Criminal prosecution, however, is a bit more messy. Contrary to what you might see on TV, prosecutors do not always spend hours preparing every witness. First, they don’t have time for most cases. Second, they might not want the testimony to look canned. Third, if they do witness prep, they may have to report it to the opposing side (even if it wasn’t requested). Prosecutors rely heavily on prior witness statements to the police, just as civil litigants rely on depositions. I’ve never been a prosecutor, but this is what I’ve heard from others.

The case at issue here was one for sexual assault against a former Bronco player. The charge, as far as I can tell, was based on the victim’s lack of ability to consent (she was passed out) rather than lack of consent. This was a serious charge, and the case seemed open and shut. There was no dispute that she was unconscious in the defendant’s apartment, and DNA showed she was impregnated by him. But, that’s why we have trials (or, to use a sports analogy – that’s why they play the game).

Some of the pre-trial investigation must have revealed “girl on girl action” in the apartment that night (the defendant’s girlfriend was in the apartment that night), though it is unclear who actually witnessed it. In any event the court banned any testimony of any such activities under Colorado’s rape shield law. I think such laws are good policy – they preclude use of prior sexual activity by the victim as evidence of consent during the incident at trial.

However, use of the shield seems odd here – the statute is designed to shield prior activity (and the Colorado statute says “prior or subsequent.”). It seems that activity “during” the night in question would be relevant. Perhaps the court found that the activity occurred on the same night (if it did at all) before the alleged assault.

In any event, witnesses were not to be asked about it, and I presume witnesses were told not to mention it. But here comes the prosecutor’s mistake: after the “star” witness for the prosecution did not support the case as strongly as was hoped for, the prosecutor asked why the witness had sent several text messages to the victim the next day. Presumably, the prosecutor wanted to show the witness’s concern because she had been raped.

The answer came out before the prosecutor realized his mistake: the witness had heard from another player, the defendant’s roommate, that the witness had missed some great “girl on girl action” and that the text messages were to ask the victim about this (I assume because he was romantically interested in her).

The killer part of this testimony is that it was now admissible when it shouldn’t have been. It was barred by the rape shield law, but not when the prosecutor asked about it for other reasons. It should have been barred as hearsay, since the witness did not see the activity; however, because hearing the statement was why he sent the text messages, it was admissible to prove why he sent the messages, rather than for the “truth” about anything that happened in the apartment that night.

At that point, the prosecution was done. It had intended to call the roommate, but then decided to avoid him after that statement came out. This must have made it appear to the jury that the roommate’s statement was true. To make matters worse, the victim had deleted many of the text messages (and by implication did not deny the statement), which discredited her. The defendant’s attorney argued in closing argument that the victim couldn’t have been unconscious (the charge) and that perhaps the defendant participated (consensually).

End result: acquittal. I have no idea of the merits of the jury’s decision – I didn’t hear all the testimony. As a professor, though, I thought this was a very simple and direct way to show the costs of pushing too hard to make a point when you don’t know what’s coming next.

The court held that this is a legally cognizable injury, and that a jury has to decide whether she wouldn’t have been hired anyway.

For those of you on the market this year (or thinking about it), the case is also an insightful view into the black box of academic hiring. It shows how mixed signals can occur, and how uniformly positive feedback can still not lead to getting hired for all sorts of reasons outside of the candidates’ control. I won’t comment on the reasoning or facts in this case, because I just don’t know them. That is, as they say, up to the jury now.

One final point – there is a key faculty governance nugget buried in this case. One factual question was whether the dean always followed faculty recommendations, and/or whether the dean must. While most deans follow almost all faculty hiring recommendations, they usually (technically) don’t have to. One issue in this case is that no such policy was in writing. After this case, deans might want to put such a policy in writing, but maybe the deans (or university provosts and presidents) won’t want discretion so limited.

H/T How Appealing

First, there is this claim “It’s time that we as a nation accepted a basic — and seldom-mentioned — fact. You don’t need a degree (and certainly not an M.B.A.) to start a business and create jobs, nor is it even that helpful, compared with cheaper, faster alternatives.”

Although many may say college was not necessary for them, I wonder how often an investor would take interest in a large range of folks without the same pedigree that these few have. Just look at where the folks who drop out went to school even briefly, their home lives, and socio-economic backgrounds. These dropouts had some serious foundations and support for success before college. I don’t disagree that learning about sales, networking, and how to take failure are important. I just wonder whether stating that school is not the place to go if you want to start a business is so smart for everyone. I have tried and failed at several things since law school. I have had the advantage of family support, growing up around two doctors, attending rather good schools from k-12, socialization regarding how to talk to the well-educated power brokers, and great undergraduate and graduate degrees to kick open doors for those initial meetings. Oh and if anyone thinks elite schools are not about networking, think again. Facebook: starts at Harvard, expands to elites, adds more, is all about social networking; sounds like a networking thing to me. In short, droves of people avoiding college to start a business should assess whether they will be able to start one, or whether they will be apprentices who are underpaid, overworked but in fact learning on the job. There is nothing wrong with that approach; but as far as I know, most places that offer such apprentice work expect a college degree as a baseline.

