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Thursday, April 23, 2015

How Things Have Changed

Dunce that I am, I set too big a topic for our anniversary posts this week: how law teaching, and law schools, have changed since PrawfsBlawg got started ten years ago. That's a book, not a blog post.

And yet...Although one could say a lot about this topic, on second thought I wonder if things have really changed that much. The environment in which law schools operate has changed dramatically, to be sure. And there have been interesting innovations in plenty of places--some for the good, others perhaps not so much. There have been important changes in how one becomes a law professor, but I'm not sure that who becomes a law professor has really changed: it's more a case of same cohort, different route. And if one asks the fundamental, global question--have law schools, taken as a whole, changed significantly in the last decade?--I find myself more inclined to answer "no" or "not much" than "yes." In one sense this is not a surprise. One can always count on institutional inertia. At the same time, given all the changes that are arguably necessary, and all the incentives to change, I find myself struck, if not actually surprised, at how little transformation there has been on the whole. 

I can't or at least won't try to justify that conclusion in any detail. Instead, let me offer a few bite-sized observations about interesting changes I have seen. I hope to have the energy and diligence to discuss several changes over several posts, but I'll start with just one. Perhaps the most interesting change, from my perspective as a teacher, is the backward-and-forward shifts in the student body that I have seen, especially since 2008. I taught Legal Profession, aka legal ethics, throughout this period. Unsurprisingly, it turned out to be the best of my classes for learning something about students' attitudes toward law school and legal practice, in a way that distinctly altered my approach to the course.


That class involves a "problem"-based approach. Around 2010 or 2011, I had a class that resisted the exercises all semester. It took a while for this sense to hit home for me. Still, being a highly responsive and sensitive teacher, I asked the students (somewhere around the last week of classes) why this was. Their answer was that, given the difficulty they were having finding jobs at all (they did, but the number of people graduating with jobs in hand was definitely way smaller than in other years), they just couldn't put themselves imaginatively in the shoes of a practicing lawyer, even for purposes of a classroom exercise. It is, of course, entirely relevant not only that they were finding jobs hard to come by, but that these were the students who by and large had applied to law school before or at the outset of the economic downturn, before the full extent of its effect on the legal profession was clear. The difference between what they had expected to reap as a result of going to law school and what they were actually getting was substantial, painful, and embittering. Without wanting to bad-mouth or single out my own institution, doubtless they also found our own recognition of and response to these changes wanting, and this was further cause for bitterness. 

I have always included some discussion of law schools and legal education in the ethics course, but that response was certainly a wake-up call that more was needed (outside of class too, of course, but that's not my focus here). I began opening the course with a couple of classes dedicated to law schools, the "law school crisis," and changes in the legal profession. At least once, I assigned Brian Tamanaha's book. I tried to learn more about their expectations and how they had been met or dashed so far in their law school experience. I devoted a solid class to soliciting all their complaints about our law school in particular, and made them a deal--I would share the list of complaints with the administration, urge it to address these things, and work directly on some of the issues, and they would commit to the exercises. 

I have kept doing that, and I find it useful, both for the students and for me. It's a very long list of complaints (and, again, I'm not trying to single out or embarrass my own institution; the list would be similar at other schools, and I was asking for criticisms, not praise). Some of the items change, with new and different problems emerging as the front-runners. And I learn a lot about my institution that I might not otherwise know. Professors have a duty to understand their institution and attempt to reform it as needed, and this process certainly brought that home to me. The students handsomely keep their end of the bargain and, I think, get more out of the class as a result.

But it wasn't until the last year or two that I began to realize that the student body had changed yet again. My students now come in much more cognizant of changes in the profession, narrowed opportunities, and so on--thanks, in some measure, to all the blogs focusing on the "law school crisis." Their plans for after graduation are generally far more specific, more closely related to their pre-law school jobs (if any), and more realistic. They are not cockeyed optimists, but neither, on the whole, are they either deeply pessimistic or particularly bitter. They are, I think, more committed to the process of legal education itself, more willing to participate, and less likely to think of themselves purely as purchasers or consumers of a service. That doesn't mean they are wholly content with the curriculum as it is, I hasten to add, and certainly the list of complaints is still long. But the gulf between their expectations and reality is much smaller.

These students remind me much more of my father's generation of law students and lawyers than mine. I graduated from school in an era when law schools were still very much way stations for twentysomethings who weren't sure what they wanted to do with their lives (a venerable tradition: read Learned Hand's description, in Gerald Gunther's biography, of why he went to law school). We expected that we would graduate with good job offers in hand; although there was a definite dip in the legal economy around the time I graduated, and it did have an effect, virtually all of us did. (I should add that I snuck into highly ranked law schools, and of course that made a difference too.) We were, on the whole, a distinctly risk-averse cohort; that's why we went to law school. Compare that to my father's generation--specifically, his fellow cohort of Jewish lawyers, at a time when Jews were still largely excluded from the big firms. They were a much more practical, entrepreneurial bunch. They were, in fact, the generation that cracked open the law firms and changed legal practice from without and within the old firms, changing some, killing some off, and doing much to get rid of assumptions about the gentility of the profession altogether. My students today are certainly not the same as that group in all respects. But their attitudes, expectations, and energy are far closer to it than my classmates and I were. 

To be clear, I don't intend any of this as a good-news story. As I said up front, I think law schools have changed less than one might expect given changes in the profession, and less than they should. I think this group of students is more realistic in its expectations than students were around 2010, but I don't know whether this is because the law schools are being clearer and more candid in their discussions with prospective students or because other, better sources of information are now out there. I do think this cohort is less likely to be bitter and angry with the law schools, less likely to be a fertile source for a new generation of angry online commenters, and I find that interesting and worth pointing out. But I draw no conclusions on that basis about whether they have cause to be angrier than they are. They certainly still have a long list of changes they would like to see; it's just more likely not to be expressed as if it were a bill of particulars. What I have found most interesting and educational from a personal perspective, I think, is the simple experience not only of having the student body change, and realizing that my teaching materials and my approach to the job inside and outside the classroom have to change along with it--but of then realizing that the changes I found most striking five or six years ago have transformed yet again, and will keep on doing so.

The lesson, really, has been one of those that simply comes with enough time on the same job. It may be possible to keep doing the same thing year after year, keeping the same old lecture notes with a few occasional changes penciled in to the margins, and the substitution of a somewhat outdated cultural reference (Taylor Swift, say) for a seriously outdated cultural reference (I've thrown out all my Christopher Cross references). But I don't see how. The students--their motivations, their expectations, their likes and dislikes and complaints--change, and then change again just as you've adjusted yourself to the first change. It's not enough to think in terms of adapting in light of the "law school crisis," as if it represents a single end-state with a uniform reaction to it. Within that general rubric, there have already been a couple of distinct generations of students with very different responses to it. If you want to reach the students where they are, you have to adjust to the fact that that location will change every few years. Of course that seems obvious; doubtless it is obvious to most people, and I'm just unusually oblivious. But actually experiencing it over the course of a decade has been instructive. 

Posted by Paul Horwitz on April 23, 2015 at 01:50 PM in Paul Horwitz | Permalink


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