Monday, June 16, 2014
Looks like President O got an early start on that coconut
After the next inauguration, quipped President Obama in a hipster Tumblr interview today, he says he'll "be on the beach somewhere, drinking out of a coconut . . ." Maybe sooner than that, as the president proclaims at the beginning of the interview: "We have enough lawyers, although it's a fine profession. I can say that because I'm a lawyer."
So "don't go to law school" is the message he wants to get across. Larger debate, of course. But let's see what he says right afterward. Study STEM fields, he insists, in order to get a job after graduation. STEM study, yes indeed. But STEM trained grads often look beyond an early career as a bench scientist or an IT staffer, or a mechanical career or . . . that is, STEM-trained young people look to leverage these skills to pursue significant positions in corporate or entrepreneurial settings. Hence, they look for additional training in business school, in non-science master's programs, and, yes, even in law schools.
Tumblr promises #realtalk, so here is some real talk: Significant progress in developing innovative projects and bringing inventions to market require a complement of STEM, business, and legal skills. These skills are necessary to negotiate and navigate an increasingly complex regulatory environment and to interacts with lawyers and C-suite executives as they develop and implement business strategy. Perhaps too many lawyers, but not too many lawyers who are adept at the law-business-technology interface. "Technology is going to continue to drive innovation," wisely insists President Obama. But it is not only technology that is this driver, but work done by folks with a complement of interdisciplinary skills and ambition.
The business world is at least twenty (and probably more, given the structural and institutional problems with interdisciplinary work in academia) years ahead of universities in this. It's not to say that disciplinary and functional silos don't exist out there; they still do. But the fundamental insight of lean enterprise and continuous improvement was that research, engineering, manufacturing, and marketing all had to talk to each other from the outset, or you ended up with designs nobody could build, or products nobody wanted.
So who teaches interdisciplinarity? Louis Menand's "The Marketplace of Ideas" and Michele Lamont's "How Professors Think" are about as good as it gets in nailing what my casual empiricism tells me: there's a tension between dilettantism and disciplinary rigor every time you venture out into the space between disciplines (which by the way are something WE create and don't necessarily or even contingently cut fields of knowledge at the joints). The paradox, of course, is that once you establish peer review or other disciplinary standards in the new space you've replicated the original disciplinary problem.
So in academia, what you have to do is forge ahead notwithstanding the cautious naysayers (i.e. risk being called a dilettante, which ain't easy if you are pre-tenure) but at the same time do the best you can in finding like minded souls from the other discipline to afford you some check on rigor, mix it all together and hope for the best.
Finally, the particular hallmark of disciplinary rigor among both academic and practicing lawyers is attribution of blame as the focus of cause-and-effect in the world (from Honore & Hart to Moore to "all you say is 'no'"). That's usually one of the first things that effective business lawyers manage to shed, oftentimes to the dismay of lawyers' lawyers.
Posted by: Jeff Lipshaw | Jun 17, 2014 7:55:57 AM
Exactly right, Jeff. Very well said.
Posted by: dan rodriguez | Jun 17, 2014 8:06:10 AM
I disagree with Jeff and Dan. Well, I don't disagree with them completely, but I think they've missed the mark completely.
HigherEd (particularly law school and the liberal arts) has become divorced from both practical training and from their own cannon. There's nothing wrong with research and in contemplating opportunities between disciplines, particularly in STEM, but education has lost its way.
What have we missed or lost? Well, high school is far from perfect. At its core, however, is the understanding that there is a core group of skills (linguistic, arithmetic, problem solving, civic, artistic) that we want our society to teach the young. Universities were then to take that core in the above average high school students and to expand both knowledge and a love of wisdom to prepare students in the arts and sciences (or in the practical tech trades) to be liberal men and women (not in the political sense, but in the free thinker free citizen sense).
Law faculty, your charge is to prepare young men and women to be tomorrow's lawyers. Don't worry about the room between the gaps. There's always room between the gaps in every discipline. Your job is to give a set of core skills that students can then draw upon to be good lawyers. They must know what makes for an enforceable contract, how to read a statute, how procedure intersects with substantive law, how our government is structured, how corporations are structured, how the tax code works, criminal law, etc.
Scalia's critique at W&M had a point. When law moved from an apprentice model to the academy, the belief was that legal education entailed a certain body of legal knowledge that we wanted our lawyers to have. We've moved away from that with the exception of the first year. That's a problem. When everyone's focused on the space between the subjects and lessons, then no one's focused on the subjects and lessons themselves, which are the value that you all can actually add. You're letting the tail wave the dog.
Teaching algebra, spelling, intro to biology, music, American Literature, and world history leaves a lot of things out, but they're useful lessons.
If you want to stay relevant and not be the grand-dabbler punch line that legal education has become since the late 1970s, do well what you can do well. Teach torts and teach it with an eye to torts in the adversarial system with an insurance regime in place -- don't teach grand theories on duties and was Judge Andrews right on duty in Palzgraff or is there some other duty that we've overlooked. Teach contracts, not ConTorts or the economic underpinnings of contracts and what efficient breach can teach us about the marketplace. Teach family law in a way that focuses on divorce, maintenance, custody and dealing with family law clients -- not the gender theories underlying the family and how such bias has created our modern systems.
