Law schools have a research mission too

Brad Wendel

I posted something here in November after the New York Times quoted me as attributing “trade school anxiety” or some such thing to the legal academy.  In response, a practicing lawyer said something fairly typical:  Teach some damn law, and stop hiring Ph.D.’s.  I don’t disagree at all that most law school courses, most of the time, should be about the law, broadly understood to include not only specific substantive content but also analytical and rhetorical techniques, an appreciation for the historical, economic, and normative context of the law, and so on.  I think this actually happens.  Most of my colleagues at Cornell, most of the time, teach the sorts of things that practicing lawyers need to know.  Stories about seminars in law and butterfly collecting, or a law and economics zealot teaching an entire torts class without once mentioning the elements of negligence, are likely either apocryphal or the result of the availability heuristic and confirmation bias.  Everyone is so sensitized to the (non-)issue of theoretical bullshit being fed to law students that we invariably notice only instances that support our claim that something has gone awry in legal education. 

It is undeniable, however, that the emphasis in recent years on interdisciplinary scholarship (all those pointy-heads with Ph.D.’s) has affected the market for law professors, so far fewer scholars get hired who intend to produce “pure” legal analysis, as compared with the situation 25 years ago.  But is this a problem?

Imagine you are the Law Czar and can make any change you like to the legal regulation of some industry.  Rather than having to work through the byzantine political process of the ABA and state courts, you can restructure the legal profession in any way you see fit.  In particular, you can reduce the number of years required to obtain a J.D.; restore the LL.B. and make law and undergraduate course of study as is now the case in the U.K., Australia, and New Zealand; or even eliminate educational prerequisites altogether and really kick it old-school by allowing lawyers to serve apprenticeships with practicing lawyers.  Maybe we could recognize all of these approaches at once, and let the market sort things out.  A limited experiment along these lines is taking place right now in Australia, where the University of Melbourne has converted its law program to a U.S.-style graduate curriculum leading to a J.D., while other Australian law schools remain undergraduate.  Or we could have a market competition between apprenticeships and formal training, as happens today in the culinary world.  If you want to be a restaurant chef you can attend the CIA or you can work your way up through the ranks in the kitchen of a good restaurant, the way Bocuse, Robuchon, Ducasse, and the other greats did.  (Some executive chefs and restaurateurs won’t hire culinary school graduates; others prefer them.)  There is no formal educational requirement to become an investment banker – you just have to go to the right school, be in the right fraternity, and have halfway decent quantitative skills.  Some states still allow lawyers to serve an apprenticeship and “read for the bar” although very few would-be lawyers choose that route.  As the Melbourne example shows, a prominent, powerful institution can play the role of norm entrepreneur or opinion-maker by choosing to strike out in a new direction on its own.  There is presumably nothing stopping a law school in the U.S. from trying to compete by doing better than its peer schools at offering practically oriented training.  My former employer, Washington and Lee, has implemented an innovative practice-oriented curriculum in the third year.  Presumably some students choose W&L over peer schools, and some employers recruit at W&L, because of the perceived advantage of focused practical training.  

All of which leads to the question: What would be lost by severing the connection with graduate education?  the current research mission of the legal academy?  with the university in general? 

There is something distinctive about university-based education for lawyers, as opposed to an alternative like training lawyers in what British and Antipodean academics would call “polytechnics” – basically, trade schools.  I don’t mean “trade schools” in a pejorative sense, by the way.  In general there’s nothing wrong with considering a discipline more a matter of practice than something to be theorized and studied.  It may be the case, however, that the law is not simply a matter of practice, but also a subject of investigation and reflection.

 Law professors tend to react defensively when we’re accused of being impractical and interested in theoretical and interdisciplinary research.  It sometimes seems like a dirty secret, waiting to be exposed by muckraking journalists, that when we’re not up in front of a class full of students we’re hiding away in our offices writing articles with goofy-sounding titles.  What’s more, some of the standard justifications for engaging in research may not hold for law professors doing “law and ____” scholarship.  It may be true that some research makes one a better teacher; perhaps an oncologist, say, would do better at teaching future physicians if she were at the same time conducting clinical trials on a promising new drug.  It’s likely not the case, however, that someone whose primary research interest is 17th Century British legal history or econometric modeling would benefit, qua teacher of practical lawyering skills, from that research.  Nevertheless, it’s a good thing that law professors conduct theoretical research, for two reasons.

