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Friday, February 15, 2013

The Laundry List of Irrelevant Subjects

Yesterday, I rejected the argument that academics are incapable of teaching practically useful subjects.  Today, I’ll reject the argument that teaching some laundry list of academic subjects is somehow impractical. 

Before getting into the argument, I want to emphasize that my issue is not whether law school education is too expensive: it is.  Nor is it to come up with some explanation of how it got to be too expensive.  And I fully agree with, for example, Brian Tamanaha’s compelling explanation of the perverse and deeply troubling redistribution of wealth from least able to afford to most able to afford.  All I’m interested in here is whether the value of “academic” professors, and in particular, “academic” subjects, has been adequately accounted for in some of the literature.

Here’s how I understand the argument:

(1) The purpose of (particularly non-elite) law schools is to train lawyers in practice-relevant subjects

(2) Academics teach practice-irrelevant subjects.

(3) Practice-irrelevant subjects distract from training practice-ready lawyers;

(4) Therefore: academics distract from the purpose of training practice ready-lawyers

That means that they don’t belong in the law school, but rather with the rest of the academy; they should do their academic stuff on the main campus with the undergraduates, and not at the law school.

Brian Tamanaha is one of the folks who makes this type of argument.  In his telling, it has a couple of components.  First, he asserts a generalized form of (1), (2), and (3):

“Law students attend law school to learn how to become lawyers. Law professors are academics. The interests of the two main constituents of law schools are at odds owing to this difference in orientation.

Brian Z. Tamanaha, Failing Law Schools (2012).

Tamanaha states this as a fact: the last sentence is either true or false. It’s presented in categorical terms.  He bolsters his grand pronouncement by producing quantitative and qualitative data.  The loose quantitative proxy for practice irrelevance is the fact that practitioners, including judges, don’t cite most of what academics publish.  The dearth of citation is a loose proxy, Tamanaha believes, for lack of influence.  The qualitative proxy that bolsters the quantitative data is citations to two judges, Hon. Harry Edwards of the D.C. Circuit and Chief Justice Roberts of the United States Supreme Court, who dismiss most of what is published in law reviews as useless junk.  From this, we are supposed to conclude that the profession thinks that what academic professors teach is irrelevant.

There’s a leap here—professors teach what they write about—that is filled by the list of subjects Tamanaha identifies as practice-irrelevant.  Here’s his list:

“Theories of constitutional interpretation, normative arguments about what the law should be, legal philosophy, critical race theory, sociological studies of law, legal history, economic analysis of law, quantitative studies of judging—these and other perspectives on and about law are what occupy legal academics. Most of this is not immediately relevant to the daily tasks of judges and lawyers, although it may have direct and indirect benefits for the legal system more generally.” Brian Z. Tamanaha, Failing Law Schools (2012).

Now, there’s a problem here. “Not immediately relevant” does not mean irrelevant, nor does it mean of no interest or of conflicting interest to what students need for practice, nor does it mean unimportant.  It may be very (though not immediately) valuable.  Furthermore, Tamanaha’s test is so rigorous it seems to screen out skills classes along with the “academic” ones.  Some classes concerned with “the skills that will enable students to succeed as lawyers” may be “irrelevant for the daily tasks of judges and lawyers.” That’s because this “daily tasks” stuff depends on the class, the judges and the lawyers.  Evidence, trial advocacy, and so on are not immediately relevant for most lawyers, for most lawyers don’t see the inside of a courtroom.  Many students take these courses because they are immediately relevant for the bar, though not for practice.  Intriguingly, depending upon one’s area of practice, theories of constitutional interpretation may be “immediately relevant.”  Just think of the Crawford line of cases in evidence law.  And as I’ve argued elsewhere, sociological studies of the law may be essential for lower-court practice.

The reason why sociological and anthropological studies may be vital for the daily tasks is nicely exhibited by two studies of lower-level courts.  One I’ve flagged is the study by Fergus MacNeill and Cyrus Tata (among others) that showed that lower level court judges and lawyers read and used pre-sentence reports in ways that promoted quick plea agreements and aggregate sentencing.  The study had plenty of useful information to make the daily practice of law by lower-court judge and advocates more fair and more effective (the two are not the same).  Most importantly, the study showed that the lawyers, judges, and social workers drafting and using the presentence reports routinely misunderstood each other and perhaps themselves.  In this case, asking one or other of the practitioners would have provided a mistaken view of the practice.  So good academic stuff can provide good insights into the practice of law.  And this stuff is useful in putting into practice the skills of advocacy and client contact required in these setting.


