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Friday, August 27, 2010

Law School and Lawyering: A Post by Kristen Holmquist (BerkeleyLaw)


Hey there - stopping by again to throw my two cents into the whither-law-school debate. As Rick Garnett notes below, the Bruce Newton piece "Preaching What They Don't Practice: Why Law Faculties'
Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy" has gotten more than a little attention around the law blogs in the last few days. And I
guess I’m not surprised. It taps straight into the reform debate as it’s been framed (theory vs. practice; academy vs. profession). And it captures many reformers’ frustration with law school’s curricular inertia while our students are paying through the nose then and graduating a little too often without jobs.

I share, however, Rick’s frustration with the underlying assumption in this framing. That the ideas explored in interdisciplinary scholarship - ideas at the intersection of law and psychology and economics and
sociology, for example - are somehow irrelevant (or not very relevant) to 'practical' lawyering.  I've recently posted a draft that attempts to get at some of this. I don’t mean to diminish Newton’s concerns for our students. I simply hope to add to the discussion.  Here's the abstract:


Since the 2007 release of the Carnegie Report on the status of legal education, energy around reform has been tremendous. Indeed, schools of every rank have taken heed of the Report’s finding that while law school teaches students to think like lawyers, it woefully underprepares them to act as such. This essay challenges Carnegie and its conclusion that law school successfully teaches lawyerly thinking. The Report
artificially severs an attorney’s thinking from her doing and thus belies the interrelatedness of understanding, experience, evaluating and creating. It defines ‘thinking like a lawyer’ downward to a crisp and detached doctrinal analysis - one that looks more like law-as-puzzle than a serious attempt to solve complex human (or corporate) problems.
This narrow view obscures the context and content that lawyers work with and within, and it fails to reflect the more complex take on lawyering that lawyers and lawyering theorists describe. Sophisticated empirical
and theoretical accounts of lawyering recognize the recursive nature of knowledge and experience in a way that broadens our understanding of what it means to think like a lawyer.

Through this essay I attempt to fold context and content back in to our notion of lawyerly thinking. And I propose curricular and pedagogical changes that law schools might adopt to better reflect and encourage
this richer, fatter, understanding. While it is true that students’ lack of practical training may deny them the ability to write a fantastic brief, legal education’s problems are bigger than that. Law school’s consistent focus on case-method learning may also deny students the opportunity to engage in higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and
solutions.

Kristen Holmquist is Academic Support Programs Director and Lecturer in Residence at UC Berkeley Law

Posted by Ethan Leib on August 27, 2010 at 10:24 PM | Permalink

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Comments

I think the arguments that "law and. . ." actually is relevant and important need to stop. That's not taking us anywhere. The Jacobs paper cites sources (e.g. the now-legendary Edwards article as well as a report of a panel of various judges) that confirm what should be obvious: law review articles that cite few to zero statutes, cases, or regulations are almost always useless.

Even if their ideas are brilliant, those ideas are not presented in a context in which lawyers and legislators can use. To use one Justice's language, most legal scholarship (at least in the top reviews) have soared to "outer space." Stephen Breyer, 64 N.Y.U. Ann. Surv. Am. L. 33 ("[T]here is evidence that law review articles have left terra firma to soar into outer space. Will the busy practitioner or judge want to read, in February's Harvard Law Review, 'The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics'?").

I'm sure we can point to seminal articles in law & econ and whatnot that undoubtedly influenced the antitrust field, but those are the rare exceptions. The amount of time devoted to "Law and. . ." (and its consequent implications for faculty hiring) should not be defended on the grounds that that scholarship is actually useful to anyone.

All of that being said, I don't think students are the ones to suffer from the sad state of faculty scholarship. Law schools still teach plenty of doctrinal courses, the teaching style for which mostly remains on Earth. Also, clinical offerings have exploded. Except perhaps at Yale, a student who actually wants to learn law and the basics of how to practice law can do so.

In my view, the biggest losers are the sad saps like me who actually enjoy the law, want to write about the law, want to discuss the law, and so on with other faculty members, but cannot do so without appearing simplistic (a senior scholar actually once told me that I needed to add some Wittgenstein or Hegel to my article to give it some "pop"). This state of affairs surely isn't as troubling as giving students poor educations, but still, as the Edwards piece points out, the growing disjunction between legal scholarship and the practice of law does have negative consequences.

There are so many fascinating, complex, and ambiguous legal issues that would benefit from a close scholarly look; it's too bad that pursuit of these issues has been forsaken by much of today's faculty in favor of "law and. . ."

