« Personal impact of the Penn State story | Main | Regulatory Changes, Part 2: Congressional Approval of Regulations »

Sunday, November 20, 2011

A Recipe for Trashing Legal Scholarship

Just in time for Thanksgiving!

Ingredients:

  • A premise based on a hazy cliche, such as: "Of course, much of academia produces cryptic, narrowly cast and unread scholarship.";
  • A few particularly esoteric article titles -- law & philosophy if possible;
  • A complete misunderstanding of Ed Rubin's program for reform of the legal academy, which in fact seeks to increase the role of legal research in law school pedagogy;
  • A couple of hostile throw-away quotes from Supreme Court justices;
  • A truly bizarre calculation of the "cost" of legal scholarship, based on back-of-the-envelope calculations and unsupported assumptions;
  • An unwitting job candidate, whose scholarly work can provide a few more esoteric-sounding titles and food for ridicule; and
  • An overall theme for the story (the nature of legal education) that is, in fact, something worth debating -- and in fact is being debated quite vigorously within the academy.

Directions: Mix together in the preeminent newspaper of our country.  Half-bake and serve.

Seriously, I hope other folks jump on this -- it's really demoralizing and infuriating to read this in the New York Times.  It's a head-scratcher.  I was just writing over at the Glom about the respect and appreciation the Delaware Chancery has for legal scholarship.  And then we get this.

Segal says at one point, in attempting to show the impracticality of legal scholarship:

Some articles are intra-academy tiffs that could interest only the combatants (like “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek” from The Journal of Ethics & Social Philosophy).

The article is (a) a philosophy article written in (b) a philosophy journal (a self-described "online peer-reviewed journal of moral, political, and legal philosophy") (c) by a philosophy professor.  I mean, really.  Is that the best you can do?

Posted by Matt Bodie on November 20, 2011 at 03:40 AM in Life of Law Schools | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef0153934df99c970b

Listed below are links to weblogs that reference A Recipe for Trashing Legal Scholarship:

Comments

Funny. When the schools toss out bogus employment statistics to lure in more paying bodies I never hear about the outrage from law professors. But the minute someone tries to call out your profession you start crying. Most professions involve a lot of salesmanship, markup, and oversell to dumb people who don't need the services but who are conditioned to believe that they do. Legal scholarship is no different. Get over it.

Posted by: Lawyer | Nov 27, 2011 11:52:53 AM

@ Stunned: My impression was that, in line with your preferred approach, most law schools require Criminal Law, but not Criminal Procedure. Is that not in fact the case?

Posted by: Anon 3.0 | Nov 23, 2011 3:23:08 PM

@ Stunned--What on earth are you talking about?

Posted by: Anonymous | Nov 23, 2011 2:57:46 PM

As a practicing international lawyer I find the comments on this website truly depressing and indicative of the degree of dissociation of the legal professoriate from the reality of legal practice - and indeed practical aspects of law. Thus for example Alex Guerrero's observation that:

"Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees. This has helped to hasten a historic decline in hiring."

I think it's worth noting how little evidence is offered in support of the view that this client preference has "helped to hasten a historic decline in hiring." There are, of course, lots of other factors that might be causing this decline. Is the market for new lawyers diverging dramatically from the markets for other entry-level jobs? Is it a new thing that law firm clients don't want to be billed the exorbitant rates for first- and second-year associate work? I thought that has pretty much always been true.

In this comment Professor (I presume) Guerrero managed to firmly establish that he has no knowledge of current legal practice. While clients in the past may have been less than happy at junior lawyers being billed - that attitude has risen dramatically. The driving factor has been the very high billing rate changed for 1st and 2nd year associates - in turn driven by their need to service a high debt burden. To be blunt - they are not worth the money. Professor Guerrero's desperate search for an explanation - any explanation - that does not impinge on the cost of their new graduates education and the poor quality of their preparation is simply intellectual evasion.

Incidentally, dodging painful facts is something that you cannot do when you "think like a lawyer." Thus most of the postings here illustrate that the professors involved need to avoid that particular cliché when "teaching."

Moving on to the posting of Miriam Baer I may have a prejudice against criminal procedure professors as the very PC administration of my law school (that pack of Yalies) tolerated his rotational dalliances through his 1L sections - blond, brunette, redhead - repeat.... Nonetheless, Professor Baer pretty totally misses the point - the major complaint of practicing lawyers regarding criminal procedure as it is taught is that it actually focusses on constitutional law, "catnip" to "legal scholars," while completely ignoring actual criminal law. Since only criminal procedure is mandatory, a frightening number of new law graduates have no substantive knowledge of criminal (as do a frightening proportion of law professors.) The result is advice to clients that is literally criminal; suggestions to engage in actions that are in fact illegal. That a new law graduate can emerge without knowing the elements of basic crimes is simply shocking! That a law professor would evade this issue is appalling.

Now move on the Anon Good Nurse:

Also, on an unrelated topic, I'll point out that the focus on unprepared corporate lawyers is very self-serving. Commercial litigators (and bankruptcy lawyers and tax lawyers and etc.) use school-taught skills far more frequently than M&A lawyers.

As an old and experienced law professor I knew would say (and he had practiced law for a decade or more and was Dean of a major law school) - piffle and nonsense. I am a corporate litigator, a former general counsel and an international lawyer - and frankly from Yale to Harvard, Georgetown to Columbia - the amount of commercial litigation skills that are school taught can be summed up as f*[email protected] How is a current US law professor, anointed after 1-2 years as a judicial clerk for a non-bankruptcy judge (hint - they are not the same as US District, Appeal or Supreme court judges) whose mixed docket includes a lot of crime - who posed as a lawyer for at most a year at a big firm supposed to have any skills in bankruptcy or commercial litigation to pass on? If law professors think they have these skills to teach they are delusional.

Twenty years of legal practice has led me to conclude that US legal academies need a serious shake-up. The most basic change would be to make ABA accreditation conditional on an average level of practice experience by the faculty of at least 10 years - and a condition of tenure being a minimum of 6 years. Admittedly this would lead to a lot of law professors polishing up their resumés and submitting them to people like me - and I will try to treat job applications sympathetically, though probably not salary demands. The postings by so many professors on this website should be seen as justifying this point of view - and frankly in my benevolent view most of the posters here should be the first cut.


