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Friday, July 10, 2009

In Defense of Law Schools, by JB Ruhl (FSU Law)

N.B. This post is by JB Ruhl, a colleague of mine at FSU.

There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty. There is no question that there is room for improvement in the American law school model, as there is in every educational model. Bill Henderson at Indiana University Law School, in a post on the Legal Profession Blog, makes a good case that Lippe's post deserves attention and that if times are changing for lawyers' clients, they are going to change for lawyers as well, meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.

Before I go further, a few disclosures. First, I am a law professor, a tenured one at that. I have been tenured at a rural public law school and at a public law school in the state capital of a major state, and I have visited at private "top 25" law schools. I've seen the spectrum of legal education. Second, I also practiced law for longer than most law professors prior to entering teaching--12 years with a very large law firm, the last four as a partner. I was in charge of hiring for one of the firm's offices for two years. I know what the practice of law is about, and I know what to expect at the entry level hiring stage. The upshot is that I do value the value of ensuring that law schools prepare graduates for entry into the profession, but I also equally value how important it is not to reduce the law school experience to that of a trade school. Now back to Lippe's ditty.

In short, although there is some truth in the basic theme of Lippe's assessment of the role of law schools and what they deliver, which I will get into later, how he arrives there is thoroughly off base. Here's why:



1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide "inferior training." Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not. Rather, I suggest that medical and business schools are right up there with, if not ahead of, law schools in the need to examine their pedagogical models. In any event, it is not useful to compare medical, business, and law school models--they are three vastly different professions with distinct subject matters and professional pathways.

2. Lippe goes further, arguing that "law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." Just like medical and business schools do, right? Wrong. Medical schools do not produce "fully functioning physicians" and business schools do not produce "fully functioning corporate executives." Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools. Indeed, Lippe identifies a root problem with legal profession--that "firms' appetite for subsidizing training will decline." It already has declined, because the "law as a business" model of elite law firms, which replaced "law as a profession" in the 1980s, has squeezed out everything but the billable hour from the life of associates. With a few notable and noble exceptions, BigLaw law firms want more and more to be able to charge new associates' billable hours they can justify to clients, but want less and less to bear the cost of getting the new lawyers "fully functional." Most of the discontent Lippe identifies seems to come from practitioners locked in this "law as business" model, whether in elite law firms or large corporate departments. It may be time for them to reexamine their commitment to training young lawyers, as well as to law as a profession. 

3. Nowhere, for that matter, does Lippe define what a "fully functional lawyer" is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not. Consider that most first year law students come to law school with little or no knowledge of the legal institutions of our nation beyond the basic civics class level. Lippe argues that the "time to [lawyers'] professional independence is longer [than physicians']. This is not because law is more complex or riskier than medicine, but because legal training is inferior." Well, at least he concedes law is complex and risky. But is it fair to say that I wouldn't want a newly-minted lawyer arguing a bet the company lawsuit for me because his or her training was inferior? No. The reason why is because I want someone who has argued hundreds of other less high stakes cases before taking on my high stakes case, and that simply takes time on the job. There is no way in three years of law school to get someone into that position. What we can and should do, of course, is strive to get our graduates into a position to become such a lawyer.

4. Part of the problem with Lippe's pitch in this respect is that he talks about law schools preparing graduates for the "legal profession" as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant. I'm not sure what Lippe believes goes on in law firms, but I know from my practice days that lawyers at law firms with sophisticated clients are often asked to think outside the box, to propose changes to legislation or regulations, to make novel arguments in court, and to suggest cutting edge legal strategies. Moreover, the legal profession extends far beyond law firms and in-house counsel offices. Lawyers working for public entities and non-governmental organizations are even more likely to be asked to "invent" law for the future. Lippe believes legal education should be reduced to "no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school." What happened to thinking about what the law should be, rather than just what it is?

