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Wednesday, November 23, 2011

Nostalgia and the Search for Nuance in Critiques of Legal Education.

On the topic of scholarship and lawyering inspired by Segal's NYT bile pile, I've mostly refrained from weighing in. But one of the recent comments however has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. Some of the Segal/Campos scamfans talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys. 

So here are some quick reactions. Do we think the lawyers who were trained over the last 20 years at law schools under this new 'scholarship' regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are the metrics for making that claim? Or do people not actually think that pinheaded prawfs are bad for lawyering but rather their recherche interests simply raise the cost of legal education more than it's worth? 

I don't know the answer. On the one hand, maybe the "law school as trade school" era in which most of the fancy schools did not have productive and more intellectual faculties was better for society and law students. I'm not a whig about history but I'm usually skeptical of such nostaligic golden-era claims. On the other hand, I certainly think the ABA and AALS and other bodies are impeding some creative disruptions in the delivery of legal education. I also think taxpayers are right to ask whether publicly supported legal education is a compelling use of their tax dollars compared to other important social tasks. 

Still, I largely think Segal's attacks on legal education don't have sufficient nuance to be persuasive and I'm quite doubtful that the emphasis on legal scholarship by some professors is getting in the way of a better law for society or a more attractive legal education. There are after all some for-profit law schools and they don't emphasize or produce too much scholarship on their faculty as far as I can tell. Maybe it's still too soon to tell if their graduates will be better situated than the graduates of more intellectual/scholarship-oriented schools, but if they're not, the scam-critics will need a good story of market failure to explain why not--or they might have to soften their views and voices and pull in their elbows a bit. 

[I'll keep comments open to signed *and* substantive comments with verifiable email addresses.]

Posted by Dan Markel on November 23, 2011 at 10:12 PM in Current Affairs, Life of Law Schools, Teaching Law | Permalink

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Dan:

I think the claim, at least in its strongest form, is not that the current generation of lawyers are more poorly trained than its predecessors, but instead that the prevailing model of the law professor as theoretician is poorly adapted to a changing marketplace.

Complaints about the prevelance of theory in legal education are not new -- indeed they have been prevalent for many decades. What instead seems to be new is law firms' (and their clients') increasing resistance to absorbing training costs. In a different market, at least among the best capitalized firms, there was a widespread feeling that the firms themselves would probably do a better job imparting practical skills than a legal academy largely populated by theoreticians. If one is persuaded by the view of the Carnegie Commission and many others that the most important skill of the lawyer is the development of professional judgment that is, in turn, difficult to acquire without practical experience, then there is reason to doubt the ability of those with limited practical experience to teach the development of professional judgment.

It was easy for firms to assume training costs as long as they could readily recover these costs from their clients. But, as Bill Henderson's work has demonstrated, in recent decades major law firms increasingly adopted an unsustainable model built on clients' willingness to tolerate excessive costs, including training costs. Now, predictably, the bubble has burst, and the market is less interested in law school gradudates that come with substantial training costs attached. And, for government and public interest firms facing an era of sharply reduced resources, assuming training costs is even more problematic.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 24, 2011 12:13:48 AM

Avid scam-fan here, for disclosure's sake.

For a moment, leave aside the question of whether the scholarship-oriented model is the best, worst or somewhere in the middle for training lawyers.

Perhaps first we should begin by asking how we would even know whether the training makes that much of a difference in any event. Most professors will cheerfully admit that they expect graduates to learn what their firm needs from them while on the job, from a partner or senior associate supervising their work. However, to what extent is the new graduate's performance in that first job the product of what he learned in law school, as opposed to what he learned from watching the partner or senior associate? What data relating to graduate performance drives what law professors do in the classroom?

Posted by: John | Nov 24, 2011 12:21:56 AM

We can certainly state, with confidence, that law students who trained 20 years ago paid much lower tuition and assumed much less debt than those training today (even after adjusting for inflation). This is a fact, not nostalgia. Cost and debt have now reached a point where law school is an economically risky investment for a large percentage -- quite possibly a majority -- of today's law students.

So what are today's law students getting in return for higher cost and greater debt ? Well, we can certainly state, with confidence, that they now have access to far more law review articles.

Is it fair to suppose that the increase in law school costs is driven exclusively by the increase in legal scholarship? Probably not. But is it fair to suggest that law school faculty and administrators are more concerned about improving their scholarly reputation than about improving their affordability? Probably yes. And there is deep and growing resentment of this prioritization.

Summary: I don't know if the training was better 20 years ago. But I do know that it was much more affordable. In that respect, the previous generation did it better, and the current generation needs to learn from them. If the costs come down, no one will complain about the scholarship.