Second, schools should change, but they are not silver bullets. As for teaching failure, I always tell my students that the classroom is where you must try and fail, try and fail, try and fail, because it is better to do that in class rather than on a test or outside the campus. So yes, schools that over focus on passing tests rather than developing critical thinking and social skills are probably missing a large piece of the education puzzle. Maybe the answer is less technology as another Times article that looks at a private school group that cuts off technology for the students until around eighth grade suggests. YEAH! I happen to believe in the idea of simple, reading, writing, and arithmetic. Why? It served me well. I was ready to take college level political philosophy during high school. College professors were amazed at what I had read and discussed in grade school. Of course my way is the best. No, wait. Is that really the basis for a solution? No.

Technology is what we make of it. I believe we, as a society, can and will develop less expensive ways to share knowledge and put the power it into everyone’s hands. The materials on Khan Academy are but one example. Despite the fits and starts of Kindles, iPads, computer, netbooks, tablets, etc. as reading devices, I’d say that the group failures in the space point to a way forward. The challenges of IP laws, state regulations, and federal regulations await resolution. Tackling those problems will take, wait for it, a good education.

I am not alone in that assessment.  Over at Truth on the Market, a lot of smart people who think and write about innovation are looking at regulation and legal markets in an online symposium titled “Unlocking the Law: Deregulating the Legal Profession.” Many of the posts recapitulate recently-published scholarship, as good blog posts are wont to do, but the blog symposium format collects them in a single, useful, and accessible place.  My favorites (so far) are these:

• Larry Ribstein, posts one and two (on why deregulation is happening before our eyes, and what that means)
• Bill Henderson (on disruptive innovators in the legal services marketplace)
• Gillian Hadfield (on some of the benefits of looking as the legal system as economic infrastructure)

When innovation lawyers are loosed upon market failures in information settings, one of the standard policy responses is the creation of intellectual property rights of one sort or another.  I haven’t read all of the TOTM posts closely, nor all of the underlying scholarship, but I would not be surprised to find proposals that a good chunk of the legal services marketplace should be “privatized” in one way or another, to an even greater extent that it already is.  Copyrights in briefs, arguments, legal strategies, and transaction documents might be strengthened and enforced, for example, just as copyrights abound in model codes and Restatements, as inducements to innovate.

Others with more time than I have right now can ponder in detail the distributive effects of those solutions.  I will simply point out that this area is ripe for exploration through the lens of the work on commons that I have launched with Kathy Strandburg and Brett Frischmann.  As Brett has argued at great length, economic resources that we treat as infrastructure often should be supplied through commons governance (i.e., managed open access) rather than through private markets.  Reliance on the latter may well lead to undersupply.

A taste:

I do not believe society should be forced to choose between whether our children get a great education or their teachers get great medical care. But only we can create the local medical systems that make both possible. You who graduate today will join these systems as they are born, propel them, work on the policies that accelerate them, and create the innovations they need. Making systems work in health care—shifting from corralling cowboys to producing pit crews—is the great task of your and my generation of clinicians and scientists.

You are the generation on the precipice of a transformation medicine has no choice but to undergo, the riders in the front car of the roller coaster clack-clack-clacking its way up to the drop. The revolution that remade how other fields handle complexity is coming to health care, and I think you sense it. I see this in the burst of students obtaining extra degrees in fields like public health, business administration, public policy, information technology, education, economics, engineering. Of some two hundred students graduating today, more than thirty-five are getting such degrees, intuiting that ordinary medical training wouldn’t prepare you for the world to come. Two years ago, the Institute for Healthcare Improvement started its Open School, offering free online courses in systems skills such as outcome measurement, quality improvement, implementation, and leadership. They hoped a few hundred medical students would enroll. Forty-five thousand did. You’ve recognized faster than any of us that the way we train, practice, and innovate has to change. Even the laboratory science must change—toward generating treatments and diagnostics that do not stand in isolation but fit in as reliable components of an integrated, economical, and effective package of care for the needs patients have.

The problems of making health care work are large. The complexities are overwhelming governments, economies, and societies around the world. We have every indication, however, that where people in medicine combine their talents and efforts to design organized service to patients and local communities, extraordinary change can result.

Recently, you might be interested to know, I met an actual cowboy. He described to me how cowboys do their job today, herding thousands of cattle. They have tightly organized teams, with everyone assigned specific positions and communicating with each other constantly. They have protocols and checklists for bad weather, emergencies, the inoculations they must dispense. Even the cowboys, it turns out, function like pit crews now. It may be time for us to join them.

An hour was devoted to each paper, and several more people attend/ comment than present. The price of admission is reading each paper, and very little time is spent by the author presenting each paper. I spoke for maybe 5 minutes before we got rolling with a “This is great and all that, but what’s your point…” type comment.  I think one presenter got three sentences in.

That’s really the benefit of a conference like this – it is hard to get the focused minds of 10 or more senior scholars on your problem. But that’s also the scary part – it occurred to me that I was one of very few untenured participants and I was presenting an early draft of a paper that I knew was outside my comfort zone. But that’s precisely why I needed to present.