5. 
Lippe's central objection with law school faculties is that they "have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business." But if one believes there is any value to ensuring that law students learn to think about the "ought" and not just the "is" of law, there has to be an emphasis on the part of the faculty to exploring the "ought" in order to be able competently to teach their students how to do so. Law is inherently a normative enterprise within society. True enough, practitioners must learn the mechanics and basic content of law, and for that purpose law schools must maintain a strong emphasis on practice training, but practitioners--good ones--are not simply automatons applying black letter law to uncontested facts. The law is often murky, or just plain bad, and facts are often incomplete and contested. Thinking about what ought to happen in such contexts is an important facet of legal education I fear Lippe's model would stifle into oblivion. In any event, Lippe's suggestion that law faculty scholarship is devoid of practical focus and content suggests that he has not read much of it. 

6. Along with his claim that law schools have "have grown more distant from the profession," Lippe goes so far as to claim that law professors hold law firms "in low regard." One solution he proposes is to use "more adjunct faculty who are active practitioners." Has he examined the course offerings at any law schools lately? He's welcome to check out ours at Florida State University, which includes a plethora of practical and skills oriented courses, many taught by our faculty members. I teach, for example, courses on Land Use Regulation, Growth Management, and Environmental Issues in Business Transactions. Hardly "distant from the professsion" or the sign of holding law firms "in low regard." Like many law schools, moreover, we offer numerous courses taught by adjuncts who are leading practitioners and our faculty members routinely invite practitioners from all types of practice settings to guest lecture, speak at forums, and mentor our students. Many of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations--writing for their journals, speaking at conferences, and chairing committees. Lippe is working off a mistaken straw man of what goes on inside most law schools and inside the heads of their faculty members.

I could go on with what is misinformed and off the mark with Lippe's assessment of legal education, but I should give him some credit for identifying the need to respond to the changing landscape of the legal profession (within which I include more than BigLaw and Fortune 50 in-house counsel offices). We must get control of the cost of legal education--it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a "fully functional lawyer," a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty. My problem isn't with those ideals, it's with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe's vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession. 

JBR

Posted by Administrators on July 10, 2009 at 01:33 PM in Life of Law Schools | Permalink

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Hi Jason-

These are thoughtful comments, and I hope I have not been misunderstood to be opposed to serious consideration of how to keep law schools dynamic and affordable. I just don't want to do it under misconceptions about what law schools are today and about what can be delivered in three years. As you point out, moreover, there is a spectrum of law schools and the markets for law students and for law grads are what they are. If one really cares about what we are talking about, US News is ridiculous (look what happened to W&L), as is the bar exam (it doesn't come close to testing anything to do with lawyering skills), yet somehow they persist.

That said: (1) yes, UC-Irvine is really setting the standard for a cutting edge blend between core substantive education and skills training, and (2) what you are doing on Race to the Top, about which I had no prior knowledge, is innovative and commendable. I can't speak for FSU law in taking up your challenge, but I will pass it along! Can we get Bobby to coach us?

JB

Posted by: J.B. Ruhl | Jul 11, 2009 8:22:02 PM

If we agree on Chemerinsky model as the ideal, Prof. Ruhl/JB (please call me Jason), we're probably not far apart. I'm still not sure what you mean by "trade school", or think that Lippe's model neccessarily deserves that label. And I think Bill Henderson's pragmatism point makes a lot of sense. But a few more points:

(1) We might think about putting law schools, or models of legal ed, on a theoretical-practical spectrum. On the far left is Yale, with lots of theory/normative inquiry, and less attention to practice outside the terrific clinical programs. (maybe this is inaccurate, but it's an ideal type.) On the far right is what you're calling a "trade school" -- let's say a school that teaches things like how to file court papers, or respond to interrogatories. I don't know if there are such schools. Somewhere in the middle is Chemerinsky's new model at UC-Irvine.

