More on the NY Times Article

The article in the Sunday NYT has gotten a lot of people stirred up in law schools, even though this is a very old debate.  Brian Leiter calls it a "hatchet job," Prawfs calls it half-baked, and pretty much every other legal education blog has reacted critically, including Balkinization, Concurring Opinions, and Conglomerate.  Sloppiness aside (e.g. saying that criminal procedure is about common law crimes), the thesis of the article is utterly implausible.  It strongly suggests, even if it doesn't come out and say, that the recent decline in hiring is caused by the lack of emphasis on skills training in law schools.  It bolsters this thesis with quotes from law firm and in-house lawyers complaining that they have to spend time teaching new graduates to practice law.  But the article completely ignores the fact that prior to 2007 these very same employers were hiring like crazy and not complaining about what their new employees learned in law school.  I'm no empiricist, but it shouldn't be hard to demonstrate that the economic downturn led to a substantial decrease in the number and size of deals and other transactional/advising matters, without an offsetting increase in litigation and bankruptcy work (which I find somewhat surprising).  Mabye this is a "new normal" as Bill Henderson and others have argued, as clients have finally gained some leverage over firms and are pushing back on high billing rates and overstaffing.  On the other hand, perhaps the downturn is cyclical, and in a few years we'll be seeing firms hiring anyone with a pulse as they try to gear up to represent clients in some new bubble economy -- the sequel to the dot-com and asset-securitization booms.  Either way, though, the connection between highly theoretical law review scholarship and the fall-off in attorney hiring is non-existent.

Speaking of highly theoretical law review scholarship, the article quotes me making the point that the legal academy has one foot in the legal profession and one foot in the university.  I gave my usual schtick about law schools not wanting to be seen within the university as trade schools.  Brian Leiter says he'll assume I was quoted accurately (which is a fancy way of saying, "that's a dumb-ass thing to say"), but "I have to say in nearly twenty years in law teaching, I've never met anyone in the legal academy who had this worry."  I was pretty obviously speaking hyberbolically, as I tend to do, but just so my meaning is clear I'll tone down the rhetoric and retell a very well known story from the history and sociology of the legal profession:  Lawyers need to justify their monopoly over the provision of certain kinds of services.  Why should lawyers exclusively be entitled to draft contracts and wills, prepare petitions for divorce, advise on the interpretation of insurance policies, and so on?  In many legal systems these tasks (what Llewellyn calls "law jobs") are performed by occupational groups other than full-on licensed lawyers, such as judicial scriveners and in-house legal advisers in Japan, conseil juridiques in France, notaries in many civil law jurisdictions, and conveyancers in the UK, Australia, and New Zealand.  By contrast, the American legal profession has been remarkably successful at defending its professional prerogatives.  I'm going to be teaching unauthorized practice of law this week in my PR class, and I predict the students will be surprised at how vigorously state bars pursue potential competitors such as LegalZoom.  How did the organized bar pull this off?

One explanation is that the bar has been pretty good at maintaining its public image.  Of course people distrust, dislike, and make jokes about lawyers, but the profession as a whole has long enjoyed a great deal of social prestige.  (At this point in the story it's customary to quote Tocqueville and cite the prominence of lawyers in government.)  As Robert Stevens and many other commentators have noted, lawyers occupied a position of social and political prominence in the United States that they never enjoyed in England.  One way the profession has maintained this prestige is by borrowing from the prestige of the university.  The Carnegie Report notes in the introduction that the German model of the university, with its claim to be a center of value-neutral technical expertise, attracted a great deal of admiration.  Leaders of the legal profession in the U.S. figured out that they could tap into this source of social esteem by locating legal education firmly within the university.  Professional prerogatives could be defended by appealing to scientific rationality -- hence, Langdell.  Not only Harvard and Columbia, but other law schools begun in the 19th Century, such as Georgia and Albany, claimed to offer instruction in law as a science, implicitly contrasting with the unscientific apprenticeship system in which lawyers traditionally were trained.