There's still a lot of meat to law. The academy, for whatever reason, has become enamored with the gristle in an attempt to become wannabe policy makers. There's nothing wrong with having an interest in how the law developed, but we've moved away from the core legal lessons. When you do so, you don't teach tomorrow's lawyers. Rather, you turn out other than unemployable law graduates.
Disagree with me? Answer me this, those of you who took the bar exam, would you have felt comfortable taking the bar exam without a barbri course? If not, why not? And isn't it a pedagogical tragedy that someone can pay close to $200,000 in borrowed money for a legal education and not hope to be adequately prepared in the substance of law that the licensing jurisdiction determined to be the minimum requisite knowledge that one must have to be a practicing lawyer? Don't worry, strawman, I'm not saying that the bar exam is all there is to being a lawyer. But I am saying it is important and that you all should be able to convey those lessons to all of your students at absolute minimum.
Posted by: Jojo | Jun 17, 2014 12:07:28 PM
Here's real talk: as an NU Law grad, I am embarrassed by the extent to which our new dean is willing to shill to hawk the world's most expensive law degree.
"Perhaps too many lawyers, but not too many lawyers who are adept at the law-business-technology interface." So presumably, NU is going to leap into the fray to fill that unmet niche... that (like all other law schools) they claimed they were filling in 1994, 1999, 2004, and 2009.
But this time it's real!
Posted by: EFM | Jun 17, 2014 2:23:48 PM
Dan, can you say a bit more about what the phrase "lawyers who are adept at the law-business-technology interface" means in practice? Take the "interface" between law and engineering (an example I pick because I'm familiar with it). Does adeptness at this interface mean lawyers who have a basic idea how engineers see the world? Or lawyers who can speak in plain language so engineers can understand them? Or lawyers who have engineering degrees? Or lawyers who are actually also experienced engineers, so they can read the regs in the morning and then solve equations to design the bridge in the afternoon? Or lawyers who have no idea about engineering but are willing to learn? I'm not sure which of these, if any of them, are what you have in mind.
Posted by: Orin Kerr | Jun 17, 2014 5:31:11 PM
Don't worry. Dan's not sure which of these he has in mind either. It wasn't meant to be a constructive comment. Rather, it's an empty platitude designed to reinforce the regulatory Quislings at the ABA so that they may keep out the unwashed barbarians for another few years before all is lost to the siege.
Within a few short years we'll have real reform in legal education, go back to basics, and enable a leaner stronger profession to emerge from the ashes that is better for everyone but the academy.
Posted by: Jojo | Jun 18, 2014 2:02:27 PM
Wow, remind me not to go to Jojo's "gym class"!!
Posted by: dan rodriguez | Jun 18, 2014 5:01:55 PM
Oren: Sure, happy to say more. Absolutely, lawyers should be more adept at tracking how engineers see the world. It is not merely a matter of technological proficiency on the part of our students (although this surely wouldn't hurt), but a mindset. Engineers and scientists see lawyers as highly risk averse and not as strategic thinkers. Some real truth to that, but the reality is more nuanced and it is incumbent upon lawyers who work with STEM-trained folks to understand how to communicate, how to translate, and how to manage. That's generally what I have in mind.
What I don't really have in mind, to go to your list of questions, is "lawyer as polymath." Or, as some of the old timer readers will get as a reference "lawyer as astrophysicist" (credit Mark Tushnet for this one).
It is likewise important to help engineers and scientists better understand law, lawyers, and legal culture. I have several ideas about how best to do that; and I am sure that you and other skillful academics have other, and perhaps even better, ideas as well. But I want to persuade you, at the very least, that the game is worth the candle. We are part of a rapidly changing economy in which folks who can look over or around their silos and understand the cultural and professional intersections among law, business, and technology will have a considerable leg up, IMHO.
Posted by: dan rodriguez | Jun 18, 2014 5:44:43 PM
sorry, I meant Orin. Mea culpa. Typing too fast . . .
Posted by: dan rodriguez | Jun 18, 2014 5:45:42 PM
Having tried the patience of Prawfsblawg readers with many posts and comments in recent days, I think I'll take a breath. However, I do have some comments on Jeff Lipshaw's very cogent comments over at Word on the Streeterville, my humble little blog. Check it out!
Posted by: dan rodriguez | Jun 23, 2014 6:16:51 PM
Dean Rodriguez is one of the most famously inaccessible law deans in the nation. Students can't reach him. Faculty can't reach him. He can't be bothered to acknowledge those in his community. His hilariously defensive "blog" posts are the only way people have any sort of interaction with him.
And the moment one of his own students comes out and identifies him as the gladhanding academia shill that he is, he ignores the comment and "takes a breath."
Posted by: jesse mazur | Jun 27, 2014 1:03:54 PM