Furthermore, these studies are not likely to be cited even if the judges read them unless the judge actually publishes.  Elite judges in federal courts and courts of appeal publish.  Many—most—judges (particularly those in lower-level state courts) don’t.  And some areas of their practice are less publication friendly than others (pre- and post-trial release and revocation decisions, for example).  So Tamanaha adopts an elite standard—the doctrine used in the D.C. Circuit and the Supreme Court—and takes that as a proxy for everyone else. 

If he came down to earth, he’d see that a bunch of judges cite and discuss sociological studies and quantitative (and qualitative) studies of judging.  For example, New York Chief Judge Judith S. Kaye set up the Center for Court Innovation (CCI) to better equip New York problem-solving courts with data to determine what works to treat offenders in this style of court.  One purpose of CCI is to convene colloquia of practitioners, policymakers and academics to examine problem-solving courts so as to educate each other on the operation of the courts, and to improve the services they deliver.  CCI, for example, commissioned sociologist Jeffrey Fagan and anthropologist Victoria Malkin to examine the Red Hook Community Justice Center, a flagship problem-solving court in Brooklyn, New York.  The results of that study have proved controversial, but influential. 

CCI is educating judges around the country, and indeed around the world.  They recently made a presentation to the Scottish judiciary, along with some problem-solving judges and a bunch of academics (including Cyrus Tata and myself).  Two features of this experience are suggestive: first, why would we suppose that law reviews and so citations to law reviews are the location at which judges and practitioners get their information on the law?  The pipeline is more lengthy and mediated than that.  So it’s possible to have a direct effect without citation.  Second, if we want to know what is important for, e.g., judges in in medium to low-level practice in state courts, why would we consult the higher levels of the federal judiciary?

It turns out that in many courts, including problem-solving courts, the judges just are more interested quantitative studies of judging.  As a brief perusal of the National Association of Drug Court Professionals publications page makes clear, problem-solving court judges are obsessed with themselves and their output (dealing with offenders) as part of an experimentalist institution.  The same goes for the Missouri State version of the association (these courts are strongly supported by the last two Chief Justices of the Missouri Supreme Court). 

Or take Judge Peggy Hora, who, when working in California State Court, adopted therapeutic David Wexler and Bruce Winnick’s work on therapeutic jurisprudence (TJ) into the problem-solving courts, where it is the dominant legal philosophy; (another influential judge is former Judge Jeffrey Tauber).  These, and other, judges also draw often and expressly on Wexler and Winnick, and more recently Tom Tyler’s work, as well as a bunch of other “academics.”  And they publish as “academics” themselves.  They share articles and insights on the TJ listserve, and the NADCP arranges conferences and colloquia that these judges and practitioners attend.  The scholarship they consume is varied and eclectic: much is driven by some really excellent and innovative work coming out of legal clinics; but much is driven by the work of psychologists, sociologists, criminologists, social workers, and even legal theorists—all the “law and” stuff that supposedly fails the “daily tasks” criterion.  In these courts (and in the evidence-based field of the sentencing more generally) judges want data to evaluate their daily tasks, and theories to help explain and improve them.  Opining, in categorical fashion, that these subject areas are not immediately relevant, and implying that they are thereby less valuable, is just a bad ethnography of the academy and these courts.

The problem is that the usual suspects—Harry Edwards and John Roberts—are elite federal judges who do not themselves practice in the sorts of courts that non-elite lawyers are likely to inhabit.  Problem-solving court judges, and legislatures considering what to do about prison overcrowding and seeking non-incarcerative, community-based solutions, do engage with this sort of scholarship.  Again, however, the elitist standards of academic influence over practical and judicial decision-making overlook low-level courts, where judges do not cite articles in opinions—because they are not writing opinions, and the people writing many of the articles *are the people practicing in the courts*, and are seeking to influence others engaged in similar practice. 

As an aside, the articles produced by clinical faculty have opened up both problem-solving courts and holistic practice more generally.  Yet this scholarship is presented as a bad thing.  Tamanaha dissaprovingly notes that: “Drawn by its gravitation pull, the designated and avowed Hessian trainers on law faculties are themselves morphing into scholars.” Brian Z. Tamanaha, Failing Law Schools (2012).  Yet this scholarship is plausibly read and discussed by more judges and practitioners than the high-end and narrowly “doctrinal” stuff pumped out for consumption by discombobulated law clerks looking for some secondary source that can summarize the law so they can sound competent before their federal or appellate judges (or before some white-shoe law firm partner)]. 

