« Tea Parties and the Ethnocentrism of the Left | Main | Aspiring Prawfs: Go to Phoenix »

Monday, August 30, 2010

Form and Substance in the Reform of American Legal Education

The reform-of-legal-education blogging bandwagon continues to roll.  In the legal blogosphere, a good deal of attention has been paid in particular to Jason Mazzone's post at Balkinization suggesting the division of the law school into two physically separate departments, one focused on the study of law as an academic subject and the other on professional education in lawyering.  It also features interesting comments from Jerome Kowalski, who also promotes a book of his on the subject and who laments the absence of some form of mandatory clerkship prior to bar admission.  Both of these points have some validity, I think, but both of them also raise questions about what, exactly, we are debating in talking about reforming legal education, and whether we are confusing form for substance.  

In my last post on the subject, I argued that a substantial, although under-recognized, component of the practically minded law teaching that many critics of current legal education call for already exists in our law schools.  It is law as taught by adjuncts and clinical programs.  Not all law professors are sufficiently familiar with the adjuncts who stream in and out of their own law schools, or even with the clinicians who are there full-time.  Nor are all of them aware of the high enrollment levels in both these practically minded sectors of the law school.  I suggested that there is good reason to think that these individuals deserve higher recognition and status than they currently enjoy.  Somewhat to the contrary, Jason suggests that in his bifurcated vision of the law school, these individuals would not enjoy tenure, because they would not be writing and so would not need it.  (I'm not sure where this leaves doctrinal scholarship in his picture.)  If that's the case, it's a small move indeed from the current system, and with the added costs of transitioning to the system he recommends, not least constructing a new building for each bifurcation.  Do we not already come close enough to his model to forego the added costs?

Mr. Kowalski argues that we ought to have some form of mandatory professional apprenticeship before taking the bar.  He argues that under the current system and in the current economic climate, as clients refuse to pay for the work performed by first- and second-year associates, new law school graduates receive neither jobs nor training.  As a Canadian law school graduate who completed mandatory "articles of clerkship" with a law firm before joining the bar, I should sympathize with his argument.  I'm not sure I do.  

The Canadian experience may not be sufficiently similar to the kind of program he envisions.  But in my experience, the availability of "articling" positions waxed and waned with the economy just as surely as the availability of "permanent" associate positions in the United States.  In lean years, it was understandably difficult for a greater number of students to secure articling positions at all.  The number of firms willing to hire back their articling students also waxed and waned depending on the economy.  The year before I articled, only a third of the students at my firm were hired back; the year I articled, it was just over 50 percent; within three years, firms were attempting to meet the demand by promising to hire back their students even before they signed on.  It is true that those students ostensibly received "training," but I don't recall it being any different from the level of training received by first-year associates at firms in the United States.  (I practiced on both sides of the border -- making me, by some lights in the current debate, an "experienced" law teacher.)  It is true that we were not fully fledged members of the bar, but we performed the same tasks, ostensibly under supervision; the same is true of first-year associates at large firms in the U.S., whose work is supposed to be subject to supervision by higher-ups lest they face discipline under the rules of professional responsibility.  I'm not sure how moving the title forward or backward a year alters the economics of the situation.

If these are the proposals, I'm not sure that they adequately describe what is wrong with the current system or how they really address whatever is wrong.  I'm not arguing by any means that the current system is perfect.  But the changes proposed above seem to me to be more about form than substance.  A more substantive argument might charge that all lawyers ought to be professionally and practically trained, and only by experienced legal professionals.  Perhaps that is what Jason wants or is getting at.  That would satisfy many objectors to the current system, especially among law students and recent graduates; but another common complaint that often accompanies the complaints about theoretical law teaching is that there is not enough doctrinal legal writing, and Jason's proposal seems counterproductive on that point.  

And, although I don't think this is the whole of their complaint, I think what many law students are saying is not so much that they want training as that they want jobs.  Simply creating 200 professional law schools with professional training won't achieve that result if the demand for legal services is still lower than the supply of graduates; nor will mandatory articles of clerkship.  (The former proposal would, to be sure, better train students to hang their own shingles, although it would not by any means guarantee enough work to sustain them all.  Articling by itself does not actually create sufficient training to work on one's own; articling at my own large firm, I learned primarily how to work at a large law firm.)  I suspect many of those students or recent graduates would be more than happy to accept theory-spouting professors, if they knew they could find remunerative work at the end of the process.  

