, the present outcry will probably pass and the billable hour will endure. 

It shouldn’t. The billable-hour system is the way most lawyers in big firms charge clients, but it serves no one. Well, almost no one. It brings most equity partners in those firms great wealth. Law firm leaders call it a leveraged pyramid. Most associates call it a living hell. 

The fact is that billable hours create perverse incentives, because the way to make more money is to take more time or throw more humans into a project.  But billable hours evolved in part because the old way of billing ("$x for services rendered") didn't give the client a feel for how much work went into the bill.   If we want alternative billing to take hold, two things have to happen:  law firms have to figure out a way to calculate an alternative billing method that, at least on average, gives the firm a reasonable profit on its work, and law firms have to give clients some transparent information on what type of work they did on the client's matter.

One possibility is a flat fee that still records billable hours.  If the flat fee bears a reasonable relationship to the work done, then the client can see who did what, but the incentives for throwing bodies at a problem decrease.  The flat fee becomes a cap that controls costs.

The fear--and it's a legitimate one--is that many types of legal work involve unpredictable possibilities.  Let's say that a matter involves litigation.  Some of the expense of litigation involves responding to what the other side is doing.  So if one side is billing by the hour and the other side has a flat fee, then the flat-fee firm may well be held captive by the firm that is billing by the hour. 

On the other hand, major law firms are experienced in doing complicated work--and that experience is reflected in their billable rates.  If a firm is very experienced in, say, debtor-side chapter 11 work, then it can predict many of the actions that the other parties in the case may take.  It won't necessarily be able to predict the timing of those actions or their intensity (although, if it appears opposite those other firms all the time, it will have some idea of what they routinely do), but it has a feel for what's likely to happen in the case.  It's at least possible, then, that the experienced firm can establish a likely range of the fees and expenses that a matter might engender.  ("In the last several chapter 11 cases, our fees and expenses ranged from $x to $x+n.")

So perhaps flat fees might not work, but rough (and I mean "rough") budgets might act as a cap on a firm's choices for how to handle a matter.  Of course, some unpredictable events might make a budget inaccurate--but a firm can bring those unpredictable events to the client's attention and recalculate the rough budget accordingly.

The fact that a former Kirkland & Ellis partner is calling shenanigans on billable hours is significant.  Let's see how others respond to Harper's opinion piece.

UPDATE: Bad customer service at Sheraton Suites Old Town Alexandria.

I stayed at the Sheraton Suites Old Town Alexandria this weekend, and let's just say that I'm more than disappointed.  I can live w/refurbishing that closes down all but one elevator for two days (hey, exercise!); I can live with a "print your boarding pass" area that doesn't print; I can live w/a hotel restaurant that only opens at 7 a.m.

What I don't want to experience again--and which is why I will never stay there again--is that even after I called Starwood Preferred Guest Customer Service--the hotel did not take the duplicate Internet charge off my phone.

History:  web site says "click here and, for just under 11 bucks, you can use all of your devices on this connection."  I click.  Wireless is very slow.  I use a wired connection.  Better.

Over the next two days, the wireless, and then the WIRED, connection slows to a crawl.

When I see my bill this morning, it had not one, not two, but three Internet charges for the first day.  When I complained to the front desk, the person there said that she'd take the duplicates off my bill.

When I checked out, I discovered that she'd taken one of the duplicates off but left the other one on.  When I complained, she told me that she couldn't do anything about it but that I was welcome to talk with her manager.  That'd be the manager that wasn't there.  So I left, mightily ticked off.

When I got to DCA, I called Starwood Preferred Guest Customer Service and explained what happened.  SPGCS told me that the folks at corporate would tell the folks at the hotel to take the duplicate charge off.  I was treated very nicely by the Customer Service person.

I just got the bill.  The duplicate charge is still there.  So I've posted a review on TripAdvisor, and I'm going to send SPGCS a copy of this post.

Let me ask you, Sheraton Suites, is an $11 charge--an improper charge--worth it for all of this ticked-off-edness?

UPDATE:  I just received a third invoice from the hotel.  Finally, the errant overcharge has been refunded.

Best diagram ever, when it comes to law school administrations.

See here.  Well done, Jeffrey Harrison!

Oh, come on (with an update to a really good article about the rankings).

