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Local Links: From DU, the Only Student-Faculty Collaborative Legal Blog in the Country

This is part two of our new series featuring blogs by members of the Colorado legal community.

The Race to the Bottom is a faculty-student blog published by University of Denver Law School. As you might recall, several of its bloggers recently attended and covered our annual securities conference. The blog’s faculty sponsor (and frequent contributor), Professor Jay Brown, and its managing editor, student Charles Nichols, recently took some time to talk with us about their blog.

1. Tell us a little about The Race to the Bottom, how it got started, and its purpose.

Two University of Denver Law students and Professor Jay Brown started The Race to the Bottom as a parallel to a law journal on corporate governance in 2007. The blog focuses on corporate governance in the post Sarbanes-Oxley era. The two students, with a number of classmates and a great deal of effort, designed the website, fleshed out the vision for the blog and got the project off the ground.

The Race to the Bottom is now the only student-faculty collaborative legal blog in the nation. Further, the blog is closely followed by both the local and national legal community and has been cited in briefs, law review articles and court opinions. This article (.pdf) will provide a more in-depth look at this question.

2. Who writes for the blog and how are those people selected?

The blog is made up of both student and faculty contributors. Our student contributors are selected through a selective write-on candidacy held every semester at the University of Denver Sturm College of Law. All candidates complete a case analysis and a citation exercise and the Executive Board reviews every packet and anonymously selects the future contributors.

The Race to the Bottom also has faculty contribution from Professor Jay Brown, other DU faculty as well as other faculty throughout the country who are invited to contribute based on their focus on corporate governance issues.

3. You guys manage to really crank out some quality content. How do you coordinate who’s covering what?

We try to make sure contributors are writing on subjects they are interested in as that lends itself to a stronger product. Our student contributors report to one of two senior editors who in turn report to our managing editor and editor in chief. This process allows the editors to get a good understanding of the contributor’s interests, writing level and underlying knowledge and therefore assign posts that align with those interests. As the blog matures, we are beginning to focus certain students writing in specific areas to develop “specialists” and allow our coverage to go into more depth than it otherwise would.

4. What case that you have followed has had the “most read” posts?

At any given time, we focus on two or three major cases. When we do this, we follow every filing, hearing, motion etc. that takes place in that case. Our first, and most widely followed case was (and continues to be) the insider trading case of former Qwest CEO Joseph Nacchio. This case acted as a great springboard for the blog. The close proximity of the hearings allowed us to have contributors attend every day of the trial and provide an in-depth coverage of the legal aspects of the proceedings. This coverage distinguished us since much of the other coverage of the trial was more typical news reporting and we were the main source covering the legal nuance of the case. The Race to the Bottom’s coverage of Mr. Nacchio’s trial helped increase our readership and create a niche in the legal community rather quickly.

Our Nacchio posts can be found here.

5. What has been the blog’s greatest success so far?

From a “most read” perspective, our coverage of the Nacchio case is our greatest success to date. We continue to write on the resentencing aspects of the case and our following of those posts continues to be strong.

That said, on a broader level, being able to grow the blog and improve the quality of our product over the past three years has been a great success. We are proud to have turned what was an idea by a group of students a few years ago into a legal forum that is generating more and more respect on campus and in the legal community. We have a very strong group of student and faculty contributors, both current and past, who have worked very hard to make The Race to the Bottom a success and we are pleased to be making strides towards that goal.



Over the last few years, however, order has begun to overtake the blogosphere.  First, the blogs have largely ceased to be the isolated musings of individual faculty.  One change has been the advent of Empires.  Paul Caron at Cincinnati has run a blog Empire, the Law Professors Blog, with his writers receiving compensation (something discussed in Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings) and coming under a common rubric.  These Blogs remain located on independent servers but have lost their libertarian spirit through common rules that, for example, eschew personal musings. 

In addition, law blogs associated with specific law schools and relying on their servers have become more common.  Some are faculty blogs, advertisements mostly, although others are more substantive.  Chicago is a good example of law school with a successful faculty blog.  Others are substantive blogs, with the Harvard Corporate Governance Blog an example of this category.  Finally, many other successful law blogs have either started as, or have evolved into, a group effort, with the members changing and shifting but providing constant content.  The Conglomerate and Truth on the Market are examples. 

Those individuals who were on the blogosphere at the beginning, starting their own idiosyncratic blog, have begun to die off.   It may be that readers want the benefit of organization.  It may also be that running a blog as an individual is a grinding task of daily posts.

