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Thursday, August 11, 2011

I Am LawProf

Actually, I'm not.  But there are similarities.  LawProf, the anonymous author of a blog called Inside the Law School Scam, purports to be a mid-career, tenured professor at a top-tier law school.  According to this article, which says the reporter confirmed that LawProf is who he says he is, he teaches at a well-regarded but not top-10 law school, is active in publication and service, and has taught at four law schools.  Pretty similar so far.  But I've taught at five law schools, didn't graduate from an American high school, and seem to have graduated a few years after this person.  

Also, I don't write anonymously.  (With one exception: I've written one cracking good humor piece, which I published anonymously in a journal, primarily because I wrote it mostly as a diversion from more serious work and didn't want to yoke my identity to humor writing, and partly because I didn't want to feel as if I was feuding with the scholars I gently made fun of.)  LawProf says he writes anonymously because he feels he would face repercussions if he wrote under his own name, and also because he feels he can be more honest that way.  Unlike some of my online colleagues, I don't necessarily have a problem with anonymous writing (see this piece), and I will assume that LawProf really does feel that he can write more honestly this way.  But it seems to me that tenure is a reward for showing that you will write the truth as you see it despite possible repercussions (in theory, at least; obviously, we're all human, and I'm convinced that too many scholars truckle to others for various reasons), and LawProf doesn't measure up splendidly according to that standard.  Again, we're all human; but he doesn't.  More important, the kind of honesty that anonymity allows can sometimes lack a deeper level of integrity: that is, it can pride itself on its brutal frankness without exhibiting the kind of humility, care, self-doubt, and acknowledgment that one might be wrong that comprises full honesty, the kind of honesty we are often constrained to engage in when we attach our reputations to what we say.  Based on the name of the blog and what he's written so far, I'm not sure how LawProf measures up according to this standard either.

So, given our similar backgrounds, do I reach the same conclusions that LawProf does: that law school is a "scam" perpertrated by law professors, that they are "absurdly" overpaid for doing "almost no real work," that the academic rather than practice background of many professors "guarantees that most of your classes will be a complete waste of time," that professors don't prepare for classes but probably wouldn't benefit students any even if they did, that we should have fewer legal clinics, that full-time legal academics should have much smaller legal salaries, and much more?

No and yes, and probably more no than yes.  To state the obvious truth -- one so obvious that I know no law professors who don't acknowledge it, despite the usual official defenses -- there are plenty of good grounds for criticizing legal education.  (That there always have been good grounds, and that there are always good reasons to criticize any institution, educational or otherwise, is true but beside the point, except to the extent that it might take the edge off the hysteria and help us see ourselves as engaging in ongoing and useful reform instead of applauding ourselves for being "whistle-blowers" who are revealing some unseen conspiracy.)  The kind of writing LawProf is engaging in from behind the veil of anonymity has lots of foundation in fact, and just as much exaggeration.  That means it puts some genuine and important problems in high relief, but also distorts the overall picture.  

I have generally enjoyed Brian Tamanaha's useful posts on problems with legal education.  I've written -- under my own name, and without apparent repercussions -- about problems with the gatekeeping function of law schools and legal scholars, and about the pretensions of legal scholarship to more authority and expertise than it can rightly claim.  I've written both for student-run journals and peer-reviewed journals, and performed peer reviews for university presses and journals.  And I have, as LawProf seems to as well, argued that adjuncts with practice experience are a crucial but often undernoticed part of law school teaching, and that we ought to see their value more clearly and pay more attention to them.  Although I think the economic downturn continues to drive much of the current panic over the state of legal education in ways that can be both good (in that it spurs valuable reforms) and bad (in that it leads us to think nothing has ever been this bad and to overdo the apocalyptic rhetoric about how all this must change, especially because if the economy improves we may end up quiescent rather than dedicated to continuing self-monoriting and reform), I certainly see the value in long-term reform.  If LawProf has useful and constructive, as opposed to merely alarmist and bludgeoning, things to say about reforming legal education, then so much the better.

But will he?  I don't know yet.  As I said, the problem with the kind of rhetorical overkill and murder-by-anecdote that LawProf's anonymity encourages is that it ends up blaming everyone (e.g., virtually no professors prepare for class, a claim that seems quite untrue to me) and no one (e.g., LawProf goes on to say that no professors actually intend to "scam" their students, so that no one and everyone is culpable); proposing sweeping changes without really considering whether those changes will be truly useful or merely dramatic (reducing law professor salaries may be a cosmetically useful statement, but is it actually relevant to the general cause of structural reform?  Isn't the problem lock-step tenure and relatively lock-step salaries rather than high salaries themselves?); and so on.  The question, to me, is whether we can think about and effect real reforms and think carefully about what we do well and poorly(and I do think there are some things we do well, even now), and whether we can do so in a way that not only responds in a reactionary fashion to the current moment, but institutionalizes an ongoing process of experimentation and examination -- or whether we're going to limit ourselves to sound and fury.  For all the talk about how we are so badly off right now that the legal profession and the legal academy must either change or cease to exist, my suspicion is that even a slight economic uptick will lead us back to being comfortable with roughly where we are right now.  That's a downside of revolutionary rhetoric: it subsides easily, and is just as likely to lead to nothing in particular as to something concrete.

My own experience, at a variety of high- and low-ranked schools, is that most law teachers actually do work hard at teaching and many are quite good at it, despite the obvious existence of some bad teachers.  It also suggests to me that many legal scholars work hard at their scholarship, although whether that scholarship has value is a different question, and whether all legal scholarship needs to have the same value (I don't think it does) is yet another question.  I think lower teaching loads have helped those who are serious scholars a great deal, although those people would produce no matter what.  I do think there are some scholars (but not all!) who clearly produce so little and of so little worth that one must shudder, wonder at how their time is spent, and think more carefully about the tenure process.  (I should note that some of these people are excellent and dedicated teachers; but one shouldn't universalize there either, and even if these individuals fully deserve their tenure, it's not clear to me that they should have reduced teaching loads.)  And I think that we ought to fully recognize how integral adjuncts are to legal education -- while resisting the urge to think of them as "the" solution to the "problem" of full-time legal scholars, rather than thinking of both adjuncts and full-time scholars as part of a total mix.  (I think clinics are a part of that mix, too, so I don't agree with LawProf on the general view that we should kill off legal clinics as such.)  I'm struck by just how hard-hit today's law students are on the job market, and feel a strong sense of responsibility to them -- without thinking either that it means I ought to stop being a legal scholar, or that there are no costs to viewing law schools as providing trade education and treating law students only as "consumers."  

