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Tuesday, December 13, 2011

Stanley Fish on Teaching Law

Here (H/T: Kerri Stone). Stanley takes on The Times' "law is now regarded as a means rather than an end" and sees it as an assault on law akin to the assault on traditional liberal arts.

Posted by Howard Wasserman on December 13, 2011 at 09:29 AM in Howard Wasserman, Teaching Law | Permalink


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I find it remarkable that individuals with no meaningful experience (much less success) in the practice of law such as Professor Fish seem willing to unabashedly hold forth on what kind of pedagogy is useful to prepare students for practice. Professor Fish, as it happens, is not even a lawyer. I am happy to concede that the balance between theory and practical skills is complex, but it is beyond my powers of comprehension to grasp why anyone should take the view of Professor Fish on how to best prepare preprofessional students for practice with anything but large tablets of salt. To the extent that he is regarded as having authority on this subject in the legal academy, that may well suggest that David Segal is onto something.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Dec 13, 2011 12:02:47 PM

I must say that I find it near the height of absurdity to take David Segal--a non-attorney, journalist with no law school or serious academic experience--to be an authority but to be dismissive of Stanley Fish's view--who is teaching at Yale Law School, has decades of academic experience both as a pedagog and administrator, deep connections among legal academics, and law related publications--for never having practiced law. Should we also discount the views of all legal academics who have never practiced? Or is it just all academics without a J.D., even though some of them are permanent faculty members at some of the tope law schools in the country?

Posted by: anon | Dec 13, 2011 12:44:56 PM

I think that Larry's disbelief is disingenuous. Larry, unless you're ready to full-throatedly embrace the scammers' idea that every single legal academic is unqualified to participate in the education of law students -- a claim that is empirically false and that, as the above commenter points out, is really absurd on its face -- I suggest that you engage Fish's arguments on their merits rather than engage his CV. (I suppose you might also just think that Yale's faculty is for some reason uniformly unfit to plan and execute legal education; while it blinks reality, that, too, is a premise you should make explicit and defend.) I found Fish's piece quite persuasive on the merits. It's too bad that the comments section, as so often happens on this subject, was hijacked by those constructing strawpersons in Fish's place (a strawperson claiming, for example, that ALL legal education should be theoretical, that there is no need and no place for practical components in the law school curriculum, etc. -- claims which Fish, of course, does not advance). Comments like yours tend to signal just that sort of change of subject.

With Rosenthal, Segal and Campos as exemplars, I'm beginning to wonder whether legal education's critics might be driven at least in part by motivations unrelated to the substance of legal education.

Posted by: anon | Dec 13, 2011 2:55:17 PM

Uh, did you really mean "critics might be driven at least in part by motivations unrelated to the substance of legal education"?

Rome is burning folks and no law professor seems to want to acknowledge that.

Maybe this would be useful from the NYT comments:

"Most of those students took on tens of thousands of dollars in debt to attend law school. While you may see the aim of legal scholarship as "its contribution to knowledge," you aren't footing the bill for it. Indeed, you are part of the bill. The students you taught will go on to work for wealthy corporations--and help many of them accomplish great acts of wickedness--to pay for your honorarium. Perhaps you can address your own moral culpability for the evils that they will effectuate in a subsequent lecture.

This notion that all criticism of modern legal education is an attack on the role of thoughtful social analysis or deeper reasoning in law is an utter strawman. No serious lawyer would suggest that law be taught entirely as a vocational enterprise, with nothing but nuts-and-bolts procedure and tactics. The real criticism is that law schools teach *virtually nothing* about the practice of law, not that they supplement practical lessons with deeper reflections on the nature of the state."

Posted by: Anonymous | Dec 13, 2011 6:20:12 PM

Typically self-serving law school professor rhetoric. I've practiced for 20 years, went to a top ten law school, and I can guaranty you that that vast majority of law school professors couldn't competently do paralegal level work in a small town law firm. The "bundle of particulars" that make up a law practice, as Mr. Fish so condescendingly calls it, actually constitutes a rich and noble trade-craft, which has evolved over decades as a means of getting actual things done in the actual real world. But of course, to a Yale law professor, things like helping someone sell their house, or negotiate a restaurant lease, or fire a bad employee, or collect an overdue trade payable are beneath scholarly pursuit, and thus beneath contempt. Law can be a noble trade, but at heart it's a trade. In the Yale law faculty lounge, calling law a trade is an insult - that's where these guys go so wrong, and that's why legal education is such a mess.