I also find singling out critical-race theory rather troubling, given that the point of the course is often to help marginalized communities make sense of law school and their place in the profession.  Much of critical race theory is obsessively practice based: Derrick Bell famously kicked off the discipline by asking: do cause lawyers ignore their clients’ best interests in favor of making an argument?  (Note, the argument is that about subject matter, so the fact that Bell was a practitioner-academic is grist to my mill).  Much of the current work by, for example, Devon Carbado and Mitu Gulati asks: what are the ways in which law firms engage in discrimination and how can we make it better? These just *are* daily tasks that occupy lawyers.  So much—though certainly not all—of CRT passes Tamanaha’s test. 

But even if a professor teaches nothing but (supposedly) abstract ideas of subordination: a class that is at its core focused on cultural competence addresses one of the most pressing needs in the curriculum, and especially one that low-end practice requires.  Too often, the core classes (and sometimes the skills ones too) dismiss as irrelevant the features of race and gender, or power and subordination, that students raise and that that clients experience.  So if we’re going to have students think outside the box to engage with the sorts of clients the traditional law firm overlooks, then how better to train students do so than to identify with those clients.

Here’s a couple of examples, close to home, of how that works.  Thomas Harvey, a former student of mine, along with Michael John Voss and John McAnnar created a nonprofit law firm, ArchCity Defenders, to provide holistic legal services to individuals, mostly homeless, facing state prosecution.  They were working without local exemplars, in part because state law separates the civil and criminal legal services provided to indigent defendants, and many fall through the cracks.  Thomas recently addressed the AALS about what inspired him to set up ArchCity, and pointed directly to his critical race class and the law school’s clinic.  Why?  Because the combination of reflection and practice enabled him to think about social justice in ways that simply are not available through the traditional course offerings and local externships.  In particular, Sue McGraugh at our clinic has been championing interdisciplinary practice for years.

Similarly, two other former students, Nicole Cortes and Jessica Mayo, were in my race relations law class, as well as their immigration law clinic.  On graduation, they set up the Migrant and Immigrant Community Action Project (MICA Project): a community organization committed to working with low-income immigrants to overcome barriers to justice. The MICA Project utilizes legal services, organization, advocacy, and education to promote the voice and human dignity of immigrant communities.  The combination of clinical and social justice perspectives were, so they tell me, vital in thinking about how to engage with a woefully underserved community in the city of Saint Louis. 

What both sets of former students—one group from Saint Louis University, one group from Washington University—have in common is an emphasis on holistic legal practice.  Holism is by definition interdisciplinary.  It seeks to provide comprehensive legal *and* social services.  It is, one judge has suggested, the future of legal practice in the 21st century.  Slaps at courses that encourage quantitative, qualitative, and ethical reflection on legal practice as unconcerned with the daily tasks of lawyering and judging just seems a little last-century.  Alternatively, it seems to imply a form of legal practice that is unconcerned with the workplace, and obsessed with the sort of product consumed in elite spaces: the D.C federal circuit and the Supreme Court, or other citation locations valued by—ironically enough—academics.  This is a unitary model of legal practice that fails to account for the plural nature of the current profession.

There is much about Professor Tamanaha’s book that I admire.  I think that is description of the perverse economics of law school is spot on.  I agree that law schools are too expensive to adequately serve undervalued communities.  The ArchCity Defenders work two jobs: their daily work (solo practice and large law firms) and the huge amount of time they devote to their pro-bono work.  I agree wholeheartedly that we should be making it financially possible for many—most—over our students to engage in this sort of work.  Let me reiterate: law school is too expensive.  And some of the stuff that is taught in law school (as in any department of the university) may not be that good.  The question is whether these subjects are necessarily too academic, meaning that they undermine the interests of our students.

Attacking a laundry list of subjects based on little more than one person’s opinion, and certainly without any data—quantitative or qualitative—about what is taught in those classrooms is at best speculative and at worst misrepresents the value of those subjects.  It's allied to an argument that fairly straightforwardly implies they hurt the interests of our students.  That is a powerful argument, but it’s wrong.  

Posted by Eric Miller on February 15, 2013 at 12:34 PM | Permalink


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I can't speak for Brian, but I believe that philosophy and theoretical courses still have a place in law schools. Most of us are not saying that law schools have to be 100% "practice-oriented." We don't have to go from one extreme to the other. Similarly, law professors don't have to abandon scholarship; they just need to devote more of their time to teaching and learning how to teach. Law professors don't have to abandon the Socratic/casebook method. They just need to incorporate additional teaching techniques, particularly problem-solving and more writing assignments.

Posted by: Scott Fruehwald | Feb 15, 2013 12:49:23 PM

I don’t think it’s possible or even desirable to reach a broad, national consensus on which topics should be taught and which ones shouldn’t be. That’s something that should be left to the enlightened self-interest of the people in a local setting.