Posted by: another2dyearprof | Aug 28, 2010 5:40:39 PM

Well said another2dyearprof. I am on the market and my expertise is in very down to earth fields -- employment law and civil procedure mainly. Well written, well thought out, complex doctrinal scholarship that actually has a point -- namely to improve the law in the area in which one is writing -- seems to me to be what all law profs SHOULD strive for. I can't say that "law and ..." is totally pointless, but I cannot understand why "doctrinal" is suddenly a dirty word. I am deeply interested in the LAW and writing about, improving and teaching, the LAW. Surely there is a place for people like us another2dyearprof in academia.

Posted by: Atticus | Aug 28, 2010 9:02:39 PM

Atticus -- there definitely is a place for people like you. But you have to accept that you will likely be placed at a tier or more lower than where a good doctrinalist would have been placed 40 years ago.

Also, I don't mean to say that all "law and. . ." is pointless, only that much of it is. And I don't think there is anything inherently wrong with "law and. . ." If faculty want to be irrelevant and write solely for 10-20 other professors who also want to be irrelevant, I'm glad to live and let live. The problem, though, is that "law and. . ." and other types of scholarship that cite no legal materials have largely displaced traditional legal scholarship, which *does* have value.

I should say that singling out "law and. . ." is unfair because many professors don't write in "law and. . ." but still manage to write articles that have little to say about any types of legal authority (e.g., an article on climate change policy, or an empirical article on whether IVF reduces adoption, etc.). These pieces may be smart, perhaps brilliant, but they are not good legal scholarship. It's unfortunate that these articles have displaced works that CAN serve the profession. Maybe people like you and I should try to put our scholarship into social science journals, so that law journals publish articles on the social sciences and social science journals publish articles on the law :).

To be serious again, I really just wish law schools hired more professors who were interested in the law. Except for the racism and sexism, law schools in the 50s and 60s must have been a great place to be. Today, I have no idea what value most of my colleagues are providing to the profession, and half the time I can't even figure out what their articles are trying to say.

I'd love to be on a faculty where I could learn about different areas of the law from my faculty colleagues, and where faculty workshops involved presentations relating to the law. Judge Posner's tribute to Bernard Meltzer, recommended by Orin Kerr on another site, makes me sad:

http://lawreview.uchicago.edu/issues/archive/v74/74_2/08.Posner.pdf

The study of the law can and should be an intellectual endeavor. A good, "practical" law faculty is not one that is filled with seasoned attorneys who have nothing but war stories to share. It's one with legal legends like Meltzer or Prosser, who advanced the profession and the field without flying into outer space.

Perhaps it's too much to ask the Ph.Ds on the faculties to share my enthusiasm for "the good old days" and to want to aspire to the standards of Meltzer or Prosser, but it'd be nice if they didn't treat us doctrinalists like second-class citizens, at least.

Posted by: another2dyearprof | Aug 28, 2010 10:09:15 PM

I'm pleased to see another2dyearprof's more moderate second comment. There's a pretty serious risk that any one of us will channel our frustrations with our own fates -- whether it's writing an article that wins fame and fortune or at least job security, or getting a position -- into exaggerated claims about the state of the academy. It's hard to imagine anyone with such mastery of the law as to be able to confidently pronounce that it's the rare exception (like antitrust) where something that's "law and" might matter. (That's not to say that experience confers immunity; Justice Breyer has some moxie to talk about busy practitioners or judges reading "The Paradox of Legal Activism" -- on a question central to reformist lawyers, BTW -- as opposed to, say, "Active Liberty," which is finding its way into deal documents and bail motions as I type.) I would also be surprised if there's a large set of articles that "cite few to zero statutes, cases, or regulations" (or constitutions or treaties or guidelines, etc.), and I'd bet there are thousands that defy that description. I dispute that there's such comprehensive discrimination against doctrinal work.

That said, I don't have quite the same conception of successful scholarship. It's unclear to me why something that bears acutely on a legal problem, but dwells little on legal authority, isn't relevant to the legal profession. And I'd certainly dispute the assumption that writing directly about legal authority more certainly assists the legal profession. You can find scads of articles on a great many black letter topics for which the marginal value of new articles approaches zero. Great doctrinal scholarship is hard to do, and it doesn't just consist of fussing around the margins and suggesting that the dissent was better. It's also temporally contingent; reminiscing about Prosser is like an engineer fussing over how Thomas Edison would be treated today . . . not too well, if he kept inventing a damn bulb (or was it the airplane?).

P.S. For my two cents, tossing in a bit of Hegel or Wittgenstein often lends the "pop" of a backfiring exhaust. Senior scholars suggesting that may be shrewd, but they may also simply not grasp what makes for good new scholarship. High risk strategy unless you know what you're doing or are entirely sure your readers don't.