Posted by: Stunned | Nov 23, 2011 11:50:25 AM

To Law clerk (and others): Law schools certainty can be compared to participants in a free market.

1. It is not true that "one must -- by force of law -- attend an accredited law school to become a licensed attorney." In seven states -- including California and New York -- one can qualify to sit for the bar exam without graduating from an ABA approved law school. The fact that the alternative routes to attorney qualification are less desirable precisely reflects market forces. The demand for attorneys who graduate from ABA approved law schools is far greater than the demand for attorneys who do not. Why? There are at least two possible reasons (either or both of which may be true). One, ABA approved law schools provide valuable legal training. Two, ABA approved law schools act as an effective signaling and screening device. (If you are not familiar with the concepts of signaling and screening, consult any intermediate microeconomics textbook.) Either way, ABA approved law schools serve an important market function.

2. Law schools compete with each other and with other professions. Like other suppliers of goods and services, law schools will respond to genuine changes in demand. If students and employers genuinely demand changes in legal education, it will happen. But they must do so through credible actions. Employers must choose to hire more attorneys who do not graduate from ABA approved law schools, and more students must choose other routes to becoming an attorney. Based on #1 above, however, I don't think this will happen. And I don't think change will come from students choosing other professions (which they appear to be doing, given the steep decline in LSAT registrations and law school applications). After all, assuming the global market for legal services continues to increase (as most economists predict), this reduction in the supply of attorneys will alleviate the underlying problem (that many law school graduates cannot find legal employment upon graduation) and, in turn, the underlying pressure on law schools to change.

Posted by: JT | Nov 22, 2011 10:59:39 AM

"I am a clinical instructor at a law school and I find myself struggling to figure out how and on what basis my doctrinal colleagues actually contribute to the legal education of these students."

For all the talk about how doctrinal professors do not respect skills and clinical teachers, I have never heard a doctrinal professor utter anything remotely like this about skills/clinical colleagues. Whatever the appropriate balance between clinical and classroom teaching, the idea that doctrinal professors do not "contribute to the legal education of these students" suggests a lack of serious interest in a meaningful discussion.

Posted by: Howard Wasserman | Nov 21, 2011 11:14:29 PM

Fred,

I think you make a great point about "hanging a shingle." Most law schools actually do a very good job of training public defenders, prosecutors, and, notwithstanding Segal's article, BigLaw associates (certainly litigation associates). But the article contains only gripes from corporate counsel and big law firms about the poor training offered by law schools. If these powers had their way, the law school experience would be even more divorced from the reality of most law school graduates than it already is. How to conduct due diligence on a 100 million dollar merger is about as practical for the typical law student as a course in Bulgarian property law would be.

Posted by: SA | Nov 21, 2011 8:53:33 PM

I agree with Fred, although I am a little puzzled about how that came to be the prevailing notion. Law schools have never widely taught the business skills necessary to run a solo practice, such as client development, accounting, etc. And frankly, the law school curriculum has focused on doctrine for quite a while. But times change, I suppose, and it would certainly be a good idea to have these courses available.

Posted by: anonymous | Nov 21, 2011 8:53:17 PM

As a graduate who struggled for several years to find legal employment after law school, I'd like to make just one limited point. I think it is a good thing for the larger public to know that law school does not prepare a graduate to "hang a shingle" upon graduation. Many people believe that part of supposed versatility of the law degree is that it qualifies you to essentially become your own boss and start your own business upon graduation. If you can get a good job great, and if you can't, you can hang your own shingle as a fallback plan. Many, many people believe this. I applaud any effort to get out the word that this is not true. Law professors might believe this is old news, or beating a dead horse, but the larger audience of people could benefit from hearing this sort of thing regularly.

Posted by: Fred Smith | Nov 21, 2011 7:59:34 PM

Why is this an either-or proposition? I favor a vision of legal education that looks a lot like what we do at my school. The first year is largely based on standard 1L courses, with the goal being to introduce students to the foundations of legal reasoning, as well as subjects that will be on the bar. By the second year, students begin to specialize, taking courses that focus on a particular area of study (e.g., copyright and TM if they're interested in entertainment law). Then by the third year, there's more of a practical focus, that includes things like an externship or two, courses on skills like drafting or trial ad, and capstone courses that blend already-learned theory with practical applications.

The idea is to produce graduates with strong foundations in legal ideas and reasoning. The graduates would also have specialized knowledge in a field along with some core practical skills that will allow them to transition smoothly into practice.

On this model, everyone on the faculty has something to contribute. Full-time faculty members typically teach the foundational, substantive courses; while adjuncts and other skills-based professors such as clinicians serve the crucial function of delivering practical skills in targeted areas to upper-level students.

This isn't a new idea. Rick Hills suggested it in this blog some years ago in a really wise piece about what he called "amphibious" law schools. I think defensive law professors and their hysterical critics alike could learn a lot from it.

Posted by: DF | Nov 21, 2011 7:55:03 PM

i don't understand the rage here. can't we agree that law is the most important man-made normative system in the world. it is a worthwhile area of study both from the internal (practitioner/doctrinaire) and external (empiricist/theoretician) perspectives. let a thousand flowers bloom, i say.

for those that think scholarship ought to be limited to just the first perspective, perhaps you don't think law is that important. that's fair, but do you think poetry, theology, art, economics, literature, philosophy, etc. are more important? i'd assume not; those departments put out far less useful scholarship by your metric, and they are often subsidized by surpluses from law schools. why only put law schools in the cross-hairs?

Posted by: anonymous | Nov 21, 2011 7:41:06 PM

clinical instructor,

I find your post rich in irony. You contrast legal scholarship with the product of supposed "actual academics who had to undergo a PHd process to become a scholar." That would seem to lead to a call for more PhDs to become legal academics, who actually know how to "set up a proper longitudinal study." Can I take this as a call for more PhD hiring for law professors, and fewer clinical faculty?

Posted by: TJ | Nov 21, 2011 6:50:48 PM

I find it absolutely sad that doctrinal professors are so defensive about this article rather than taking the criticisms seriously.

I am a clinical instructor at a law school and I find myself struggling to figure out how and on what basis my doctrinal colleagues actually contribute to the legal education of these students.