Somewhere between Yale and UCI are most law schools, like mine (Georgia) and yours (Florida State). Certainly if you read/listen to Chemerinsky, and I'd tend to agree, there's a huge distance between most schools like ours and what he's after. Hopefully we can agree that closing that gap is hard and a lot of work, but well worth doing and working together on.

(2) One concrete place this issue is joined is over Washington and Lee's new 3rd year program, which they describe as "entirely experiential, comprised of law practice simulations, real-client experiences, the development of professionalism, and development of law practice skills." http://law.wlu.edu/thirdyear/page.asp?pageid=650

Many people have criticized it as trade-school ish, doing what the law firms should be doing, etc. Others think it's a terrific innovation. I tend to be in the latter camp, and it cetainly sounds like what the experts on professional education at the Carnegie Foundation think we need to be doing more of. http://www.carnegiefoundation.org/publications/pub.asp?key=43&subkey=618

It's still at an early stage so hard to evaluate, but I think a key part of it is the idea that "substantive" classes like family law or environmental law can be taught in a way other than dissecting appellate opinions, and that helps students begin to develop into an effective lawyer before they start practice.

(3) You mentioned all the practical courses by adjuncts offered by FSU, which makes me think that one good way to get at the question of what is the best kind of legal education might be to compare the academic quality of particular JD programs. Which is precisely the question that U.S. News asks law profs and lawyers every year to get 40% of a school's overall score for the rankings.

Problem is: there's next to no information, at least presented in any kind of usable form, on the relative quality of JD programs. Addressing that problem is the point of the Race to the Top project, www.racetothetoplaw.com, that Dave Fagundes and I have started (kicked off here at Prawfs!), with the help of Advisory Board members like Bill Henderson and other experts on legal education. We hope the project will lead to more head-to-head competition on the quality of the service provided (a legal education) among law schools.

So we're at peer and competitor institutions. I'm sure there are students each year who get into both, and have to decide. Much of their decision is likely to be based on things like price and location, but certainly one thing they might want to know is a comparison of the quality of the legal education they'd get at either place.

We're used to battling UF in football so it's not too much of a stretch for us to battle on legal education -- Georgia v. FSU: A Battle in the Blogosphere -- what do you say?

Posted by: Jason Solomon | Jul 11, 2009 4:53:50 PM

Bill-

I am all for being pragmatic, and you have been a voice of reason in the ongoing dialogue on the legal profession and law schools. But I am not willing to engage in a dialogue based on Lippe's caricature of law schools and his narrow conception of the legal profession.

There are dozens of law schools, including yours and mine, that have a deep commitment to clinical training, externships, adjuncts, and connecting with practitioners on many levels. Our grads fill public defender offices, NGOs, county and city attorney offices, small rural law firms, state agencies, plaintiff trial firms, legislative counsel positions, and a host of other practice settings that that involve vastly different substantive knowledge and practice skills. Lippe has only one slice of the legal profession in mind--BigLaw and Fortune 500 legal counsel offices. Are we to build the law school around just those employers' needs and wants?

Medical schools prescribe extensive undergrad course prerequisites that have the functional effect of beginning one's course of study as an undergrad. Then in medical school the first two years emphasize course work and the last two emphasize clinical rotations (though most schools introduce rotations in year 2). Then to specialize one goes through 3-7 years of a residency and, for some, 1-4 more years of a supervised training fellowship. I don't hear anyone advocating that law schools (a) impose rigid and extensive undergrad prerequisites; (b) expand to a four-year program; and (c) add on long residencies and fellowships. I am sure that would improve the training and the capacity to practice upon graduation, however.

Business (MBA) schools rarely take students straight out of undergrad, so one enters with significant practical experience. The usual model is one year of classes, a summer internship, and a second year of classes. I don't hear anyone advocating that law schools expect several years of work experience (say, as paralegals or legislative staffers) before matriculation (though plenty of students have done so) and then do two years of classroom work with a summer internship.

