Ironies of the Legal Profession?

Funny to see the juxtaposition in the New York Times of a piece berating law schools for the irrelevance of their curriculum and then a piece about our former co-blogger Elizabeth Warren, a law professor whose work can be called anything but irrelevant (unless you think conceiving and standing up a new government agency that some think is the Leviathan itself is irrelevant). 

There's lots to say about what's right and what's wrong in the NYT piece on law schools--maybe for a future post--but for now let's just say that it paints with too broad of a brush. There are certainly real problems with the law school curriculum and legal scholarship, but the NYT didn't quite capture them.  The bigger problem with the piece, I think was that it accepted the idea that law schools should be preparing students with practice knowledge like where to file a certificate of merger. Baked into this critique is an acceptance of the beleagured economics of the legal profession, where billing is usually by the hour, rather than by the service, so clients often pay premium rates for non-premium services (that frankly don't require a legal education). This is what clients are increasingly pushing against--why pay laywers for work that doesn't really involve much training or knowledge? If law schools aren't succeeding in training their graduates to perform the non-premium services, is that really a failing? Or are law schools actually training students in the critical thinking skills-- statutory interpretation skills and policy argument skills--that can sustain premium billing rates?  

Comments

[Buce]

Adam, I am an admirer of Elizabeth and her work but I think you are misunderstanding the Times here. The takeaway point is that law school is irrelevant to the nitty gritty of law practice--merging great corporations, confirming chapter 13 plans, whatever. Elizabeth certainly has been and remains in the thick of the fray (though compared to the mass of law profs, she is an outlier)--but it is social policy, politics, (gag) sociology. Of course some lawyers do this stuff but it is not the same as doing law. If you want a bankruptcy prof with serious lawywer experience, you might better look to her co-authors Lynn LoPucki or Jay Westbrook.

[Adam Levitin]

Jack,

The point isn't that Elizabeth has years of practice experience. It's that she's a professor who makes sure to connect the doctrine and policy and theory points to practice. For example, every contracts class teaches the doctrine of consideration and (I would hope) the theory behind it. The problem is that not every teacher explains the practice connection: that the reasons contracts typically have recitals of consideration in them is because of this doctrine that aims to distinguish between non-binding gifts and binding exchanges. It's all well and good to teach the doctrine and theory, but law professors often don't do a good job connecting this to real life by asking "so what are you going to do when you draft a contract for a client?"

There's a whole skill set of statutory interpretation and policy arguments that are immensely valuable to lawyers when acting as legislators, regulators, lobbyists, and even litigators that law school does teach pretty well. Law school enables students to think about these problems in a way that someone who just knows the practice-side can't.

The pure practice skills--what form you file when--are skills that don't take a lot of brain-power. What form to file when and where--that's something one can teach a middle-schooler. It doesn't take a lot of skill to read the local rules, to call to the clerk's office, etc. Clients aren't paying big dollars for lawyers to know that it has to be a green cover on top of the briefs, not a blue one, etc. They are paying for the quality of the arguments, which is value law school imparts.

Indeed, the general practice points can be taught in a few hours (as law firms do), while the more specific practice points (rules of procedure before the Nuclear Energy Regulatory Commission, perhaps), are so specific that it doesn't make sense to teach them in law school, when students aren't trained as specialists.

Put differently, law schools teach _law_, not practice. That's the value we impart. (It's not as if law firm training sessions do a great job teaching law. It's hard to imagine things that are more soporific. ) We need to do better showing students the connections between doctrine and theory and practice (and the disdain for practice that some of our colleagues have is a problem in this regard), and there's a separate problem of lots of irrelevant legal scholarship, but I think the Times was too quick to crap on the positive parts of legal education.

[Transor Z]

Adam. Wrong.

Clients pay for results and they pay for the benefit of our professional liability policies.

While filing a form correctly and timely, keeping a calendar, and keeping track of client billables are mundane tasks that a middle-schooler could learn, a middle-schooler doesn't face bar discipline for dropping the ball on any of these "mundane" tasks. There is professional liability baked into the cake of virtually everything that is done in a law practice.

Sometimes the winning lawyer is the one with the more erudite and creative argument. But usually it's just the one who's better prepared and has their ducks in a row -- and the facts on their side.

Such is the glamorous high-status life of a real-world lawyer.

[Knute Rife]

It's been, mercifully, over a quarter-century since I much cared what a law school's curriculum consisted, and the world may have changed since then, but I can tell you we were actively discouraged from gaining any practical experience during the school year, and Summer clerkships consisted of social events and law-school-like research projects (because that was all we were good for). The overwhelming majority of the faculty had no use for the actual practice of law, and a substantial bloc had open contempt for it. I remember the dean speaking at one of the periodic rah-rah sessions and ridiculing a member of the local bar for complaining that law students didn't even know which side of the courtroom to sit on. "We are concerned with more important things," spake the dean. I turned to a classmate next to me and said, "The problem is we have no idea how to get a case into that courtroom, and there aren't five people on this faculty who care."

[Transor Z]

Great anecdote, Knute, and so true.

I heard a joke once:

Q: What's the difference between law schools and law firms?
A: Law firms screen for personality.

[superdry]

so specific that it doesn't make sense to teach them in law school, when students aren't trained as specialists.

[Transor Z]

@superdry:

I disagree. Law schools already over-emphasize litigation and use the Federal Rules as the "lingua franca" of civil/criminal procedure and evidence. Teaching the kids by federal case practicum in conjunction with local/state legal aid or US Atty. No reason you couldn't alternatively set kids up with an administrative law practicum or state agency practicum for kids who want to stay in the local jurisdiction after graduation.

[Transor Z]

Or better yet, a semester as clerk intern (not judicial clerk) in a federal or state courthouse. Watch how things get docketed, look at the actual condition and content of filings by both pro se and represented parties. Get an inkling of what courthouse politics look like from the inside.

[mt]

I thought it was a great article. Speaking of irony, it is indeed ironic, to those of us outside the academy, to read a post by a professor that praises what he calls an empirically-oriented colleague in Professor Warren, yet becomes defensive when an empirically driven article is written about his profession. And, considering the allegiance to a populist like Warren, what an elitist argument - the impractical academic approach is justified because it supports premium billing! Irony indeed.

[Ebenezer Scrooge]

Adam sez: "law schools teach law--not practice."

From a practitioner's perspective, that is the problem. Law is not rocket science. Acquiring the basic lingo of law is difficult, but that doesn't take more than a year or so, at least at the fancy schools with their fancy students. Anything past that is pretty easy, with the exception of tax law. The really hard stuff is hard because it is deeply embedded in practice or business context.

That's why elite law firms simply don't care what courses their new hires took in law school. Okay, a law student whose transcript contains nothing but "Third Amendment Practicum" and "Vegetable Rights" might be a bit dubious. But the slightest bow to Mammon suffices to establish seriousness. And the substantive work is irrelevant.

This means that, from an elite practitioner's perspective, the third year of law school is a complete waste, and the second year nearly so. Law schools don't have to teach good lawyers law--good lawyers can teach themselves.