The very notion that you guys get tenure, and even bonuses for publishing in a "Top 50" Law Review is joke-worthy.

Let's recap for a quick second what "legal scholarship" means. It is NOT bar journals. It is NOT practice pointers. It is articles written by professors, who get chosen by 3rd year LAW STUDENTS.

Some of you have complained about the example in the article.

Here is a list of the articles published in the top ranked legal journal:

From UMKC's rankings I give you the articles from
Yale Law Review:
"Outcasting: Enforcement in Domestic and International Law
Oona Hathaway & Scott J. Shapiro"

This is essentially an article trying to argue that instead of enforcing our laws the way we do now, we should use "shaming" or outcasting which "involves
denying the disobedient the benefits of social cooperation and membership." I am sure we'll see this sweep through our police academies in no time flat.

Or how about Harvard's law review?
We have Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law
which purports to give us some perspective on Supreme Court decision-making by explaining cognitive issues.

"The study of motivated reasoning (in particular, cultural cognition) shows that individuals are predisposed to fit their perceptions of policy-relevant facts to their group commitments."

So wait a moment, a law review article that is explaining the concept of "Confirmation Bias"! Groundbreaking.. if it was published oh say 50 years ago when actual researchers did their work in this field.

I am sure these articles are worthy legal scholarship, it isn't the articles themselves that are the problem. It is legal scholarship itself. What is the purpose? Legislatures write the law, judges interpret and create the law, and practicing lawyers through cases actually help change the law. So what exactly does legal scholarship provide? Who is going to read the above mentioned articles and actually use it to do something other than argue for or against their premises.

And if you don't like the NYtimes as a critic, what is your response to the Chief Justice of the United States Supreme Court who thinks your scholarship is not being useful?

http://lawprofessors.typepad.com/adjunctprofs/2011/07/chief-justice-roberts-comments-on-legal-scholarship-today.html

Try comparing legal scholarship with any other academic field. Unlike doctors or researchers who publish in medical journals, legal scholars aren't writing about new legal strategies, or effective ways to practice, or suddenly discovering new legal processes. And any articles that rely on actual data and observation is better done through sociology, economics, or history. How many legal scholars (who don't have other degrees) knows how to set up a proper longitudinal study? Or understands statistics well enough to create a meaningful survey?

Just compare the process between actual academics who had to undergo a PHd process to become a scholar with many of the legal scholars. Now, after considering the training, the actual process in which works are picked for publication is ludicrous. A few 3rd year law students can make or break legal academic careers... Is it any wonder that legal academia is the subject of criticism?

The saddest part of all, is that instead of taking the teaching aspect of law school seriously, most law schools think that teachers are interchangeable. At least 50% of the time classes are taught by teachers who never actually practiced in that field. How many times has someone actually litigated or written a contract, taught a contracts class? How many criminal procedure, or criminal law classes are taught by actual criminal practitioners? The irony? It is the "lower ranked" schools that will likely have such teachers rather than the upper echelons of law schools.

Finally, this notion of "teaching people how to think" is the biggest BS i have ever read in my life. If you want to learn how to think critically, get a degree in the sciences.

Posted by: clinical instructor | Nov 21, 2011 6:06:06 PM

Attn Law Professors -- your uselessness is becoming apparent. Shoulda gone to med school, guys.

Posted by: Johnathan Blaze | Nov 21, 2011 3:54:33 PM

"I love the people who say "law schools are a cartel" and "there are too many law schools" simultaneously. They may need to take a remedial logic course, or at least read up on federal antitrust authorities' intimidation of the ABA when it tried to limit entry."

You misunderstand the meaning of the word "cartel." A cartel is not something that exists because of barriers to entry. A cartel exists for another reason, collusion. You could have unlimited entry but so long as each new entrants colludes with the previous members it's still a cartel.

Law schools are a cartel because they collude. For example, they have co-opted the ABA and used it to immunize themselves from liability for their publication of fraudulent job placement statistics. See the Cooley and NYLS motions to dismiss where, without even attempting to argue the credibility of their job placement numbers, they claim the ABA immunizes them from fraud. The problem is that the ABA committee who created the standard is made up of law school deans and professors, mostly from low ranked law schools.

Posted by: anon | Nov 21, 2011 2:24:06 PM

I simply want to comment that - there is a joy one feels when one observes justice, when one observes bad people being exposed, and I feel that every time another person exposes the scam known as law school.

There is no need to debate it because the evidence is overwhelming, and indeed you don't have ONE, NOT ONE, non-legal-academic defending you. No no no. There is no need for debate. One should only basque in the warm glow of equity to see you people exposed for what you are.

Posted by: anon | Nov 21, 2011 12:33:56 PM

I love the people who say "law schools are a cartel" and "there are too many law schools" simultaneously. They may need to take a remedial logic course, or at least read up on federal antitrust authorities' intimidation of the ABA when it tried to limit entry.

Posted by: anon | Nov 21, 2011 12:09:11 PM

It seems to me that "stand up" law profs who publish are fighting hard to retain their higher salary and status at the expense of those profs who teach legal writing and clinics. By asserting that publishing is more important than "practical skills", they seek to maintain the advantages they hold over the profs who work 40+ hours a week actually lawyering with students. I would be more sympathetic if the academy would be willing to acknowledge the efforts of the workhorses in clinic and research and writing and promote pay equity and tenure for all profs.

Posted by: Susan McGraugh | Nov 21, 2011 10:09:31 AM

Law firms can gripe all they want about law students not being law firm ready, but they have not, and will not, put their money where their mouths are. Law grads are more prepared for practice now than they have been for several decades, and law firms are still most attracted to those that have gotten the least in skills training--namely, graduates from Yale Law and Harvard Law. Why? Because the biggest paying clients want those schools on the resumes of the lawyers they use? Because the lawyers at the most powerful firms share those credentials? Because those graduates have the most promise and talent despite their lack of instruction? Who knows? But the biggest lawyer employers will still take top law grads at top law schools no matter how they are taught and no matter how the economy is.

Should law schools take skills seriously? Absolutely. Have they made progress in that regard? Absolutely. Should they do this at the expense of training in history, philosophy, economics, political theory, moral reasoning, etc? Absolutely not. But it is this last question that is the most compelling part of Segal's article, and this comment thread has lost its way insofar as it doesn't address it.