An example of that occurred this week with the announcement by Larry Ribstein that Ideoblog, after six years, would go out of business.  He would instead lend his often weighty voice to Truth on the Market.  In short, he has joined a group effort.  His explanation was that the move "will not only unite me with a great group of market-oriented commentators, but also expand my reach." 

Its always hard to judge the "reach" of a blog but various measurements indicate similar numbers for the two blogs.  On site meter,  Ideoblog averaged somewhere around 375 unique hits a day compared with around 425 at Truth on the Market.   The Justia rankings put Ideoblog at 96 on their all time list and Truth on the Market at 106.  Both apparently have a 6 on the Google rating scale.  Nonetheless, the move allows him to maintain a serious internet presence yet at the same time avoiding the daily responsibilities associated with maintaining a law blog. 

In the corporate governance area, that leaves as entirely solitary affairs only the efforts of Steve Bainbridge.  The Race to the Bottom is a bit of a hybrid, involving contributions by faculty and students.  The students have created an editorial board with student contributors.  Posts are examined for blue book compliance.  For a history of The Race to the Bottom, go here.  Nonetheless, it remains excessively dependent upon a single faculty contributor (although that also appears to be evolving). 

There is little questions that the blogosphere is becoming better organized and less idiosyncratic.  There is certainly something lost in the process.  As Steve Bainbridge notes, these individual voices:  

• tend to be more coherent. They have a real voice rather than a cacophony of noises. I feel a greater degree of personal connection to a sole-authored blog than to a group. The quality of group blogs tends to be uneven.

Organization has its benefits but also its costs.  The demise of Ideoblog is part of that process.  

What happened to these blogs?  As the post notes:  "There are a few on here that are dead for good reason (e.g., the firm no longer exists.) There are a few on here where the attorney moved on to other jobs and left BigLaw behind. And, there are a few that were clearly 'short-term' blogs designed for a specific purpose."

TheRacetotheBottom, fortunately, is not one of them.  It has been operating for more than three years. 

The data does, however, illustrate two important difficulties that accompany efforts to develop a good law blog.  The first is the need for unique content.  To the extent a blog simply repeats what is already in the public domain, there will be few reasons for readers to use it.  Unique content can come in the form of more in depth reasoning or in the posting of materials that are otherwise difficult to acquire.  This Blog, for example, routinely posts briefs from Delaware cases, a resource that is either difficult or expensive to acquire.

Second, a good blog requires a sustained output.  That in turn requires a considerable amount of time and effort, presumably by a lawyer at the firm.  This level of involvement (and loss of billing time) must be weighed against the benefits of an active and widely read blog.  One of the benefits is that a good blog gives the law firm a greater Internet presence.  Given that more and more clients are likely searching for lawyers (and everything else) on the Internet, there may well be a significant business development benefit from a well run blog.

Ultimately, however, the data from 3 Geeks and a Law Blog shows that not all large law firms can master a successful blog.  Size, it appears, is not everything. 

For more on what it takes to develop a good law blog, take a look at Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  

More and more, academics seem to be coming around to the view that law blogs have an important role to play.  Some have done so because of the perceived improvement in the dynamics/technology of blogs.  As Orrin Kerr recently noted on the Volokh Conspiracy,

• Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text.

Nonetheless, not all law blogs qualify as scholarship, as Steven Bainbridge recently reminded, and not all law blogs are active participants in shaping the law.  So which ones qualify?  One answer requires reference to both demographics and the judicial system. 

First, some of the growing influence of law blogs can be put squarely at the door of demographics.  As a practical matter, those below 40 (which this author is not) are more likely to use the Internet to conduct legal research and search for information. 

Second, given this demographic reality, it would be important to know where younger lawyes have a disproportionate impact on shaping the law.  They are not, on the whole, managing partners at large law firms, general counsels at Fortune 500 companies, or judges sitting on the state or federal bench. 

They are, however, lawclerks to judges.  Despite the existence of permanent clerks and lawclerks who have already practiced, most still come directly from law school.  Lawclerks are likely to be younger and more technologically proficient than the bar as a whole.

They can, as a result, be counted on with some frequency to read law blogs that comment on cases under consideration within their respective chambers.  (The likelihood will no doubt vary depending upon the particular court considering the case, the public profile of the case, and the case's legal complexity).  As they research these cases, either to prepare their judges for oral argument or to draft opinions afterwards, they are likely to want to consider any erudite commentary that sheds light on these cases.