What this suggests to me is that we would answer this complaint better simply by eliminating a substantial number of law schools, regardless of the theory-vs.-practice debate.  Perhaps that is the debate we should be having, rather than debates over practical vs. theoretical teaching or doctrinal vs. non-doctrinal scholarship.  It is true that a more practical approach might better serve clients, but most of the discussion so far seems to have focused on what students and graduates want rather than what clients need.  If our interest is in students rather than clients, then I should think that eliminating law schools, not reforming them, is closer to the remedy we ought to be seeking.  

Not that I'm advocating this!  There appears to be a great demand for law school spots despite the economy.  Moreover, law professors are regularly told by law students (including many advocates of a "practical" approach to legal education) on legal blogs and elsewhere that the student is a consumer and an adult and should be free to make whatever choices he desires, including whether to show up for class at all and whether to use or refrain from using laptops in whatever manner she desires.  If we actually believe in this anti-paternalistic principle, then I'm not sure why the current setup needs to change.                    

Posted by Paul Horwitz on August 30, 2010 at 08:44 PM in Paul Horwitz | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef01348691947a970c

Listed below are links to weblogs that reference Form and Substance in the Reform of American Legal Education:

Comments

The country has way too many lawyers, law schools can't solve that problem. What law students need is much lower tuitions, much lower associate salaries (so that firm will be less quick to fire them at the first sign of a downturn), and more realistic expectations.

The best way to lower the cost of legal education would be to make it an undergraduate major. Although a two year associate program wouldn't be bad.

What law school teaches you is the grammar and vocabulary of the law. After that it takes years of practice to make you a lawyer. I figured that for the first 2 years, a law grad is excess baggage, from 2 to 4 years he can do some things under close supervision. From 4 to 8 years he can work with some supervision. After 8 years, he is ready to solo. Requiring the years of training just sets up a situation where salaries are suppressed.

As for the current crop of tenured profs, fire all of them because they are useless. I used to pick up law reviews and glance though them. They were useless, even incomprehensible. I stopped reading them and don’t miss them. What the law schools need to do is fire the tenured weenies who have no practical experience and replace them with experienced practitioners who are looking to downshift. Then they need to cut their tuitions dramatically.

Posted by: Walter Sobchak | Sep 1, 2010 11:07:10 PM

As one who is actually employing lawyers as head of my own mid-sized firm, I can state most of those who graduate from law school have no bloody clue how to deliver value to clients, which means that they are of little value to me. The bulk of their non-cite checking, document review, legal research time is pretty routinely written off. I worked for a litigation boutique firm after year 1, and can honestly say that to do the work I did then (and still do today) I didn't really need law school. A class devoted to understanding the structure of legal opinions and caselaw; a class on legal writing and research; a Civ Pro/Crim Pro/FRE class; a trial ad class (or one on basic M&A/contract drafting for corporate-law types, or on admin law for those going into a regulatory-intensive field) and another survey class on the area in which I wanted to practice would have been more than enough to get me started down the "learning-to-be-a-lawyer" path... I like the idea of making a law degree a Masters program of a year after doing a Bachelor's degree. 3 years was a waste of time and money. (Sorry, Orin Kerr, I went to GW before you arrived, and would really like my 90k plus interest back. The ability to snarkily say I learned nothing about torts from John Banzhaf isn't quite the value I was looking for...and it really is pitiful that during 2 semesters of Con Law not once did the prof ever suggest cracking open the Federalist Papers when analyzing the issue under discussion).

Posted by: Dee G | Sep 1, 2010 9:55:11 PM

Law school should be a bachelor's program, not a graduate professional program. There is nothing in law school that couldn't be taught as upper division classes to undergrads. Upon graduation, anyone with the LL.B. degree should be able to obtain work as a clerk or associate, without taking any form of bar exam, under the supervision of a licensed attorney or judge. Alternatively, they could continue with legal education and obtain the LL.M. to specialize in a specific field of law. Anyone with, say, 4 years of legal experience (either work, or work and school) in this manner should be able to take a more practical bar exam, and on passing, be able to open a solo practice, be a partner of a firm, or hold a public office such as prosecutor or judge. Restore the LL.D. for extremely specialized study for practicing specialists. Academics can pursue a Ph.D. in addition to the LL.B. to teach in law schools on a tenure track - while practicing lawyers with LL.M. or LL.D. should be able to serve as adjuncts or teach practical clinics. In an ideal world, the best law professors at the best law schools with have the LL.B., LL.M., and LL.D., with at least several years in practice specializing in the field they teach, plus a Ph.D. to establish academic credentials through research.

