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Monday, September 30, 2013

What we do and why we do it

A few days ago, Matt put up a thoughtful post about the ABA Task Force Report on "The Future of Legal Education."  Because Chief Justice Randall Shepard, the chair of the committee that produced the report, spoke the other day at Notre Dame Law School on the topic, I took the opportunity to re-read it, and with the benefit of Matt's post.  

I agree with Matt that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis.  To make these much more contestable claims, there needs to be data and analysis to back it up."  And, like him, I was struck by the following assertion in the Report:

  • "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)

The last sentence resonates, I realize, with many who are angry at what they regard as a law-school scam, and I suppose no one would deny that there are some people who fit that last sentence's description who work in higher education.  But, as someone who has spent a number of years on a law school's Appointments Committee, and met hundreds of incredibly talented young lawyers and scholars "on the market," it seems to wrong to say - let alone to report confidently, without data -- that a "substantial" number of those on law school faculties have "sought out" positions in legal education "because" those positions "reside largely outside market- and change-driven environments."

Still, even if the claim strikes me as too-quick, there is no denying, again, that it resonates, and it is hard to say to someone for whom it resonates "well, it shouldn't!  You need to feel differently!"  Instead, I think someone like me -- i.e., someone who looks at his colleagues and sees (for the most part) people who care about the formation and education of students, about the good of the profession, and about the importance to human well-being of the legal enterprise and who are engaged and excited by ideas and exchanges with students and colleagues alike -- has to ask, "o.k., why is it the case -- what have we said and done or failed to say and do -- that a distinguished ABA committee thinks this hasty udgment is spot on and that many students, recent graduates, prospective students, and practicing lawyers think the same?"  

My thought here, to be clear, is not, "geez, we pampered law profs need to do some better, image-improving messaging"; it is (I hope) more sincere and self-critical.  This sentence in this report suggests that we are failing to communicate -- that is, to express through what we say and do in our teaching and writing -- why we were drawn to and why we are committed to (what many of us see as) our vocations, because -- again -- I don't think it is the case for very many that the answer to this "why?" was or is "to avoid market forces or change."

Posted by Rick Garnett on September 30, 2013 at 10:48 AM in Rick Garnett | Permalink


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Is that sentence really a shot at tenure? That is the sense in which profs (the "people" that sentence is talking about) are "outside" market forces, in terms of not having to produce anything or not having to do their jobs well in order to keep those jobs.

Posted by: Howard Wasserman | Oct 2, 2013 9:37:27 AM

All respect to my former CJ, but I'm not sure I understand how anyone paying attention to legal education could think that law schools "reside largely outside market- and change-driven environments." Why do law schools care about U.S. News rankings? The market. Why have law schools adopted legal writing programs, clinics, and professionalism programs over the past few decades? They are driven to change by the market (as well as changing understandings of what our students need.)

I can't speak to anyone's motivations to joining the legal academy other than my own (nor should the report). After 10 years in private practice, I made the shift to academia because as much as I love practicing law, I enjoy teaching and scholarship more. I did not seek an environment that was isolated from the market and change, and in my experience the legal academy certainly isn't.

Posted by: Tanya Marsh | Oct 1, 2013 12:41:39 PM

Thanks, John. I suppose that I can agree as an anecdotal matter that a certain degree of market insulation is something that is sought after by many people and institutions that believe scholarship is important. Is that a bad thing? Should it be otherwise?

I did not think that a bare empirical observation was the point of the bullet point in the report. It seemed to me that the assumption in the bullet point--in fact, the reason to include it in this report at all--is that market-insulation is to be lamented, criticized, or reformed. As applied to legal scholarship, the argument would then be that legal scholarship needs to be more responsive, perhaps much more responsive, to market-driven forces. I guess that's what I was responding to, but perhaps I've mistaken the meaning of the bullet point.

Posted by: Marc DeGirolami | Oct 1, 2013 11:32:43 AM

As I said, whether or not the draft report’s explanation of the motivations of a substantial part of law professors was accurate, it was ill-advised, because it was unnecessary and counter-productive. (Who wants to be told by a third party what one’s motivations are, especially if the explanation is at odds with what we’d like to think about ourselves?) But one couldn’t help but notice that in the responsive comments here the anti-market sentiments were so strong, even in comments that purported to be disagreeing with the report’s observation. Which is why I asked the question, with question marks, if the report’s observation wasn’t being borne out in the thread. Fwiw, and based on my observations, yeah, a large part of the motivations of a large part of the law professors is to be in a work environment that isn’t market-driven -- as those comments indicated. I’d be surprised to hear many people say that such motivations aren’t present in a “substantial part” of the legal academy, to use the report's more modest claim.