Posted by: Ani | Aug 28, 2010 10:36:49 PM

Ani,

Thank you for your response. You are right to sense a string of frustration running through my comments. I hope that frustration hasn't obscured my point. I am in the midst of submission season (unwisely missing the boat on the March window), which I'm sure you can appreciate tends to exaggerate one's emotions somewhat.

Even accounting for my frustration-induced exaggeration, I am not inclined to back down much from my main points, and am in fact surprised by your doubts. You questioned the claim that “law and” usually has little value, but exactly what type of evidence would you be looking for? Numerous judges have flatly dismissed the value of "law and" scholarship, as have many practicing lawyers. To be sure, some professors have argued that "law and" scholarship serve the profession, but it's hard to give too much weight to these self-serving assertions. Common sense also suggests that scholarship that isn’t placed into or written with regard to the current legal landscape is unlikely to alter that landscape.

So, perhaps I should ask you to address the question from the other side: Given the overwhelming evidence that points against the value of “law and” scholarship (check out the Edwards article for a collection of further cites), what evidence is there that this scholarship actually has influence? Evidence that does not come from the producers of “law and” would be particularly appreciated. Evidence from members of the legal profession (legislators, lawyers, or judges) would be especially good.

As far as discrimination against doctrinal work, again, I'm surprised by your skepticism. I thought it was now beyond debate that most hiring committees look for scholarship in the graduate school mold. Solum, Leiter, and others have all observed this phenomenon.

And of course I agree that merely “case crunchers,” or bar journal articles, or similar work, while undoubtedly providing some value, are not the epitome of great doctrinal work. It’s unfortunate that when one argues that doctrinal work has value, she receives a derogatory comment about simply focusing on a dissent over a majority opinion. I’d respectfully submit that good doctrinal analysis involves far more intellectual rigor than crunching a few opinions.

As far as your (perhaps subtle) analogy between re-inventing the light bulb and doctrinal scholarship, that again proves my point and contributes to my frustration. It reminds of the response we’ve seen on the blogosphere to the assertion that law schools should hire more people with practice experience. The proposal is misinterpreted and derided as encouraging the hiring of 50-year old attorneys to show up in the classroom, share war stories, illustrate how to redline deal documents, and format court complaints in Courier New.

But that is not what doctrinalists are suggesting; we want a thoughtful, careful, exploration of the law, not a “trade” school where students learn how to complete perfunctory tasks regarding the filing and preparation of documents. Too many faculty members have too little experience in the practice of law, unfortunately, to realize that thoughtful grappling with legal issues can be a worthwhile intellectual endeavor, and the legal profession is suffering for it. (Students are still okay – as I mentioned in an earlier comment, at most law schools one can avoid “law and” easily enough.)

Posted by: another2dyearprof | Aug 29, 2010 12:16:28 AM

Thanks for the civil reply. Briefly . . . I don't mean to be a coward, but I don't think it's my burden to establish the relevance of all non-doctrinal fields, or to throw only a few to the wolves. My point was simply to marvel at the difficulty of making sweeping claims about "law and" scholarship's effect, limited or otherwise, particularly of a kind so particularized as to exempt antitrust. But since you ask, outside of that area, and disqualifying all former professors sitting on the bench (like, say, Posner), I can think of Kennedy's opinion in Bilski, Stevens' opinion citing Revesz, corporations and ad law cases (e.g., on CBA). And on the even-more-maligned non-law scholarship side, there's always the doll study.

"Overwhelming evidence" already exists showing its irrelevancy? You're correct that some judges and practicing lawyers have dismissed the relevance of "law and" work, but I'd note that for the most part they more broadly dismiss the vast majority of legal scholarship (sometimes while throwing a bone to doctrinal scholarship, by which they do not necessarily mean what you have in mind -- multi-jurisdiction surveys and notes are surprisingly popular). I can think of one empirical study that showed substantially diminished citation in judicial opinions, and think that made no distinction among the kinds of scholarship at all. As to Judge Edwards' article, I recall it mostly being premised on some trenchant observations (including at the expense of CLS, which is no longer much of a burden on the academy) and quotes from his former clerks. All this is assuming that citation by judges is the acid test, when certainly use in briefs, or as a sustained external dissent, seems quite worthwhile to me.

You say, fairly, that doctrinal scholarship doesn't have to be trivial or marginal, but my point was that the lack of appeal in some doctrinal scholarship had to do with that aspect -- not with graver biases against scholarship of Prosser's quality -- and that writing directly about matters (most) directly relevant to the legal profession was no panacea. (The truth is that all forms of scholarship, as scholarship is measured, find their veins tapped eventually, so that the fundamental returns on much doctrinal work have been realized -- as on law and economics -- and that makes it harder to find something novel to say.) Nor did I comment on the kind of scholar who would be hired to do doctrinal work. Anyway, I really don't think you're in a good position to complain about having your work stereotyped or caricatured, given (e.g.) your description of "law and" work as "scholarship that isn’t placed into or written with regard to the current legal landscape," which is not how most such authors see their work.