If we recognize that the cost of law school has shot up, recognize that the expected economic return of a law degree has gone down, recognize that our students are burdened by a lot of debt, and recognize that students and tax payers ultimately pick up the tab, we can avoid endless (and fruitless) arguments about what subjects to teach or not teach by simply given the students more of what they ask for in their enlightened self-interest.

We don’t have to turn over the complete curriculum to them. But given the severe economic shifts, it would be fair to shift more of the curriculum choices to the people footing the bill. If those choices turn out to be CRT, blood feuds in Iceland (a course I wish I could have taken), secured transactions, pre-trial motion practice, or law practice management for newly minted lawyers who have no choice but to open up a solo practice because they're drowning in debt, then we offer more of that.

If the particular scholarly academic interest of some professors turns out to be a topic that very few people want to go into $125k of debt for, then the professor can still write and speak to his/her heat’s content on that topic as a matter of scholarly work. No one is stopping that.

Posted by: John Steele | Feb 15, 2013 2:17:44 PM

With all due respect to Professor Tamanaha, his argument is rather easily defeated by looking at a different technician's graduate degree: Medical school.

Even looking at the first year of medical school -- the most purely biological and least care-driven portion -- one must question things. What does a trauma surgeon need to know about the genetic basis and mechanism of phenylketonuria? OK, an internal medicine and/or family medicine practitioner clearly needs to know about it so he/she can warn vulnerable patients to avoid aspartame; but what does that surgeon need with it?


And there's the answer to Professor Tamanaha's query, and indeed to a great many of the concerns about law school (not, by any means to all of them; and not, by any means, to claim that the current model is perfect). When taught well, the courses he decries all provide information about how to transition to a new area or context of practice. When taught badly, they're useless... but then, so is a badly-taught course in a state's civil procedure that is promptly made obsolete by a major statutory change, or a course on copyright taught even very well but in 1975.

Perhaps law school graduates are not as well prepared for practice on the day of graduation as they should be. It would help, for example, if Twiqbal had quoted the inadequate pleadings, instead of merely describing them with some questionable omissions, and those portions of the opinions made their way into casebooks and classroom discussion (and, later, CLE presentations). Removing theory in favor of more technique, however, traps graduates in the theory underlying the technique at the time they went to law school.

Posted by: C.E. Petit | Feb 15, 2013 2:47:00 PM

John writes:

"We don’t have to turn over the complete curriculum to them. But given the severe economic shifts, it would be fair to shift more of the curriculum choices to the people footing the bill....If the particular scholarly academic interest of some professors turns out to be a topic that very few people want to go into $125k of debt for, then the professor can still write and speak to his/her heat’s content on that topic as a matter of scholarly work. No one is stopping that."

As long as they are willing to pay for it, fine, but right now they are getting law professor time at well below market rates. And the scholarship is free. The average prof devotes between 1000 and 1500 hours a year to teaching, administrative and committee work. That's about $125 an hour. Peanuts in light of the rates available for consulting.

Posted by: Anon | Feb 15, 2013 2:48:12 PM

Hamlet, Act III, scene II

Posted by: MacK | Feb 15, 2013 4:36:56 PM

As long as they are willing to pay for it, fine, but right now they are getting law professor time at well below market rates. And the scholarship is free. The average prof devotes between 1000 and 1500 hours a year to teaching, administrative and committee work. That's about $125 an hour. Peanuts in light of the rates available for consulting.

It is great to get numbers that show how involved professors are in running law schools. This kills their defense that they knew nothing of the scams their schools were perpetuating and that they were innocents in the process of lying to students about jobs and income statistics.

If you don't think that your students are paying you enough to do your job, you are free to spend all your time in consulting.

Maybe you should go get a partnership at a law firm and earn the big bucks if money is what you care about?

If you care about scholarship, please tell us what research you have done that has made a difference to anyone except pleasing your own ego?

I have no respect for you. Your job is paid for by the loans the students are taking out. You obviously have no respect for them or the massive debt they are taking on to pay for your privileged position.

Posted by: Susan Appleby | Feb 16, 2013 10:00:01 AM

Let me ask you a question that I hope you may eventually get around to answering here.

If law school education in its present form is so good and any sort of change to it would harm the interests of the graduate and his community, then why are so many law graduates still looking for employment that uses their new knowledge?

Posted by: Morse Code for J | Feb 16, 2013 10:40:13 AM

Once again, Eric, you push my argument to an extreme position that I do not hold nor assert in the book--advancing your thesis by taking isolated statements and stacking up cherry picked examples on the other side. Scott's initial response says all that needs to be said.

