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 ...