Today’s Times had a front-page piece on the state of law schools.
What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.
And there’s this:
Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital.
And this concern about law schools being viewed as trade schools:
“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”
This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.
A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice.
Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.
And the shortfall in legal education:
Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.
To succeed in this environment, graduates will need entrepreneurial skills, management ability and some expertise in landing clients. They will need to know less about Contracts and more about contracts.
And the opposition to change
Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law?
But those pushing for more practical content aren’t looking for a bunch of classes in legal minutiae, nor do they expect client-ready lawyers to march off their campus. Instead, they would like to see less bias against professional training and more classes that engage the law as it exists today.
A lot of the change is that profs don’t want to do new prep. As I prepare for my first round of classes, I will incorporate some practical elements. I already started giving it some thought. Perhaps a tour of the town to show sites where eminent domain was used to build baseball stadiums?
But there were limits. Professor Rubin failed to sell his faculty members on a retooled first-year Contracts class.
“Some members of the faculty got a little overstressed by all the change,” Professor Rubin says. “Planning a new course, you have to move out of your comfort zone a little in terms of teaching. And there is always the fear that your school will wind up being seen as an oddball place.”
Another problem he encountered: there are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.
And on the cost of legal scholarship:
Of course, much of academia produces cryptic, narrowly cast and unread scholarship. But a pie chart of how law school tuition is actually spent would show an enormous slice for research and writing of law review articles.
How enormous? Last year, J.D., or juris doctor, students spent about $3.6 billion on tuition, according to American Bar Association figures, accounting for discounts through merit- and need-based aid. Given that about half of a law school’s budget is spent on faculty salary and benefits, and that tenure-track faculty members consume about 80 percent of the faculty budget — and that such professors spend about 40 percent of their time producing scholarship — roughly one-sixth of that $3.6 billion subsidized faculty scholarship. That’s more than $575 million.
Much of that comes from taxpayers in the form of federal student loans. Steven R. Smith, dean of the California Western School of Law, described this sum as “the equivalent of an involuntary fee” that students must pay to get a diploma. “It is not obvious that students are the ones who should be paying the cost of legal scholarship. They are generally borrowing the money to do this and they are the least able of all those in the profession to pay for it.”
And on the AALS market:
About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.
At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.
Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”
Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).
And on the lack of experience (something which I suffer from ):
This might seem a paradox — experienced people need not apply — but the academy views seasoned pros with a certain suspicion. In fact, a number of veterans of legal practice who failed to land tenure-track jobs say that experience was a stigma they could not beat.
“It can be fatal, because the academy wants people who are not sullied by the practice of law,” said a longtime lawyer and adjunct professor, who did not want to be identified because his remarks might alienate colleagues. “A lot of people who are good at big ideas, the people who teach at law school, think it is beneath them.”
I did not have those credentials.
There has been a massive reaction in the blogosphere.
From Larry Ribstein:
Well, yes, law schools should pay more attention to the market for lawyers and offer more value. But as I’ve written in my article Practicing Theory, this doesn’t mean teaching what lawyers traditionally do. Lawyers now don’t draft agreements from scratch. There’s an app for that — software templates modified by user input. A technological tsunami is sweeping over legal services.
Practicing Theory suggests that law schools should teach law students how to be architects and designers rather than mechanics. The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains.
Law students also will need business skills that law schools don’t traditionally teach. Indeed, Segal himself notes that “graduates will need entrepreneurial skills, management ability and some expertise in landing clients” without considering the implications of this observation for legal education.
The real problem, as discussed in Practicing Theory, is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands. Segal’s article, like others in this series, ignores such nuance, preferring to string together well-worn criticisms and to eschew coherent analysis in favor of attention-getting quotes.
As usual, I agree with Larry.
Jeffrey Kahn writes this, which I thing is symptomatic of what the Times criticzies:
Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession. Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role. Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.