Future Lawprofs: Moving Further Away From Lawyers?

While calls, or better yet make that screams, from the profession to make law school more relevant to the actual practice of law were recently heard across the blawgosphere, it appears that the latest trend in lawprof hiring may be one that dooms any possibility of bridging the gap.  Paul Lippe is not going to be happy about this.

Over at CoOp, Dave Hoffman (no relation to Marc Randazza, and any similarities in appearance are purely coincidental) asks whether PhD’s are going to become the norm for those seeking entry level positions in the legal academy.

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone?

In my view, it’s an easy choice (with a few qualifications): go PhD or go home.

While some might see this as just the latest flavor in academic  hiring, soon to be replaced by applicants who wear turtlenecks or some other equally relevant criterion, Dave offers a reason for fear:

There are more PhDs in the legal academy every year.  They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles.  Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1-10 or thereabouts) will trend toward all of the top tier.  It’s those mid-level schools which are going to be increasingly tied into central universities as budgets crunch, with resulting Provostian pressures.

In other words, when little PhDs grow up, they will want new lawprofs to have little PhDs just like them.  It’s only human nature to want to replicate oneself, with the added benefit of justifying why you wasted all that time getting the degree rather than using a law school education to, oh, practice law.

The implications are serious for lawyers, as the nice folks who are supposed to be teaching youngsters to be lawyers have made the personal choice to put as much distance as possible between themselves and the nastiness of legal profession.  In the past, one might at least anticipate the most lawprofs spent a couple of years in the library of a large law firm or prosecutors office where they believed that they now knew everything there was to know about being a lawyer.  

If Dave Hoffman is right, the closest they will ever come to a courtroom is one that has the word “Moot” in its name.  Instead of gaining the benefit of learning about life in the trenches, their world view will be formed while running from one campus building to another, never realizing that there is a whole world outside the university to which they’ve never been exposed.  And these will be the men and women who train future lawyers.

Orin Kerr thinks that Hoffman’s valuation of a PhD may be overstated.


I’m not so sure. Such things are hard to measure, but my sense is that Ph.D.s are often overvalued in entry-level hiring right now. Hiring committees change every year, but some committees see them as a very big deal. Time will tell whether that perception is accurate. Right now that perception is based on a prediction about the kind of scholarship those with Ph.D. credentials are likely to produce — more serious and more important than those with just a J.D. But we don’t know if that prediction will pan out. Maybe it will. But maybe it won’t. And if it doesn’t, the preference for Ph.D.s. at some schools likely will soften.
But even Orin recognizes that the potential (likelihood?) that PhDs will prove to be less valuable in legal scholarship is subject to Dave’s replication theory.

For practicing lawyers who think that lawyers fresh out of school lack the skills needed to practice law now, the future may be far more dim.  A lawprof with a PhD is likely to be far more entrenched in the theoretical than the practical, and far more likely to have had no experience in the actual practice of lawyering.  If you think lawprofs today fall short of the qualifications to teach students to be lawyers, imagine what a future of teachers without any practical experience at all will mean.  Oh, the weather outside is frightful.

One shining hope seems like a possibility however.  As law schools continue to compete for students, perhaps this will present an opening for those schools that aren’t likely to be the top draw for the brainiest PhDs to counterprogram themselves as the practical law schools, “the law school where you actually learn how to be a lawyer.”  We can dream, can’t we?

27 thoughts on “Future Lawprofs: Moving Further Away From Lawyers?

  1. Guy

    I’m a second-year law student (so I’m not actually a lawyer or anything), but it seems to me that law school sure as hell doesn’t teach one to actually practice law. I work for a defense lawyer as a clerk, and I have learned more about how to actually practice in my short and relatively mellow time doing that work as opposed to the intense grind that is law school. I mean, knowing about res ipsa loquitur and minimum contacts sure is nice, but that doesn’t really tell me anything about how to talk to a client or how to negotiate a plea agreement.

    I guess I can be thankful that we are now “encouraged” to take one (1) skills class before we graduate.

    And I can vouch for the hypothesis that, while all the law professors I have interacted with thus far can be fairly characterized as “pointy-headed,” the ones with PhDs have an extra helping of it.

  2. SHG

    Be happy that you have a skills course to take.  The lawprofs draw straws to see who has to teach skills, and the short straw loses.

  3. Guy

    You called it – none of the core faculty at my school are teaching any of the skills classes (save for one, who only teaches litigation skills during the summer).