I like Tamanaha's posts because I think they are hard-hitting and concrete, even when I don't agree with some of his universalizing tendencies or with all of his specific suggestions for reform.  But I like them most when, and because, they tell it like it is, without concern for how bad it makes law schools look, and think hard about what to do about it, without dismissing scholarship altogether -- Tamahana himself is a prolific and presumably well-paid scholar, who writes on fairly non-practical topics -- or engaging in easy alarmism.  We absolutely need to have those discussions.  If LawProf adds to them, again, so much the better.  But, with all respect to his well-earned frustrations and his good intentions, I see his anonymity, and some of the heat of his writing and his self-description as a "whistle-blower," as more of a distraction than a concrete contribution that can be made a part of a long-term institutional process.     

Posted by Paul Horwitz on August 11, 2011 at 12:38 PM in Paul Horwitz | Permalink


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I'm not sure why this you profs aren't getting it. I'm not trying to get personal, so I'm just going to explain to you how non-T14 law schools (and even some T14 nowadays) look from the outside.

1. Naive early 20's kids with liberal arts degrees and little concept of the real world go to law school. They are lured in by borderline fraudulent employment statistics.
2. Having been told all their lives that "education is priceless" and having almost no financial experience they borrow six figure sums for school (which has risen in cost faster than inflation for decades).
3. They work themselves to the bone, giving up a good part of their youth for the prospect to join the profession which they have been told is necessary, noble, and valued.
4. A lucky few get into BigLaw and are able to pay their debts. (Albeit while working in miserable conditions and usually being discarded after a few years.)
5. The rest scramble to get a job with a starting salary that is a small fraction of what they owe.
6. They don't pay their debts on time and so penalty fees and interest pile up. Their credit is ruined forever as these debts (unlike virtually all others) cannot be discharged in bankruptcy. They can't buy houses, cars, rent a decent apartment, or ever have a family. They are basically lifelong failures at the age of 26. (There are a few ways out, but they are pretty drastic).
7. Their loans, being guaranteed by the government, are paid for by the taxpayers, who have just paid gobs of money for basically nothing. (This even happens with IBR.)
8. Law Professors live an upper middle class lifestyles built on the misery of their former students and the fleecing of the American taxpayer. (Some people in Administration live just as well, so I guess you guys aren't the only ones). Their work in the meantime is neither practically useful nor theoretically groundbreaking (according to LawProf).

If something else is going on here you'd better speak up with something better than this posting's attempt to muddy the waters. It just looks like evasion. At best you look like the Mafia Wives of Academia, looking the other way while the administration hurts people for your money. You are far along in the process of creating a generation that is incredibly cynical and will try to smash your ivory tower if they get the chance.

Since you seem to very much be interested in the circumstances of those who criticize you I'll give you a picture. Basically I went a top 50 LS and realized I didn't want to be a lawyer. I dropped out after 1L. It was the best decision I ever made. When I see some of my former classmates I get something like survivor's guilt as I have an okay job and a manageable debt load. One of my former classmates told me that his life was just a miserable wait to die. I'm not sure you truly grasp the desperation of some of your former students.

Posted by: Jack White | Aug 12, 2011 11:53:26 PM

"We are bringing these lawsuits because thousands of young lawyers, like the plaintiffs, struggle to purchase a home, raise a family and make investments because they leveraged their future to a law school based on inaccurate information," said Jesse Strauss, a partner at Kurzon Strauss representing the plaintiffs. "It is time for the legal academy to own up to this problem."

I think that captures it. A lot of students want the legal academy to acknowledge that there's a big problem, that without access to jobs people's lives are being harmed by the non-dischargable debt. I know it's hard to admit that what one's devoted his or her professional life harms other people, but legal education is harming people. It doesn't have to, reform is possible, but we need to do something.

Posted by: David Conrad | Aug 12, 2011 9:47:18 PM

"Student." I'm glad you asked. The answer is "when I talked with one earlier this week & made calls to try to get him a job."

Now, Dan, can you stop the march of the trolls?

Posted by: dave hoffman | Aug 12, 2011 9:43:15 PM

"And it's not obvious to me why Prawfs would encourage them to do so at Paul's expense."

Empathy is a wonderful thing and I too feel bad for Paul, but when is the last time any of you felt empathy for your un/underemployed, debt ridden and distraught former students?

Posted by: Student | Aug 12, 2011 9:35:58 PM

Wouldn't now be a good time to either a) cut off the discussion, or b) out abusive commentators?

It's a mistake, I think, to engage with anonymous commentators. You think that they are susceptible to the kind reasoned arguments that Paul started with. But they aren't. They are here to vent. And it's not obvious to me why Prawfs would encourage them to do so at Paul's expense.

Posted by: dave hoffman | Aug 12, 2011 9:14:08 PM

This is a very interesting and riveting debate and I love the internet because this kind of interaction is not possible without it. You have professors, grads, and lay people from all over the world sharing their thoughts and opinions.

However, I simply do not understand why law schools can't release honest career placement numbers. As Mr. Harrison says above, once that problem is rectified the rest will take care of itself. http://www.lawschooltransparency.com/ has a system that perfectly resolves the issue, so why won't *any* schools comply with it? If I were an honest school I would rush to comply with LST. Instead, law schools have contrived every excuse not to comply. Further, law schools fought the ABA's meager and ultimately ineffective disclosure improvements and now they are colluding with the NALP to derail any changes to the ABA rules.

You know why? Because they know that once they tell the truth about what happens to their graduates, they won't get the same enrollment, there will be less revenue to pay professor and administrative salaries, and many of you will lose your jobs.

And that's why you are scammers: because you choose to make money by lying.

Posted by: Student | Aug 12, 2011 9:06:21 PM

My impression is that lawprof has two complaints. One is that law schools scam students. The other is that professors do not deserve their salaries based on what they do. I think he sees these as connected and that's the part I do not understand. If law schools are honest about their employment numbers, salaries and bar passage rates, the problem will sort out just as it did with the excess of Ph.D.s in the 1970s. If accurate information means applications fall, schools will hire fewer new professors and pay them less. It will take 10-15 years but I think this is a demand side problem and not a supply side problem. The fly in the ointment is public subsidization of legal education. It shields students from the full cost of what they are buying and as a consequence, they demand too much. The gradual privatization of legal education will eventually take care of this too.