Posted by: anonymous | Nov 21, 2011 12:44:37 AM

Bottom line: you need an apprenticeship after law school to learn to practice law. Because of the current recession and changes to the profession wrought by technology and new cultural and economic pressures on practice, there are not enough of those crucial entry-level spots to go around.

Things were fine when the profession was willing to train and demands was strong. The profession is not willing anymore. The professors on this blog can complain that this shift forces legal education to serve corporate masters instead of justice, but someone always needs to pay Sallie Mae in the end.

So people spend all this money on the education but can never access the profession. It doesn’t help that the profession has a serious caste system where pedigree is often more important than talent.

In the end, the economics for the students are unsustainable. You're going to keep seeing articles like Segal's in the NYT until kids stop paying 150k but still can't find a job.

Posted by: David Conrad | Nov 21, 2011 12:30:46 AM

Law clerk, the reason Microsoft is an apt comparison is that it is a monopoly with market power, which is what a cartel collectively is. The difference with taxes is that one has absolutely no choice not to pay taxes, but one does have a choice not to attend law school and not to become an attorney. Your apparent premise that choosing to use Windows is a "free" choice in a free market, but choosing to become an attorney out of millions of possible careers is not, is a premise that mystifies me.

Posted by: TJ | Nov 20, 2011 11:38:09 PM

"Both groups have standing (in the practical sense) to criticize expenditures, including specific sub-classes of expenditures, that drive up the amount they pay."

This is awesome, if only because I'm procrastinating in getting back to the research for my state taxpayer standing article. Point of fact: In many states (Connecticut and Hawai'i come to mind), although they permit taxpayer standing, they require an actual showing of pecuniary impact. In other words, it's not enough to point to an unlawful expenditure. One must also actually show that this unlawful expenditure has caused an increase in the tax burden (i.e., it was not offset by reduced expenditures elsewhere). I don't think that "Law clerk" has done that here.

Posted by: Anon, good nurse! | Nov 20, 2011 11:30:27 PM

TJ, Microsoft and law schools are differently situated, as you admit above when you reference their status as a cartel. As long as one must -- by force of law -- attend an accredited law school to become a licensed attorney, law schools cannot be compared to participants in a free market. So it does not matter that a Windows customer cannot fairly criticize Bill Gates for having a butler.

A better comparison is to government. All prospective attorneys must attend law school, and all citizens must pay taxes. Both groups have standing (in the practical sense) to criticize expenditures, including specific sub-classes of expenditures, that drive up the amount they pay. This is even more true when the criticism is directed at the regulator's largest cost categories, or at expenses that do not directly accrue to the benefit of the regulated.

Posted by: Law clerk | Nov 20, 2011 10:42:15 PM

Law clerk, my comment implied no such low-cost alternative. It simply says that you have no preexisting right to "work at one of the nation's top firms," and that your tuition is buying you that fairly valuable opportunity (though how valuable, and how much of a possibility, obviously varies).

Second, your legal education was obviously deficient, though probably through no fault of your professors' focusing too much on critical thinking and not enough on the minutiae of practice, if you cannot even understand that my Microsoft analogy in no way "den[ied] the connection" but was instead predicated on that connection. The whole point of the analogy is that, although in one sense my purchase of a Microsoft product does finance his butler, nobody would think of the transaction in those terms and criticize Bill Gates for hiring a butler because it does not directly help his customers. Similarly, while in one sense tuition does finance legal scholarship, nobody should think of the transaction in those terms and criticize legal scholarship because it does not directly help students.

Posted by: TJ | Nov 20, 2011 10:33:08 PM

TJ said:

"The most insidious concept being thrown around in this whole debate is that "the students are paying for legal scholarship." They are doing no such thing -- the students are paying for their legal education in a voluntary transaction. If the tuition is too high for a student to get good value, the proper answer is to not go to (that) law school. Saying that the students are paying for legal scholarship is like saying that I'm paying for Bill Gates' butler because I buy Microsoft products."

What nonsense. If a college graduate wants to work at one of the nation's top firms, he must go to the law schools where those firms recruit. The student has no choice. He cannot simply choose a low-cost alternative that does offer a cost-justified bargain, as TJ's comment implies. And all of the top schools -- the ones that send more than a third of their class every year to AmLaw 100 firms -- charge massive amounts of tuition. My hypothetical applicant could choose to attend a lower-ranked, lower-cost alternative, but in doing so he would be running a tremendous (some might say, irresponsible) risk of finishing 1L year outside the top 10% and thus unable through any means whatsoever to land the biglaw job that was his reason for attending law school in the first place.

Second, and less importantly, when you buy Microsoft products you do indirectly finance Bill Gates's butler. You finance a great many other things, too, but to deny that connection is to ignore the nature of the transaction entirely.

Posted by: Law clerk | Nov 20, 2011 10:15:30 PM

The complaining from the professoriate above is entertaining. As a recent graduate, the article strikes me as spot on in its critique. For the most part, law school schools do not add -- for students -- value commensurate with their cost. A big reason for that is the high cost of tenured (and tenure-track) faculty who have (1) no interest in the current practice of law and (2) only a marginal incentive to teach effectively.

Articles like this threaten the golden goose for law professors. So it comes as no surprise to see many of them, here and elsewhere, complaining about them. Coal companies protested bitterly when the government implemented badly needed safety standards in response to recent tragedies, and law professors will howl in the same way when the forces of reform hurt their bottom line.

I am repaying loans right now that finance your useless empirical studies, your unintentionally hilarious theoretical ramblings, and generally your laziness. I am reminded of that more than two thousand times each month: one for every dollar Sallie Mae transfers from my bank account. The only comfort I take in the affair is knowing that my children, if they go to law school, likely won't have to.

Posted by: Law clerk | Nov 20, 2011 10:04:04 PM

And to clarify one thing: of course consumers and students have every right to complain about the heightened prices and excess profits due to a cartel. What they do not have a right to do is complain specifically about one particular use of those excess profits (legal scholarship) versus other uses (e.g. fancier buildings).