Rather, what Lippe wants is for us to take undergrads from a wide variety of majors, often with little or no connection to law, and then somehow turn them into "fully functional lawyers" with one year of classroom work (what, exactly, does Lippe have in mind for that year?) and two years of supervised clinical and externship experience. That's not possible. The legal profession and law students have to accept that if they don't want the medical school or business school models, they have to be realistic about how close to "fully functional" a new law school grad is going to be. The goal should be to have given them a broad look at the scope of law and legal institutions, an opportunity to explore substantive specializations through advanced classroom coursework, and opportunities for plenty of general skills training and clinical experience--all so when they get out of law school they are prepared to continue on the road of becoming "fully functional" through, one would hope, continued supervised training provided by employers. That and, I agree, keep the tuition costs from skyrocketing.

The point being, the demand for being pragmatic cannot be limited just to law faculties. The entire profession needs to examine itself and take ownership in the life-long training of attorneys.

jbr

Posted by: J.B. Ruhl | Jul 11, 2009 4:24:45 PM

I thought law school was fun the way it was; I was disappointed, however, to find that almost none of my 140 classmates were skilled in science, math or engineering. I came to find out that that makes sense: all but one of the Supremes can't do science or math either.

Posted by: Jimbino | Jul 11, 2009 2:53:58 PM

JB,

My comment here is pragmatic rather than substantive. The crux of it is this: Do we (law professors) really want a "debating club" resolution to the issues raised by Lippe? When the people that hire law school graduates are not satisfied with the level of training / skills that law schools provide, whether it is perception or reality, we have got a problem. And remember that the president of the ACC called Lippe's post "required reading for Law Faculty."

What good does it do us (or our graduates) to say that Lippe (and, by extension, Krebs) are making faulty arguments? Let's fix the perception (or reality) that is causing the rift. In addition, the cost of legal education has been going up a lot of faster than most entry level jobs. It is not just BigLaw lawyers and in-house counsel that are skeptical of the value of JD. There is growing disenchantment among law students who are signing loan papers in a very scary economy.

It seems to me that the most constructive dialogue would focus on increasing value or decreasing costs for students. Who is right or wrong, who how much value we think we already provide, is really beside the point. bh.

Posted by: William Henderson | Jul 10, 2009 11:35:07 PM

To win this debate about legal education, must one win a game of "who gets the moral blame for how things are now?" That seems like a sterile approach.

The alternative approach, which we don't have now, is to offer a much greater variety of choices and then let the decisions be made not by the folks making big bucks in the firms or the folks making unusually high academic salaries protected by tenure but rather by the folks who are taking on an additional $95K in debt and foregoing three years of income.

We could have Ph.D programs (like Berkeley's JSP), and elite post-graduate programs (like YLS), and run of the mill JD programs, and undergrad programs where students study law like they do elsewhere in the world and like US students enter to study accounting and business, and LL.M programs for the students who got an undergrad degree but want to move up in the legal world. One of the many benefits would be to open up the profession to talented, ambitious people in the lower socio-economic strata who currently can't enter the profession.

We all know who would be the "losers" if students had real choice, but that shouldn't drive the analysis.

Posted by: John Steele | Jul 10, 2009 10:17:15 PM

A few thoughts in response to Mr. Solomon:

1. I don't think I am going too far in describing Lippe's model as closer to a trade school than anything else. Under his model, two of three years of law school would be little more than job training. He reduces the education of the breadth and depth of law as an institution to one year. Is that really what law students and law firms want? Why are law firms bowing out of the post-graduation training experience so many other professions see as essential?

2. I may not have made myself clear, but I believe the need to think about the "ought" of law is important even in "jobs like prosecutors or public defenders, or on the civil side, insurance defense or workers' comp for claimants." Don't underestimate how much development of law takes place in these practice settings, which involve far more than "be[ing] handed a file and hav[ing] to get the job done w/out supervision." Even what Mr. Solomon describes as the skills needed in that practice setting would not be imparted under Lippe's model. Lippe's post is confined exclusively to BigLaw and asks law schools to train to that context exclusively. But thumb through the pages of any state or federal reporter and look at the lawyers who handle the cases--the cases where law often is made--and you will see plenty, likely a majority, who are not in settings anything like the "legal profession" to which Lippe directs his comments.