The students at the law schools that are calling for their deans to get fired due to changes in their USNWR ranks (see here) are exhibiting misplaced anger.  Most of the variables that go into the rankings are out of a school's control.  It's the faculty, not the dean, that will affect the reputational ranking, but the reputational score is based on such a flawed process (and small n) that it's ludicrous to blame the faculty for any reputational ranking problems, either.  Admissions?  Selectivity?  Schools pick from a pool of applicants.  They can't control the inputs.  If they have scholarship funds to lure folks away from other schools, great, but scholarship funds aren't infinite.  Bar passage?  Some of it's "us"--how and what we teach--but some of it isn't (whether someone studies).  Same with placement.  Some of it's "us"--are we sending well-trained, well-advised students into the job market?--but some of it isn't.  If students are calling for deans' heads because the deans lied about things like bar passage and employment statistics, I can understand their anger and frustration, and I share it.  If students are calling for deans' heads because they're sorry that they fell from x to x-10, then I'm not that sympathetic.  The USNWR numbers aren't an absolute value, they're relative, and relatively inaccurate, at that.  So law students who are gathering signatures to get their deans fired, you might want to think twice.

UPDATED 3/15/13:

And, for those law students scrambling for signatures on petitions, here's an extra thought:  take a look at this article by Professor Robert Jones.   He's done a very good job of discussing just how those academic reputation scores change--or don't--over time, and he suggests four interesting changes that might make those scores slightly less easy to "game."  Of those four suggestions, my favorite one's the last one, where he echoes Brian Leiter's call for an online survey that includes objective data about each school. 

All is right with the world this morning.

I'm going to get my Twinkies back.  See here.

A template for law schools' press releases, now that the USNWR rankings are in.

Well, the rankings are out, and the annual "let's figure out what to say in our press release" dilemma begins.  Here's a template for some law schools to consider.

Dear [stakeholder or possible donor]:

We are pleased to tell you that our law school ranking [increased more than we expected] [increased a negligible amount, but we're going to tout the change as if it were huge] [went down far enough that we've called in sick for the foreseeable future] [went down a negligible amount that will provide us with a disproportionate amount of grief for far too long] [stayed the same].

We are, of course, the best school in [the country--if we're Yale] [the region] [the state] [the city] [the part of the city in which we are located].  Our quality is reflected by [our reputational ranking] [our admissions numbers] [our placement rate] [our bar passage rate] [the ability of our marketing people to think creatively].

Even though we're [superb] [excellent] [very good] [really, really decent] [surprised that we're still here], we have committed to doubling our efforts to [track down unemployed alumni on various social media sites so that we can fill in the now-less-easy-to-cheat-on placement statistics] [rethink our curriculum in changing times] [write imaginative press releases that make us look as if we're moving in the right direction] [figure out how to steal budget money from other units on campus].

We thank you for your support, and we look forward to giving you even better news next year.

Of course, it's easier for me to write a post like this one given that we did just fine in the rankings.  But some of the press releases that are pouring in are just too funny to ignore.

Darn it! I missed National Grammar Day.

Yep:  apparently March 4 is National Grammar Day.  I missed it, but I sure love these two posts:  here and here.  I am someone who surreptitiously erases the mistaken apostrophe from chalk menu listings.  I'm even someone who's been known to write to major newspapers to chide them for bad writing (and bad proofreading).

But I'm experiencing my comeuppance:  right now, I'm dealing with a first round of edits from a good law review that is determined to make my writing style much more formal.  The editors have taken out every single contraction.  (I'm putting every single one back in--which has taken me several hours so far today.) So, in honor of National Grammar Day (a day late), my reaction to my current page proofs:

Dear Law Review Editors from Every U.S. Law Review:

Please let your authors use their own writing styles.  Please do not hew to the mistaken notion that your authors must use clunky and unnecessarily formal writing in order for your law review to be taken seriously by its readers.  All you're doing with these nitpicking edits is ticking off your authors.  Our names are on our articles, not yours, and trust me:  we know how we write, and we like our writing enough to do it for a living.  When you've written for a living for over two decades (three decades, in my case, if you count the time before I entered academia), you'll understand how we feel. 

I've decided that, in every new publication contract, I'm going to insert a provision barring the law review editors from removing my contractions or changing my writing style.  Enough is enough.

Now, go check your commas and apostrophes to prepare for next year's National Grammar Day.

My home town is being threatened by some wrong-headed people.

See here.  I'm not saying that Orange was Nirvana when I was growing up.  After all, it's located near Vidor, a hamlet that held its share of Klan rallies.  Vidor was so bad that, if one of us had a car that broke down there, we'd just walk away from the car, out of the city limits.  But I'd have thought that Orange, being "not-Vidor," would have the intelligence to avoid this whole "let's put up a Confederate monument right next to Martin Luther King, Jr. Drive" thing. 

I get that there's a freedom of speech issue here.  So does Orange's City Attorney.  But I hope to hell that there are protesters on site, day and night, to explain to the "Sons of Confederate Veterans" that most people actually think that erecting the monument is not the best depiction of the "history of the South."  The best cure for dumb, bigoted, wrong-headed speech is more speech.  Let's see what Orange's citizenry does.