Blogs that focus on cases, therefore, can have an impact on ongoing litigation, even if in a sub silentio fashion.  They can also become part of counsel's strategy in dealing with important cases.  This was suggested in an exchange that I had with a prominent lawyer in Washington DC.  As this lawyer explained:   

• I understand that Supreme Court clerks (and lower court clerks, as well) often check the blogs that cover their cases.  Appellate lawyers are aware of this practice, and, as a result, blogging is sometimes used as a kind of back-door, post-argument supplemental briefing.  In most appellate courts, particularly the Supreme Court, the court will only very rarely allow the filing of a post-argument brief to address an issue that arose during oral argument.  However, since bloggers discuss and comment on the oral argument in prominent cases, and since the clerks (and possibly the Justices themselves) read these posts, the blogosphere can serve as a vehicle to, in effect, continue the oral argument or supplement the briefing.

In other words, contemporaneous commentary on cases can influence the thinking of law clerks and judges.  So can discussions after oral argument, a circumstance facilitated by the quick posting of transcripts by the Supreme Court and the willingness of some circuits to put oral arguments online.  In effect, blogging can be a form of post-oral argument analysis. 

Discussion after oral argument can be particularly important for cases at the Supreme Court if used to address issues left unanswered or partially answered at oral argument.  For cases at the US court of appeals, the identity of the respective panels usually becomes known only just before argument occurs (the DC and 8th Circuit are the exceptions, see Neutral Assignment of Judges at the Court of Appeals).   Blog posts could at that point address concerns or positions of the particular jurists actually deciding the case.  

This suggests that law blogs focussing on cases can have accentuated influence.  This Blog does.  Moreover, as we have seen, TheRacetotheBottom increasingly makes appearances in briefs (for examples, go here and here).  During the Blog's coverage of the trial of Ward Churchill, it was common to enter the courtroom and see the latest posts from TheRacetotheBottom on the computer screens of counsel.

Not all law blogs do this.  Moreover, some that do merely throw off a paragraph or two that is more descriptive than analytical.  In the end, detailed analysis for important cases from those in the academy with deep expertise in the legal matters at issue may be the best way for blogs to play an active role in shaping the direction of the law.  

The Race to the Bottom got a nice mention in this month's edition of the Student Lawyer Magazine, an ABA publication.   As the Student Lawyer describes:   

• The University of Denver Sturm College of Law –based corporate governance blog, The Race to the Bottom ( www.therace tothebottom.org ), has earned its share of respect. It’s cited regularly in other blogs and mainstream media publications regarding shadowy topics in the world of the C-suite and board room, from CEO pay to cooking the books. Several students and their professor, J. Robert Brown, examine corporate America in their blog posts. This summer, the blog was recognized by trade publication Law Week Colorado as Best Law Blog.
  

A post on the decision by Law Week Colorado can be found here.  The Race to the Bottom remains something of a unique model, involving a collaberation of faculty and students.  It is hard work and the recognition is appreciated. 

And, of course, whatever the metric, how does one assess influence?  Particularly in the realm of modestly trafficked blogs (as most law blogs can be characterized), the goal is influence quality rather than quantity (although some law bloggers are paid and this does often depend upon traffic). 

So, we were very pleased, here at The Race to the Bottom, to see that we had achieved a mark of influence.  Law Week Colorado, a legal newspaper, put out an issue titled "The Best of the Best," a paean to "the very best things about living and working in the legal world of Colorado."  The issue included a number of categories and ranked the best based on the consensus of the 400 or so readers who submitted ballots, labeled the People's Court, and the staff of Law Week, labeled Barrister's Best.  

Included among the many categories was the best law blog (see page 16).  The People's Court weighed in on Above the Law, a blog that unabashadly describes itself as a "legal tabloid"  (http://www.abovethelaw.com/).  

The Barrister's Best?  Our very own Race to the Bottom.  As the paper explained:

• Race to the Bottom is a blog written by University of Denver Sturm College of Law students and profs, and it gives you something more substantial to read after you've gotten your daily schadenfreude fix at Above the Law.  Though Race to the Bottom's main focus is corporate governance, few blogs or newspapers have explored the Nacchio and Churchill trials from as many angles.

We don't aspire for these sorts of things but when they happen, we appreciate them.  The students worked particularly hard covering the two trials mentioned above.  Its nice to know that some arbiters of quality and influence noticed.   The University of Denver has posted a short story on the accomplishment. 