This is what I mean by trade-school anxiety.  The legal profession wishes to borrow from the prestige of university education.  Nowadays that prestige is based on the very things the NYT article is complaining about:  A system of peer review and tenure that allows scholars to pursue ideas for their own sake, without worrying too much about whether they are useful to some industry or another powerful faction in society.  Frank Pasquale has an interesting post at Balkinization making a similar point.  He sees the ideological underpinning of the NYT article as rooted in the desire of powerful clients and law firms for an inexpensive pool of labor.  He summarizes the thesis of the article as "law schools are not doing enough to increase corporate profits."  If all law firms want is a bunch of low-paid workers they could probably get it.  It would take a long and intense lobbying struggle, but if the organized bar objected strongly enough to the current system of legal education, it could force a relaxation of accreditation standards at the ABA level, or changes at the state level to allow more options for admission through avenues such as apprenticeship or training at non-ABA accredited law schools.  But that's not going to happen, because the profession wants to bootstrap its prestige off of the prestige enjoyed by universities. 

Of course, universities are under attack, too.  The political right has had a lot of fun in recent years finding outrageous titles of articles and making universities look like some kind of refuge for people who never got out of the 1960's.  Universities don't always do a very good job defending the notion that there is something vitally important about pursuing ideas for their own sake.  If the right succeeds in delegitimizing universities, then the legal profession may have less of an interest in maintaining the existing system of legal education.  As law professors, one thing we can do is be more articulate defenders of the system, and to react a bit less defensively when it is questioned.  The NYT article may be sloppy, but it's not unfair to ask that we, collectively, explain why it is important to hire and evaluate faculty members based on their production of esoteric-sounding articles. 

It's also not unfair to expect us to be committed teachers as well as scholars, and in our teaching to be aware of what our students need to know in order to be successful as lawyers, not because it contributes to corporate profits, but because it's a good thing to be a good lawyer.  The article does not begin to demonstrate that there is a crisis in law school teaching.  As Erik Gerding points out in his post on Conglomerate, many of us write highly theoretical scholarship but teach in a very practical way.  It wouldn't be hard to find a passage in my book that makes me sound like a woolly-headed idiot, but my teaching evaluations consistently say nice things about the way I teach from a standpoint of what students are going to need to know when they are out in practice.  If I thought most of my colleagues were spending most of their class time talking about highly theoretical issues that had no bearing whatsoever on what lawyers did in practice, maybe I'd worry.  But I have not seen evidence that teaching at most law schools is problematic in this way. 

Now the cost of legal education, that's another story ...

Comments

[Monroe Freedman]

Brad, Are you defending the present emphasis (I would say, over-emphasis) on publication in hiring, promotion, and tenure decisions?

I would like to see equivalent recognition given to other activities, like engaging in pro bono work (e.g., death penalty briefs) and involving students in the work.

[Richard Zitrin]

Hello to all my friends and colleagues out there!

I found myself agreeing with Brad's comments - I usually do - but also agreeing with the thrust of the article. Amidst the widespread negative reaction is an opposite perspective on the lawclinic listserv.

I agree with Brad that law schools are desperate not to be seen as "trade schools." I take Brad's point that this is in part because of their relationship to the larger university. But medical schools are "trade schools" and the author's analogy to medical schools seems fair. I've made it myself. (The comparison to doctors who never set a foot in hospitals is a bit of a reach, but even there, it's valid if a bit disingenuous.)

I thought that the student comment that law schools teach you not how to become a lawyer but how to get through law school was telling. Just look at Marjorie Schultz's work at Berkeley.

I'll give you two anecdotal comments. One is my own experience: I learned 98% of what I used as a lawyer in my third year, half of which was made up of a full semester in the wonderful CLEPR program in court, everyday, practicing criminal law. The second is the statement of one of my students in her job as a summer associate: "I learned more about civil procedure at this law firm in one day than I learned in a year of Civ. Pro."

Law schools have long missed the boat by promoting scholarship first and teaching second. What better examples of scholarship than Brad and Monroe? But why are the schools NOT trade schools? What is WRONG with being a trade school. My parents, both physicians, learned to practice medicine in their third year on the wards, followed by being thrown into internships.

Instead of all the defensive reactions out there (not here, but on Prowfs, etc.), why don't we start implementing reforms?

Richard

[Paul]

The technical know-how to do 'law jobs' is a small fraction of what it takes to be a good lawyer. I used to think that doctors were the really smart, knowledgeable people, and person for person they probably are. But to be a really good lawyer, you have to know all, understand all; you have to be intellectully curious, open-minded, and WISE (a Marko-Keatsian!).