Posted by: Anonymous | Dec 13, 2011 6:25:19 PM


"who is teaching at Yale Law School, has decades of academic experience both as a pedagog and administrator, deep connections among legal academics, and law related publications"

I notice you didn't say "decades of experience investigating the professional outcomes of his students in detail" or "is constantly reevaluating his class to ensure that the content and manner of delivery leave his students with something of value after the final exam ends." I'm sure there's a reason for it.

Posted by: John | Dec 14, 2011 6:13:58 AM

For those of us who think that Segal’s article was flawed but did report on a real problem, I suggest that when Bruce Ackerman writes from Paris to argue that renewed attention to Cardozo and increased attention to philosophy are the best correctives, or when Stanley Fish writes from New Haven to extol the teaching of Kant and Rorty in advanced seminars, we should respond, “yes, I agree absolutely, completely, 100%, with your comments about how to teach at Yale.” (I’m not going to worry about the Yale students unless they start complaining about their education. From what I understand, they couldn’t be happier, and I can certainly see why.) Then we should focus the remainder of the conversation on the students that are hurting.

I also suggest that when we read those kinds of counter-arguments to Segal’s, we relentlessly ask about how big the bill is for that kind of fabulous education, about who is picking up the check and taking on the debt, about the prospects that those debts can be paid off, and about whether the debt-laden students are asking for something different from their law schools. Having read Ackerman’s and Fish’s pieces several times with great care, I don’t see any recognition in either piece that that law school costs a lot of time, money, and opportunity for the students.

I also suggest that when people who have never practiced law make the argument that reading Rorty and Kant leads to better lawyering skills (an argument Fish seems to be building towards about 2/3rd of the way through his article, before he changes tack), we politely ask Barbara Graham’s famous question, “how would you know?” I don’t recommend yelling, “you couldn’t possibly know!”, because that’s false and rude. But there’s no reason to accept a breezy, seemingly-plausible, rhetorical explanation from someone who’s never practiced law and therefore has never struggled to make use of her law school experience. It’s fair to push the point. (By the way, we now have polls being conducted of practicing lawyers, asking them to identify which law school experiences prepared them for practice. Why wouldn’t we weight that a lot more than Stanley Fish’s arm-chair speculations?)

I also suggest that when people argue that in a university knowledge should be pursued for its own sake and not just because it’s useful to the students (as Fish seems to argue in the last 1/3d of his article), we concede that -- but only up to a point. The law schools are being fueled by tuition loads that have surged over the past decade and the justification for that has been professional as opposed to academic. Given that the cost of law school has greatly increased and the economic prospects of the graduates appear to have significantly decreased, can anyone really argue that the schools should not react at all to those changes? And does that “academics for the sake of academics” argument apply equally to seminars at Yale and to 1L contract courses at the 185th ranked law school? Does it apply at a school where virtually none of the students are seeking that kind of education or will be equipped to absorb it and make use of it?

Posted by: John Steele | Dec 14, 2011 10:16:01 AM

Fish's defense here is truly awful, and as the summary points out he collapses it into the defense of liberal arts education in college. The current law school curricula have weaknesses to be sure, but they have a lot more to offer in their defense than the old "reading Kant makes us good citizens and wiser, better humans" bromide. Law schools are professional schools, engage the terms of the debate! If all the law students currently taking-on/servicing massive debt were told that the training they received added basically the same value as a BA in classics or philosophy, I'm sure they would be horrified, and rightfully so.

Posted by: Matt | Dec 14, 2011 3:44:41 PM

"added basically the same value as a BA in classics or philosophy"

a law degree, as you know, adds a great deal more value (as you seem to define value) than a doctorate in classics or philosophy. just the letters JD make a whole variety of jobs a possibility. if a law school grad thinks she has it tough on the job market now, ask a classics phd.

now, if law schools actively deceive incoming students as to job placement, that's obviously a huge problem. but if students are simply upset that going to law school didn't automatically get them a job, i find that hard to sympathize with...

Posted by: anonymous | Dec 14, 2011 6:07:05 PM

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