While in a Starbucks on vacation this week, I was surprised to see that the New York Times placed above the fold a supposed news item about how law schools aren't actually training folks to be lawyers. This isn't really news to anyone who knows anything about American law schools, much less anyone who incurred three years of debt to attend one. But the real reason the piece was a supposed news item is that it was in fact a very long, wide-ranging, and thoughtful editorial piece about the many failings of legal academe. This blog is about why I agree with its many critiques of our broken legal academe.
Law Schools Hide From Their Vocational Nature
Law school is trade school. It just is. Unfortunately, most of the people who teach in law schools don't understand this, or even find such a statement preposterous or offensive. Teaching students how to pass the bar is a mission for the least respected (and least exclusive) law schools, which sometimes sport higher bar pass rates than far more highly rated schools with more intelligent cohorts of students. The ideal of the contemplative, cloistered first year of law school as a time to learn lawyerly critical thinking feeds an aversion to teaching the practice of law. The emphasis in law school thus remains on learning fairly general subject matters in the abstract without any practical application of the learning.
Concededly, law schools have improved their clinical offerings (e.g., courses in actual practice) in number and quality in the last two decades. Yet clinical offerings are far fewer in number than classic, general subject courses, and those that exist remain heavily weighted toward litigation experiences and the provision of services to indigents. While I continue to provide legal services to indigents and think it great to do, good legal education would offer opportunities to learn how to deal with the mundane nonlitigation matters that are so much of private practice in America: real estate transactions, divorces, advising small businesses, tax advice. Yet these are things that students are particularly ill-suited to supporting. Accordingly, law schools do not tend to provide meaningful interactions with, or training in, these experiences.
Legal scholarship certainly ignores the vocational nature of law school to its great detriment. Chief Justice Roberts actually nails this when he points out that much of what passes for legal scholarship is of no aid to the bar or bench. He is right. Particularly as law schools people themselves with J.D.-Ph.D.'s, law reviews tend to fill with absurdly narrow treatises on obscure historical or economic subjects, or exegeses of an author's given identity politics. To obtain tenure, one needs to do something novel, and thus, authors traipse further into new terrains of narrowness and irrelevance, to plant their flags in ever-more obscure subject areas. Law review article titles are often puns around weirdly narrow cultural markers, with a colon in between to set the pun off from the narrowly drawn and drolly expressed subject.
The inanely esoteric nature of much legal scholarship is particularly frustrating, given the openings for scholarship that can really matter. Issues like how: the Supreme Court's turn toward fact pleading in the Iqbal and Twombly cases have affected litigation and clients; race, class, and gender continue to impact the enforcement of criminal laws; the nonpublication of court decisions leads to incoherence and unaccountability by courts that should publish all of their written work; and so forth. There is a lot that is intellectually rich in the practically impactful. And yet most scholarship turns away from these pursuits as less worthy than self-evidently impractical matters such as critical theory. After all, why write about how judges sentence the accused, or how prosecutors decide to exercise their discretion as among different groups of offenders, when you can write about Jurgen Habermas?
Law Schools Hate Lawyers and Law Practice
Then there is the allergy to having anyone teach law school who is a real lawyer. Legal academics don't like lawyers in their ranks, and they widely acknowledge that too much law practice (meaning, more than a meaninglessly uneducational and token year to three years) makes you less attractive to faculties choosing new junior members. Seriously, how stupid is that? The justification is that through practicing law one becomes too practically-minded and insufficiently theoretically-minded to be a top-flight professor. That suggestion is simply moronic, a badly-reasoned patina of argument that scarcely masks cultural bias. Of course someone smart enough upon graduation from law school to "do theory" -- whatever that means -- remains smart enough to do it two or four or ten years later. The real differences between the preferred nonlawyer and the less-preferred lawyer are twofold: (1) the age-advanced lawyer comes to understand law as a practical thing (what you'd think trade schools would appreciate and benefit from, since their charges will mostly replicate that career track and not the professor's); and (2) the age-advanced lawyer comes to acquire a skill the academic lacks. This makes the academic culture feel all hurty and threatened, so it retreats into a delusional value system in which practicality is deemed disadvantageous, so the academic can replicate his or her own cultural bias, and can feel smugly superior to people who understand better than they do what they prepare their young charges to do.
I experienced this weird bias against practice the two times I interviewed to be a law professor, which is done at an annual conference of school representatives. As a second year lawyer, I got really nice interviews and was the first called back by one school (meaning I was their presumptive leading candidate). As a fourth year lawyer, despite having a new law review article in a very good journal, I got fewer callbacks. I was suddenly too old for legal academics, sullied as I was by two more years of the practice of law. Because we want really smart, inexperienced 28 year olds teaching 23 year olds what it is to be a lawyer, apparently. Ecch. I also saw this anti-practice slant when I taught law as extension faculty much later in life. Real professors do not want to help students learn legal writing, not that they understand it well, judging from the character and style of much scholarly output. No, lawyers are brought in to do this dirty work, though when I was in school legal writing was such an academic ghetto that it was taught by other students. Consider that legal writing is most of what lawyers really do, writing briefs and memoranda. Despite that fact, practicality-challenged professors can't and don't teach it, and often outsource it to a motley group of underpaid or unpaid volunteers from the local bar.