Posted by: TJ | Nov 20, 2011 9:50:17 PM

Brad, I think most people would find it a shocking statement to be informed that they are "paying for Wahhabi Madrassas" as if they have an ownership stake in that enterprise. When we don't like the fact that we are sending money to the Saudis the usual solution advocated is . . . use less imported oil.

Posted by: TJ | Nov 20, 2011 9:36:56 PM

The complete absence of any reaction to the disgusting and blatent age discrimination ("retirement home" .... really?)expressed by the Dean at Davis is, well, shocking.
Much goes on in legal academia that falls under the category of "bigotry" and "prejudice" ... often, illegal bigotry and prejudice.
That comment by the Davis Dean wins the 2011 Archie Bunker Award, however (nb, my own age identification).
As someone said recently, that Dean's remarks are what a stupid person thinks a smart person sounds like.
Any Praws at Davis over 65 ... watch out!

Posted by: anon | Nov 20, 2011 9:04:03 PM

Sorry, but this article is spot on. Law schools need to hire FT faculty with practical experience in the jurisdiction where most students will practice. We are training lawyer, not legal scholars.
The problem is that too many FT law school professors today are incompetent lawyers. Indeed, many have not ever practiced law. Take a look at your own school. I have to laugh when a law professor lists his or her summer associate clerkship on a resume.
Wake up. Until you change the focus of your faculty hiring, law schools are going to continue to fail in achieving their mission.
And yes, I know some schools teach skills class and all teach legal research and writing. But, why are those professors the lowest paid and second class citizens at most schools. Why are those professors most often not on tenure track? It is because you are part of a elite club and you want to keep it that way.

Posted by: Mitchell Rubinstein | Nov 20, 2011 8:28:57 PM

In light of the incentive structure in the legal academy, we should be quite surprised if students receive adequate preparation for practice. Given the statistics regarding the paucity of experience of most in the legal academy, is surely hard to quarrel with David Segal’s observation that teaching, and in particular the ability to impart marketable skills, is generally given little weight in the process of hiring and promoting law professors. It should therefore come as little surprise that the current professiorate has little interest in or ability to impart marketable skills — a point on which I have written at some length, using the legal career of John Yoo as an example: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

This state of affairs reflects a serous conflict of interest in the academy — it is in the interest of law schools and their faculties to focus resources on the pursuit of scholarly prestige,while externalizing training costs to employers. In an increasingly competitive market, however, it is becoming increasingly clear that it is in the interests of students to receive instruction that focuses more on the acquisition of marketable skills. The problem is not confined to commercial law firms; externalization of training costs particularly harms government and public interest law firms. In an era of limited resources, these firms have even less ability than the traditional commercial law firm to assume the training costs that law schools externalize. In short, there is plenty of reason to believe that the Segal article identifies a real problem with legal education.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 20, 2011 7:57:46 PM

In support of the comments by jt (6:48 pm) and Kevin Outterson, I feel the need to quote Madison: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. It has accordingly been decided, by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits." If Segal indulged in some degree of abuse, that doesn't mean that Segal is wrong about everything. (Some have even suggested that his main theses are banal.)

As for many issues raised in that article and in this discussion, it doesn't matter whether we all agree or don't; the dogs (including me) will howl and both the market and the academy will move on.

Anyway, I've enjoyed the give and take.

Posted by: John Steele | Nov 20, 2011 7:17:41 PM

Welcome to the world of people in other areas who have found that NY Times articles are shallow, sensational, loose with facts, and written with a clear bias. News outlets generally -- and the Times is in the upper tier in terms of quality - rehash information that they are fed by interested persons. Research costs too much. This is not a matter of ideology at all: liberal and conservative outlets are alike in printing series of articles that follow a narrative without regard to the accuracy of the narrative.

Posted by: jt | Nov 20, 2011 6:48:24 PM

The most insidious concept being thrown around in this whole debate is that "the students are paying for legal scholarship." They are doing no such thing -- the students are paying for their legal education in a voluntary transaction. If the tuition is too high for a student to get good value, the proper answer is to not go to (that) law school. Saying that the students are paying for legal scholarship is like saying that I'm paying for Bill Gates' butler because I buy Microsoft products.

...


No more than I am calling for a DOJ investigation of OPEC. The ABA is a cartel, yes, and the economics are the same. But there is this little thing called "regulatory immunity."

So to complete the analogy: oil consumers are not paying for Wahhabi Madrassas. They are merely voluntarily paying for oil, yes at an elevated price due to cartilization, but since the cartel behavior is beyond the Sherman Antitrust Act it must not be a relevent consideration. And yes many cartel members use the excess profits to fund Wahhabi Madrassas, but that is a completely separate issue. Consumers have no business complaining or even talking about what happens with the outsized profits. If they don't like it, they can quit using oil.

--^--

Why exactly are the employee owned and operated enterprises known as law schools exempt from taxes again?

Posted by: Brad | Nov 20, 2011 6:47:49 PM

I have serious reservations about this piece and related ones by the same author published in the NYT over the last few months. Mr. Segal seems to advocate for a trade school approach without understanding fully what that means for a liberal profession. His corporate law firm paradigm as golden mean for both professional accomplishment and legal education reform is problematic. Law schools prepare lawyers for a wide range of jobs. Clinical programs and summer internships already provide a practical component to the curriculum. When the job market was good, nobody thought legal education needed any changes, and any future reform will not raise employment figures. The core issue is cost/debt, but that applies to higher education as a whole.

Posted by: Harold Rocha | Nov 20, 2011 6:23:34 PM

While the article has many flaws, can we agree on the following?

1. We have too many student-edited law reviews and too many low-quality articles.
2. Long-term trends on law school tuition & debt are not sustainable.
3. The division of labor between law schools and firms is changing.

So, what are we going to do about it?

Posted by: Kevin Outterson, BU Law | Nov 20, 2011 6:13:25 PM

No more than I am calling for a DOJ investigation of OPEC. The ABA is a cartel, yes, and the economics are the same. But there is this little thing called "regulatory immunity."

For a thread on the topic of law professors spending too much time on theoretical stuff like economics and not knowing enough about "law," I find a deep irony in the above statement.

Posted by: TJ | Nov 20, 2011 5:35:12 PM

So then can I read your comment as implicitly calling for a DoJ investigation of the law school industry then TJ?

