Law School 2040

If water coolers exist in 2040, one of them might be a backdrop for this conversation:

Junior Faculty 1: Did you hear that Perlman is retiring?

JF2:  I heard.  Too bad.  He’s a nice guy.

JF1:  Yeah, he’s nice.  But he’s part of that old guard who really don’t do much to move the school forward.

JF2:  What do you mean?  I thought he’s still pretty productive?

JF1:  It’s not that he’s unengaged; it’s just that he focuses on all of the wrong things.  He’s one of those people hired in the late 20^th century and the early part of this century.

JF2: I’m not sure what you’re driving at.

JF1:  Obviously, you don’t know your history. 

JF2:  Educate me.

JF1: Well, there was a legal education boom in the latter part of the last century.  The legal profession was growing quickly, and there were a lot of high paying jobs at stand alone law firms. It was before the rise of all of these mega companies, like PriceWaterhouseSkadden.  I think there was some change in some ethics rules that caused the shift.  Something about multidisciplinary practices or some such thing.  Anyway, law schools back then were cash cows for universities, primarily because of how law students were taught and the jobs they could get.

JF2:  I don’t follow.

JF1: For a long time, most schools relied heavily on large student-faculty ratios, with large classes that were taught using the Socratic method.  There was relatively little practical training, so law schools could collect a lot of tuition and pay for fancy buildings and high professor salaries and then send lots of students off to high paying jobs.  Haven’t you seen all of those beautiful law school buildings that were built between 1990 and 2010?

JF2: Now that you mention it, you’re right.  So what happened?

JF1:  Here’s the other wrinkle.  There was this magazine.  I think it was called U.S. Report and News, or some such thing.  I can’t remember; it’s not around anymore.  It had an annual ranking of law schools that was really important, so law schools tried to do a lot of things to affect their rankings, including how they hired faculty members.

JF2:  You’re making that up.  You’re saying that a magazine influenced what kind of people law schools hired?

JF1:  Yes.

JF2:  Ok. Let’s just say that I believe you.  How does that relate to Perlman?

JF1: Perlman was hired during that time frame, when law schools were competing against each other to become as “reputable” as they could.  And “reputable” meant that faculty members at other law schools respected you.  So the game was all about hiring faculty members who would become known to a lot of other faculty members at other law school.

JF2: So what kind of people would fit that description?

JF1: People who graduated from elite schools and intended to write law review articles, especially theoretical articles that would appeal to other academics.  Better yet, people who did a lot of work in non-law fields, like economics or psychology, and such things.  It didn’t matter whether people wrote articles that would help lawyers or judges.  All that mattered was proving to other law professors that you were smart.  So people wrote a lot of theoretical and impractical garbage that only other law professors would read.  Some of them even put their garbage, and other silly stuff, on the Internet using something called blogs. Anyway, as long as other professors thought you were smart, you were doing a good job.

JF2: So law schools didn’t care too much about teaching students how to practice?

JF1:  Well, they gave lip service to it.  They had clinical programs.

JF2:  Never heard of them.

JF1:  That’s because the entire law school is now a clinical program.  Everyone works together to train law students how to practice law; we don’t think of practical training as somehow distinct.  But back then, it was different.  Most of the faculty would help students learn how to “think like a lawyer” by dragging them through a bunch of cases in class.  And professors would spend the rest of their time writing gigantic, heavily footnoted articles that would be read exclusively by other professors.  Because we don’t write those things anymore, we have more time to help students learn how to become great lawyers.

JF2:  The way they did things sounds so unsound.

JF1:  I know.  It was.  But Perlman is from that era, and he still thinks that there was some value in the old ways.

JF2:  What a dinosaur.

JF1:  I know.

JF2:  Do you think people will be talking about us like this in 30 years, when we retire?

JF1:  I doubt it. 

Comments

[Jeff Lipshaw]

Great job! JF1 and JF2 probably ought to say something about the Law and Policy Studies Program, which is a joint interdisciplinary program among economics, political science, and philosophy, which has its history in the old law school system. It's where people who are like Perlman now go when they get their Ph.D.s in Jurisprudence.