Posted by: BJT | Nov 24, 2011 11:47:25 AM

Dan,

I agree with the points made by the commenters above. I see no reason to believe that prevailing legal education practices reflect a conscious strategy of fitting what law professors do to what law students need. Rather, I think our conceptions of what law students need are suspiciously consistent with the sorts of things we like to do. There is a plausible story, depending on exactly which elements we're discussing, that those needs and our preferences are matched well enough much of the time. But it should disturb everyone in law teaching that we're basically accepting this story on faith, and in the benevolent light of our own preconceptions. I don't think that's good enough.

Your second paragraph highlights this. We agree that distinct trends in legal scholarship can be identified stretching back decades, but neither of us knows whether this is helping or hurting the core mission of law schools to train lawyers. I think scholarship improves teaching at the individual level and makes lots of good things happen. It's also unlikely to be costless in terms of the range of things law schools have to do. But some data would be nice. I think that data will be quite hard to get, given the varied pathways of legal careers and the limits to what can be observed about them. But as a profession, we should be a little more curious about this story than we are.

I do think there's a market failure here. Surely, you don't think for-profit law schools are a meaningful alternative for people who want to become lawyers? Pointing to a small and totally impractical set of outliers to establish the robustness of the market for legal education doesn't persuade me. To me, the problem is that too few schools - removing the top and bottom of the distribution - compete for students on the ability to train them well. I've been privileged to visit at a number of schools, ranging from around #100 in the rankings, to the Top 20. While there are definite differences in emphasis and profile, they are all doing basically the same thing, with professors enjoying very similar backgrounds. While a student can get into a strong state law school and pay markedly less tuition than, say, at the Ivies, there's a market problem when schools 100 places down are charging 80%-90% of Harvard's tuition.

Posted by: Adam Scales | Nov 25, 2011 8:05:00 AM

The focus on "improving scholarly reputation" does not come out of thin air. It is, in part, a result of operating in a world where students make decisions about which college and law school to attend based upon rankings. Peers assessments of schools, which figure into the rankings, are based upon the quality of students and the quality of faculty, among other things. It is almost impossible for large numbers of people to know the quality of the teaching at a particular school. They can know the program, but have no true sense of how, or whether, it is being implemented.They can read articles and books produced by other faculty, and see how much publishing is done overall.

As much as some may deplore the obsession with rankings. They are serious players in this process--US News, of course, being the most powerful since they started ranking law schools in the late eighties, a little more than the 20 year period mentioned in the comments above. Schools naturally try to improve their rankings with the hope of attracting better students and, in turn, make them more attractive to employers. The more attractive to employers they are, the better the school's overall reputation. Caring about scholarly reputation is not just about feeding the egos of professors.

Posted by: BH | Nov 25, 2011 8:18:39 AM

Correction: "As much as some may deplore the obsession with rankings, they are serious players..."

Posted by: BH | Nov 25, 2011 8:23:06 AM

as Bill Henderson's work has demonstrated, in recent decades major law firms increasingly adopted an unsustainable model built on clients' willingness to tolerate excessive costs, including training costs.

Why is no one pointing to the fact that partners' pay has been stable or increasing during the past few years? Instead of refusing to hire, they could take a pay cut (Is going from $2MM to $1.5MM really so much to ask?). I guess being a pathetic little lap dog for your clients makes the partners feel they've earned the right to maximize profits. But "clients won't pay for work done by new hires ergo we can't hire any new lawyers" is not a tautology.

It must take a lot of self-deception to feel proud about being a partner at a big firm these days.

Posted by: GU | Nov 25, 2011 12:10:25 PM

I agree that the focus on legal scholarship can be in large part attributed to the US News rankings, which reward schools for academic reputation based on surveys.

But there is a proven way to address this issue: don't cooperate with US News. The ABA should tell the legal community to boycott the surveys. Stop playing the game.

If that sounds impractical, then consider the following question: where is the current US News ranking of dental schools? Perhaps the ABA has something to learn from the ADA.

Posted by: BJT | Nov 25, 2011 2:05:10 PM

BJT:

As it happens, there is no evidence that legal scholarship has any influence on U.S. News rankings. The only factor that has shown to affect peer rankings is U.S. News ranking. For a careful analysis, see Jeffrey Evan Stake, The interplay between Law School Rankings, Reputations, and Resource Allocation: Ways Rankkings Mislead, 81 Ind. L.J. 229 (2002). Thus, if you manage to attract better students, improving your U.S. News ranking based the so-called objective factors, your peer ranking improves too. The argument that current fashions in legal scholarship are driven the importance of rankings is frequently made, but rarely accompanied by any supporting empirical evidence.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 25, 2011 2:31:02 PM

The tuition issue is a big problem, but it's not just law schools -- the cost of undergraduate education has soared as well:

http://graphs.posterous.com/cost-of-a-college-education-over-time

To the extent that most law schools are part of a university, their costs can be explained as part of the same dynamics driving up college tuition.

Posted by: Matt Bodie | Nov 26, 2011 8:41:14 PM

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