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Friday, November 13, 2009

The "Death of 'Big Law School'"?

"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model."  I'm confident that this suggestion is correct.  And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter :  "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful."  Again -- maybe so.

A friend passed this prediction along to me, noting that this change "has been a long time coming," and here's what I wrote back:

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though -- what I was trying to express in my note to my friend -- is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.  It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer.  The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt.  I'm pretty sure, though, it's not because students have been reading too much Rawls.  (Well, maybe it is.  But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas.  =-)  ). 


Posted by Rick Garnett on November 13, 2009 at 03:04 PM in Life of Law Schools | Permalink


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Nobody knows that 10 years from now looks like. That was true 10 years from now, and will be true 10 years from now.

The scope of concepts mastered in law school will either enable or limit a law career. Yes, there are people who make a lot of money doing one thing. But most lawyers will benefit from having as broad and interdisciplinary a scope of practice as possible. For most of us, we will be asked to adjust or change significantly during the course of a career. The market changes.

But law practice will not give you areas of basic skills. I can speak as an intellectual property attorney. If I had not gotten conflict of law, federal income taxation, securities, sales, federal jurisdiction, jurisprudence and other areas covered in law school it would never have happened. Each and every one of those things has been useful in 10 years. And in almost all of those cases as an associate, I got some work that someone else did not because of the broad background.

I can instruct an associate to draft interrogatories in half-an-hour, and if the associate is intelligent comes back to me 2-3 times before he finishes, he will have learned the basics completely. Try that with one of those topics above.

For mastering what you will do in practice, the best advice I was given was "earn while you learn."

Posted by: Erik | Nov 20, 2009 1:45:19 PM

Didn't see anon's post about being in practice for twenty years when I pointed out the background of most law teachers. Am glad to see someone recognizes your value; good luck!

Posted by: sparky | Nov 18, 2009 12:48:16 PM

I would add one other point: for a lawyer or law student to understand the value of the legal system that student must see the law from the perspective of non-lawyers, not other lawyers. The purpose of law schools is not to produce citizens; it is to produce lawyers. Pretending that law schools--who, after all, are dependent on the very system at issue here--can somehow teach something from outside that system is self-deception at best. Unfortunately the costs of that self-deception are borne by the students not the schools.

Posted by: sparky | Nov 18, 2009 12:45:35 PM

The problem with this post is that it makes the assumption that law teachers are qualified and able to teach a broader view of the law (or the legal system, if you prefer) than they currently do. There is no evidence to support this assumption. Most law teachers don't have any background other than the standard undergraduate/JD/small bit of practice path, and those that do are usually academicians. For law teachers to bring a greater perspective on the practice of law they would have to bring a more informed perspective on the practice itself, and as most people who teach law have never handled the more grinding aspects of legal practice (except perhaps in the context of clinical or non-profits), there is no reason to think they are able to bring a broader perspective to law teaching. It may well be that law students could benefit from a broader perspective of law in society, but arguing that law teachers are the people to bring this about is perilously close to disingenuous. I might add that it's part of the reason law schools are held in such disesteem.

Posted by: sparky | Nov 18, 2009 12:41:31 PM

If business schools had been able to teach ethics and responsibility, no one would be calling for law schools to stop teaching anything but how to draft interrogatories . . .

Posted by: bill | Nov 17, 2009 9:05:18 PM

Rick, this is a post for the ages. Your call for a more humane discipline, and for lawyer-citizen-leaders, is right on. Indeed, the increasing absence in legal practice the aspirations you invoke, I suspect, is a significant part of what ails the modern lawyer, and may well have heightened the severity of the job market crash. Law schools must of course prepare students for legal practice. But they must also offer at least the ethical and intellectual rudiments of a countervailing consciousness -- so that young lawyers have the capacity to resist the unfortunate pressures and tendencies that exist in law practice today, and even use their training to build a better world.

Posted by: Vladimir | Nov 17, 2009 3:17:44 PM

Professors Garnett and Horwitz,

I am sure that you "care." My mom "cares" too. But she's not charing me a lot of money and simultaneously deciding what I can purchase with that money.

Posted by: i care too | Nov 14, 2009 6:24:56 PM

This is a timely question given that law teaching applicants are right now learning about whether they have callbacks (I'm included, and have two). Law professors, in my opinion, have an ethical duty to help students become marketable in this new and confusing economy. Rick's point, it seems to me, is that we need to teach students how doctrine, theory and practice can be integrated, so that a student entering the market can market her/himself as a fully developed member of the profession. I have always thought being a good lawyer (I've been in practice, or teaching it, for close to 20 years) requires learning how to exercise professional judgement. Law school should be where development of professional identify, and thus professional judgment, is nurtured, not squelched.

Posted by: anon | Nov 14, 2009 2:20:45 PM

I'd like to point out an excluded middle that probably causes more problems than anything else.

It's not BigLawSchool. It's not BigLaw. It's the ineptness of the organizations between the two steps that causes immense difficulty: BigBarAdmissions. The bar exam is worthless; any "entrance exam" with as high a proportion of arguably incorrect model answers -- or "correct" answers on the multiple-choice forms -- isn't a worthwhile measuring instrument. The "character and fitness" portion of the application does nothing. The various "must have a local office" rules are at least as far removed from reality as any aspect of the business model of BigLaw so decried by BigLaw's critics. The regulators provide virtually no assistance to new applicants that is not accompanied by a demand for more fees. And, conversely, the regulators do their very best to discourage any "public service" orientation outside of criminal law.