Posted by: Jeff Harrison | Aug 12, 2011 7:59:04 PM

I agree it's a big deal, and I understand that graduates who are having difficulties do not want to be, and should not be, abandoned. I asked in my first post if it would make a real difference if law professors taught 6 classes instead of four or took pay cuts? So, tuition goes down from 46k to 30k. That's still a lot of money in the end. I don't think any administration would be able to wring enough out of faculty salaries to take tuition back to 20K. But if there are no jobs, or no well-paying jobs, there would still be problems if they did. How does haranguing law professors solve them? What is going on with law schools is going on in higher education in general. PhD's in many areas can't get jobs. History is opening up a bit, depending upon one's specialty. Of course the better students get funded. But even then, they may spend 8 years or more out of permanent employment, resulting in lost opportunity costs. The public has decided to disinvest in state universities that once provided a good alternative to people who could not afford private schools. That's a choice that taxpayers have made. Changing that would require making the case for strong and well- funded public universities like we used to have in some states. I do not think anything will change until prospective students think long and hard about whether they really want to go to law school. The pros and cons are all over the Internet and, have been for years now.

Posted by: JMH | Aug 12, 2011 5:23:16 PM


A fraudulent business scheme; a swindle.

It's only a scam if there is a victim.

The powerful clients who pay Big Firm Lawyers are not victims. Clients can walk to the next, cheaper, firm if they want. There are plenty firms vying for the clients dollar, at all price points.

A 22 year old who does not understand the implications of 130K in student debt for scant job prospects becomes a 25 year old victim. Professors just let the checks keep rolling in, never asking where all the money came from.

Posted by: tom joad | Aug 12, 2011 5:09:45 PM

Tom, it sounds to me like you're not concerned if lawyers scam clients, but you think it's outrageous if law students are misled into thinking that they can take part in the scam.

Posted by: Orin Kerr | Aug 12, 2011 4:55:15 PM

I don't know the solution. I don't know what law professors can do about it. Writing about it probably helps. Are law professors powerless to influence the administration at their respective law schools?

I think it mostly depends on just how big of a problem you see this to be. To the jobless, indebted, humiliated law school grads, this seems like a HUGE problem. It consumes us, our every minute of every day. Our lives are defined by it. And we want to see it treated by others in the industry as a problem that consumes them too. But it doesn't. It doesn't consume the succesful graduates, it doesn't consume the law schools. And it doesn't consume the law professors. They might say a word or two about it in a blog post here and there, but most just continue their normal activities. We want it to consume them. We think that if they could feel what it is like to be us, maybe it would. Of course they can't.

If this were the sort of problem that did consume them, I think they could do something about it. It would probably require dramatic action and maybe it would be against their interests, but certainly they have the power and influence to do something, especially if they acted collectively. I'm not aware of any sort of "movement" out there to organize law professors to protest or take any action.

I think that for the people who have already graduated, whose careers really can't be saved, this is the issue. We have nothing, so at a minimum, we want to see that people care about what has happened to us. That people feel bad. Anything. RG wants you to care about what happened to him because its really really big deal.

Posted by: SP | Aug 12, 2011 4:34:56 PM

Orin, frankly, I don't give a damn. I don't cry for the multinational corporations that pay Big Law bills so Big Law firms can pay Big Law salaries. The free market works great for the phenomenally wealthy.

Further, the Big Law / Professor dichotomy is a false one for a few reasons. Here are the two I have the time to type. First, a tiny percentage of the tens of thousands of law students that graduate each year make 160K out of the box. It's like getting into the NBA. Most of us are just going to have to be satisfied with pick up games at the court with a milk crate basket. But law school marketing sells the NBA dream to every person over 5'10", for a soul crushing price . . . that you will only understand much later.

Second, law professors income is derived largely from the debt of their students. In contrast, Big Law firms pay salaries based on how much they can bill clients. There are no federally guaranteed loans offered to clients to pay big law legal bills.

As a personal note, I am out 5 years and don't make anywhere near 160K. I won't buy a house. I won't have children (if I am financially responsible). My finances are all aimed toward feeding the debt that paid my professors.

Posted by: tom joad | Aug 12, 2011 4:16:06 PM

@SP What specific things, beyond writing blog posts, should law professors do to help the situation? I'm not being facetious. What is the solution?

Posted by: JMH | Aug 12, 2011 4:12:59 PM

Tom, if you oppose high law professor salaries, do you also oppose high law firm salaries? Law firms can pay 25-year-olds $160,000 plus a bonus because they bill out their work at hundreds of dollars per hour. Is that also a scam, in your view? Or do you think lawyers are worth every penny?

Posted by: Orin Kerr | Aug 12, 2011 3:36:22 PM

RG's comments are being left up only because of the subsequent helpful responses but his IP address ( has been banned from the site. FYI, those who make similarly outrageous accusations should know they enjoy no privacy on this website (whatever Paul's particular views may be to the contrary). It's a shame I have to interrupt my vacation to join in the chorus denouncing such idiocy (or exalting Paul) but there it is. There will be no mercy for such comments here.

Posted by: Dan Markel | Aug 12, 2011 3:29:31 PM

The blame is now shifting to law professors, but it wasn't always. Most graduates leave law school with a positive view of their professors and the bitterness only comes some years later when the reality of the situation sets in. The biggest gripe with the professors is not that they caused the problem, but that they do nothing to help correct it. Many won't acknowledge that a problem exists.

Posted by: SP | Aug 12, 2011 2:54:32 PM

I respect to your intelligence and your honesty Prof. Horwitz, but I think you miss the point entirely.

When a law professor sits down to a meal, how much of the food on his or her plate is paid for by the non-dischargeable debt of those ruined by law school?

Some of that debt is mine. I owe my soul to the company store. Law professors run the company.

Posted by: tom joad | Aug 12, 2011 2:35:39 PM

I think that LawProf is saying something slightly different than what a lot of people are attributing to him. He's not fully in bed with the 'law school is insufficiently practical' folks. Rather he says that law school is neither fish nor fowl. We neither give our students a truly academic (grad school like) experience, nor do we seriously engage questions of practice. Instead we privilege the teaching of doctrine and 'legal analysis' - both of which are interesting as far as they go, but they only go so far. He doesn't argue that law profs don't work or care about their teaching. He says that doctrinal courses are, after a few years, really easy to teach marginally well. And that students get little out of those classes - not because their teachers underprepare, but because the format of the classes offers little value. Of course there are exceptions. True scholars who engage their students on hard theoretical questions. Fantastic clinics and people who think deeply about lawyering - and allow their students to do likewise. But most of law school is decidedly middlebrow. Meanwhile, students are paying an arm and a leg, and many of them are not getting jobs. It's a problem.

Posted by: Kristen | Aug 12, 2011 2:24:59 PM

The anonymity debate is a bit of a red herring. Disclosing LawProf's name would limit the debate to scrutinizing the faculty of whatever school he is currently teaching at. That's not the point. LawProf's claims are an indictment of law school faculty everywhere.