But I will say one additional thing. Here are titles of books I have written: A General Jurisprudence of Law and Society, Realistic Socio-Legal Theory, Beyond the Formalist-Realist Divide, Understanding Law in Micronesia, On the Rule of Law, Law as a Means to an End.

Here is the quote from my book you use to set up your argument: "Most of this is not immediately relevant to the daily tasks of judges and lawyers, although it may have direct and indirect benefits for the legal system more generally.” That quote fully applies to all of my books and articles.

Of course, I do not think my work has no value (and nor do I think any of the subjects I listed before this statement, including CRT, which I teach in jurisprudence, has no value). If I thought that, I would not bother to spend all the time and effort that I do on this stuff. And as I said previously, my scholarly work, like my practice experience, has an impact on my teaching.

Although I believe this type of scholarly work indeed has value, even if not immediately evident, I also think we must examine the cost of producing scholarship in light of the dire economic situation of many recent law students and graduates, and I argue that we must bring the cost down. That means reducing (not eliminating) the time and resources we allocate to scholarship--including me! It's not that complicated, and certainly not an extreme position to take.

So your entire argument, in all three of your posts, while directed at me, misses its mark. But obviously you don't care about that, since you are working very hard to remove all the nuance in my position. Your persistent suggestion that I am anti-scholarship and anti-interdisciplinary, and want to reduce legal education to teaching students where the courthouse is located, is complete bullshit.

Posted by: Brian Tamanaha | Feb 16, 2013 11:43:18 AM

"As long as they are willing to pay for it, fine, but right now they are getting law professor time at well below market rates. And the scholarship is free. The average prof devotes between 1000 and 1500 hours a year to teaching, administrative and committee work. That's about $125 an hour. Peanuts in light of the rates available for consulting."

Most law schools charge at last $1400 per credit hour and some as much as $1800 per credit hour. Given class sizes 20-50, but say an average (low) of 25 that is $45,000 per credit hour per class - or at 13 week semesters somewhere north of $3,000 per hour. Do you know anyone charging $3000 per consulting hour - do you know some numerate law professors (hint - they went to law school so no!) Indeed most lawyers would look to bill at least 2000 hours for which they would typically earn around $125,000 - or $62.50 per hour.

One of the reasons why practitioners who post here razz professors about their lack of practice experience (apart from the amusement of watching Eric Miller's desperate insecurity about his own very abbreviated legal career manifest itself as a series of increasingly ludicrous posts and arguments) is because so many professors are blithely oblivious to the realities of legal practice - they don't know the numbers, they don't know the practicalities, they tend to present authoritatively utter piffle and twaddle as if it has any substance or relevance. Moreover, as after graduation lawyers become steadily more experienced and learn more law, they start to realise what utter gobshites so many of their professors were when preening and saying "think like a lawyer" (yes I had a few for which that was a mantra.) Indeed, had Eric Miller a little more actual experience he would have refrained from posting all 3 posts in this thread, which while not up there with Stephen Diamond's demonstration of an utter lack of good sense, is certainly closing on him. Maybe Eric ought to have a symposium with him at Santa Clara, a sort of audition to be the next Larry Miller.

Posted by: MacK | Feb 16, 2013 7:22:41 PM

Is it only me or are others impressed by the ability of MacK to float around the web commenting everywhere and anywhere and at times at great length while maintaining his role as a partner at a successful law firm? One wonders.

Posted by: Anon | Feb 16, 2013 7:32:20 PM

Anon -

Since I spend a lot of time travelling and suffering jet lag driven insomnia it does not surprise me at all. And interestingly anon - which anon are you???

Posted by: MacK | Feb 16, 2013 7:43:52 PM

"The average prof devotes between 1000 and 1500 hours a year to teaching, administrative and committee work. That's about $125 an hour."

My goal in life is to find a business where every single hour I spend working drops straight to the bottom line - no overhead, no time spent marketing, no time spent administering or managing, just time spent dispensing wisdom and getting paid for it.

Obviously, this person does not consult (or they would be aware it's not all profit), but flatters himself/herself that the world is out there waiting to absorb every hour offered.

Here's a second reality check to go along with "it's not all profit" - they probably aren't that into you. Unless your field is international tax or some of the more abstruse areas of IP, you will find clients hard to find.

One of the most offensive arguments addressed by the academy in defense of the current model is the notion that professors, at law schools top to bottom in the hierarchy, should be paid in competition to the pay scale of successful practicing lawyers. That's like saying that English professors should be paid in competition to the earnings of Stephen King or John Grisham. For most professors, there was a period early in their career when big firms were eager to hire them, but that does not translate into career long success as a practicing lawyer. More than a few professors opted for the academy because they weren't going to make partner. Even for those who could have made partner, there is a sell by date on that career. If you are 35 or older, not currently in practice, not possessed of a few millions in portable billings from devoted clients, and not possessed of this month's hard to fill specialty expertise (which generally implies practice experience in that field), you are hosed. They aren't hiring. Setting prices in light of a supposed alternative market assumes that market actually exists, and in today's world it does not.