Posted by: gullyborg | Sep 1, 2010 5:10:51 PM

I don't see how you can have a thorough discussion of reforming legal education without bringing up the subject of online education in general, which, thus far, has essentially been the stepchild of higher learning. With certain obvious exceptions (such as medical training), requiring attendence at bricks and mortar palaces is as obsolete as the buggy whip industry and once the American public, including aspiring Clarence Darrows, clearly grasps this fact and demands equality for online education, the entire overpriced and underperforming edifice that is higher education will see its much deserved death. It can't happen too soon.

Posted by: Oremus | Sep 1, 2010 3:52:31 PM

I am a lecturer in Information Systems at a University in the North East. I do not have tenure and can not get it, teach 4 courses each semester, paid a lot less and do not have to do any research but do have to publish due to accreditation concerns.
What I bring is 28 years of doing IS/IT, a master's, a MBA and a PhD. What I get in return is absolutely filled classes with a high number of repeat students, i.e. students taking just about every course that I teach, ( about 9-10 different ones).
There is a division among students, those who are going to college because they want a job and those ( usually graduate) who want to be faculty.
That division is great and has two different sets of needs and requirements. Job oriented want skills that companies want and they want to know how that they are being taught will help them.
Those who want to be faculty tend to avoid courses that involve business concerns, they like theory rather than practical and so forth.
Do you need two separate academies? No, but you do need two programs which have some overlap but only some.
The academic track as we call it is about research and how to do it. The statistics involved, the methodologies that are accepted and under what conditions. They writing of papers and how to get them published and in what journals.
Many of the faculty have never done it in the real world and have no clue. They actually think the book is they way it happens.
On the other hand I and many others like me know that the book was also written by someone who never did it for a living and so we make a difference by "telling it like it is".
If you look at instapundit - there is much there about the education bubble. I believe that we are heading towards one. I have lived through several including the dot com bust. It will be messy and hopefully when it all clears up we will go back to educating people for their lives not just to make another academic in our image.

Posted by: Rich | Sep 1, 2010 3:32:58 PM

CAS127, I sympathize strongly on one point. Law schools should be very clear about the prospects of employment, starting salaries (keeping in mind that the average starting salary may be inflated by the numbers at the top of the curve), average debt loads, and the like. They should, in short, not offer false hopes to prospective law students. I'm not sure that would correct the supply problem, if there is one, as much as you suggest. Whatever law schools may say, prospective students already have a good deal of real-world data to look at; they may opt in anyway, either because they view themselves as the exception, or because they are willing to take the risk, or for other reasons (for instance, that they believe they have a vocation for the law). But I agree that law schools should be absolutely realistic in talking to and providing information to prospective students -- should, if anything, warn students against law school unless they are strongly committed to it.

That said, I don't think the reason for any book-cooking has much to do with the conspiratorial plots of "six-hour 'socialists.'" For one thing, most faculty are not involved in how law schools promote themselves to prospective students, and if anything actively seek other forms of committee service than admissions-related activities. They are uninterested in helping to administer law schools, so it seems unlikely that they are the primary agents behind what you accuse them of. You would be better off looking to the iron triangle of deans, applicants, and U.S. News. For another, in my fairly wide experience few law faculty members are "socialists," although I grant that that word seems to have faced substantial redefinition of late. Quite a number of them are liberal, but few of them devote much of their time to lecturing on the perfidy and self-interest of "business." Some of them -- some of us -- are inclined to talk about self-interest. But we don't think that self-interest is bad as such, nor do we spend much time judging it morally. We just think it's a real phenomenon that plays a significant part in the law as in any other social activity, not just for business (although business of course *is* motivated by self-interest among other things) but across the board. And so it does.

Finally, I'm not sure what the phrase "six-hour" has to do with anything. Tenure creates significant slack, but most law professors work far harder than the six hours they put into class. I probably work harder now than I did when I was at a law firm, although both the subjects and the scheduling are much more of my own choosing. Law teaching is a great job not because you don't have to work, but because you have far more freedom to tailor the nature of that work to suit your own needs and passions.