If you really want to make his anonymity look weak, maybe a good place to start would be some evidence you submit under your name that actually answer his claims. Are you teaching fewer classes than you used to be? Is your scholarship helpful to judges and practitioners, or is it esoteric (albeit interesting) discussion of abstract theory? What exactly have you, or the other faculty at your school, done to help the jobless graduates that you've been graduating for the past three years?

Law professors are an extremely bright bunch, but in my experience they don't have a good handle on how dire the financial situation is for their students/customers. Don't criticize LawProf for his anonymity. I'm sure his identity will come out eventually. But he is adding things to the debate that no one else has said and that no student has had access to.

Posted by: paean | Aug 12, 2011 1:55:29 PM

I will second everything that Kelly said - and perhaps by virtue of not being Paul's spouse, my endorsement of those points won't be subject to that old, tired, stupid objection that "of COURSE he's a hero to his own spouse!"

Paul, even though you have not always "been there" in the way I would have liked - I'm sure you can remember times I asked you for something and you had to say no - I respect the fact that your highest value is truth, regardless of its consequences; but that truth is not worth treating other people like things.

RG may have initially had a point - I'm not sure that LawProf is a "hero," but I do agree that there are times when contemplation must be set aside and direct action taken (see, e.g., Wisconsin, Ohio, and Indiana this winter). But if all you're going to do is wank on the Internet (which, let's face it, that's what we're doing here), then you have a responsibility to do so in a way that your mother would be proud of.

Paul, I think (although I don't know - maybe your mother is a dip-chawin', chain-smokin', curse-spewin' redneck from the Tar Sands) that you have met that standard.

Posted by: Matthew Reid Krell | Aug 12, 2011 1:51:55 PM

I don't understand why there's discussion of whether this anonymous lawprof blogger is seeking, through anonymity, to avoid pecuniary consequences. Surely that's not what's at stake for the blogger, is it? He's blogging anonymously because he wants to avoid the reputational/social injury he'll suffer when (and I'm sure it is a when, not an if) his identity is disclosed -- and by reputational/social injury, I don't mean among debt-laden law students and unemployed young lawyers (of whom I assume the very angry and miserable RG is one), for whom he will be something of a hero. I mean among the rest of us lawprofs, most of whom will treat him as a pariah for the rest of his career. (And maybe he deserves that; I'm not saying anything about desert. I'm just saying that fear of losing money is probably not what his anonymity is about.) (And by the way, if RG's identity is disclosed, he (and I'm confident it's a "he") WILL deserve pariah treatment.)

Posted by: Eric Muller | Aug 12, 2011 1:16:19 PM

I'll acknowledge up front that responding to hostile internet posters is a losing proposition, RG, but, like my husband, I despair of the lack of civility that accompanies the anonymity of the internet. You can like his ideas and methods of analysis or not, but ad hominem attacks from the comfort of your armchair on a person you've never met serves no purpose other than to vent your spleen and debase you.

He will never address the question about whether he is a hero both because he thinks it is silly and irrelevant, but also because he is one of the most humble and fair people I've ever met.

I am happy to lay waste to your assumptions. Not only has he practiced law, but he's done so successfully in two countries. As for heroics, I have a long list of them. He's had more surgeries than most residents of a nursing home at less than half their age and lives with a degree of chronic pain that no human being should have to face. I've seen him head off to teach barely able to stand or walk. And he does it all without complaint.

Being able to endure that degree of suffering, however, is not what makes him a hero to me. It's that he's taken his own experience and cultivated a degree of respect and empathy for others that is sorely lacking in this world - your post being Exhibit A for this proposition.

If you are intent on continuing this discussion, show some courage of your own and pick up the phone to say directly to him the things that you so easily will post on the internet. I think if you actually took the time to talk to him, you would finally see him as the fine human being that he is, notwithstanding your philosophical disagreements.

Posted by: Kelly Horwitz | Aug 12, 2011 12:42:11 PM

"Have you ever had to figure out how to get enough work to pay your rent, car payment, massive student loan bills, medical insurance and living expenses?"

For me, the answer is a resounding "yes." When I completed my Bachelors in liberal arts. My student loans at the time were not huge, but isn't that relative? They were subject to high interest rates, and the outstanding balance was just around the range of the salary I was hoping to obtain in my job search. I searched and searched, in vain, and had to take two jobs (a full-time temping job during the day, and a part-time retail job in the evenings/weekends).

This is why, when I went to law school a couple of years later, I set a budget that was extraordinarily frugal. I went to the absolute cheapest school I could get into (rank notwithstanding). I lived in a tiny, furnished room. I didn't buy clothing, eat at restaurants or take trips during my law school tenure (even missing a few relatives' weddings). I understood myself to be unemployed, a full-time student, with no money coming in. I did not see myself as somebody with student loan "income" with a guarantee of a very high salary at graduation. I came out with debt, but it was modest and I have not had any trouble repaying it.

Maybe law school should move in the direction of MBA's, and only accept students who have been out in the working world for a few years. This would give them a sense of employment obstacles, and that there are simply no guarantees. That said, having been through the process of scanning the want ads for jobs and having only a liberal arts degree, I can attest that a JD still puts a person in a far better position. Exactly how much is that worth? That's something that each student individually needs to decide.

Posted by: anon | Aug 12, 2011 12:41:15 PM

Wow, the personal attacks on here are getting a bit much. In fact, Paul *has* practiced law and did so not only sufficiently to save his life but remarkably well--so well that the partners at the law firm at which I was a junior associate recommended that I work with him so that I could learn how to be an excellent practitioner that did good work for clients paying absurd amounts of money for his/the firm's work.

Posted by: Pam | Aug 12, 2011 12:27:43 PM

Larry, I understand that. My central point is that the binary distinctions between theory and practice aren't what I perceive you (I don't debate anonymous writers like LawProf) to have been arguing in your piece. That's because I spend a lot of my theoretical time thinking about the theory of theory. (It's a sickness, I know.)

I suspect we vehemently agree on what most law schools should look like in reality - that professors need to be committed both to the professional training of their students as well as to the kind of theoretical pursuit that advances their academic careers. Indeed, in my not-so-successful run at a "top 70" school deanship, that was my message, and I think I stayed on it, even if it didn't necessarily resonate. It's simply unrealistic at this point for practitioners to expect a revolution in legal academia - the die is cast in the moderate long term - but it is reasonable for professors to understand that their relatively high pay and opportunity for theoretical reflection comes with a cost, and that is the obligation to be a professional school instructor as well. No doubt there are schools in which that "compromise" can't and won't occur - Yale's mission and Charleston's mission are not the same. But for the vast majority of schools outside the T14 (or whatever the right phrase is for them), there has to be an accommodation between academics and practitioners that involves each side understanding what are the other's "gotta haves."