Posted by: Anonorooni | Feb 16, 2013 8:46:06 PM

"One of the reasons why practitioners who post here razz professors about their lack of practice experience ... is because so many professors are blithely oblivious to the realities of legal practice" Perhaps. I think a contributing factor might be having a personality type that makes one enjoy insulting people at every opportunity.

Posted by: Bruce Boyden | Feb 16, 2013 9:28:47 PM


the argument has NEVER been that professors should be paid what lawyers make but that the median should be somewhere near what first year lawyers make. that has held up pretty much as the norm. salaries north of 250K outside the top 25 schools are rare and the median is more like 125-140. If you took the time to do some basic research you would not make such silly statements about John Grisham.

In any case, no PhD in English left grad school burdened by 100K in debt before joining a law school faculty. One of the many mistakes made by you and other critics is to ignore the fact that many law faculty have debt too.

further, the concern of universities is NOT that someone who has been doing nothing but teaching con law for 25 years can up and leave and join the appellate practice of a major DC law firm at 500K. that makes no sense. the concern is how to recruit a bright industrious HYSCh grad to join a faculty when s/he could easily look forward to earning millions over a life time.

finally you muse: "More than a few professors opted for the academy because they weren't going to make partner." Cite please? I thought the problem you folks think is going on is that law profs don't practice or leave after one or two years. There is no one who knows after one or two years they won't make partner.

Posted by: Anon | Feb 16, 2013 11:45:18 PM

Brian: Have you personally taken any steps in your daily routine that address the concerns you espouse? Are you spending less time on scholarship, less time on travel to conferences, workshops, etc.? More time to help students find jobs, prep them for interviews, or connect them with attorneys? Have you given up part of your salary to students scholarships? Voluntarily taken on another course? Do you have the skill set and desire to do these things? Or perhaps deep down you wish to give up writing serious scholarship because nothing of yours has made an impact? The NYTimes provided some low-hanging fruit that was easy for the taking...well done, and a classy display to defend a half-baked idea with a lot of self-evident fluff and no practical solutions to the problems you so eloquently describe.

Posted by: John Harris | Feb 16, 2013 11:48:35 PM

"finally you muse: 'More than a few professors opted for the academy because they weren't going to make partner.' Cite please?"

Seriously? You want me to call out by name people I know who got passed over (or got reviews making it clear that in time they would be passed over) for partner but who found a home teaching? That seems mean spirited. I could definitely name some, and could speculate knowledgeably about quite a few more, but I can't see why I would. As it turns out, some of them I know personally were much more temperamentally suited to teaching than practice, and have become really wonderful professors. The point is not to disparage them, but to note that those qualities that make someone a good professor do not necessarily mean they would have found great success as practicing lawyers.

Posted by: Anonorooni | Feb 17, 2013 3:04:38 AM


I can agree with the statement that "More than a few professors opted for the academy because they weren't going to make partner." However, I doubt that many were in fact in the category: "got passed over (or got reviews making it clear that in time they would be passed over) for partner," at least in recent years.

Many current law professors "bailed out" of the practice track, or made it clear they were planning to go the academic track as first and second year associates - when they started hunting for their first VAP position. For that reason I would suggest that many of them were too early in their practice careers to actually know if they were on the partnership track at whatever firm they were in (though I will add that at Quinn, where Eric Miller was, nearly no-one who is a 1-2 year associate will make partner - and by all accounts that is a do what John Quinn says to do role anyway.) Most seem to have been on the academic track in law school and to have been "encouraged" to stick to that track when they saw how arduous and uncertain the track to law firm partner is, even for a HYS graduate.

However, most practicing lawyers and law students would like to see two things - first, that law professors had significant practice experience before becoming professors and second, that they continued to have a substantial exposure to practice throughout their academic careers. Requiring 6-10 years practice experience would not, in my opinion, stop those suited for teaching from migrating to the academic track, they would seek the experience first (and who knows might prefer practice.) Lowering professor pay and "scholarship" requirements would give them more time to engage in private practice "consulting" at $125 per hour, which would also in my view improve the relevance of their teaching.