The practice of law is inexhaustible; you never know enough and you can always improve. Many years later I'm still learning, stil trying to improve. I'll never be finished.

So time spent learning law jobs in law school would be, in the long run, negligible. Law students need to live and learn, and that's something they are already doing.

[Valerie]

Great points, Brad. During the course of my professional teaching career I have taught in both social science departments and law schools across a range of universities. One difference I've observed is that compared to my social science colleagues (many of whom are wonderful teachers), my fellow law school professors seem to think much MORE about how the content of their courses will aid their students in their chosen profession. For one thing, it's a narrower target because most of our law students will practice law. That background knowledge about our audience helps us orient our teaching.

[Richard Zitrin]

I think the fundamental issues are whether (a) what is not being taught is "the technical know-how," and whether that's a "small fraction" of being a good lawyer. Courses in interviewing, negotiating (litigation and transactional), client relationship training and the like are essential to good lawyering - and ETHICAL lawyering, I might add, and not just "technical know-how."

While technical know-how like application of local civil procedure and discovery rules is indeed a relatively small part of the equation, knowing how to go about a task or approach it is not. Thus many states now require a performance part of the bar exam, which is a start.

As for ethics, I don't think the students' knowledge of the ethics rules, enough to pass the MPRE, even begins to tell them what to do when a sophisticated ethics issue crosses their desk. Or even necessarily informs them as to how to recognize the issue.

[K A Murphy]

Am I the only practicing lawyer posting here?

When your critics ask you to actually teach some *law* in law school, I think many of them are asking "Why not try teaching the statutes?" You know, those things that our congress is always voting and that our President sometimes signs and sometimes vetos??? The average person thinks of those things as THE LAW, and believe it or not, when you get out of school your clients will ask you how those pesky little things affect them and their businesses!

I think the pot-shot fired at Langdell and the socratic method, was aimed at the fact that you can get out of law school, after trying REALLY hard to develop a firm grip on a given area of law and still not know how to find a single statute in that area. That is why the NYT article refers to clients wanting 1st years who have been trained in the "regulatory state" -- because law students should have a grasp on the basic anatomy of who can make binding rules in an area of law, what the major rules are in that area and what the major dispute resolution techniques are with that regulator.

"That's impossible!" you say. "Teaching the statutes would be useless because the statutes change all the time!" say others.

Um, yeah, then why is that the way law is taught in every European country except England? Having gotten a French law degree and a US law degree -- let me tell you, French law students don't graduate unless that know some serious statutes.

"But that's because it's a civil law country!" you may object. And I am forced to roll my eyes and say "No, sorry, they also study lines of precedent to deal with the that law and they learn how statute interacts with judicial precedent over the course of decades. And at the end, they understand why statutary reforms happen and they are able to situate those reforms into a historical context."

Now, pick your jaws up off the floor -- I swear it IS possible to teach this much law. But first you need to know the law.

US law schools do not teach that way and US law professors literally have no idea what the regulations are (with the possible exception of tax professors). Instead, American lawyers are trained in "getting to maybe" -- they are bullshit artists. But bullshit does not cut it when you are out in the real world with paying clients.

At my "top-ranked" law school, I took finance classes where we barely mentioned the '34 Act -- let alone learned its basic anatomy. I took banking law classes where we learned about the philosophy of money, but never touched on major banking law reforms. My Admin law class was great though -- because it was taught by a visiting professor who had a day job as a litigor at DOJ.

But honestly -- STOP HIRING PH.D's!!!! For the love of god! A ph.d in economics can be a guest lecturer at a law school, but s/he should NOT be on the full time faculty!!! And Lietner's reference to U of C hiring a "commercial litigator with five years of practice experience" almost made me laugh out loud!!! That is fucking pathetic! By year five you are just barely out of datarooms and researching your first brief. I knew a 4th year litigator who had drafted exactly one paragraph in one brief in her entire tenure with the firm -- it was a footnote that contained a list of applicable treaties. And she was the partner's favorite, with serious responsibility compared to everyone in her group.

Seriously guys. Law school IS trade school. And there is no way you can teach a trade you don't know.

[John Steele]

KA Murphy,

I'm a practicing lawyer who blogs here. My take on the Segal article is here:

http://www.legalethicsforum.com/blog/2011/11/15-cheers-for-segals-article.html