Posted by: Jeff Lipshaw | Aug 12, 2011 12:13:21 PM

Jeff, The law school scam debate has nothing to do with law professors teach. It has to do with how much they get paid to teach, and where that money comes from. They get paid too much, and that money comes by using misleading job placement numbers to trick students into taking out student loans. If you want to teach ethics and the right thing that's fine, but do it at a salary your students can afford.

Posted by: RG | Aug 12, 2011 12:00:27 PM

"Finally, as to the comment that asks, "When have you ever risked pecuniary value to do the right thing?'" I assume the "you" here means me, although the pronoun is unclear -- because, of me, LawProf, RG, and anon, I am *the only one using his actual name.* That doesn't make me a hero. I find it hard to call tenured professors at good schools who write under their own name heroic; I call it doing their job. But it makes the claims that LawProf is a hero and I am not frankly bizarre. "

With all due respect, you didn't answer the poster's question. LawProf has risked his successful, cush and lucrative career as a law professor to do the right thing.

When you have ever risked pecuniary value to do the right thing? The only reason you want him outed (and he will be outed soon enough as he himself foresees) is so you can find better ways to attack him and keep your scam going.

Paul, have you ever even practiced law? Have you ever had to figure out how to get enough work to pay your rent, car payment, massive student loan bills, medical insurance and living expenses? Have you ever had to deal with difficult clients? Have you ever had to rent office space? Have you ever had to call temporary agencies in the vain hope of getting $25/hour document review work, so that you can pay off the loans that were used to pay some lazy asshole of a professor's salary? No. You couldn't practice law if your life depended on it. Yet you gladly accept an enormous salary to teach others how to do it (and excuse me for humoring the belief that law schools teach you how to be a lawyer.)

Tell you what Paul. Rather than mentally masturbating with your law review articles, this blog and other nonsense - all of which is funded by your students' debt slavery - why don't you actually go into the legal job market and try to get a job?

Posted by: RG | Aug 12, 2011 11:53:11 AM


We ought at least try to understand each other, no? I fear you are attacking a position that neither I nor LawProf has taken.

As far as I can tell, no one is advocating "teaching nothing more than practical skills" or focusing only on the "is" and not the "ought" of the law. The question is whether we are at the right place on what we should all agree is a continuum in preprofessional education. A lawyer proficient in no more than the "ought" of the law will do his client an enormous disservice -- one example being John Yoo, who may or may not have been adept at the "ought" of the law, but not so much on the "is". Clients, however, must deal with the law as it is, not as we might like it to be. No one that I can see is arguing to ban theory from law school, but there are not too many clients ought there looking to hire lawyers who have developed an attractive normative theory of law and are willing to share it for a nice hourly fee. Carnegie was quite right to focus on the professional judgment in mediating between "is" and "ought" that is essential for lawyers. The rise of the theoretician may have produced a professiorate that has taken matters too far toward one end of the continuum, to the detriment of their students.

Posted by: Larry Rosenthal | Aug 12, 2011 11:40:33 AM

For the record, Paul Horwitz is a hero to *me.* It would be easy and popular to play to the student anger and just repeat everything the students are saying, whether it is right or wrong. But Paul instead has the integrity to break down the issues and offer his honest and careful opinion in his own name regardless of the consequences. He might still be a scoundrel, but not for his posts here.

Posted by: I am not Orin Kerr | Aug 12, 2011 10:18:08 AM

I don't understand what is being accomplished by distinguishing scientific cause and legal cause. Of course they are different. They exist to do different but, I think, equally important work. There is nothing inherently wrong with what practical lawyers do. For purposes of the argument about the problems with law school, it is possible to determine that there are people ( who do make up systems and institutions after all) bear some responsibility for the things that are wrong. It may well be that "responsibility/fault" is shared along a continuum. But without making an assessment of what and where things are going awry, I don't see how any reform can go forward. I agree that it is not about demonizing people, and my comment about camps and Lear jets was not an invitation to do that. It was an observation that the choice of target is often political and predictable in the current state of our culture: teachers at all levels are under attack no matter what the structure of their work and compensation packages.

It is also possible to discuss serious matters in a serious and civil way. It is necessary, I believe. The problem comes in defining civility. For example, I think suggesting that anyone who invites scrutiny of the privileges or behavior of a group or class of people is putting them on a "perp walk" is on par with the person who argues "oh, no, no on, THIS issue (read: MY issue) is the one in which we are excused from civil discourse." That was a bit of descent, too.

Posted by: JMH | Aug 12, 2011 10:07:00 AM

Paul, this is the law school issue in microcosm. One theory that has been expressed here is that there are gods and demons responsible for destroying the lives of thousands of good kids, and damned if the law doesn't provide a practical avenue for making that argument using all those algorithms that Langdell tried to classify scientifically. Our field is thaumatropic (http://en.wikipedia.org/wiki/Thaumatrope) in that it flashes back and forth between, flip-flops, blurs, and merges the descriptive and normative so that without constant reference back to a meta-position, we often don't know whether we are describing or arguing. There's a family resemblance among theorizing, arguing, advocating, pitching, selling, inveighing, and exhorting, and you have seen a good bit of all it in this thread.

And this is the problem with Larry's attempt to demarcate the "is" of the law from the "ought" of the law. You'd like a dispassionate theory of cause and effect - how did we get to our present situation and how do we get out? That's what scholars do. As I've argue in other writing (I'll stop linking to it), scientific cause and effect isn't the same as legal cause and effect, because legal causation imports blame and responsibility (i.e., that there is a god or a demon who's responsible for what happened). "Practical" lawyers argue blame and responsibility: we have a mess, and somebody must be held accountable for it. The only question, it seems to me, is who is the flavor of the month for the metaphoric perp walk - law professors, "business and finance people sending their children to summer camp in Lear jets," Goldman Sachs executives, President Obama, the Tea Party - all of which depends on who the prosecutor is.

Charles Fried had a lovely metaphor for this (Texas L. Rev., approximately 1982) - I don't buy some of its implications, but it says something about the relationship of theory and practice in the law:

"The picture I have, then, is of philosophy proposing an elaborate structure of arguments and considerations which descend from on high but stop some twenty feet above the ground. It is the peculiar task of law to complete this structure of ideals and values, to bring it down to earth; to complete it so that it is seated firmly and concretely and shelters real human beings against the storms of passion and conflict. That last twenty feet may not be the most glamorous part of the building—it is the part where the plumbing and utilities are housed. But it is an indispensable part. The lofty philosophical edifice does not determine what the last twenty feet are, yet if the legal foundation is to support the whole, then ideals and values must constrain, limit, inform, and inspire the foundation—but no more. The law really is an independent, distinct part of the structure of value."

