Monday, May 07, 2012
Two Excellent Posts on Legal Education
Two posts in the last couple of days on legal education, both well worth reading. The first is Orin Kerr's detailed discussion of Brian Tamanaha's forthcoming book, Failing Law Schools. (Nice cover art, by the way, Brian!) Orin writes, in his typically authoritarian, big-government way, that the book "should be required reading for all legal academics." He focuses, rightly in my view, on Brian's argument in the book that the accreditation and regulation of law schools should be sufficiently flexible to allow a diverse range of approaches to legal education, especially including lower-cost approaches.
The second is a superb post by Frank Bowman about the structure of American legal education, backed up by his experiences on a curriculum committee at the University of Missouri School of Law, "debating whether we have to reinvent ourselves for our own and our students’ sakes." He argues that it is a mistake for schools below the "top" (which everyone understands to mean, top-ranked) to compete by emulating those schools' models. He argues that the driving up of costs that schools engage in when they take this approach is worsened by a move toward "practice-ready" curricula, which he approves of but points out can be quite expensive, particularly if schools still insist on building and retaining a core cadre of Yale-like scholar-faculty. He writes: "There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty." He recommends, among other things, that we rethink the kinds of qualifications we look for in entry-level professors, and that we also rethink the role of scholarship in American legal education, writing:
As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with. If professors come to the academy without such familiarity, they should find ways to gain it. This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.
Both are terrific posts. I'll skip the commentary and just urge people to read them for themselves.
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Thanks for the pointer. I wonder if the current model of legal academia could be sustained at the lower-ranked law schools by making the qualification for being a law professor a Ph.D. in law. Current and future law faculties would take on the responsibility of training these future law professors. In exchange, the publication demands on such faculty would be reduced (teaching loads can't really be reduced any further). Like other disciplines, the Ph.D. (in law) students would receive tuition waivers and stipends to obviate the need for loans. In exchange, the new faculty salaries would be lower, perhaps more in line with economics professors (which are still higher than average). There would be no expectation of the professor practicing law before coming to academia. Adjuncts would continue to fill in the curriculum gaps as needed.
Lower salaries for faculty going forward would make the scholarship-focused model of legal education more viable and prevent a complete transformation of the law schools into trade schools. It would also save a lot of future law professors the misery of pretending you want to be a lawyer so you can practice law for a few years to earn the privilege of writing legal scholarship that usually has nothing to do with the day-to-day practice of law*. The temperament and skills needed to be a good scholar are pretty different from those necessary to be a good lawyer.
Sure, it does not respond to the "law professors do not have enough practical experience" critique of legal education, but it does respond to the "law professors make way too much money for what they do" argument. And I think the "not practical enough" critique is mostly bunk anyway. You simply cannot learn a profession in a traditional classroom setting, you have to learn on the job. There is no skilled profession in which graduates emerge fresh from school as finished products.
*Note, I'm all in favor of scholarship that has little impact on actual legal practice.
Posted by: Doug | May 7, 2012 2:00:30 PM