With that in mind, we turn to a recent piece in The New Yorker, How David Beats Goliath.  The article indicates, counter intuitively, that David often beats Goliath but mostly when David responds to Goliath with unconventional strategies.  As the article notes:

• David’s victory over Goliath, in the Biblical account, is held to be an anomaly. It was not. Davids win all the time. The political scientist Ivan Arreguín-Toft recently looked at every war fought in the past two hundred years between strong and weak combatants. The Goliaths, he found, won in 71.5 per cent of the cases. That is a remarkable fact. Arreguín-Toft was analyzing conflicts in which one side was at least ten times as powerful—in terms of armed might and population—as its opponent, and even in those lopsided contests the underdog won almost a third of the time. . . . What happened, Arreguín-Toft wondered, when the underdogs likewise acknowledged their weakness and chose an unconventional strategy? He went back and re-analyzed his data. In those cases, David’s winning percentage went from 28.5 to 63.6. When underdogs choose not to play by Goliath’s rules, they win, Arreguín-Toft concluded, “even when everything we think we know about power says they shouldn’t.”

How does this pertain to legal education?  It suggests that law schools wanting to "slay Goliath," which in this post means moving up in the rankings, ought not to invariably play by Goliath's rules.  In other words, law schools need to embark on strategies that are unconventional. 

What might this mean?  There is no easy answer.  In How David Beats Goliath, it meant a basketball coach who used a full court press to cause turn overs and throw off the ability of the superior shooting teams.  Moreover, whatever the "unconventional" idea, once enough schools follow suit, it will become "conventional."

With law schools, there are a number of possible ways to attract positive attention to the institution through unconventional approaches that also benefit students.  Possible examples?

• Law classes in foreign languages.  International law programs have proliferated.  Yet programs that actually teach students to operate in non-English enviornments are almost nil.  Particularly for programs offering law classes in Spanish (the University of Denver has a "Spanish for Lawyers" program), it provides an opportunity to encourage internationalization and to reach out to an under-represented segment of the community (non-native English speakers).  

• Changes to the first year curriculum.  Most law schools teach the first year in a more or less identical fashion.  Contracts, torts, civil procedure, criminal law, property, maybe conlaw, crimpro and sometimes an elective.  Harvard's reforms announced a couple of years ago put a bit more emphasis on international and administrative matters but otherwise didn't tamper much with the model.  What might be done?  How about a first year curriculum that in one semester teaches civil law (torts, contracts, civpro, property and legal writing) and in the second teaches criminal law (crim, constitutional crim pro, criminal procedure, legal writing and a seminar on a crimlaw topic).  Perhaps by clustering the courses, there will be opportunity for common problems and cross learning, increasing retention.

• Increased substantive expertise by allowing a professor with a particular area of expertise to teach the same 20 or 25 students in several classes during the same semester, perhaps providing opportunities for experiential learning.  This could be set up several years in advance, allowing students to plan for the semester and entail rotation of faculty.  The designated faculty member might even teach his/her entire load in one semester, giving students 10-12 hours of the area under study. 

• Becoming the first law school in the country to have tenure track writing faculty for both first year and upper level writing requirements?  Particularly with the upper level writing requirement, schools often allow completion through methods that can sometimes be unrigorous, whether participation on a law review or completion of a seminar paper.  Having students taught entirely by trained writing faculty (for both first year and upper level) would by itself be an unusual step.  Making them all tenure track would be unique.

These are random ideas of varying quality.  There are other methods.  I have written about the use of law blogging by faculty to raise a law school's notoriety.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  If anyone else has unconventional ideas, please share them.

• When the new rankings come out in a couple of weeks, may I suggest that you not post the overall ranking. You all know the overall rank assigned to a school by U.S. News is meaningless, often perniciously so. It combines too many factors, in an inexplicable formula, and much of the underlying data isn't reliable, and some of it (e.g., expenditures on secretarial salaries and electricity) isn't even relevant. You all know this. So don't report it. The fact that this garbage appears in a major 'news' magazine doesn't change the fact that it is garbage.

There is much truth to the criticism but the rankings have some advantages.  To the extent that they encourage law schools, for example, to reduce the faculty-student ratio, increase expenditures by raising additional dollars, or improving employment rates (particularly now), they push at least some schools in an appropriate direction.   For more on this, the methodology can be found here.

We will keep our eyes on things as they come out.  The big issue this year was whether US News would combine part time and full time divisions.  The effect would be to reduce median LSATs of most schools with part time (evening) divisions since most have lower median LSATs for the part time division.  By producing a separate ranking for part time division, US News is for now apparently not combining the two.

More as things develop this week.