    I suppose that’s a good thing, though. At least I’m going to learn practical skills from someone who sees the inside of a courtroom pretty regularly.

  4. SHG

    The problem (I’ve got my serious face on now) is that the separation of skills from substantive law courses is a fiction. You should understand the theory behind each area of substantive law, but you likewise should understand how substantive law actually happens, and you can’t separate the practice from the theory.  You need it all to actually leave law school capable of being a lawyer.

  5. Windypundit

    Watching this debate from the outside, I don’t think that’s a realistic goal, because I don’t think you can learn those skills in a class. I think you’d have to introduce some sort of post-degree internship like doctors have. What’s the alternative? Running a law school like a trade school and only teaching the skills? Actually, that’s probably not a bad idea for some kinds of transactional law…

  6. Black Jack Shellack

    If med schools in the United States taught medicine the way law schools here teach law, we’d all have the life-expectancy of the residents of sub-Saharan Africa.

  7. Guy

    I agree that you need to have both, I’m just not sure what that sort of class would look like. I took a course in federal criminal law where the professor, for the last week of classes, brought in judges, AUSAs, defense attorneys, and probation officers to conduct demonstrations in the courtroom for us — which was really one of the more memorable parts of the course — but it was also pretty labor intensive insofar as actually organizing it and then getting people to essentially put on a theatre production for us.

    From what I gather, we’re supposed to get the majority of our skills from our internships, but depending on where you work that can either be great or terrible (one of my classmates was basically a secretary all summer for the public defender’s office, which if you want to brush up on your phone-answering and memo-taking abilities then it’s a dream come true).

    Had it not been for my job, I would know exactly zero about how to talk with clients and where to file criminal appeals — basic stuff. I would know, however, that mes rea is the mental component of a crime. So…there is that.

    I’d guess that the result of such a crapshoot in terms of jobs is that a lot of us up-and-coming lawyers are going to have widely varying abilities in terms of the actual practice of law.

    So, I guess what I mean to say is that I would really like to see at least some sort of standardization to the process because, at this point, I really have no idea where I’m supposed to be in terms of skills.

  8. Disgusted Beyond Belief

    I went to a tier 4 law school, one that had a focus on the practical rather than the theoretical side of law. In fact, my school was founded for that very purpose. I think I got a good education there and I think it would have been a waste of money to pay for classes on theory. I took three solid years of practical nuts and bolts classes – nary a theory in sight. Frankly, I think the tier 1 law schools are vastly overrated and they confuse good inputs with good education.

  9. Dave

    A surprisingly moderate post!
    But you write “A lawprof with a PhD is likely to be far more entrenched in the theoretical than the practical, and far more likely to have had no experience in the actual practice of lawyering. ” Just based on my experiences, this isn’t true at all. The PhD folks I talk to are really interested in real world applications of their research — don’t think PhD means “philosopher.” It just means “specialized methodological training.” Some PhD folks are doing work that you might really think useful to understanding how the law actually works and is practiced. (Think of Jeff Fagan at Columbia, for example, who does amazing stuff on how policing works and how it relates to prosecution.) As for the claim that PhD folks are less likely to have experience in practice, that’s probably right, but I’m not so sure that the difference is so stark. Maybe it would be better if you poked around some faculty webpages and looked at the careers of people with PhDs before being so quick to generalize and attack? (And I say this as someone without a PhD, of course.)

  10. SHG

    Nice of you to stop by, Dave.  While PhDs may have a stronger interest in the practical application of their research, my concern isn’t their “good intentions,” but their lack of practical experience. When one’s vision of practice comes from research, it is theoretical no matter what their intended focus may be.  If the totality (or majority) of one’s expernience comes from books rather than the trenches, they are doomed to a career of the theoretical no matter how much they may want their work to serve a real life purpose.

    By the way, I’m not saying there isn’t a role for “specialized methodological training,” or the research the JD/PhDs do, but that role will not enhance a law school’s ability to produce competent lawyers. 

  11. Marc J. Randazza

    The PhD folks I talk to are really interested in real world applications of their research

    Too bad they aren’t interested in a goddamned thing that might benefit the students they are milking for every penny of their future earnings.

    Dave, maybe you ought to get a job as something other than a veal calf before trying to be a cowboy.

  12. Dave

    Many medical school professors are MD/PhDs: does that mean that the doctors they produce have no business practicing medicine?