Rutgers-Newark's law dean is right (updated).

Dean John Farmer came up with a nifty idea that he puts forth in today's New York Times (here):  have new law grads become apprentices for a couple of years, a la medical school residents.  His idea isn't new--others have proposed it as well--but he makes a good case for marrying the need to serve the middle class with the need to provide job training for law grads.

UPDATE:  Northwestern Law's Dean Daniel Rodriguez has also come out with a provocative and timely essay (here).  Ultimately, a lot of us are going to have to justify legal education in general and particularly in the third year.

Yeah, thanks a lot, Dallas Morning News.

The Dallas Morning News's article this morning about SMU Law Dean John Attanasio contains at least one whopper:  "In 2006, University of Houston Law Center Dean Nancy Rapaport was forced to resign when her law school plummeted in the U.S. News rankings."

Um, DMN?  You might want to call someone before writing something that's not correct.  If you'd called me, or checked my blog (see here), you'd have said something different in your story.

My mom was a reporter.  She got her facts right.  You should, too.

Newsflash: A Disney fanatic can detest the Grand Californian Hotel at Disneyland.

We had some serious problems with the Grand Californian Hotel at Disneyland, and we wrote to Disney's Customer Service Department on Sunday.  Today's Wednesday.  I'm still waiting for Disney's response.  If you know me, you know that I buy into the whole Disney experience.  I love the company--and I have, ever since my first visit to Disneyland after taking the California Bar.  Jeff & I are DVC (Disney Vacation Club) members, and I go to a Disney site at least twice a year.  (Jeff usually goes on one of these trips.)  So I tend to be pretty forgiving about minor problems.  This visit, though, wasn't about "minor" problems. 

• The room smelled like skunk when we checked in.  To housekeeping's credit, when we asked, the folks there got rid of the skunk smell.  Then the room smelled strongly of cleaner.
• It took more than a normal amount of time to reach anyone by phone:  room service, front desk, operator.  It shouldn't take three minutes to reach the operator or the front desk, especially during normal hours.
• The front desk got some basic information wrong about what was open at which times.
• When we checked out and said that we'd written to Customer Service because of some serious problems, the check-out person responded with "OK."  Not "I'm so sorry to hear that."  Not "Tell me what happened."  Just "OK."

We're lucky.  We used DVC points to stay there.  I can't imagine paying several hundred dollars a night for the room there.

Um, Disney?  So far, we're not impressed with your response.

I'll keep everyone posted.

UPDATE:  2/8/13--a very nice person from Disney Guest Relations called me, listened to my complaints, and was very, very helpful.  She restored my faith in Disney.  Although we still won't go back to the Grand Californian, we'll be happy to go back to the Disneyland Hotel.

Happy Twinkie news....

See here and here.  I'm looking forward to being reunited with my favorite guilty pleasure.

Dinosaur or phoenix?

There have been numerous stories about outsourcing in law practice (for example, here), and lately, I've been reading about outsourcing for other reasons outside law practice (see here for a serious proposal and here for Lucy Kellaway's more tongue-in-cheek one).  All of those stories have me thinking:  are most law schools destined to become dinosaurs, or will legal education become a phoenix?

If law schools continue to deny that applications are down and that law practice has changed (those changes are, in my opinion, permanent ones), and that therefore legal education has to change, they're dinosaurs, and we're just waiting for the rest of the Ice Age to come.  If, however, law schools start to innovate in ways that actually help their students develop the new skills that they're going to need (like Washington & Lee has done with its third-year curriculum), then maybe we can rise from the ashes of an outmoded system.

Personally, I think it's more fun to try to be a phoenix than to try to "wait out" the Ice Age.

Rats. I hate reading about stupid Marines.

I love my Marine Corps.  (And I love my hubby, brother-in-law, father-in-law, and friends who have served.)  So it bothers me when I read op-ed pieces, like this one in today's Wall Street Journal written by a former Marine, that argue that women shouldn't be in combat.  According to the author, the reason that women shouldn't be in combat is ... well ... poo:

Yes, a woman is as capable as a man of pulling a trigger. But the goal of our nation's military is to fight and win wars. Before taking the drastic step of allowing women to serve in combat units, has the government considered whether introducing women into the above-described situation would have made my unit more or less combat effective?

Societal norms are a reality, and their maintenance is important to most members of a society. It is humiliating enough to relieve yourself in front of your male comrades; one can only imagine the humiliation of being forced to relieve yourself in front of the opposite sex.