Here's the paradox. Teaching nothing more than practical skills is like training a soldier to use a bazooka without ever instructing on when it's appropriate to use the bazooka. But the minute that we try to determine what constitutes an appropriate use of the bazooka, we're back to the normative argument of what the law ought to be or what ends it ought to pursue. The only PRACTICAL solution, it seems to me, is to focus on the medium rather than the message: accept that we can't agree on the normative things except that one normative will prevail: the discourse will be civil. Except that somebody's always going to argue: oh no, no, no, THIS issue (read: MY issue) is the one in which we are excused from civil discourse. And on and on all the way down.

Posted by: Jeff Lipshaw | Aug 12, 2011 8:23:29 AM

Especially after Larry and Jeff's excellent comments, I had really hoped we might have a productive discussion about reforming legal education, which I said quite clearly is always a valuable thing and has special weight where students are suffering so badly in this job market. Instead, it begins to seem as if Brian, Frank, Danielle, and other friends of mine have conspired to play a practical joke to argue against my relative support for anonymity. So let me make two last points on this, bluntly but respectfully, and then closet myself for the rest of the morning to beseech the gods for the return of cIvil discourse.

First, I didn't set out to insult LawProf. What I said, in response to some rather overheated language, is that we can come up with better definitions of heroism. I'm not calling LawProf a coward; there's plenty of room between being a coward and being a hero, room that we usually call normal life. LawProf himself never calls himself a hero; the (anonymous) commenter above did that. I continue to think that although there may be good and bad reasons for a tenured professor at a top-ranked school to remain anonymous while writing that he devotes no effort to teaching (and, incidentally, accusing people he's never met of doing the same thing), it is odd to call this heroic. The point of his anonymity, after all, is that he is seeking to *avoid* pecuniary consequences. There may be good reasons for that, but heroic seems an inapt description.

Finally, as to the comment that asks, "When have you ever risked pecuniary value to do the right thing?'" I assume the "you" here means me, although the pronoun is unclear -- because, of me, LawProf, RG, and anon, I am *the only one using his actual name.* That doesn't make me a hero. I find it hard to call tenured professors at good schools who write under their own name heroic; I call it doing their job. But it makes the claims that LawProf is a hero and I am not frankly bizarre.

Now could we get back to productive conversation? Sheesh.

Posted by: Paul Horwitz | Aug 12, 2011 6:26:27 AM

"I really do think you need a more rigorous definition of heroism."


When have you ever risked pecuniary value to do the right thing?

Posted by: anon | Aug 12, 2011 3:00:58 AM

I agree that we should avoid "solutions" that do not get at the heart of the problem. It's easy to attack law professors. Teachers from the kindergarten level up, and professors of all sorts, are now the favorite targets of the public. This, when business and finance people are sending their kids to summer camp in Lear jets. The problem (issue?) is that private education is expensive at all levels. In any given market, the prices schools charge are all within range of one another. In NYC, independent elementary and secondary schools charge between 35 and 40K per year in tuition-- not boarding schools, day schools. This is so even though some schools have better track records of getting students into prestigious colleges that, in turn, help them get into more prestigious grad schools. Yet, people are lining up to get in. The government is not subsidizing this of course: rich people pay, poor people get scholarships, and everyone else sacrifices mightily. Our extensive system of public schools prevents people from arguing that the government should help promote attendance in these schools. We have made the determination that access to college and the profession of law, unlike fancy secondary private schools, should be open to all who wish to attend. Even though stories about the weak job market for lawyers, and PhDs, have been trumpeted for years now, people still who want to go to law school and graduate school. The question is, are we prepared to cut them off or let them make the decision?

Posted by: JMH | Aug 11, 2011 10:40:22 PM

JMH: You raise some good questions. I'm not opposed to having fewer law schools, by any means. More broadly, though, the quite valuable point your questions raise, which I think I was trying to get at, is that the point is having changes that actually work. I would say, in a sense, that in the long run we ought to be thinking about reform not just to solve an immediate problem, but because there should always be room for it and it's always a good idea for us to think about what we ought to be doing better.

RG: I said pretty clearly in my post that if LawProf has valuable things to contribute to the discussion, more power to him, so I'm not sure why you should have a quarrel with me. But with all due respect to everyone involved, I really do think you need a more rigorous definition of heroism.

Posted by: Paul Horwitz | Aug 11, 2011 9:46:13 PM

Will the problem you describe be solved by cutting law professors salaries or making them teach 6 classes a year instead of 4? One solution to the problem you describe is to drastically cut the number of law schools and deny people access to the profession. How will that be done--say that no one who gets below a 160 on the LSAT gets to go to law school? Maybe the answer lies is denying people loans to go to law school. I suspect that while people will accept the AMA acting as a cartel-- and keeping the number of doctors down and salaries high even though there are places in the US that sorely need doctors--people may not be so sanguine about cutting off access to law schools. We could go European, track people early on and provide choke off points to keep people large numbers of people out of higher education.

Posted by: JMH | Aug 11, 2011 8:45:47 PM

You are certainly entitled to your opinion, but I have to vociferously and strongly disagree with you if you - in any way - seek to undermine the professor who has risked his lucrative and successful career to do the right thing.
When there is something wrong, evil, corruption, abuse, injustice . . . we don't need people like you. We don't need measured and long winded counterarguments, nitpicking, subtly pejorative insults or other measures designed to muck up and bore the debate into a standstill. We need heroic people who stand up, boldly, for what is right. These kinds of black and white right and wrong situations don't happen often. They are very rare and so people like you are fine for the vast majority of situations. But such a black and white injustice is happening in the law right now. There are 50,000 students graduating each year into 10,000 to 15,000 job openings. The ones who don't get a job have had their 20s, finances, personal lives, career hopes and sometimes their psyches crushed by the experience. This cannot persist. No no no Paul, before you come back with a long winded counterarguments, I don't want to hear it -- THIS CANNOT PERSIST. You are not allowed to earn a six figure salary by using fraudulent career statistics to destroy the lives of tens of thousands of good kids each year.
Loyola 2L started the crusade three years ago, Law School Transparency, scambloggers, plaintiffs and others have carried the torch. This professor has since joined the cause and the wind is at their back – because they are doing the right thing. The gentleman is no less than a hero.

Posted by: RG | Aug 11, 2011 6:45:02 PM

Thanks, Larry, also for the kind words, and for your clear and attributed articulation of a viewpoint.