    Generally, I think you and I must have a different vision of what law school graduates are actually doing. Most of my students don’t end up as trial lawyers: they end up in government working policy jobs, as transactional attorneys, as staff attorneys, as businesspeople, etc. And that’s at a school that actually prides itself on producing trial lawyers! “Theory” (the kind I read, which puts doctrine in quantitative contexts and demonstrates how law actually influences behavior) is really useful in making a better use of your law degree. It helps ground public policy in health law; it enables transactional lawyers to think about which terms to bargain for and enables us to think about (for instance) executive compensation in new ways; it makes it possible to model markets that are the foundation of modern antitrust, etc. Even for trial lawyers, work on jury selection and persuasion has been strongly influenced by social science (think of, for example, the change in how witness identification has been challenged). I don’t know what to tell you other than this: lawyers come to me regularly to seek advice in their matters having read my work. Those matters range from corporate law to jury selection Maybe they are particularly bad lawyers- you’d probably think so, and no doubt your buddy Marc would never deign to take a law professor’s advice when he can so easily write a brief about the entirely apolitical and atheoretical world of first amendment law – but the truth is that you are insisting on a division between theory and practice which simply doesn’t exist.

  13. Dave

    Thanks for the advice Marc! I’ll give it some serious thought. Your judgment and good faith, after all, seem beyond reproach.

  14. SHG

    I don’t know what to tell you other than this: lawyers come to me regularly to seek advice in their matters having read my work. Those matters range from corporate law to jury selection Maybe they are particularly bad lawyers- you’d probably think so…

    I don’t know why you write this, but it was neither necessary nor accurate.  Regardless, I’ve no doubt your students leave school and enter many facets of law and business, and some are no doubt very successful. Yet this provides no answer to whether they could be far better prepared when they leave law school to practice law by lawprofs with greater practical experience.

  15. dave

    Scott,

    As I understand your position, you think that more practical experience automatically increases value to students, that my students would be “far better prepared” were I a grizzled trench warrior like you or Marc. You and Marc define “experience” as years in practice (not variety of practice experiences, or intensity). With those understandings, your argument would be stronger if you were to provide some evidence for your intuition that practicing lawyers provide better teaching & better value to students. I’ve looked at the data on adjunct law professor performance — and if there is a correlation to experience in practice, I’ve not seen it. Students sometimes complain that very experienced lawyers/professors simply provide war-stories instead of context, that their practice knowledge goes stale quickly (especially in the corporate/contracts context where I teach), and that individuals with practice experience don’t engage students who don’t want to practice law in the way that they did. Others have amazing experiences, enriched by the hard-won skills brought to the classroom. It varies: students will be well-prepared to practice law when they learn from good teachers. Experience as a lawyer is certainly valuable. So is being the kind of person who will be curious about the sub-field you are studying, to read and write about it over the years and thus keep from being stale.

    The larger point I was trying to make was that law students need to be prepared for a real diversity of kinds of jobs connected with law: a broad legal education, that emphasizes critical thinking, the structure of doctrine, social science skills, and (yes!) skills education is a good way to make that happen. A skills-only education would leave students unprepared to navigate the quickly changing legal market.

    As for my comment about your impressions, all I can say is that both you and Marc have made it very clear that you don’t understand the kind of work that it takes to become a successful legal academic, and that you don’t respect me. And note that I haven’t said a word about your motives or about how you practice law.

    I’m not so thin-skinned, and I think it’s part of my job to communicate with the public about law, so I decided to try to engage you a bit more here. But it seems like we’re talking past one another. You and Marc appear to believe that professors are intentionally engaged in a ponzi scheme to take students’ money and engage in high-falutin and worthless theory. We are “elites”, or some worse (and more scatological) insult. You get traffic off this kind of venting, and it probably makes you feel good too. I get that. But you haven’t accurately described the world I live in (at a state-supported, comparatively cheap, Philadelphia school). I’d prefer to assume your good faith. But since you and Marc aren’t willing to assume mine, I guess this discussion isn’t terribly productive or a good use of either of our time.

  16. SHG

    While I appreciate your not ascribing negative motives, I think you’ve mistated my views.  First, as I’ve told you many times, I have enormous respect for you and many other lawprofs.  You are some very smart people, even if we may not agree on everything, and I find much of what you write to be very valuable.  You are setting this up as a zero sum game, where my choice is to either love or hate academicians.  That’s not the case. 

