Highlights from Room For Debate on the Case Against Law School

July 22nd, 2011

A number of the comments take a public choice perspective of the legal profession cartel.

From David Van Zandt:

The logic behind these policies is not entirely clear, and is a classic case of regulatory capture. The industry itself — in this case the legal education system — controls the regulatory process. Law schools and their faculties have a vested interest in requiring students to spend more time on campus and more money at their schools.

From Georg Leef:

The legal profession has long sought to turn itself into a cartel. Among its anti-competitive tactics is mandating that prospective lawyers go through a needlessly long and expensive period of education. The truth is that very little that a lawyer needs to know is learned in law school classrooms and that which is essential, particularly legal research and writing, could easily be learned elsewhere. . . .

Two consequences of this regulation are that we have more law schools and professors than we otherwise would, and that many poorer people can’t afford legal assistance because lawyers must generate high fees to cover the cost of their degrees.

From Kevin Noble Maillard makes a valid point. Law schools don’t just prepare people to be attorneys, so a focus on practical classes at the cost of more theoretical classes is a mistake. This could also be an impetus to split legal studies between a professional degree (like an MBA) and a theoretical degree (like a PhD).

 Law school is more than test preparation and rote memorization. Gone are the days of the gold watch at retirement or the lifelong stint with a single employer. In today’s “real world,” people change jobs, careers and fields. Training students for a specific job may work for the immediate future, but certainly not for a career of service.

From Rose Cuison Villazor argues that shortening law school may sell students short, and not give them enough time to figure out what they want to do. I’m not sure if I agree here. Most graduates take whatever job they can find, and only figure out what they want to do after years of practice (if any). An extra year of law school won’t help here, I think.

Ultimately, the question about reducing the cost of legal education should be less about its length but rather its quality. Law schools must put greater emphasis in developing and strengthening programs that would help law students become engaged and ethical lawyers. These include increasing the availability of skills-based courses, clinical and internship programs, enhanced academic support and mentoring services, providing more mentoring and offering more interdisciplinary courses. By enhancing the traditional model instead of radically changing it, many law students might just view their legal education as an important investment in time and money.

From the always insightful David Lat, we hear a call for a return of apprenticeships. Also David calls out the ABA for failing to obtain accurate data about employment rates.

Before tackling large-scale changes to legal education, the American Bar Association should focus on obtaining more accurate data from law schools about their graduates’ employment (or lack thereof). Obtaining comprehensive information about the current ability of law schools to find jobs for their graduates is a necessary first step in deciding whether and how to change legal education.

From Geoff Stone, we see that law school can teach law students to “think like a lawyer” “brilliantly.”

The critical question is what law schools can do to educate future lawyers that legal practice cannot do. There are several experiences legal education can offer that are invaluable for future lawyers.

First, and most important, it can teach students to “think like a lawyer.” As any lawyer will tell you, this is critical. The practice of law demands a rigorous, self-critical (and critical), creative and empathic (how will my opponent and the judge see this issue?) mind-set. In general, legal education does this brilliantly. This is at the very core of a legal education.

I wonder how many legal educators would agree with this statement. In fact, a major criticism of law school is that academics who have never practices are unable to teach law students to think like a lawyer. I think here we have different conceptions of what it means to think like a lawyer.

Second, legal education exposes would-be lawyers to a wide range of legal subjects — procedure, contracts, torts, criminal law, evidence, constitutional law, corporate law, property law, administrative law, jurisdiction, labor law, commercial law and on and on and on. This, too, is essential for the intelligent practice of law.

Again, this statement is rather conclusory. Sure students are exposed to all of these areas; and frankly all of these topics can be taught in 2, maybe 3 semesters. Classes on Kantian perspectives of the rules of evidence in 18th Century Bavaria are not on this list for a reason.

Third, legal education presents future lawyers, judges and public officials with a broad array of perspectives that will enhance their work, ranging from economics to legal philosophy to an understanding of empirical and social science data.

I agree about training judges and public officials, but most lawyers have no need for legal philosophy or social science. Again, this cuts towards having a separate legal degree equivalent to a PhD.

Fourth, legal education offers students a supervised, rigorous and disciplined opportunity to learn practical legal skills though clinics, externships and trial practice and negotiation courses taught by individuals who are committed to teaching. This is a far superior way for young lawyers to gain these skills than by doing scut work for attorneys who are often too busy to teach them.

Yes, this is accurate. However schools kick and scream about introducing more clinical programs into the curriculum.

Finally, legal education provides students with opportunities to work on journals, in moot court competitions and in a broad range of law school organizations that are designed to enrich the education of future lawyers in terms of their writing, their advocacy skills and their exposure to diverse political, legal and cultural perspectives.

I wouldn’t put journal and moot court in the same league. Writing on a journal prepares a person for academia, and perhaps appellate litigation. Journal writing is not writing that is helpful for litigating at the trial level. Moot Court, as well as Trial Ad, does team valuable skills.

According to Linda Greene, the value of a law degree is “priceless” even though it has a $200,000 price tag.

That education also deals with the relationship between law and society as well as the manner in which law is both used and transformed in action. Whether the questions involve constitutional protection for undocumented children or cloning or climate measures or the parameters of humanitarian intervention or the ownership of the resources beyond our gravitational field, the best in legal education prepares its graduates to participate in the discourse and arrangements necessary to such complex concerns. It is true that the cost of this quality education, all in, may exceed $200,000. The value of a new generation of law graduates prepared to take on these challenges: Priceless.

Such a small number of students will ever work on constitutional issues or climate change or the like. This seems like weak reasoning to impose this high cost on so many to prepare such a small few for these important fields.

The always-eloquent Brian Garner focuses on the need to properly teach students key skills, like legal writing.

Most law professors don’t know how to write well, so they could hardly teach the subject if they wanted to. On top of that, lawyers of all kinds — both academic lawyers and practicing ones — rationalize their linguistic ineptitude by claiming that legal jargon is necessary (most of it isn’t); that writing instruction is elementary, remedial stuff (it should progress to advanced techniques); and that writing style doesn’t matter anyway. But it does matter: clear writing equates with clear thinking, and judges and employers cry out for both. Put all these things together, and you have serious educational pathologies.

So what’s the cure? For starters, the second and third years of law school ought to include much more research, writing and editing, with three to six short papers required in each course (not, as is the standard, one “major” research paper during the whole three years). Each paper should be subjected to rigorous editing, then rewritten and resubmitted. (This is perfectly doable

Lots of food for thought here.