3. As for UC Irvine and Dean Erwin Chemerinsky, I need no convincing that he and UC Irvine have hit the nail on the head in terms of the design of legal education, but by no means is the UC Irvine model anything like Lippe's. First of all, the idea that Professor Chemerinksy is all doctrine is preposterous. Rather, he represents the ideal balance between scholarly and professional focus. But walk into any law school bookstore and you will see scores and scores of law school faculty names on casebooks, treatises, and study guides. Similarly, check into any local, state, or national bar association and you will find scads of law faculty involved. Where Lippe got the idea that the vast majority of law faculty are not engaged in core educational and practice goals escapes me. I think he's thinking about a few elite law schools, even for which I think he is mistaken, and has forgotten about the rest of us. Second, the idea that UC Irvine is somehow unique in offering extensive opportunities for law students to represent clients is also preposterous. I admire their way of delivering the experience and commend it to other law schools, but clinical education involving representation of clients is firmly in place at most law schools and most law students take advantage of it. Where did Lippe go to law school, and did he really explore all the opportunities?

The irony of all of this, of course, is that Lippe and the many others who condemn the American legal education model are products of it, often highly successful products of it. That is not sufficient reason to keep things static, but one ought to ask, before drinking Lippe's Cool-Aid, whether the American legal education model really is doing as bad as lawyer Lippe and all the million dollar a year law firm partners he quotes suggest.

Posted by: J.B. Ruhl | Jul 10, 2009 8:44:20 PM

Oops! The above post should have said in first sentence: "I DISagree pretty strongly..." Sorry. Lawyers should also be trained in how to proofread their own work before submitting...

Posted by: Jason Solomon | Jul 10, 2009 5:26:51 PM

I agree with most of this pretty strongly, and fear you've set up a straw man in response, particularly with terms like "trade school" which I don't think are particularly helpful if undefined. If defined, I suspect it would not accurately describe anyone's position, including Lippe's. Having said that, I think this stuff's hugely important to talk about, and that your view is fairly representative of many in the academy.

So a few quick points. I think that most graduates of law schools do not go to work at big firms upon graduation. Many do jobs like prosecutors or public defenders, or on the civil side, insurance defense or workers' comp for claimants. In jobs like this, they will simply be handed a file and have to get the job done w/out supervision.

Many in these jobs will have spent an enormous amount of money, and spent 3 yrs in law school, and have no or minimal training in how to:

(1) Write a good brief in a case before their state's intermediate ct of appeals;

(2) Make a good/creative argument that their client's conduct is or is not covered by a statutory provision (or terms of a contract);

(3) Take a situation, investigate the facts, and evaluate the strength of different legal theories in order to come up with a theory of the case to use in prosecuting or defending a lawsuit.

As a result, their clients will achieve worse results, and society will have less justice, than they would if legal education was a moderately serious enterprise. That's bad.

On a lot of this, I think it's useful to see what Erwin Chemerinsky is doing out at UC-Irvine. Here is a guy whose very name -- to me at least -- screams doctrine. Chemerinsky on this or that -- treatises, doctrine, traditional. And yet, after a lot of talking to people and research about the ideal law school in the 21st century, he's starting a school that emphasizes experiential learning and where 100% of students will graduate having actually represented clients. This is a sophisticated model based on research on how people learn best, and it's a lawyer-school, as Jerome Frank put it. I'm not sure what's wrong with that, and why we shouldn't all be trying to do the same.