Some people advise junior scholars to refrain from showing work that’s unpolished to senior scholars who might gossip about how dumb you are. To that, I say, “hogwash.” Sure, it’s better to have complete sentences and best to have complete thoughts, but sometimes you need a group of smart and experienced people to figure out why you aren’t making your point the way you wanted to.

You just can’t get that kind of help at a big conference where no one has read the paper and you get 8 minutes to present with another 10 minutes of comments. I don’t even think you can usually get that kind of help at your average faculty workshop, where you spend a lot of the time presenting your idea (and where your oral presentation might clarify some of the shortcomings of the paper so that you never get the right critical comment).

So, I got shredded, but in a good way, and the final paper that results will reflect that – I hope.

1. Berkeley

2. Stanford

3. George Washington

4. Boston University

5. N.Y.U.

6. Columbia

7. U Michigan

8. Houston

9. Duke

10. Franklin Pierce

To illustrate, I’ll reveal a bit about two classes I have taught: copyright and evidence. I’ve published a reasonable amount about copyright, including a casebook published by West. By contrast, I’ve published nothing about evidence, with my background in that area coming from my work as a litigator.

Students have rated both of these classes well. In fact, I don’t think there’s any significant variation in the numbers. Yet, I firmly believe that I teach better a copyright than evidence class because the things I learn from research and publishing enable me to give copyright a deeper and more nuanced treatment. I know more about the overall structure of the area, respond better to student questions, and challenge students in more ways in copyright than in evidence.

Now granted, I don’t think this is something that students always pick up. My evidence class is pretty “black letter,” sticking to how lawyers need to work through evidentiary problems in courtrooms. This makes sense given how students will use evidence, and I think students feel that the course serves them well. Nevertheless, I am aware that I don’t blend in the “big theory” issues as well as I could because I don’t know them that well.

By contrast, I pack a lot into my copyright course. This sometimes frustrates students. Some only want “black letter” law (something that is very elusive in copyright at best). Some dislike what they consider theoretical digressions from what they need to know for practice. I could teach copyright to that lower common denominator, but I choose not to. And I like to think that my students come to appreciate that the complexity they encounter ultimately serves them well when they deal with that subject’s frustrating ambiguity in practice. In short, although I teach what I think is a good, competent evidence course, the academic “ceiling” in my copyright class is much higher.

To be clear, I am not saying that publishing is the only thing that prospective students should care about in evaluating a law school’s faculty. As I suggested in an earlier post, some law schools clearly value teaching and their professors are accessible to students in ways that can matter a great deal. Students should visit schools, talk to existing students, and see if classes are well-received. Such inquiry will probably identify a number of schools that appear to have good teaching. At this point, I think it makes sense for a prospective student to then compare publication records of the faculties to see how often they will learn from professors who are at the forefront of their fields.

The most important space for students is the classroom. When you visit a school, look at some large and small classrooms and evaluate the sight lines and acoustics, preferably by sitting in on a live class. Do students sit in a pattern where they can see and hear each other? Can they hear the professor? You might be surprised at the number of classrooms where heating or air conditioning interferes with voices. This might not seem bad in the traditional lecture class you had in college, because professors can always wear a mike. But in law school, the Socratic method makes it important to hear what your classmates say. It’s impossible to follow along if you can’t. In addition to sight lines and acoustics, you might also look at the front of the room. Is there full audio-visual capability with a computer for the professor? Is there enough white or blackboard? Is the screen large enough for easy viewing by students?

Next, I would suggest looking at the individual and group work space available for students. Individual work space exists primarily in the library. There needs to be ample seating to support students during high demand periods like exams or major writing projects. Is there seating of the kind you prefer to work in? Long tables? Individual carrels? Big, padded chairs to sit in while reading? Is there ample Internet access, wired or wireless? You are going to spend a lot of time studying in law school. Unless you are sure that your apartment or house provides you with the space you need, you will likely spend a lot of time in these facilities.

Group work space exists in libraries and sometimes elsewhere throughout the school. How many small conference rooms are there that students can reserve? I personally wouldn’t be too happy with only a few. At certain times of the year such as moot court competitions, there is a lot of student collaboration going on, and demand for these spaces can get pretty heavy.

One other type of important student work space involves the facilities of any clinical programs. If the school has clinics where students actually represent clients, are there proper rooms where client meetings and interviews can be held, separate areas where students can do work and maintain case files? Clinics are expensive to run, and it is not uncommon for schools to trim those costs by providing clinic facilities that don’t fully support the clinics’ work. If you think a clinic will be a big part of your legal education, this could matter.

Finally, I suggest looking at the spaces where students can gather informally. Is there a good student lounge or other gathering place like a cafeteria? Are there seats in hallways where you can sit for conversations? Granted, these amenities may not seem terribly important, but their absence impairs the creation of a community where students get to know and support each other.

All of the things mentioned here seem pretty obvious, perhaps so obvious that one would think every law school would take care of them. It may well be the case that the schools you’re comparing will all have good physical facilities. But you might also be surprised at how often schools, even some of the top schools, have facilities that don’t fully support their educational ambitions.