First, a society is better off if it supports institutions in which scholars can explore ideas for their own sake.  In a pluralist, relatively secular liberal democracy, the law is one of the most important means of social control and even a thicker sense of citizenship and solidarity.  Not only is a great deal of public policy enacted through legal institutions such as courts and administrative agencies, but the law also serves as a resource for understanding our rights and duties as citizens.  Accordingly there is a need for sustained reflection on the role of law, including concerns that are within the purview of humanities scholars, such as legal history, the normative status of the claims the law makes on us, and literary considerations such as the multiple levels of meaning contained within trials, judicial opinions, and other legal texts.  Naturally one can also study law from the standpoint of social science, looking at its cost, efficiency, distributional effects, impact on behavior, etc.  Society as a whole benefits from maintaining institutions in which scholars can pursue these questions, insulated to the extent possible from the pressures of having to satisfy powerful constituencies such as government or private industry.  Hence the tenure system, the importance of academic freedom, and the ABA’s standards that require a certain percentage of full-time faculty members at accredited law schools.  One might naturally ask, even if something is a social good, should a particular profession or group within that profession (such as trainee lawyers) be required to subsidize it?  Academic research on law and “law and ___” questions is funded by what amounts to a tax on the price of obtaining a legal education.  I don’t have any particular expertise on the question of fairness in taxation, but this doesn’t strike me intuitively as an unfair way to support a socially valuable activity. 

Second, it is good for the legal profession that the training of lawyers take place in the university.  Law school is a time not only for learning practical skills but for reflecting on one’s chosen career.  Lawyers love to say they belong to a learned profession, and in my experience many practicing lawyers do return over the course of their professional lives to the kinds of questions a graduate education, with a healthy dose of the liberal arts, encourages reflection about.  Having said this, two years may be enough time to both learn practical skills and learn to appreciate some humanistic and social-scientific perspectives on law.  It may even be possible to do this in an undergraduate program, particularly in a double-degree LL.B./B.A. program as is common in Australia and New Zealand.  I don’t think any particular educational structure necessarily follows from my observations here.  It is significant, however, that the legal profession, acting through the organized bar, historically has lobbied for an association with the American university system and for a graduate program of education. 

To conclude a long post, just because university-based legal education is justified in general terms does not mean we should not be concerned about its ever-increasing cost.  Three years of law school is staggeringly expensive, particularly after four years of undergraduate education.  At some point our current funding model will become not only unsustainable but morally unfair.  At the very least we may inadvertently be contributing to the misallocation of resources by charging tuitions that can really only be financed by upper middle-class families or those students who intend to repay their student loans by going to work for large law firms.  There needs to be more attention paid to the career paths of students who wish to work in public interest careers, in government, in the sorts of small and medium-sized law firms that serve the legal needs of the vast majority of ordinary folks.  Some law schools do help students who are interested in public interest careers by funding loan repayment assistance programs, but this kind of cross-subsidization is not universal – some schools are hurting, and need every dollar of tuition they can get.  We shouldn’t have a system of funding legal  education that channels graduates only into large firms.  I have nothing against big firms, by the way (just as I have nothing against trade schools), but those jobs aren’t for everyone, and it is important to ensure that law schools make it possible to pursue a number of different career paths.  

Comments

[Michele Neitz]

Brad, I agree that there is a need for theoretical scholarship in the legal academy. It is particularly important given the billing pressures facing lawyers in practice who simply do not have the time or the freedom to ponder these issues. That being said, where is the balance? Perhaps there is a need to preserve academic freedom and legal theory scholarship while creating specific programs tailored to serve those graduates (like many of ours at GGU) who will have successful solo practices or small and mid-size firm careers. But will it be a rare law professor who can focus on practical training AND create lofty theoretical scholarship?

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