Friedman's reference, I'm assuming, is to Popperian falsification, which doesn't deal with theory in general as much as it deals with what constitutes scientific theory as demarcated from all other theory. Indeed, much of Popper's impetus was to be able to call Freudian psychology and Marxist economics non-science. Falsification itself as the demarcation of science versus non-science is subject to significant debate among philosophers of science. Even the objectivity of scientific theory (or at least the theorists) has been, since Kuhn, the subject of debate.

All of that strikes me as beside the point here. With all due respect to Lawrence Friedman, there are all sorts of theoretical insights that are deep, original, and completely untestable that are nevertheless hugely meaningful, and Friedman's quote seems to suggest otherwise. In my area, for example, theories of shareholder primacy and director primacy in corporate governance are untestable because they are normative theories, but they are clearly meaningful notwithstanding even to the bench and bar. I think the theories we debated in the Fried symposium are meaningful: is the law of contract motivated/justified by the efficiencies of welfare economics or by the moral imperatives of promise-keeping? It's also possible that we are vehemently agreeing. It's simply that I conceive of lawyers as thinkers and technicians. But I think of CEOs and CFOs that way as well.

I don't want to do it in a blog comment, and I've written extensively elsewhere about it, but still one hundred plus after Langdell, legal education is still searching for itself somewhere between the philosophy and economics departments, on one hand, and the barber college, on the other. The research/clinical divide also exists in medical education; to return to Friedman, however, the research faculty doesn't have to worry about anybody suggesting they're doing something other than real science.

Posted by: Jeff Lipshaw | Aug 11, 2011 5:32:19 PM

Jeff and Paul:

Thanks for the thoughtful replies.

It is of course possible to take the anti-theoretician position too far. I am quite unwilling to say that theoreticians have no place on law school faculties. But any pendulum can swing too far. I endeavor to document in my paper that the rise of the theoretician has been pretty complete in the legal academy -- people like Jeff and I are very much the exception. It is far from clear that this serves the interests of law students. The Carnegie Commission, for example, makes a strong case that learning how to exercise professional judgment is the core skill of a lawyer, and that law students cannot learn to exercise professional judgment from those who have little experience of it. As far as I can tell, none of the theoreticians have answered that thoughtful analysis, nor does Jeff's incisive paper (in which there if very little with which I can quarrel) take issue with this view (indeed, Jeff seems to embrace Carnegie).

Perhaps most important is the question of what counts as the kind of "legal theory" legitimatley of value to our students, or the bench and bar. Lawrence Friedman (no scholarly slouch, surely we can agree) once wrote: “In most fields, a theory has to be testable; it is a hypothesis, a prediction, and therefore subject to proof. When legal scholars use the word ‘theory,’ they seem to mean (most of the time) something they consider deep, original, and completely untestable.” This is not the kind of theory that Jeff seems to be advocating, but I quite agree with Professor Friedman that this is a brand of theory that is widespread in the legal academy today.

We are, after all, engaged in preprofessional education. That is why I find the example of John Yoo so illuminating. He was widely regarded as an academic superstar in the field of executive power, but when it came time to "test" his theories in the real world of executive power, he proved an incapable practitioner. What first drew my attention to Yoo's example was when I read the Bush Adminstration OLC memos explaining how much of Yoo's work his own clients ultimately repudiated. I wonder what the value is of the theoretician whose work cannot translate to the practice of law. There is surely a place for such theoriticians somewhere in the academy, but do they belong in in preprofessional education? And in such numbers?


Posted by: Larry Rosenthal | Aug 11, 2011 4:46:00 PM

Paul, as always I admire your ability to capture the nuance in hard issues. I agree with you it's far more productive when people like Larry sign their names to their positions for exactly the reasons you give. I also think Larry's piece overstates both the "theoretician as enemy" point, and the extent to which the Yoo narrative can be generalized to the sweeping conclusion about "theoretician competence" that Larry draws.

My long experience as both practitioner (particularly as somebody who was in the business of hiring lawyers!) and theorist suggests to me there's far less of a binary dichotomy between theory and practice, particularly for lawyers, than these indictments make it out to be. As long as we are providing links to our work, I'll link to mine, which was the introductory essay, "Contract as Meaning", to our day-long symposium on contract theory inspired by Charles Fried's book. My goal was not only to introduce the papers and presentations, but also to counter precisely the broadside that exercises in abstract theory are either useless or impractical and that skills training needs to prevail. Here's an excerpt:

"As someone who practiced before entering the academy for twenty-six years as a litigator, transactional lawyer, and business executive in matters ranging from the mundane to the arcane to the global, and has since taught contracts and written about contract theory, I am fully aware of the tensions between pure thought and practical training in the idiosyncratic institution that presently constitutes the American legal academy. With all due respect to the Chief Justice, our job as educators is not merely to train doctrinal technicians, but also to groom what I will refer to as 'lawyer-theorists. I want to suggest in this introductory essay that we need more theory of the kind contained in this issue, not less, or perhaps better put, more opportunities for thinking about theory in the way a reflective practitioner might conceive of it. My theme is the relation of theory to practice, particularly in contract law, and why a theoretical orientation, broadly speaking and whether or not so conceived or not by the practitioner herself, is fundamental to that practitioner making good judgments."

And from the abstract:

"Theorizing - imposing coherent and correspondent conceptual order on events in the real world - is not as unrelated to the ordinary work of lawyers (and others) as some critics of legal academy would suggest. ... I consider the role of meaning in contract theory; in other words, how both descriptive and normative theory, whether directed to the legal institution of contract or to other phenomena, are all ways of making sense of the human condition, and thus an essential part of what practicing “lawyers-theorists” do every day."

Posted by: Jeff Lipshaw | Aug 11, 2011 3:57:16 PM

Larry, thanks so much for your kind words, and for spurring me to finally download your piece, which I've been meaning to do for some time. It's long, so I've still not read it, only the introduction; my apologies. Let me say a few things by way of response. The first is a little "meta." Right here we have a good example of the upsides and downsides of using one's name rather than speaking anonymously. You and I are more likely to trade real discussion points rather than volleys. That may take some of the heat and urgency off of things and make us too polite rather than not polite enough; it can thus retard change. But this dialogue can also be, in the long run, more productive and, just as important given what I say in my post, more sustainable. Again, I don't disfavor anonymity as much as some do, and I would say there are both costs and benefits involved; but I admit to preferring the kind of sustained and sustaining dialogue that you and I can have here.