I should add that although I may be wrong, I am fairly certain I have neither struck a note of moral superiority nor engaged in rank, nationwide fraud.

Posted by: Paul Horwitz | Sep 1, 2010 2:51:42 PM

My daughter is going to school to become an engineer. The program she is attending is a five-year bachelors degree program that includes three mandatory co-op jobs interspaced between academic quarters. The plan makes a great deal of sense for engineers, who like law students, receive a great deal of training in theory and less in hands on job skills.

I think a similar concept would make sense for legal education. One possibility would be to eliminate the third-year of academic requirements and replace it with a mandatory 6 month "clerkship" after the first year. I think the on the job training in the clerkships would be more helpful to many students than the third year of law school and that students returning to the second year of law school after the clerkship would likely get more out of it.

I don't have very high expectations that such a plan would ever be implemented because there are too many vested interests in the current scheme. It also might be very difficult to secure the clerkships for all students in the current market. Maybe students who could not obtain a paid clerkships could work for free or maybe students who could not obtain a paid clerkship would choose not to continue.

Posted by: PaulD | Sep 1, 2010 2:09:33 PM

How about starting with simple honesty.

If the law schools would stop cooking the books on starting salaries and employment rates, the oversupply of lawyers would self-adjust.

But of course *that will never happen* because it would be a dagger to the heart of the obscenely bloated legal education establishment and the six-hour "socialists" who inhabit it.

That is, the five or six thousand legal academics who enjoy a very nice and reasonably well compensated six-lecture-hour work week, where they can expound on the self-interested perfidy of other elements of society (most significantly, business).

All of which, of course, is built upon the foundation of lies that lure tens of thousands of young people into handing over tens of thousands of dollars in borrowed funds.

How nice to strike a pose of moral superiority while engaging in rank, nationwide fraud.

Posted by: cas127 | Sep 1, 2010 2:08:32 PM

I am always grateful for comments, and doubly so for Orin's kind words. In fairness, let me point out that Orin's approach (and mine) arguably will not satisfy 1) those who are actually thinking about clients' needs rather than students' preferences and 2) the debt question.

The first could be addressed by requiring and making available more skills training, both in separate courses and mixed into the curriculum; a number of schools have experimented with this on an order far different from the all-in approach of, say, W&L. One can certainly argue that this is not enough, but I take no position here other than to say that it's not clear to me that radical surgery is needed. The second could be addressed in a couple of more or less radical ways. One, somewhat cold-hearted but not without merit, is to point out that students are not required to attend law school, and so need not take on huge debts in the first place (although, if Brad is right, then this is not a perfect response from a client-centered perspective). The other is to eliminate the third year of law school or make it optional; see Posner's Problematics book. Posner proposes this, seemingly, as an across-the-board solution; I'm not sure why, aside from the strictures of the ABA, we couldn't have both two-year and three-year law schools. This is also somewhat akin to Brad's solution. I apologize to Mr. Kowalski for not having read his book; I certainly take him at his word when he says he offers other proposals besides the articling or stagers proposal. Again, having gone through that sort of training, I have nothing against it; I was just arguing that this specific proposal doesn't seem to me to change the economic realities that have led many firms (unwisely, in my view; but I have always said that if God had meant for lawyers to be effective managers, he would have given them MBAs) to cut back on both hiring and training young lawyers.

Posted by: Paul Horwitz | Aug 31, 2010 9:08:18 PM

Very good post, Paul. I tend to agree.

I would add that to the extent we think legal education needs to change either to become more practical, or more international, or more theoretical, or more whatever-ical, there is a very straightfoward way to do that: Through electives. In most law schools, only the first year is required. Students then face a choice about how they want to take for their 2L and 3L years, and generally speaking, they can specialize however they want. They can take clinicals; theory classes; classes on trial practice; classes on legal history; classes on doctrine; etc. If students start to take certain kinds of elective courses instead of others, because they realize that they need certain skills or perspectives for whatever reason, legal education will change to accommodate them.

Posted by: Orin Kerr | Aug 31, 2010 8:07:49 PM

i know "it's" from "its"! really i do.