Finally, you're right that hiring practices have evolved, and that graduate school models are increasingly followed. If you re-read my comment, I was talking about the prospect of publishing doctrinal work, and even there said only that there was no "comprehensive" discrimination against it. Personally, I have some misgivings about this trend, but would only note that many such scholars are acutely interested in the legal profession -- and many of the scholars whose work seems most remote from practical legal issues had absolutely no advanced training beyond their law degrees.

Posted by: Ani | Aug 29, 2010 1:52:19 AM

Ani,

Thank you for engaging in the discussion. A few points:

-- Regarding your conclusion that the "fundamental returns on much doctrinal work have been realized," this once again is the type of statement that bothers me. This is actually a very fun time to be a doctrinalist, what with Congress and agencies passing more and more laws and doing more and more things. I simply don't think that doctrine is as stale as you make it out to be.

-- Judge Edwards' article (series of articles, actually) includes quotes from clerks, deans, senior partners in law firms, and judges, not just recent grads. Whether or not you think Edwards and similarly-minded people are right, there's undoubtedly enough criticism out there that "impractical scholars" (as Edwards defines them, not limited to only CLS) should feel the need to defend or explain the value of their work. If this fact -- that many of the most important members of the legal profession think that impractical scholarship is a joke -- does not bother you, then I would suppose that just proves Edwards' point. There is a gigantic gap between the real world and impractical scholars, and the latter group doesn't feel the need to consider the former and is unconcerned with the growing irrelevance.

- I did not mean to caricature impractical scholarship by saying that it is unmoored to the legal landscape; it was meant as a description without invoking merit. I was, in fact, careful to note that that scholarship might be quite brilliant, but my concern is that it is displacing traditional scholarship and traditional scholars. If I threw an employment law article in an economics journal and the article had nothing to do with the methodologies or principles of economics, it might be a great law article but it'd be fair to say that it is not moored in economics.

Thank you again for your thoughtful reply.

Posted by: another2dyearprof | Aug 29, 2010 4:24:47 AM

another2dyearprof, if there's one thing that our exchanges has made clear, it's that what people mean by doctrinal work and its alternatives is elastic. To try to put my views succinctly:

(1) I think attempts to dismiss "law and" work as irrelevant are overbroad. In part the criticism turns on disapproval by judges and practitioners. I don't disregard that, but would note that some of the criticism is more focused than you portray (e.g., focusing on extreme examples or what's "impractical"), and some picks on all the work professors do and not just "law and" work (e.g., citation studies). I suggested a few counter-examples, and also suggested additional (not exclusive) ways of assessing relevance. In part, though, the criticism is based on what I termed a caricature; you say you are merely describing the work as "scholarship that isn’t placed into or written with regard to the current legal landscape," not criticizing it, but my point is that this is a misdescription or a description only of a subset. It simply doesn't match up with a great deal of "law and" scholarship, and it's not fair to attack it on that basis, even if you are willing to concede that it may be brilliant and whatnot whilst being irrelevant to law.

(2) Saying that one wants to embark on doctrinal work doesn't establish relevance to the legal profession. Lawyers and judges are just as capable of ignoring those articles; try explaining to a trial judge why your article lovingly detailing why the Supreme Court erred, or why Congress is full of crap, bears on what she does. As to marginal returns for purposes of assessing scholarship, I was as explicit as could be in saying that other approaches (I mentioned law and economics) can also be played out. I don't meant to tar doctrinal work, but I do mean to insist that embarking on it isn't a surefire way of overcoming irrelevance.

(3) Great work is great work; labeling only gets us so far. You are right to say that work that has no intention of being relevant to the practice of law, and which in fact is not, is unlikely to be well regarded by the profession. You are also right in supposing that work that doesn't try to hew to academic norms, and which doesn't, won't be regarded as successful within the academy. The standards of the legal profession and the standards of academy do not coincide, and the latter is far more forgiving of things that are brilliant but not likely to be cited by the Second Circuit. But they also diverge in many other ways -- the former is far more interested in the magisterial survey, the summary, and the descriptive -- and so I become impatient with monocausal explanations.

Doubt anyone else is reading here, so I will go off to Shephardize. Thanks for your thoughts.

Posted by: Ani | Aug 29, 2010 3:36:53 PM

Thanks for the exchange. I imagine that our views are in reality closer than they might seem. Good luck with the cite checks.

Posted by: another2dyearprof | Aug 29, 2010 5:50:23 PM

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