Posted by: Brad | Nov 20, 2011 5:15:10 PM

Brad, anticipating your "cartel" point is why I used Microsoft as my counter-example.

Posted by: TJ | Nov 20, 2011 5:01:34 PM

Given that the ABA approved law school cartel controls access to the legal profession in almost every state the volentary arms length transaction argument rings hollow.

The existing members of the cartel would never allow a school that exclusivly used adjuncts and taught only practical skills and bar prep at a much lower cost to join the club.

Posted by: brad | Nov 20, 2011 4:51:48 PM

As someone who has criticized CJ Roberts for his criticism of legal scholarship (so my creds in this area should be pretty good), let me add my two cents:

1. My first reaction was actually pretty similar to John Steele's. The article is obviously highly biased, but the big points--law schools deemphasize the practical and law professors are rewarded more for scholarship than teaching--have been made so often that they are banal. And to the two anons above, if you haven't heard it before, let me say it here: excessively doctrinal scholarship -- the sort that attempts to parse a circuit split and do nothing more, in the vein of a student note -- won't advance your career as an academic, and I think that point is so obvious that it is undeniable. I do think the "don't be too good at teaching" point is utterly unfounded, though a slightly modified "it is more important to be good at scholarship than to be good at teaching" is also so easily true as to be undeniable.

2. All that said, I don't think the article is helpful to the debate--and both the practice versus theory and the scholarship versus teaching debates are very old debates, and not limited to law but endemic to academia generally. I would be very surprised if Segal favored cutting humanities departments at universities in favor of more employable science departments, but that is essentially what he is advocating for law schools.

3. The most insidious concept being thrown around in this whole debate is that "the students are paying for legal scholarship." They are doing no such thing -- the students are paying for their legal education in a voluntary transaction. If the tuition is too high for a student to get good value, the proper answer is to not go to (that) law school. Saying that the students are paying for legal scholarship is like saying that I'm paying for Bill Gates' butler because I buy Microsoft products.

Posted by: TJ | Nov 20, 2011 4:36:25 PM

The 40% number has been criticized (rightly) on a number of grounds. Let me add two more. How often does an individual science experiment lead to some real-world discovery? How many experiments must be carried out before any reliable findings can be used for medicine, drug development, social policy, etc.? I realize these this analogy has limited application. But the point is simple. Not every academic endeavor will produce real-world applications, and they most certainly won't happen immediately.

The article also seems to imply that less-than-100% citation (or something approximating it) is required for scholarship to make a difference. How many times do judges cite Holmes' The Common Law or Cardozo's The Judicial Process, or countless other works that have fundamentally shaped and changed the way law functions? What number/percentage of citations would be sufficient here? There doesn't seem to be an answer. The conclusion already has been reached.

Posted by: anon | Nov 20, 2011 3:41:55 PM

I agree with anon @ 3:12, I am familiar with three different law schools and I have never heard my colleagues say the kinds of things that JS's collagues said to him. That's the problem with using personal anecdotes as evidence of what an entire body of diverse people are thinking and feeling.

Posted by: anonymous | Nov 20, 2011 3:35:59 PM

John Steele:
Overall, you don’t address the main point of the article: students are racking up huge debts for a law school experience that professors enjoy but the market doesn’t want to pay for.

You don't honestly believe that the lack of employability for law grads is the result of the fact that there isn't enough skills training, do you? That's ridiculous. By that rationale, we would see steadily increasing legal employment since the nineties, when the movement towards embracing clinical/externship/skills training programs began en masse.

Besides, that was the point of his three other articles, not this one (which gives you an idea of this guy's journalistic work ethic).

Still, don't mistake my response for hostility against you John. To be honest, if I had experienced colleagues that said "my job is to write articles for the approval of other professors," "don't be too good at teaching,” and “practical, doctrinal scholarship won’t advance my career," then I would feel the same way. Of course, like the vast majority of law professors, I heard nothing of the sort. I'm terribly sorry that you had the misfortune of speaking with a professor who is little more than an a**hole. I hope that you will come to realize that your experience is not representative.

Posted by: anonymous | Nov 20, 2011 3:12:13 PM

I also wanted to respond to the comments by Jarod Bona and Alex Guerrero about the benefits of deeper, richer, more theoretical education. It’s obvious from their impressive CV’s that they benefited greatly from that kind of education.

But having taught the Legal Profession course at schools of widely varying rankings, my sense is that the vast majority of law students in the US aren’t interested in that kind of education, aren’t equipped to absorb it, won’t be able to capitalize on it, and in any case can’t afford it. Further, that sort of teaching is far more interesting to the professoriate than is the teaching of basic skills. In that sense, the professors are free riding, or indulging in a moral hazard, off of the backs of debt-burdened students.

For an extended comparison of the costs and benefits of the deeper education approach, one might consider this older article by Gregory Crespi. Comparing United States and New Zealand Legal Education: Are U.S. Law Schools Too Good? 30 Vand. J. Transnat'l L. 31 (1997). Here’s the abstract:

“This Article offers a thoughtful comparison of the legal educational systems of the United States and New Zealand. The author highlights the significant differences between these two legal educational systems by contrasting their admissions policies, clinical programs, "law-and-economics" electives, and staffing of required courses. Based on this analysis, the author concludes that although U.S. law schools are clearly "better," such superiority may have been achieved at too high of a cost, in terms of both the substantial resources now devoted to legal education which could otherwise be applied to alternative uses and the problematic effects of the stratified legal educational system on the overall social structure of the United States. He suggests that U.S. legal education reformers should devote more attention to formulating and assessing possible alternative legal educational systems of a less expensive and more egalitarian nature.”

I’m not asking you to swallow that argument whole, but rather offer it to show that deeming one model of education to be a "better" education isn't a complete analysis. Proponents of the deeper education model offer an incomplete argument unless they address both the costs of that model and who should pay the costs.

Finally, as I’ve argued elsewhere, every time we add another penny to the costs of law school, including by making the degree worth less to the market, at the margin we eliminate someone from participating in the legal profession. We already had a huge problem with a lack of diversity in the profession. As the degree comes to be seen as less economically attractive, shouldn’t we expect that that problem will deepen?