Posted by: John Steele | Aug 31, 2010 3:34:46 PM

One way to close the gap, and to be anti-paternalistic at the same time, is to give students a much greater say about the curriculum. (That would also finesse these endless, circular debates about whose vision of the law school curriculum should govern.)

We trust students with their decision to forego three years of employment and take on $90,000 in debt. Why shouldn't we trust them about the types of courses they can take? True, they'd want input from judges, lawyers, deans, and professor about ways to think about the courses they should choose. That's not hard to provide and I'm sure it would eagerly be accepted. But, having received that input, students could then signal what courses they want to take the next year and it could be the school's job to largely meet that demand.

I don't think that all students would want all skills courses. But who knows? Let's ask them and see. I realize that there will be budgetary limitations and that you can't deprive the existing faculty of all it's control over curriculum. But make some changes at the margin, in response to the enlightened self-interest of the students, appears to be a path to real improvement.

Posted by: John Steele | Aug 31, 2010 2:38:08 PM

I certainly respect the views and observations of Paul Horwitz.

However, he mis-states my position on the principal issue: The problems I address are (a) the fact that students graduating from United States law schools largely lack any skill in the practical application of the academic knowledge acquired in law school, certainly in the confines of a commercial practice; and (b) historically, in the United States, young lawyers acquired those practical skills through on the job training, logged the hours they were doing so and the employing firm then, in turn, billed the client for this time, earning profits from the exercise; and (c) in the current economic climate, clients are simply rrefusing to pay for time billed by first and second year associates.

As I point out in my book, "Navigating the Perfect Storm: Recruiting, Training and Retaining Lawyers in the Coming Decade" (Ark Press, 2010), http://www.mpmagazine.com/Publication.asp?pubid=78AE6CEB-1078-4874-9ADD-AD003C5515CD , mandatory clerkships, articling and stagers is but one solution which should be considered in addressing the problems described. In fact, in my book, I also suggest a variety of different solutions; many of which offer superior solutions.

And, as Brad points out and, again as I address at some length in my book, there is an enormous gap between supply and demand, with this chasm widening almost daily. I've also addressed these issues in my blog at http://kowalskiandassociatesblog.com/2010/07/25/what-if-they-built-a-new-law-school-and-nobody-came/ and again, in a slightly different context at http://kowalskiandassociatesblog.com/2010/08/17/do-we-really-have-a-shortage-of-aba-accredited-law-schools/

Jerome Kowalski

Posted by: Jerome Kowalski | Aug 31, 2010 2:20:49 PM

And, although I don't think this is the whole of their complaint, I think what many law students are saying is not so much that they want training as that they want jobs. Simply creating 200 professional law schools with professional training won't achieve that result if the demand for legal services is still lower than the supply of graduates; nor will mandatory articles of clerkship. (The former proposal would, to be sure, better train students to hang their own shingles, although it would not by any means guarantee enough work to sustain them all. Articling by itself does not actually create sufficient training to work on one's own; articling at my own large firm, I learned primarily how to work at a large law firm.) I suspect many of those students or recent graduates would be more than happy to accept theory-spouting professors, if they knew they could find remunerative work at the end of the process.

What this suggests to me is that we would answer this complaint better simply by eliminating a substantial number of law schools, regardless of the theory-vs.-practice debate. Perhaps that is the debate we should be having, rather than debates over practical vs. theoretical teaching or doctrinal vs. non-doctrinal scholarship. It is true that a more practical approach might better serve clients, but most of the discussion so far seems to have focused on what students and graduates want rather than what clients need. If our interest is in students rather than clients, then I should think that eliminating law schools, not reforming them, is closer to the remedy we ought to be seeking.

There are large groups of people who cannot afford civil legal services in this country. There are also large groups of unemployed lawyers. You would think this would be a win-win situation for clients and lawyers. Unfortunately, hanging out a shingle is simply not possible with crushing law school debt. For the same amount of money spent on a single year of law school a small group of graduates could have a decent chance of reaching cash flow positive on a small firm.

What is desperately needed is for some (perhaps as much as 50%) of the law school spots to switch from the "University Model" to the "Community College" model. Community college professors are not required to write, teach more classes and earn less money. As a partial consequence community college is a lot less expensive. These schools would turn out graduates that would be in a financial position and with the skills necessary to immediately start serving clients at a rate that can be afforded by clients other than multinational corporations.

Posted by: brad | Aug 30, 2010 9:24:49 PM

Post a comment