[Law school grad]

A somewhat humorous, yet concise summary of the changes that may take place in the coming years!

[Doug Richmond]

If this scenario comes to pass--and it won't--who will train the students? Will schools really move away from the current faculty hiring model, where the vast majority of professors have practiced only 2-3 years before moving into academe? I would guess that the overwhelming majority of current law profesors don't have the practical skills required to teach students to practice law in the sense you describe.

[Andrew Perlman]

Doug,

I was implying that the hiring model would, in fact, change and move more in the direction of hiring people with more practical experience. It is my sense that the last 20 years or so, which produced law professors with very little (if any) practical experience, is anomalous and that we might simply move back in the direction from which we came (i.e., hiring people who have sufficient experience to be able to teach practical skills effectively).

That just begs the question of just how much practical experience one needs in order to teach practical skills. I'm not sure that I agree with you that practical skills can't be taught by people who have spent only a few years in practice. There's a very steep learning curve in most areas of the law, and someone with 3 or 4 years of practice may be able to pass along a lot more in the way of practical skills than you suggest. Interestingly, I've seen quite a few clinical candidates get hired with approximately that amount of practice experience, so I don't think this is merely a theoretical possibility.

[John Steele]

Some of the basics can be taught by anyone with 3-4 years of real practice. (Do the newest profs still get 4 years before teaching?) For that matter, the schools could crib from the bootcamps the big firms provide for newbie associates, and could get some assistance from practicing lawyers.

Practical judgment is much harder to acquire in one's first 3 years on the job. Having the benefit of practical experience means having learned the cost of doing things this way, as opposed to that way. For example, decisions about whether to accept a settlement or go to trial, about whether to push the other side more aggressively in a contract negotiation, about whether to adopt a tax avoidance/evasion tactic, all will have dramatic impacts on parties, opponents, and the lawyers down the line.

But, usually, to succeed at something you have to enjoy doing it. Would academics really enjoy teaching basic practice skills?

[Andrew Perlman]

John, with regard to your question, clinicians have been producing quite a bit of excellent scholarship, which suggests that people who enjoy teaching practical skills can also be quite effective scholars.

[Doug Richmond]

Andy, I recognize your assumption that the hiring model will change--I just don't believe it. Law schools have so far resisted multiple calls to increase their practical offerings and, with rare and limited exceptions, have brushed off all of them in the apparent belief that anything more than limited clinical offerings and trial advocacy courses will convert them into trade schools. As for the minimum experience required to teach practical skills, I expect that varies with the professor. John pegs the experience prerequisite at 3-4 years, while I probably would favor 5 or more, but that is quibbling. I have long thought that law schools ought to offer several boot camp courses to 3Ls, such as a 2-day writing program modeled after Bryan Garner's seminars (no law students, including law review editors, write enough) or 3-day deposition programs on the NITA model. Regrettably, there does not seem to be any meaningful professorial interest in such courses.

[Andrew Perlman]

Doug, I think you describe the attitudes of some professors, but by no means all. Clinical offerings, including the status of clinical faculty, have expanded dramatically over the last decade or so. If the trends concerning clinical education were to continue at the current pace, the law school that I describe in 2040 is entirely realistic.

Moreover, non-clinical faculty are expressing increasing interest in offering practical training in many non-clinical classes, including civil procedure, contracts, ADR, and PR.

The problem with this trend isn't so much one of attitudes (though, like I said, some people are opposed to it). It's that clinical education and other kinds of practical courses tend to be very expensive. That said, many schools are coming up with innovative ways to offer clinical/practical opportunities in a cost effective way, and I suspect we'll so more innovations in the years to come.

In any event, we appear to share a belief that students need more practical training. I'm just a bit more optimistic than you that such changes will occur based on what I've been seeing and hearing at my school and many others. Assuming we're both still around in 2040, let's wager a beer on it!