OK, Mr. Smith:  POO is your concern?   The fact that those who serve our country are willing to do so, knowing that many of them (1) won't come back alive or (2) will come back with severe injuries, is what makes me so proud of our troops.  My guess is that the more serious risks are what our people think about before they go into battle.  Not about poo.  My hubby has not even once listed "poo" among the serious risks that he and his colleagues faced.

Women really are as capable as men when it comes to being willing to defend our country, and it irks me no end when folks ignore one of the benefits of letting women serve alongside men.  Those combat experiences that make people eligible for promotion and more responsibility need to be open to everyone willing to serve.

So, Mr. Smith:  maybe it's time to rethink your priorities.

One of my former Contracts students found this great link.

If you've missed it, enjoy the contract interpretation of Bilbo's contract here.

Let's take this two-year/three-year law school proposal a step further.

Today's New York Times has an op-ed by Dan Rodriguez and Samuel Estreicher suggesting that the third year of law school could be optional and used for specialization (here).

I'm not opposed to the idea, and others have suggested it (or things like it) before.  For a good post discussing the pros and cons, see here by Deborah Merritt on the new blog, Law School Cafe.

What intrigues me about the proposal is that recognizes that law school shouldn't be a one-size-fits-all option.  I'm enough of a risk-taker to think that, if state bars would grant a limited license to the folks who graduate after two years and a full license to those who take all three, then those graduates who want to minimize their law school costs and have the (very fulfilling) life as a lawyer doing some sorts of things (but not all "lawyer things") could still serve their clients very well.  (Law is, after all, an undergraduate degree in most countries.)  Two-year graduates who want to expand their practices could maybe return to law school for that third year, or take an additional certification exam, or demonstrate additional competence and judgment in some yet-undiscovered way.

The nice thing is that a move to the two-year/three-year model will, by necessity, force law schools to be more deliberate about their curricular choices. 

Congrats to Sherri Wattenbarger!

Sherri, who is a trial attorney for the USTP in Kansas City, MO, received the U.S. Attorney General’s Community Service Award at a ceremony in the Great Hall at the Robert F. Kennedy Main Justice Building in Washington, D.C.  Each year, the Attorney General selects two to four individuals to honor with the Community Service Award from nominations among more than 100,000 Department of Justice employees nationwide. Sherri was honored for her  exemplary community service for her sustained volunteerism and leadership in the legal community and the Kansas City metropolitan area.  (IMHO, she's a bundle of energy, too.)

Congrats, Sherri!

You can only call it a "genius bar" if the people doing repairs are actually thinking: UPDATE.

Normally, I love Apple Computers.  Love the products.  Love the service.  But not this time.

1/2/13:  Brought in my MacBook Pro to the Apple Store at Town Square because I was having a problem with the computer's sleep function.  The person at the Genius Bar (James) told me that he'd look it over but that we might have to replace the hard drive.

James:  "Have you backed it up?"
Me:  "I think so, but I'm not positive.  What should we do?"
James:  "Why don't we do this--if we have to replace your hard drive, I'll call you first, so that you can take the computer home, make sure it's backed up, and then we can replace the hard drive."
Me:  "What a great idea.  Thanks!"

You know where this is going, right?

I dropped it off on 1/2/13 (it's repair ticket R81777487, if anyone at Apple is reading this post), and I got an email yesterday that the computer was ready for pickup.

I pick it up and see a "REPLACED HARD DRIVE" tag on it.  I explain my extreme unhappiness to the guy at the Genius Bar (Nick), and he apologizes.  I explain that I appreciate the apology, but that I need them to fix the problem that they caused.  With both "Repair Nick" and "Manager Nick," the best they said that they could do was give me the old hard drive ("which we normally don't do").  "Repair Nick" said that, if I brought in my Time Machine, he would personally try to restore all of my data.  I went home, hoping that Time Machine would work.  "Manager Nick" was singularly unimpressive in terms of coming up with creative and appropriate solutions.

And it would have--had Apple replaced my old hard drive with a new 1 TB drive, rather than a 750 GB drive.

At this point, I'm bordering on the shaken-faith doctrine.  But I'm about to drive BACK to the Town Square Apple Store with (1) my still-needs-to-be-fixed computer, (2) my Time Machine, and (3) my old hard drive.  I hope with all my heart that "Repair Nick" can fix the problem that his store caused in the first place.  More soon.

UPDATE:  "Repair Nick" has replaced my drive and is using my Time Machine to restore my computer.  He's actually a nice guy.  Will update y'alll when I can.

FURTHER UPDATE:  "Repair Nick" has saved the day.  He was able to restore my computer completely -- or at least I think so.  I'll know more when I pick it up.  He has been unfailingly polite and patient.