    Having experience in the trenches (no one said you had to be grizzled) and being interested in, and capable of, deeper of thought on theory isn’t mutually exclusive.  Your argument implies that I am against lawprofs who are curious about sub-fields and wish to write and think about them at great depth.  That’s not my argument at all.  It doesn’t have to be all or nothing.  And I’ve never said that variety of experience, as opposed to length, is worthless, or less worthy.  I think all experience adds to the mix, though I do think that a brief stint in practice in either Biglaw or government gives a person a false sense of their own experience, primarily because such experience is notably lacking in breadth.

    But your saying that I do not assume your good faith is simply wrong. You’ve still got a chip on your shoulder, and you’re putting up your own roadblocks.  We’ve had a very moderate discussion here, and yet you assume that you’re being treated poorly.  There isn’t much more that I can do on my end short of blowing kisses, and that won’t make for a very useful discussion either.

  17. Jdog

    Many medical school professors are MD/PhDs: does that mean that the doctors they produce have no business practicing medicine?

    I think that the comparison undermines your point. The MDs (with or without PhDs) at med schools pretty much all have practiced — and of the small sample who I’ve met, still do — medicine, by treating real patients. The criticism I hear about a lot of law school faculty is the paucity of them that have a lot of experience practicing law as trial lawyers.

    I don’t know about criticism elsewhere, but what I’ve read from Scott has been pretty consistently not that there’s little or no value in academic disciplines in the training of lawyers, but that there is a problem in a paucity of people experienced in representing clients in trials teaching law students how to do that — particularly criminal trials — and it seems to be a common belief among both practicing trial lawyers and law students who want to do that that their law school education ill-prepared them to do that important thing.

    To take your analogy a bit farther: by the time somebody comes out of med school with an MD, they have done things like prescribed real drugs for real patients, cut into living human beings and sewed them up, and that sort of stuff. What I read — and I’m an outsider; I’m not claiming to know if it’s true — is that at least many, perhaps most or close to all — newly-minted attorneys have never stood up in court next to a client whose property or liberty is on the line, or even gotten much instruction on how to do that from people who have done a lot of it successfully.

    That sounds like a pretty serious criticism to me.

  18. SHG

    You left out the part about how I was being really, really nice, and still got my knuckles rapped for things I didn’t even say.

  19. Jdog

    It’s in the subtext. Only so much I can do in 3000 characters; if it was a novel series, there’d be a whole subplot, and a Walter Slovotsky quote about pleasing some people.

  20. Orin Kerr
    Judge Posner made Scott’s point pretty well in a memorial to his late colleague Bernard Meltzer that was published two years ago. An excerpt:

    In exemplifying the traditional model of the engaged, the worldly, teacher-scholar, Meltzer reminded us of its strengths. Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics,math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

  21. Marc J. Randazza

    Dave,

    Finally you actually come forward with a discussion worth engaging. Maybe if you had tried that in the first place, you’d be less of an object of my ridicule.

    As for my comment about your impressions, all I can say is that both you and Marc have made it very clear that you don’t understand the kind of work that it takes to become a successful legal academic, and that you don’t respect me.

    I plead guilty to the lack of respect for you. It is true. I’m glad that you got that signal bright and clear.

    On the other hand, *I* don’t understand what it takes to be a successful legal academic? I have news for you pussy boy, I was one. I practiced, taught, and published, all at the same time. Not only that, I fostered students who wanted to practice into that field, and I mentored others to their first legal publications (and presumably started them on the road to academia). I continuously get emails and calls from former students who are grateful for the lessons I taught them — usually when they use those skills to succeed both in litigation and transactional work. Accordingly, boy, I’d say you’re a bit off there.

    You and Marc define “experience” as years in practice (not variety of practice experiences, or intensity)

    Incorrect again. I don’t think that there is a magic number for years of experience. However, I do think that number should be greater than three. And frankly, even that would be somewhat thin. There is absolutely no way that a summer associate position followed by 14 months of “intense” practice is sufficient. It would be like trying to be a doctor because you washed a bedpan once.

    Students sometimes complain that very experienced lawyers/professors simply provide war-stories instead of context, that their practice knowledge goes stale quickly (especially in the corporate/contracts context where I teach), and that individuals with practice experience don’t engage students who don’t want to practice law in the way that they did.

    Here’s some good critique. You’re right. I have heard the same complaints. I believe that teaching law should NOT simply be “here is a complaint, here’s how you do it.” Context and theory is ultra important. When I taught, the class would always be 1/3 theory, 1/3 practical application, 1/3 discussion and debate.