Posted by: John Steele | Oct 1, 2013 10:45:18 AM

John Steele: "QED? At least as to aversion to market-driven environments?"

I don't understand how this has been "demonstrated." You've taken bits of three comments, one by me, one by an economist, and one by an anonymous person who says that he or she is trying to become a law professor. Do you believe that the fragments in these comments demonstrate that "a substantial part" of the legal academy seek out their positions because they are largely outside of the market-driven environments? Wouldn't "QED" be reserved for the kind of conclusion that was based on copious evidence of current law professors' views?

As for my own comment, I don't think it demonstrates that even I believe that the legal academy ought to be insulated entirely from market forces. Who could believe that?

What I said was that it is important for *scholarship* to maintain an insulation from market forces, and that (legal) scholarship that has as its primary aim to change in response to market forces is no longer scholarship. Do you disagree with that?

Here are some of the ways that a lack of insulation from the market might harm (legal) scholarship: (1) We might be talking about direct influence. People might be paid to give their opinion, with the expectation that the opinion would match up with what the market preferred. Obviously this is an extremely rare phenomenon now (though not unheard of). Without insulation from the market, it seems to me that it is likely to become more common; (2) On a related note, people might change their opinion about a particular subject in response to financial pressure or incentives. That, too, would be an unwelcome feature of increasing lack of insulation. (3) We might instead be talking about indirect influence. Market pressure affects everybody. Would it be a healthy thing if (legal) scholars tailored their arguments in response to such pressures? Or if they refrained from making arguments in response to such pressures? Or if they felt more inclined to make certain arguments in response to such pressures? I don't think so, but I'm only one person who happens to be a law professor, and certainly not representative of the entire legal academy. What do you think?

Of course, complete isolation from the market is not feasible in scholarship (or anywhere else). It's important for (legal) scholars to factor in considerations related to the market in their scholarship, because the market is part of our lives and it would be irresponsible. But it seems to me that insulation from market-driven environments is not just a way for fat cats to live easy, but for lean cats (so to speak) to do the sorts of things, and voice the sorts of opinions, that scholarship is for in the first place.


Posted by: Marc DeGirolami | Oct 1, 2013 7:44:16 AM

The bullet point suggested that "a substantial part of the [law school] consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)

Marc DeGirolami's comment: "Scholarship that is not insulated from market forces -- or, for that matter, scholarship that aspires to 'change' in direct response to market forces -- usually goes by the name 'graft.'"

Comment by ...: "But it's not an attractive option for me. Not because it's a 'change-driven environment,' but because many law firms prioritize the bottom line over quality of life. I'm willing to accept vastly last money than a law firm would pay in order to have a better quality of life."

Eric Rasmussen's comment: "Many law professors, perhaps most, are law professors because they don't want to be in the deadline-politics-and-cutthroat world of big-time law firms."

QED? At least as to aversion to market-driven work environments?

Posted by: John Steele | Sep 30, 2013 8:46:02 PM

It seems like both Rick Garnett and of the ABA Task Force Report's author are reaching odd conclusions.

I am one "on the market," though I may or may not be an "incredibly talented young lawyer and scholar" and I'm not sure I've ever met Rick. Rick's correct that I am not seeking an academic post because I desire a position that resides "largely outside market- and change-driven environments." However, contrary to Rick's position, I see no reason why I couldn't be both incredibly talented and resistant to working in a change-driven environment.

Could I make it in a law firm? Maybe. But it's not an attractive option for me. Not because it's a "change-driven environment," but because many law firms prioritize the bottom line over quality of life. I'm willing to accept vastly last money than a law firm would pay in order to have a better quality of life. I don't think that this means I crave a market-insulated position. In fact, I'm acutely aware that available number of jobs to apply for have contracted because of market conditions, and getting tenure may be much harder.

Posted by: ... | Sep 30, 2013 5:16:32 PM

I object to the third sentence of the report, as many have above, for the same reasons. But I also think the first sentence is WAY off as well, considering the state of he hiring market. While it COULD be defensible to say those in the field are risk adverse (although I disagree, for the reasons stated above), it is ABSURD to call those who pursue a career in this area risk-adverse in any sense of the words. Those who go "on the market" are anything but risk-adverse; they forsake stable and often high paying jobs for a chance at a tenure-track job (and many fewer of those these days as well). I, of course, could provide some anecdata from my personal experience. Any of those ABA types who want to call me risk adverse are welcome to try to do what I have done in the past 5 years.....

...didnt think so.