Posted by: Jason Solomon | Jul 10, 2009 5:24:21 PM

I'm leaving for Budapest in two hours and at loose ends ("shpilkes"), so I apologize for the length of this comment. I commented in greater length on Paul Lippe's website about his piece, but I'll excerpt and annotate a little here. My main thrust, having been on both sides of this, like JB, is that this sounds like the "blame-storming session" John Michael Higgins wants to start in the DirecTV commercials ("Let's have a blame-storming session. I blame Eileen.")

I agreed independently with JB's point 3, but not as elegantly. "To rag a little on the practitioner finger pointers, what the hell do you think you are going to get in a 25 year old skills trained lawyer? It reminds a little of something I read once about the fallacy of giving black coffee to drunks. All you end up with is a wide-awake drunk. All you will end up with is a somewhat skills trained youngster. You can model judgment, but you can't give a formula for it. Life plus cycles of experience are usually necessary (but not sufficient) for the development of judgment, and it's judgment that creates cost-efficiencies and value. Yes, there are stereotypical practitioner haters out there, but there are a lot of law teachers (most?) who take their teaching very, very seriously. But there are limits. I sat on the board of trustees of a private prep school, and it was kind of amazing what parents wanted the schools to teach their children (i.e. many things they needed to learn at home). We couldn't teach a 11 year old not to be a brat, and law schools can't teach 24 year olds how to be wise."

There is, however, well-documented schizophrenia in the legal academy as between research and professional training, and it's something we need to get a better handle on within the academy. "To rag a little on the academy, law professors have a really nice gig. Up until recently, the demand for lawyers has created this wonderful cash cow in the university (i.e. - law school tuition is pretty steep, but you don't need much infrastructure compared to the hard sciences) where lots of smart, articulate, analytical people without Ph.D.s get to play social scientist with the big kids in first-tier research universities. I mean, we understand what it means to do medical research in a research university, but what does it mean to do legal research in a research university? I'm still not sure, and neither are the faculties (see Critical Legal Studies, Law and Economics, Empirical Law Studies, etc.) And U.S. News has merely formalized whatever the paradigm is. The community of legal scholars by dint of peer reputation scores by and large drive the "rankings" in a self-sustaining loop, creating a brand that is a coordination device for people who have similar credentials. (By the standards of elite universities, I'm a smart guy, but what that means is that people who think like me gave me good grades and designed tests that I did well on. I'm not being post-modern indeterminate here, because I think intelligence means something, but most practitioners know it ain't everything.)

Finally, I stole a view from Larry Solum (I think - correct me if I'm wrong, Larry): "SO, here's what would happen in a perfect world. Ivy University would establish a department of law either on its own or as a cross-disciplinary subject fitting across public policy, government, humanities, sociology, anthropology, and economics. Wannabe professors would write dissertations and get Ph.D.s like everybody else. Student-edited law reviews would disappear in favor of peer-reviewed journals. Students graduating from these programs would go on the market like political science and philosophy Ph.D.s. (good luck!) Practicing lawyers would be trained in free-standing law schools, or, perhaps, within the law department of business schools."

But the reality is that it's not going to happen, at least any time soon. "Except that, what? Universities don't want to do this (what? give up the cash cow), aspiring law professors don't want to do this (what? eliminate all those jobs?), and students don't want to do this (what? whaddaya mean I can't go to the Ivy University Law School?)! So we'll tweak around the edges, try to accommodate all of these tripartite divisions (theory/doctrine/skills; biglaw/smalllaw/service; etc.), and do the best we can. Kind of like trying to fix middle school, as though it weren't full of 11 to 14 year old children with hormones bursting out all over."

Posted by: Jeff Lipshaw | Jul 10, 2009 2:29:24 PM

Thanks for the thoughtful response. I think that too often the talk about preparing our students to practice law really means preparing them to be profitable for firms in the first few years, rather than giving them a foundation for their entire careers.

Posted by: Jennifer Hendricks | Jul 10, 2009 2:23:26 PM

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