Let me hit one or two points on which we basically agree, with differences in emphasis perhaps. Certainly I agree that the scholar/theoretician model is pretty well dug in currently in the legal academy. I view this as something to be analyzed and weighed, subject neither to stand-pat support nor reflexive criticism because the teachers are "theoreticians." I also agree that as long as the job market was good, neither professors nor, often enough, students had much vested interest in reform; one of my points in the post is that precisely because we often tend to fall back into our old ways once a crisis passes, there is some benefit in thinking about reform in a long-term structural way (and that structure doesn't necessarily require the same approach for each law school) rather than in too reactive a way. I do agree also that there is a need for reform in legal education. I'm more mixed about whether I think the need is urgent, but I think it is obvious that a good case can be made that it is urgent. In deemphasizing urgency I'm not trying to ignore the obvious current problems, especially in terms of my students and the job situation, so much as I am trying to emphasize that those of us who intend to be part of the institution of higher education for a long time ought to keep in mind that, urgent or not, there is *always* reason, in good times and in bad, to try not to be complacent and to keep at least some of our attention focused on ongoing monitoring and reform of the institution. And finally, I agree that many changes in legal education or the legal profession will likely result from market pressure. I think that's fine; although I like having a decent salary and would gladly negotiate a still larger one, I emphatically don't think I have a God-given right to it and I recognize that I'm only one player in a larger market. The availability of market pressures and the possibility of change makes me aware that there is no reason to take the status quo, which by and large is quite nice for law professors, as a given or a natural outcome; it also makes me slightly skeptical of views that treat *every* law school as perfectly bad and perfectly broken, rather than seeing each one, and the system as a whole, as a mix of the defensible and the indefensible, of virtues and flaws. I'm not, I admit, a very good revolutionary.

I have more mixed feelings about your starkly put statement in the article that "No medical school would employ an incompetent physician to teach the practice of medicine," which you use to point out that the same thing should surely be true of law schools. In one sense it's an incontestable point. But we can complicate it. Plenty of medical schools, I presume, would hire physicians who are brilliant at research but incompetent at clinical practice to do research -- and some of those pure researchers might do even less teaching than a reduced-load law prof. Plenty of medical schools might hire a brilliant anatomist to teach anatomy, even if that anatomist has lousy bedside practice skills. And although I'm less familiar with the staffing of medical schools, I assume many medical schools draw on excellent specialists to teach in their area of speciality even if those physicians aren't on the full-time faculty or frequent paper-publishers; they could and may well still boast about the contributions those practicing teachers make, rather than treating them as somehow incidental to the business of the medical school.

In like fashion, I would say that it is possible to be a great theoretician who is also a great teacher -- in a particular way and in a particular field -- even if that person is not primarily a practitioner. I'm not saying that to glorify theoreticians or dismiss practitioners. To the contrary, as I've said before, I think we ought to think of adjuncts as a fundamental part of the law school faculty and experience, rather than, as I'm sure is the case with many full-time faculty, being only vaguely aware of their existence. Nor ought we to assume that simply by virtue of their being experienced, they're going to teach students well. Part of actually caring about practicing adjuncts, it seems to me, should be working with them to figure out how they can best realize their goals as teachers rather than just setting them loose and hoping they work out.

That still leaves room for agreement or disagreement between us about the relative mix -- about whether, as you say, the theoretician should enjoy "primacy" at the law school, whether the pracitioner should be dominant, or neither. Now, I do think that a theoretician (who is rarely a *pure* theoretician: most law professors, more so than academics in many other fields, operate at a mid-level theory/doctrine level rather than at the level of high theory) who is a good teacher can contribute to a law student's marketable skills. But that doesn't mean I think the mix is right. I do think, however, that in assessing the mix we should see adjuncts as part of the current faculty setup rather than seeing them as either incidental to or diametrically opposed to the full-time faculty. We should view them as a fundamental, not an exceptional, part of the current law school structure; that may (or may not) lead us to be slightly less worried about the "impracticability" of the current legal academy, but I do think it will be a more realistic view of what a "law school" is and who is a part of its teaching staff.

Finally, I think I can acknowledge the value of strong rhetoric as a motivator of reform while being a little uneasy about it. Your suggestion is kind of crit-like in its "heighten the contradictions" style. That's not an ephithet. But although fervor may be a necessary precondition for reform, I think some clear-headedness -- not lack of passion and commitment, to be sure -- is necessary to make those reforms sensible and, especially, long-lasting.

Sorry, one last point, this time about your use of John Yoo as an exemplar. It's an enjoyable exemplar! But, because I'm not a scholar in his particular field or with his particular historical bent, I don't feel I'm in a position to judge whether he is, as you seem to suggest, a brilliant theoretician who was a bad practitioner (assuming that he was a bad practitioner), or whether he was a bad theoretician *and* a bad practitioner. He got tenure at Berkeley, and he placed better than I did, but it is always possible his scholarly work was seriously overvalued in the first place. I also don't know whether his being a bad practitioner (or so I will assume here) means he was a bad teacher, or even a bad teacher at conveying practical skills to students. For all I know, he was very good at conveying practical skills to his students, despite his own stipulated failings (at a very high level, in fairness to Yoo) as a practicing lawyer. That may seem like a contradiction, but I think it speaks more to the complicated mix of theoretical, practical, and pedagogical qualities that may be involved in good teaching in a professional discipline. I don't necessarily see a one-to-one correspondence between having practical skills and being good at imparting those skills; plenty of brilliant swimming coaches are not themselves Olympics-level swimmers.

Posted by: Paul Horwitz | Aug 11, 2011 2:46:48 PM


As usual, yours is an incisive and quite helpful post. Even so, please permit me to attempt a defense of LawProf.

The current norms in the legal academy are quite entrenched -- especially the primacy of the theoretician, who usually has little to offer students in terms of providing the kind of marketable skills necessary for them to succeed in an increasingly competitive market. I have had a great deal more to say on this subject in a recent paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

I titled my paper: "Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should Be Teaching Law." I suppose that title is nearly as incendiary as some of LawProf's rhetoric. But, when norms are deeply rooted, change is unlikely unless one can first produce widespread agreement about the existence of a serious problem. Until recently, law graduates were doing quite well, and the vast majority of those in the legal academy (who inevitably have a vested interest in defending the system that has subsidized theoreticians so nicely) were quite content with the status quo. Even after the recession hit, most legal academics seemed to resist the case for change, adducing countless reasons why the obstacles law school graduates now face are not the fault of legal education -- even though legal education seems to place little priority on conveying marketable skills to preprofessional students. For those of us who believe there is an urgent need for reform in legal education, market pressure will probably play the principal role in producing it, but beyond that, applicants, students, alums, and other important stakeholders are going to have to place considerable pressure on law schools for reform, given how many incumbents have powerful interests in resisting it. The case that LawProf makes -- even the heat of his rhetoric -- is probably necessary if the requisite pressure is to be brought to bear.

Change is never easy. Ask the President.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Aug 11, 2011 1:32:06 PM

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