Posted by: anon | Sep 30, 2013 3:31:31 PM

It's hard to frame this in a politically attractive way. Here I think is the truth: Many law professors, perhaps most, are law professors because they don't want to be in the deadline-politics-and-cutthroat world of big-time law firms. That is good, though. It means law schools can hire lawyers with enough talent to be million-dollar-per-year partners to be $150,000/year professors. If anybody wants to make law school life the same as business-world life, he'd better get ready to quintuple professor's salaries, or they'll all move to New York.

Posted by: Eric Rasmusen | Sep 30, 2013 3:06:18 PM

There is a consensus concerning the need for legal education reform. See McCrate Report (1992), William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law (2007), Roy Stuckey et al., Best Practices in Legal Education (2007), Dorthy H. Evensen et. al., Developing an Assessment of First-year Law Students’ Critical Case Reasoning and Reasoning Ability: Phase 2 (LSAC 2008), Illinois Bar Association: Special Committee Report: Final Report and Recommendations (2013), James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (2013).

See also Educating Tomorrow's Lawyers, Institute for Law Teaching and Learning, Center for Excellence in Law Teaching, Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 Geo. L.J. 875 (1985), Scott Fruehwald, Preface: Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (2013), Scott Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School (forthcoming, Texas A & M L. Rev.), Richard K. Neumann, Jr., Comparative Histories of Professional Education: Osler, Langdell, and the Atelier (2013), Benjamin Spencer, The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012), James F. Stratman, When Law Students Read Cases: Exploring Relations between Professional Legal Reasoning Roles and Problem Detection, 34 Discourse Processes 57 (2002), Judith Welch Wegner, Reframing Legal Education’s "Wicked Problems," 61 Rutgers L. Rev. 867 (2009), Michael Hunter Schwartz, Improving Legal Education by Improving Casebooks: Fourteen Things Casebooks Can Do to Produce Better and More Learning, 3 Elon L. Rev. 37 (2011), Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 San Diego L. Rev. 347 (2001), etc.

For example, the Evenson study concluded, "students’ case reading and reasoning skills do not improve as a result of law school instruction." This study has also shown that law students have difficulty synthesizing cases.

On the other hand, I know of no comprehensive study or report from the past 25 years that says that our current methods of teaching law students are working. Can you cite me such a report?

Posted by: Scott Fruehwald | Sep 30, 2013 1:33:21 PM

I should hope very much that insulation from market forces continues to be a hallmark of academic scholarship--in law and elsewhere. Scholarship that is not insulated from market forces--or, for that matter, scholarship that aspires to "change" in direct response to market forces--usually goes by the name "graft."

Posted by: Marc DeGirolami | Sep 30, 2013 12:39:43 PM

"Really? Legal academia is "outside market- and change-driven environments" in a substantially different/more significant way than is big-firm practice of law, or state-level regulation of lawyers in an increasingly federalized and international practice of law, or the judiciary, or... "

BigLaw partnership is not what it used to. You can't just settle on your laurels once you make partner. If you don't keep your book of business at the expected level year after year, you can reasonably expect to be fired or at least have your compensation severely cut. Meanwhile, when was the last time you heard of a tenured law professor anywhere in the country being fired for performance reasons? Has it ever happened?


To the larger point, the high evidentiary bar being demanded for reformers sets up a large status quo bias. Sometimes such a status quo bias makes sense -- Burkean conservatism has its merits. However, such conservatism is a bit hard to swallow from a group that by and large regularly advocates large society-wise changes on a range of legal and quasi-legal topics without such rigorous data when it doesn't go to their paychecks. Where are the calls for study piled on study before changing -- say -- the patent system, or the sentencing guidelines?

Posted by: brad | Sep 30, 2013 12:26:30 PM

What Steele said.

Posted by: shg | Sep 30, 2013 12:25:16 PM

"there is not consensus that the content and quality of legal education has failed to educate attorneys for their work"

Isn't it the case that judges, hiring partners, alums, current students, GC's of corporate clients and clients in general have been expressing this view for some time now? Not to mention Carnegie ("Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients"), MacCrate, etc?

On the other point, I would have advised the authors to simply mention the resistance to change in legal academia rather than give the more pointed explanation of where that resistance comes from. Whether or not the draft's comment about the motivations of professors is accurate, it seems unnecessary and counter-productive.

Posted by: John Steele | Sep 30, 2013 12:06:59 PM

Really? Legal academia is "outside market- and change-driven environments" in a substantially different/more significant way than is big-firm practice of law, or state-level regulation of lawyers in an increasingly federalized and international practice of law, or the judiciary, or... I've not read the entire report, but if this is an example of the sloppiness in the report — and given pronouncements coming from the ABA in the last couple of decades I suspect it is — it's not going to prove very helpful.

Posted by: C.E. Petit | Sep 30, 2013 11:07:45 AM

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