Posted by: John Steele | Nov 20, 2011 2:58:53 PM

Kristen, that is my main point. Segal's citation to non-law articles and his trashing of funny-sounding titles might allow us to ignore the main point of his article. But I'd say that the errors about philosophy articles are "buried" in the article while the main point is largely correct.

Posted by: John Steele | Nov 20, 2011 2:46:20 PM

The article is disappointing, I think, because its anti-intellectualism (and mistakes!) make it easy to shoot down. Allowing us to ignore important points buried within it (which I take to be John Steele's point, too).

Posted by: Kristen | Nov 20, 2011 2:32:37 PM

Twombly/Iqbal is an excellent example. We are told, in multiple opinions throughout the heirarchy in each case, that the allegations in the respective complaints failed to "suggest" enough to survive a motion to dismiss. But we don't know what those allegations were. Instead, each judge/set of judges expect us to infer what might, instead, suffice from their mere description of what was in those allegations. To say the least, this would be laughed out of any respectable peer-reviewed science journal; at minimum, one would need to provide a summary table of data for internal review prior to publication.

Those documents are a matter of public record. Is collecting relevent supporting documents really too much to expect from casebook authors/editors? For what exactly are students paying ~$150/book? Do historians complain that Washington didn't footnote his letters?

Posted by: brad | Nov 20, 2011 2:20:30 PM

My theory: Many journalists are people who could have gone to law schools and chose not to, and they have also seen a lot of their friends go to law schools. Newspaper jobs are shrinking, and people are losing jobs, taking payouts, etc., and there is quite a bit anxiety about where the newspaper industry is headed. As a result, many journalists are either heading to law schools now, wondering whether they should, or wondering whether they should have. I think journalists are lashing out at law schools out of their own sense of doom and insecurity and trying to convince themselves that they did not make a mistake by not going to law school. I am not saying that this is what is going through David Segal's head necessarily, but that a sentiment like this is probably in the air among the circles that they inhabit.

Posted by: theory | Nov 20, 2011 1:47:23 PM

I'd like to respectfully suggest that any such deficiencies in law school and law review articles aren't all the fault of the academy. The judiciary bears a lot of the blame, too, with its absolute (and one might also say arrogant) refusal to include data in its decisions... meaning that, in turn, the data doesn't make its way into casebooks, and in turn that the students don't get exposed to it.

Twombly/Iqbal is an excellent example. We are told, in multiple opinions throughout the heirarchy in each case, that the allegations in the respective complaints failed to "suggest" enough to survive a motion to dismiss. But we don't know what those allegations were. Instead, each judge/set of judges expect us to infer what might, instead, suffice from their mere description of what was in those allegations. To say the least, this would be laughed out of any respectable peer-reviewed science journal; at minimum, one would need to provide a summary table of data for internal review prior to publication.

So, before Chief Justice Roberts complains further about the (purported) uniform uselessness of law review articles, he should look to uselessness problems in the data being provided by his "lab" and fix those. It would have been absolutely trivial to include, as an appendix in at least the Supreme Court opinions, the defective complaints in Twombly and Iqbal (or even just the relevant allegations from those complaints), and even to explicitly key discussion in the respective opinions to specific paragraphs in the respective complaints. That the Court did not do so, but the Chief Justice complains bitterly about a coordinate "defect" in scholarly materials, does not reflect well upon the profession as a whole... and undermines any criticism of academia as somehow "out of touch" when it is doing exactly what the courts are doing.

This is just one obvious, and easy, example; it's not just about pleading rules!

Posted by: C.E. Petit | Nov 20, 2011 1:46:54 PM

The notion that students are financing legal scholarship is not quite right. Would most law professors really agree to cut their pay on the condition that they needn't publish anymore?

Perhaps not - though consider the current salary differential between full time adjunct, skills or clinical professors and professors who are expected to do scholarship. Either way though moving from 2/2 (or worse) to 4/4 would mean half as many professors. Even if each professor cost the same that would be a massive savings.

Posted by: Brad | Nov 20, 2011 1:36:01 PM

One other thing. Segal writes:

"Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees. This has helped to hasten a historic decline in hiring."

I think it's worth noting how little evidence is offered in support of the view that this client preference has "helped to hasten a historic decline in hiring." There are, of course, lots of other factors that might be causing this decline. Is the market for new lawyers diverging dramatically from the markets for other entry-level jobs? Is it a new thing that law firm clients don't want to be billed the exorbitant rates for first- and second-year associate work? I thought that has pretty much always been true.

At any rate, the article does very little to support the causal claim from the nature of legal education to the diminished market for new lawyers. Which, of course, isn't to say that this causal claim is false.

Posted by: Alex Guerrero | Nov 20, 2011 1:29:32 PM

Segal has jumped the shark with this article. You would think after Jayson Blair the NYTimes would do a bit more fact checking or put this on the opinion page.

You could say the same thing about just about every other type of school. Everyone in practice in whatever field thinks the newbies don't know anything. The fact of the matter is in whatever field there is on the job training. You could get a bunch of quotes from people in the field saying that people don't know how to write, or do anything practical, coming out of school. Law schools say the same thing about colleges -- don't they teach kids how to write? Colleges say it about high schools.

If med school taught people how to be doctors, why would they need to be residents afterward and get some on the job training?

Posted by: Hess | Nov 20, 2011 1:22:16 PM

This is David Segal's fourth or fifth piece this year with the same theme. It's fairly sloppy, as indicated--in fact, if you go back over some of his old pieces on the "law school scam" this year, you'll see substantial corrections noted.

Posted by: anon | Nov 20, 2011 1:14:01 PM

Anonymous 12:10 pm,

"To John Steele: You might be right that we need to lighten up, but Segal's work has tremendous impact--his articles (and you can disagree about their merits) are certainly a part of the fact that total LSAT takers is down about 30% in the last year and a half."

Segal’s articles have been written in the last 10 months, so it’s not likely they caused any LSAT trends that began 18 months ago, right? Isn’t it more accurate to say that Segal’s articles reflect and report on economic trends? And those trends began several years before the recent downturn in the LSAT, right? This very blog was discussing the trends 3 years ago:

http://prawfsblawg.blogs.com/prawfsblawg/2008/12/legal-education-bubble.html

More importantly, you’re avoiding the key question, because if Segal’s articles are accurate about the economics of law school then we should applaud any effect he’s having, right?