I am actually not personally sure about eliminating the third year of legal education - but I am pretty sure that many students take courses that are not relevant to their future practice in that year (and at my las school we were forced into seminars in piffle because we had to take 2-3 seminar credits per semester and all that was available was the piffle the profs deigned to teach, badly by the way.) I can construct 4 semesters of second and third year courses that I would like any JD I hired to have taken, each worth 2-4 credits, off the cuff these would include:

Contract Drafting
Pleading Drafting
Introductory Intellectual Property
Commercial Law and the UCC (and warranties & indemnities)
International Commercial Law
International Trade (Dumping, CVD, international rules)
Customs law
Consumer rights
Privacy/data law
Landlord & Tenant (including both residential and commercial property modules)
Non-US Legal systems
European Community Law
Substantive Criminal Law
Family Law + Wills & Estates
Economic analysis for lawyers
Courts (not just Federal)
Arbitration and Mediation
Law office accounting
Financial Accounting for lawyers
Employment law (including non-US employment law principles)
Administrative law
Investigations (legalities and practice)

The problem for most law students is that law professors do not want to teach these courses often enough for the students to fit them into tow semesters of law school - some are taught to a single class in one semester, not the other. From my perspective these courses should be taught at a capacity and frequency that ensures that every student can take the course - and students should for some have the ability to elect a pass/fail or grade exam that does not count towards their GPA, but shows as a pass on the pass/fail if they secure one on their transcript, so I would know the student had taken and passed a course in that subject.

Posted by: MacK | Feb 17, 2013 7:41:28 AM

As hard as it may seem to practitioners immersed in their work, some of us pursued academic posts at law schools for the *challenge* of research and teaching, rather than the drudgery of everyday firm work. Law firm work is often solitary, boring, and unchallenging. For some people, including many true academics, challenges (both related to research and teaching) are what get them out of bed each day - not form-filling, or precedent-cut-and-paste-citations, or other common, mundane sorts of law firm work.

Posted by: anon | Feb 17, 2013 5:19:45 PM

You know, as long as MacK feels free to lob bombs at other people's career but then combines these attacks with a professional record that is anonymous and yet seemingly very successful, I suggest he go by a new moniker: MacKatfish.

Posted by: Matt Bodie | Feb 17, 2013 5:30:29 PM

Ahhh Matt, Brodie -

Dance to your Daddy, my little laddy
Dance to your Daddy, my little man
Thou shalt have a fish and thou shalt have a fin
Thou shalt have a codlin when the boat comes in
Thou shalt have haddock baked in a pan
Dance to your Daddy, my little man

Dance to your Daddy, my little laddie
Dance to your Daddy, my little man
When thou art a young boy, you must sing and play
Go along the shore and cast your shells away
Build yourself a castle, watch the tide roll in
Dance to your Daddy, my little man.

Dance to your Daddy, my little laddie
Dance to your Daddy, my little man
When thou art a young man, go unto the trades
Find yourself a skill, and wages you’ll be paid
Then with all your wages, buy yourself some land
Dance to your Daddy, my little man

Dance to your Daddy, my little laddie
Dance to your Daddy, my little man
When thou art a man and go to take a wife
Find yourself a lass and love her all your life
She shall be your wife and thou shalt be her man
Dance to your Daddy, my little man

Dance to your Daddy, my little laddie
Dance to your Daddy, my little man
When thou art an old man, father to a son
Sing to him the old songs, sing of all you've done
Pass along the old ways, then let his song begin
Dance to your Daddy, my little man

Posted by: MacK | Feb 17, 2013 6:50:36 PM


Law firm work is often solitary, boring, and unchallenging. For some people, including many true academics, challenges (both related to research and teaching) are what get them out of bed each day

.... umm ignoramus that I am, if only what got your out of bed was teaching law to eager aspiring lawyers.

I could frankly give a shit if true academics pulled their wires in bed - but if they get out of bed to teach in a law school they should damn well teach some practical law.

So lie in your bed and pull your wire.

And in the name of god would some prawf have the moral and intellectual honesty to back me up. Are you there to indulge you whims at the expense of your students or teach a profession...or are you all pulling away....

Let the responses show your value.

Posted by: MacK | Feb 17, 2013 6:56:21 PM

Inter alia, Eric Miller can one hopes translate my posts, assuming he has the nerve. Of course if they need translation to anyone that person should not be teaching law - or English

Posted by: MacK | Feb 17, 2013 7:02:57 PM


I have indeed done a several of the things you mentioned, and am working on others. Reform begins at home, as you correctly point out. Now we might ask others the same, including the many legal educators issuing full-throated criticisms of my book. All I see are defenses of the status quo--no concrete proposals on how to fix things. I would be happy to hear better ideas.