Given Their Allergy To Practice, Law Professors and Law Education Are Much the Worse
All of this has consequences. Pedagogically, a professor who never practices law is ill-suited to teach professional responsibility, where rules meet difficult and complex practice situations. A professor who never practices law is ill-suited to teaching the rules of procedure, because the professor doesn't have experience with how variably they are enforced, and how their practice and meaning changes with the folkways of particular markets or judges. These professors are teaching blackletter law -- vanilla rules -- but not practice. The conceit that it is not the course subject but the discussion that is the core of legal education has a limited validity. Yes, during the first year of law school, the type of critical thinking fostered in Socratic discussions of rule-based material is very valuable to future lawyers. And the first sip of a bottle of Coke is really tasty, too. But like the last two-thirds of a bottle of Coke, the last two years of law school taste worse than the first swig, and add empty (intellectual) calories to the consumer: the discussion-form is repetitive, old-hat, and adds no value in and of itself, as the second and third years are about specialized subjects, not Socraticism.
Academics don't get exposed to what law really is: the exercise of imperative force by the state against a private person, or by a corporation or private person against another. Contracts or rules of procedure are not simply ideas. They are ways to get things from others, or to have things taken from you. These actions help and hurt real people, sometimes very deeply. Lawyers understand these realities better than academics, because they have that "practical" thing the academy so abhors.
Law School Takes Too Long, and Kills Its Victims With Debt
The legal academe protects itself not only with its asinine preference for those virginally pure of law practice, but also by forcing students to buy three years of its product. If law school were two years and not three, there would be less of a need for faculty, as the number of courses taught would decline accordingly. For this reason, law school will always be three years and not two. The crushing debt loads that today's law students shoulder -- mine was $72,000 twenty years ago and took eight years to retire, today's are routinely twice as large, or more -- could and should be reduced.
The existence of the unnecessary third year of law school is especially heinous given two convergent factors: (1) the lack of law jobs available upon graduation; and (2) the non-dischargeability (e.g., unavoidability) of educational debt if one files for bankruptcy. If you are in a top 25 school, or are doing very well at a state school, you will likely get a decent job on graduation, though one you'll need to keep for a decade to get out from under your debt. But the rest of the human mass the legal academe is processing are extruded right into prebankruptcy, with a debt the value of a small home, often no way to pay it down, and the likelihood of financial ruin.
Why was there an outcry among some against banks for lending money to people who later couldn't pay it back, while there is no corresponding outcry against law schools for admitting rafts of people for whom there are no jobs? Shouldn't the schools be warning people against attending them? Do they bear any responsibility for the debt-crushed cohort of jobless lawyer-wannabes they produce, so they can write homages to literary theory and the law? I would think an adult who already has a job would be in a better position to assess the reasonability of taking out their mortgage than a never-employed college graduate would be to assess the likelihood that the legal job market would afford them a reasonable chance of employment. But no one cares about these people. Maybe failed lawyers are like failed vampires, beyond the reach of human concern. All I know is, the third year of law school is a criminal imposition on the fates of the folks paying off these loans, and those who cannot afford to do so. And that the schools don't care.
Even When Law Schools Try To Do Vocational, They Tend To Screw It Up
In some fancy-pants theory class, I learned that Kant's categorical imperative is that a person should not use another person as a means to an end. The career services professionals at some law schools could use to learn this lesson. Law schools have become unduly focused upon the U.S. News and World Report ranking of law schools, which rests in part upon quantitative measures of a school's success, including the average income of a graduate. This metric is stupid, because it falsely overestimates the quality of middling law schools in California, New York, and Illinois, in which the nation's largest cities offer higher starting salaries. But is also has the perverse effect of incentivizing second-tier market career services professionals to try to send their charges to first-tier markets. This makes sense to many of their charges, who went to law school because it was the next ascending step on a ladder they don't understand or define clearly. To be sure, many in the field do not do this, but some do, and I have seen it. Middle-tier schools would rather have all of their students employed in New York, Chicago, Los Angeles, or San Francisco, because it helps with the U.S. News rankings. These students may wash out of Big Law in two or three years in this cutthroat economy, but the school will get its competitive boost.
In a similar vein, when you hear Very Important Law School Deans talk on panels about evolution in the practice of law, they inevitably talk about how large clients of Big Law firms aren't taking as many of their graduates in a way that implies that Big Law (the top private firms doing mostly civil defense) is their school's vocational Holy Grail. (Sorry for blogging so much about Holy Grails this week. Beats Hitler analogies.) When I was in law school, placement offices de-emphasized placement in government careers in relation to Big Law. With the economy down but the number of government lawyers less liable to fluctuation, you would hope law schools would rethink their relative lack of emphasis on those career paths. Perhaps some are. The deans I have heard do not, and that fits with the U.S. News-driven false emphasis on starting salary for graduates as an important metric for the schools themselves.
Conclusion: Unless You Have $150,000 To Spare and Know You'll Outperform Almost Everyone, Don't Go To Law School
On the positive side, if you choose to be a lawyer, you don't have to worry about me teaching you in a class. On the negative side, if you choose to be a lawyer, you don't have to worry much about being taught by any other lawyer with twenty years of experience. That would be bad, from the point of view of the institution that will force-feed you three years of service before letting you figure out how to practice law after you're out. While I like what I do today very much, the reality is that there are few jobs out there, and fewer fun or good ones. Law school costs too much, and uses students more than it serves them. Like many American institutions, law school needs badly common-sense reform that it will not receive any time soon. Those most disserved least understand what is going on or why and are powerless to cause the sweeping changes that would improve legal education. Those providing it have a skewed view and disincentives to change deeply. Some employers get it, but don't have the influence to cause this change. And so our broken legal education system lumbers on, costing too much, teaching too little, and interested as always in perpetuating itself, first and foremost. Caveat emptor.