That's just the beginning.

If the profession is going to change -- if there's one constant in this society, it is that institutions and systems that don't change die, and in an increasingly short time -- then the very regulatory and admissions model must change. And that's before we get to the problems with the so-called "ethics rules"... which, IMNSHO, set far too low a standard for a profession, but an unachievably high bar for a business.

One cannot change BigLaw in a vacuum, nor BigLawSchool. Even changing both of them is insufficient if BigBarAdmissions doesn't change along with them.

Posted by: C.E. Petit | Nov 14, 2009 12:14:48 PM

It is really nice reading your post. One more thing I want to add, there should be some combination between theories and practical. So, they will more well-prepared for the workfield. I agree about the curriculum should be more interdisciplinary, so they have broader view and knowledge, how to applied it in the society. How to File Bankruptcy

Posted by: John | Nov 14, 2009 5:49:38 AM

Paul responded to the "do you care?" question better than I could have, so I'll just say -- hoping that it's not necessary to say -- "yes, of course I do!" It's precisely because I actually care about my students as persons, and about my profession as a vocation, that I don't want to go gently into the WSJ's "c'mon, pin-heads, just train technicians!" good-night.

Posted by: Rick Garnett | Nov 13, 2009 5:44:59 PM

I am of two minds. Being a student who was (perhaps fairly, perhaps not) in the "bottom 80%" of my class, I am certainly concerned about my ability to move forward in my career. However, I'm also aware that no one owes me a job, more's the pity, and so I do agree that the answer has to be to prepare those NOT going into a traditional law practice (a firm with a mentor, that is) better than law schools currently do. That way, students can solo right out of law school, and can be confident that they won't commit malpractice.

In addition, "hyperrational and self-interested" sounds like a recipe for either disbarment in the justification of unethical conduct, or paralysis in the effort to analyze whether the costs of potentially unethical conduct outweigh the benefits. Either way, UVA 2L represents the old model, which those of us with an interest in professional distributive justice can only hope is on its way out.

Posted by: Matthew Reid Krell | Nov 13, 2009 4:44:34 PM

Can I offer another response to the question raised by the first commenter? Of course Rick cares, and so do I. Rick hasn't said that good practical teaching (not to mention sound job-hunting advice) shouldn't be a significant part of the law school diet; he hasn't even said whether he thinks there ought to be more or fewer law schools out there. He has just said, as I read him, that lawyers, both in their immediate practices and in their broader capacity as citizens, can and should draw on a wider set of resources that includes both nuts-and-bolts skills and the ability to think deeply about any problem. Without denying the vast importance of practical skills, that seems right to me; problems can be big or small, but clients aren't, and all manner of clients benefit from a lawyer who can innovate when necessary and discern between legal problems that really do just call for routine solutions and those that might lead to better results for the client if the lawyer applies some extra imagination. He has also suggested, I think rightly, that if there is a problem with either the profession or legal education, it can't be reduced to "more Rawls" or "less Rawls." I think one can still argue very meaningfully about the need for more practical problem-solving skills in legal education without it turning on the *breadth* of learning that should be imparted in law school. We emphatically should worry about the 80 percent of students at most schools who do not find easy and automatic routes into big law firms, and that concern should express itself at a variety of levels: reform of legal education, reform of career counseling, and even the number of lawyers we produce. Certainly all law schools should not just ape what a few law schools at the top do. But, having taught at a variety of "levels" of law schools with various post-graduation employment statistics and teaching practices, I don't think any law student at any level should be deprived of the opportunity to learn both how to think outside the box as a lawyer, and to "live greatly in the law," in Holmes's words, as an intellectual matter; the ability to do both of these things has been a hallmark of many graduates of non-elite law schools who have managed to achieve great success in the law and often alter the profession as a whole considerably.

Posted by: Paul Horwitz | Nov 13, 2009 4:27:13 PM

I think the problem with law schools, is that they think of themselves as training lawyers. Schools, and the ABA generally, should work hard to sell the JD as a degree that one can do more with. As it stands now, JD is practically worthless outside of the law. If and when non-law firms start hiring JDs right out of school, that's when the institution would have made progress.

Posted by: anon dud | Nov 13, 2009 4:11:45 PM

"Do any of you people care about the bottom 80% of your students being able to work?"

In response to that question, frankly, no--I don't give a crap. But that's because I am hyperrational and self-interested, to the extent we can agree that such a combination descriptively exists, and I'm not currently in the business of formulating policy and curriculum for law schools, and I'm also not in the bottom 80%. So perhaps I'm the wrong person at the wrong time in the wrong life circumstances to ask. If I've decided to try to break into academia in five years, I'll probably have a very different view. Same applies if I've stuck with private practice.

Posted by: UVA 2L | Nov 13, 2009 4:10:41 PM

Do any of you people care about the bottom 80% of your students being able to work?

Posted by: Anonymous Frustrated Lawyer | Nov 13, 2009 3:39:50 PM

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