    As far as “staleness” goes, that is a marvelous point. (Uh oh… I think that i might have a tiny bit of respect for you poking through!). A practitioner with 20 years of experience, who hasn’t practiced since Members Only jackets were in style is about as useless as some milk fed pansy who lasted for less than two years as a practicing attorney. At my law school (if I had one), I’d kick professors out of the classroom for practice cycles, or require them to be of counsel to law firms. I’d rather have my law profs working on active cases or active transactional deals than writing the next worthless dreck law review article.

  22. Marc J. Randazza

    Oh, and one last point: You wrote:

    You and Marc appear to believe that professors are intentionally engaged in a ponzi scheme to take students’ money and engage in high-falutin and worthless theory.

    I do believe that you are well aware of the ponzi scheme, and that you are a willing participant in it. I know, because I stood there in front of classes too… and I soothed my conscience about it by knowing that I actually gave my kids an edge in getting a job, and then an edge in doing that job well once they graduated. I still had to take a shower after class though… as I knew that I was a cog in a machine that was selling most of them a bill of goods. Don’t tell me that you don’t know the same damn thing.

    Theory has its place. There are some brilliant theorists out there in legal academia. You aren’t one of them. All you add to the equation is debt. But, don’t feel that badly, to meet that standard, you’ve got to be something pretty damn special.

    My advice to you, quit your worthless position and work as an adjunct while actually practicing for a few more years. Figure out what you’re actually training these kids to do before you waste more time and money on your next law review article.

    Legal education is a monstrous failure. The failure is because of the legal academy coupled with a ludicrous loan-granting scheme. You’re no better than a casino employee. And, at least the casinos are honest about what they are doing.

    Despite the fact that there are a lot of great theorists who belong in the academy, the majority are worthless drags on the system who add nothing. Guys like you, don’t want to do the job you went to law school to learn how to do, but don’t want to make $50K a year as a philosophy professor. In fact, you couldn’t likely hack it in *real* academia either. In real academia, your work has to be PEER reviewed and submitted to one journal at a time. Legal publishing is like shooting fish in a barrel — you submit the same dreck to 100 law reviews at a time, where it is reviewed by more nerds, and its sure to get published *somewhere.* Throw in enough gratuitous uses of “normative” or “dialectical” or some critical gender angle, and you’re golden. Talk about cushy.

    You’re part of the problem, so you’re not part of the solution. You decided to pick the fight, not me. I didn’t even know who your wortheless ass was until you started whining on my blog. The fact that you react like a whiny little twerp makes it just a lot more fun to use you as a punching bag and the poster child for the worthless piece of shit pseudo-academic.

  23. Ron Coleman

    I don’t believe law schools should operate the way trade schools do. I have no trouble seeing the difference between the lawyers who have a good theoretical grounding in what they’re doing and those who don’t. That you don’t pick up later. Skills you do, and probably far more effectively than in law school.

    Having said that, I think the divide between legal academia and practice is well demonstrated by making an attempt at reading a “lawprof blog.” Forget about it. They don’t read our blogs (mostly, maybe they read good ones) and I mainly don’t read theirs (mainly). They are talking about something but it’s not about what we do.

    Underlying all this is the real problem — the (at least) “Two Americas” in the legal world, a divide reflected both in the schools and in the profession.

  24. SHG

    I like reading the lawprof blogs.  Some very smart folks over there, whether I agree with them or not.  Sure, they write funny and use big words that confuse me, but I do my best to keep up.

  25. Ron Coleman

    Yeah, I think many of them are “worthy,” but Scott, do you have any sense at all that they are reading the blogs of lawyers who are practicing in the areas they write about?

    Just think, by virtue of blogging, professors don’t even have to go to a courthouse or law firm conference room to get first-hand insight into how the law they write about is really getting made. Yet I don’t believe they do it all that much; if they do I rarely see it reflected in their blogs, however wise they are.

  26. SHG

    They only stop by when their name is mentioned.  Otherwise, no they don’t slum around with us trench lawyers.  But they don’t claim to either.  Despite their protestations, they write for themselves (usually for purposes of tenure), not for us or the courts, but they justify their scholarship as if it was for our benefit.

    I’ve tried in the past to get a more symbiotic relationship going, but I’ve been told it can never happen. We are vulgar, course and banal.  We do not show sufficient respect.  And they are offended by my mere explanation of the problem, because it makes them seem like a bunch of delicate flowers incapable of surviving the slightest criticism without running away or crying.

    So they remain in a circle amongst their own.

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