Posted by: Brian Tamanaha | Feb 17, 2013 9:24:04 PM

Morse Code: Perhaps it has something to do with delayed pass-through effects on the service professions of the worst recession since the Great Depression. It may have something to do with recent law applicants and students not understanding structural economics, supply and demand, and how to interpret a bubble even when they're stepping into it. It also may have a lot to do with structural changes in the profession (for example, perhaps, those wrought by efficiencies of electronic search functions brought to bear on tasks like document review that used to occupy junior associates in larger firms), i.e. what makes something "pop," even if it's not a bubble. Or we may be measuring against false glory days. (First-year associate salary even in prestigious firms was relatively low by white collar standards until the "great leap forward" years of 1997-1999 and stayed high, with relatively more plentiful first-year offers, until 2006-2007. Turns out firms may not meet that rate of employment, at least not at that rate of pay, forever. Does failure to meet a ten-year anomaly equal failure to meet a norm?)

Of course, to answer those questions or otherwise to understand the state of the profession now or the point to which we want to get it, we'd have to understand law and economics, or sociology, or anthropology, or history, or demography. Sure wish they'd offer useful courses like that in law school.

Posted by: newbie | Feb 17, 2013 10:28:59 PM

I think the proprietors of this blog should out both MacK and dybbuk, both of whom abuse their pseudonymity.

Posted by: Brian | Feb 18, 2013 8:44:27 AM

Brian writes: "Now we might ask others the same, including the many legal educators issuing full-throated criticisms of my book. All I see are defenses of the status quo--no concrete proposals on how to fix things. I would be happy to hear better ideas."

This may be true, but I think we all know that most, if not all, law schools have engaged in intense internal discussions to debate legal education and how best to proceed. From my friends on other faculties, all have said as much. That much of this is going on behind the scenes (perhaps as a trade secret?) should come to no surprise to you or others. While I enjoyed your book and agree with many of your characterizations, I think you fail to acknowledge adequately the fact that most schools are taking the current situation very seriously, and are working to create a better framework. That it can't be fixed in a day goes without saying. And, that the proposals come out piecemeal, as schools implement them, is to be expected. May I suggest that you temper the ego around your "book" and think more about how to help effectuate real change. Your book offers little practical advice along these lines.

Posted by: John Harris | Feb 18, 2013 2:54:26 PM

At the time Brian's book came out, I was not aware that the discussion had reached the "everyone knows that" stage. It's good to see that law faculties have come to the conclusion that something needs to be done. I would have thought that Brian's book (and his earlier blogging, which predated the New York Times and most other commentators) played a role in that.

In terms of suggestions, I think Brian's book made one important point: for real innovation to come about, the ABA or the state Supreme Courts need to loosen the regulatory requirements imposed through the accreditation process. To really put pressure on schools to pursue different models, different models have to be possible. Sorting out what models could cut costs and yet meet student and societal needs will take some thought, and while I also think Failing Law Schools could have gone more down that road, I can see that not everything can be addressed in one book and that an author might think other voices should be heard before spouting off answers.

Posted by: Ray Campbell | Feb 18, 2013 7:04:14 PM

Eric, I don't mean to insult you, but according to your bio on the SLU website you have an LLB and an LLM; that's 4 years of post-secondary education, which means every single one of your students has more formal training than you. You have only 8 publications over the past 16 years, meaning you average one publication every two years. That would be considered an insufficient record for any faculty position above community college, except for law.

The frustrating part of the legal academy is that they want the prestige of the professorate, but higher pay, and without the training or workload. They occupy a weird middle ground -- not enough practical experience to train professional lawyers, but also in most cases (PhD holders excepted) not trained in research methodology or benefitting from a traditional rigorous dissertation-based graduate program.

Posted by: xavier | Feb 20, 2013 11:50:41 PM

My last comment came off a little harsher than I intended; I don't know anything about Eric's scholarly abilities, and there have been self-trained scholars who never graduated high school who taught at the college level, and brilliantly. For all I know he is a savant at this.

My point was meant to be aimed at the entire structure. Law professors in general tend to be trained neither in the practical skills they frequently disdain nor the "pure" academic skills they profess to have.

In fact, a junior law faculty member in many cases is only slightly more qualified to teach law than his or her own students, which is really unique in the academy. To couple this with extremely high pay for academia plus a reduced workload in comparison to other academics (who in addition to usually teaching more classes, also advise graduate students, and are expected to produce a steady stream of scholarly articles in peer-reviewed journals), makes it doubly bizarre.

And to compound the lack of scholarship in law schools, the legal journals in which most law professors publish are almost never peer-reviewed, and are edited by students who are not really qualified to identify or edit legal scholarship.

Posted by: xavier | Feb 21, 2013 12:35:59 AM

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