"The notion that students are financing legal scholarship is not quite right. Would most law professors really agree to cut their pay on the condition that they needn't publish anymore?"

We’ll have to agree to disagree about who’s financing legal scholarship. If it’s not the students taking out $100,000 in non-dischargeable debt, then who is?

Overall, you don’t address the main point of the article: students are racking up huge debts for a law school experience that professors enjoy but the market doesn’t want to pay for. Until the last 3-4 years, I frequently had profs say to me things like, “we don’t train them how to practice law because firms can afford to do that for them,” and “my job is to write articles for the approval of other professors,” and “I was warned not to be too good at teaching,” and “practical, doctrinal scholarship won’t advance my career” and so on. In my experience, this was conventional wisdom, freely acknowledged. But in this economy, seeing those attitudes in print in the NYT is causing some heartburn. I understand that.

Posted by: John Steele | Nov 20, 2011 1:09:38 PM

I certainly agree with John Steele that there are lots of issues that Segal raises that will be news and that are worth thinking about. What I find offensive and problematic, however, is Segal's picking on philosophy and talking about things he doesn't know anything about and can't be bothered to learn.

Of course, I'm biased: I'm a philosopher by training. But there's something particularly galling for Justice Roberts (his "Kant on Bulgarian 18th century law" comment), Segal, and others to pick on philosophy in particular in the way that they do. It scores easy rhetorical points, because it sounds abstract and heavy into the theoretical, and it is. But one of the first things one learns in law school is how quickly one moves into normative terrain and argument, even if one starts just by asking simple questions about what the law is. The inapt umpire metaphor attempts to obscure this, but there's no need for someone like Segal to help advance this fiction. There's certainly an important debate to be had about what legal education should be, but I don't see any need for that debate to begin by taking potshots at philosophical and normative work in particular.

It's also worth noting that once lawyers are employed (I realize that's a big thing in this economy), their employers will make sure they have the skills necessary to maximize firm profits, act effectively and even ruthlessly on behalf of their clients (whoever those clients might be), and so on. Law school is the last significant opportunity to give future lawyers the time and skills they need to think about who they want to be, what kind of lawyers they want to be, what it means to act ethically (and not just legally), what it means (if anything) to be a professional, how their future work figures into larger legal and political structures, and so on. I think that at least needs to enter into the conversation about what students should be learning, and what professors should be reading and writing about. I would think a populist/democratic push for reform of legal education would want to make it less about legal skills training or about the details of sophisticated corporate transactions, and more about critical and ethical thinking about one's role as a lawyer in the larger political and financial world.

Of course, I understand the more narrow critique that comes just from those who have paid large sums for law school and cannot find work. But it isn't just the lack of skills or practical knowledge that makes getting an entry-level job difficult, and, as SA above notes, many schools offer courses that cover this terrain. Big law firms still don't care that one have taken such courses (they certainly don't require it), and they still prefer students from high-pedigree schools even when those students are likely to have much less in the way of practical legal training or knowledge.

Returning to the Tyler Doggett article... Segal has a literature degree from Harvard and a PPE degree from Oxford. It is somewhat surprising that he would take such an anti-intellectual tone. It seems clear that he didn't even read the articles he was choosing to call out in the NYT. Maybe if he actually read the Doggett article he would understand how the debate between Scanlon, Kamm, and Taurek is hardly an “intra-academy tiff[] that could interest only the combatants.” Whether there is a non-consequentialist argument for the principle that we must save the larger number (when confronted with a choice between saving a few and saving many) is of great significance, particularly for those of us who have our worries about consequentialism.

Lawyers might not confront this problem, in exactly this guise, in their day-to-day work. But, as Glenn Cohen notes above, there certainly are ethical issues that arise in legal practice that have similar structures, not to mention larger social and political issues.

Posted by: Alex Guerrero | Nov 20, 2011 12:53:07 PM

I've seen the 40% number discussed before elsewhere. The consensus was that it includes student-authored comments, notes, developments, etc. Given that those pieces probably count for over 50% of the titles in a particular issue (though not pages), is it any surprise that so many are never cited?

Also, on an unrelated topic, I'll point out that the focus on unprepared corporate lawyers is very self-serving. Commercial litigators (and bankruptcy lawyers and tax lawyers and etc.) use school-taught skills far more frequently than M&A lawyers.

Posted by: Anon, good nurse! | Nov 20, 2011 12:48:48 PM

My own view is that more practical training my help law graduates adjust in their first couple years on the job (as any vocational training would). But that sort of training is not as deep as the current model, and in the long run lawyers and the legal profession would suffer. The greatest benefit of law school--in my opinion--is to develop the sort of analytical mind that can adjust to any practice area and, indeed, areas outside of lawyering itself.

There are many fine organizations like NITA that provide skills training. I think it makes more sense to employ those resources for the skill-training, which may vary depending upon the area of law chosen by the new graduate.

Posted by: Jarod Bona | Nov 20, 2011 12:17:41 PM

To John Steele: You might be right that we need to lighten up, but Segal's work has tremendous impact--his articles (and you can disagree about their merits) are certainly a part of the fact that total LSAT takers is down about 30% in the last year and a half. Furthermore, the point about legal scholarship citations is absurd. Even if all law professors made eminently practice-oriented work, it would be very unlikely that the 40% number would change much. In a marketplace of ideas, it is inevitable that some ideas get more attention (and citation) than others. If, say, 95% of articles were cited, that would be more a sign of a broken system than anything else.

The notion that students are financing legal scholarship is not quite right. Would most law professors really agree to cut their pay on the condition that they needn't publish anymore?

Posted by: anonymous | Nov 20, 2011 12:10:00 PM

Guys, lighten up. The article goes a little overboard here and there but for a general audience readership covers a lot of ground accurately. If "man bites dog" is what makes for news, the fact that students rack up $150,000 in debt and have no clue about mergers get done is news. It's not news for those of us in practice or law schools or an in-house law departments, but it's certainly news for the general audience.

I'd agree that he overdoes it in mocking the titles of law review articles. But given that 40% of article are never cited, Steven Smith's quote seems worth exploring in the article, "“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.”

Posted by: John Steele | Nov 20, 2011 11:34:55 AM

Post a comment