• In seeming defiance of logic, many law schools are surging in popularity. At Washington and Lee University in Virginia, for example, law-school applications are up 29% this year over 2008, while Yale Law School and the University of Texas School of Law both enjoyed an 8% increase in applications. Nationwide, the total number of applicants is up by 2% over last year, with the deadline to submit applications having passed at most schools.

This is taking place despite the lay offs at large firms that seem to occur almost daily.  It seems that applicants are nonetheless looking for a refuge and law school is high on the list.

The advise from the law blog on the right law school strategy?  "For those hellbent on the paper chase, Koppel provides a couple nuggets of advice: try hard to go to an elite school. Once you’re there, focus on a specialty well-poised for growth, like intellectual-property."  Perhaps we might add securities, which is a growth area, and corporate governance, which will continue to grow given the current compensation scandals still plaguing the markets.

If you enjoy our publication, please show your support by donating to our organization.  They will help us continue to bring the serious and in depth commentary that readers on this Blog have come to expect.   

The dismissal was abrupt and earned a blunt response from Guter.  The resulting letter chronicled his accomplishments at Duquesne: 

• During my short tenure as Dean, we have enjoyed record bar pass rates that rose from 68% at my arrival to 88%, 9l% and 97% in my three years.  These are our highest rates in at least 25 years and rank us second in the state. We also achieved our first ever specialty ranking in U.S. News and World Report, ranking 30th out of 200 law schools in Research and Writing.  Faculty scholarship has risen significantly.  Our ABA visit was the most successful in the school's history. Most recently, we won three straight national moot court competitions, including the Tournament of Champions which makes us the best in the United States.  Our relationship with alumni has never been stronger and giving is robust.  Perhaps most importantly, I brought surcease to a divided and angry faculty and high morale to our students, all in consistent support for the University's mission statement.

The dean apparently places the blame on a personality conflict with the president, noting in his letter the president's "personal animus toward me."  The accomplishments sound impressive and at least with respect to student relations supported by reported reactions to his dismissal (including voting no confidence in the president).

We have no idea what level of personal animus entered into the decision.  The university president attributed the dismissal to "a consistent pattern of failure to meet expectations" but was otherwise vague about the precise nature of the expectations.  A spokesperson for the university did, however, note that: "Overall, we have a fourth-tier law school that has not moved in the U.S. News rankings."

This raises an interesting question.  Are the low rankings of a law school a legitimate reason for removing a dean?  (Again, we repeat, it is unclear how much this played a role in Guter's removal, if at all).  And, even if it is, how long ought a dean to have to show progress?

In connection with Duquesne, the Law School's numbers are weak.  As the Pittsubrg Post-Gazette noted, following a discussion with Robert Morse at US News:

• Duquesne ranked second to last out of 184 law schools in per-student spending on instruction, library and support, Mr. Morse said. It spent 64 percent of what nearby Pitt spends.

• Duquesne's law student-to-faculty ratio, at 18.2 to 1, ranked 160th, Mr. Morse said. Volumes and titles in Duquesne's law library, at 386,540, ranked 153rd.

• Rounding out the six criteria were the school's 145th ranking in the median LSAT entrance exam scores; a 1.9 out of 5 possible points in a category allowing law schools to rate peers; and a 157th place in the share of the Class of 2006 employed full- or part-time nine months after graduation. It was 86.1 percent

With the exception of peer rankings and employment, all of these categories in one way or another are matters of funding.  While incoming class statistics might not seem directly related, they are influenced by the scholarship dollars available, which is a matter of financing.  Published stats indicate that, from 2005 to 2007, the median LSAT score for the entering classes at Duquesne has been declining.

Why does Duquesne have such a significant problem with resources?  Assuming Duquesne is tuition driven, it charges, for a private institution, a relatively low tuition.  Moreover, some portion of that is no doubt taken off the top by the University (the so called rip off factor).  The only way out of the muddle?  Accelerate fundraising, increase tuition rates, or get the University to reduce its take.   All of these are difficult to accomplish at all, much less in a three or four year period.

Rankings matter.  They likely impact admissions and employment (both places were Duquesne seems weak) and possibly fundraising.  In turn, improving a law school's finances can be disproportionately important in the ranking process.  It is unclear the degree to which Guter was forced out because of the Fourth Tier status of Duquesne.  It is likewise unclear how much that status resulted from policies instituted by the main university.  Nonetheless, it seems likely that had Guter raised the rankings of the Law School he would have been more insulated from removal.  That is probably the take away from this for other deans, if there is any.