Those Who Can't, Teach Law
Not that calling the article a "bile pile" suggests a bias, or "mostly refrained" a bit wiggly, or self-characterizing of "regime of intellectualism" (to be contrasted with "bile pile" and scamfans) self-serving, but the thrust raises the primary strawman argument making its way around the academy in defense of current practice and to demonstrate that David Segal and Paul Campos (traitor extraordinaire) are the most venal people ever.
On the topic of scholarship and lawyering inspired by Segal's NYT bile pile, I've mostly refrained from weighing in. But one of the recent comments however has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. Some of the Segal/Campos scamfans talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys.
Do we think the lawyers who were trained over the last 20 years at law schools under this new 'scholarship' regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are the metrics for making that claim? Or do people not actually think that pinheaded prawfs are bad for lawyering but rather their recherche* interests simply raise the cost of legal education more than it's worth?Notwithstanding Dan Markel's slightly biased approach, the question is worthy of consideration. Mind you, the way it's asked. Are students today worse prepared than students taught in the days when lawprofs were more lawyer than scholar? Despite Dan's loading his question with the word "pinheaded prawfs," he's entitled to question since a ton of blame is being dumped on the academy, and the pinheads who have finally found a home where they can indulge their recherche whims don't like it.
Ironically, Dan includes in his question a penumbra of the Age of Intellectualism, the demand for a metric to prove the position from anyone who responds in the affirmative. Empiricism is quite fashionable among intellectuals, and the existence of empirical proof can provide some damn fine proof of a position. Of course, the absence of it doesn't necessarily disprove it, but most people never get that far in their thinking as the argument never gets past the "but you have no metric, sucker," stage.
Before addressing Dan's question, it's worth noting that he at least strikes at a core issue within the academy, and amongst scholar. In contrast, consider the mouse-milking** argument proffered by Jason Mazzone at Balkinization, that Segal referred to criminal procedure rather than criminal law class, teaching "common law crimes" rather than the model penal code, all of which lawyers, lawprofs and even law students recognize as mistaken details that are inconsequential to the point of the article.
Aside: the truly misguided aspect of Segal's article with regard to how criminal law is taught is that he complains that students are taught "plea bargaining," as if they should bypass learning how to win and go straight to learning how to lose gracefully. Rather than smack Segal for this egregious error, Mazzone adds:
Finally, given Segal's complaint that scholarship lacks relevance, it is worth noting that there is a huge amount of scholarly attention to plea bargaining. Some of the best work in the field of criminal law/procedure is on the topic.
So Mazzone not only misses the chance to finally land a blow against Segal, but demonstrates the disconnect between scholarship and utility in the same breath.
So are law students, and therefore lawyers, worse off for going to law school in the Age of Intellectualism? Not exactly. While Dan's question isolates the scholarship component of a legal education from the array of other factors at work in today's legal sphere, he's likely right to do so. The futurists' arguments that law firms will never return to the go-go race-to-$190k first year associate days of the earlier part of the decade may be right, but we've been through austerity before and come back.
That the Academy has become a home for thinkers and philosophers isn't a bad thing. While I hate to sound too theoretical about it, the law is too deeply rooted in concepts and rhetoric to limit its training to only the most banal nuts and bolts. And if we need thinkers and philosophers, we need to let them do some thinking and philosophizing. That means we will get a whole lot of worthless, dumb-ass, law review articles that serve no purpose under the sun in order to get a few that have a chance to make a significant impact.
Does this serve the interests of law students? Sure it does. Having been in the trenches for almost 30 years, I've seen the nuts and bolts change quite a bit over time. It's also involved mind-boggling changes in technology, which have causes similar changes in our nuts and bolts performance.
Aside: In New York, a contract for the sale of a house 30 years ago consisted primarily of a four page Blumberg form, plus a one to two page rider inserted in the middle, typed in triplicate using carbon paper between the three sheets of onion bond. Today, a contract without a 20 page (at minimum) rider is considered prima facie incompetent.
Had law students back then not been taught the concepts that underlie our system and our laws, perhaps less avant garde as today but still bound to the philosophical rationale for our legal system, the vast changes in criminal law I've survived from the heady days of the Warren Court to today would not have happened. Oh wait, maybe that's not a good thing? Truth is, we've seen a lot of bad law develop over this time, but it was politically driven, and would likely have been worse had lawyers not been philosophically trained to fight it. And that's the point, that it's about our ability to argue the development of the law.
The law doesn't develop in every case, frustrating but painfully true. My anecdotal experience is that 90% of the time, more esoteric or philosophically-based arguments are summarily rejected, whether by judges who lack the capacity to understand them, lack the will to risk change or lack the interest to take the lead. But that leaves 10% of the time when victories were achieved that changed things, whether for one person or for everyone. Ten percent is huge. Even if it were only one percent, it would be huge. And we couldn't accomplish it if we weren't able to think, and hence argue, beyond the rigid limits of the law as it exists on a particular day, frozen in time.
If law school was just nuts and bolts, students would come out of law school with the ability to draft motions and handle a merger, but they wouldn't have the capacity to win that 10%. So my answer to Dan's question begins with the concession that legal scholar aren't inherently bad. But my answer doesn't end there.
The Age of Intellectualism contributes to lawyers' ability to wage philosophical war for that last 10%, the small piece where the law develops. That still leaves 90% unaccounted for, and that's what we do, obviously the vast majority of the time. The question that must also be considered is whether thinkers and philosophers are capable of contributing anything to the 90% of our responsibilities.
While some lawprofs, thinkers by definition since the Academy despises the lowly trench lawyer, have survived a modicum of practical experience, most have no actual experience to speak of. By that, I mean the lawprofs who satisfied their commitment in a prosecutors office or warmed the bench at Biglaw long enough to grow facial hair. Not to be cruel, but anyone who hasn't practiced at least 5 years lacks experience in the practice of law to impart nuts and bolts to anyone else.
Aside: St. John's lawprof Marc DiGirolami, in a post reminiscent of a three year old screaming "look at me" to the grown-ups, pumps an essay of his that is tangentially related to the discussion (why not seize the opportunity to get people to read his stuff, since otherwise it might go wholly unnoticed), as the voice of quasi-experience:
A number of the differences between Anders and me are peripheral to the discussion here, but some of what my reply does is to think a little bit about what sorts of abilities the criminal practitioner possesses, based on my own experience as an ADA for a few years before I began to teach. I certainly do not claim that my experience is typical (I did not practice long or broadly enough to be able to make anything like that claim); it reflects merely one person's thoughts about the quality of what a criminal practitioner knows, and so what it might be useful for him or her to begin to learn in the criminal law course.
While the essay is actually pretty good, if unduly dorky, the experience to which Marc refers is a year as an ADA, and another year as a "special" ADA, and this is sufficient experience to give a theorist a decent spanking. You can't make this stuff up.
Thus, the flaw in Dan's question is that it's binary. Are legal education worse off for the Age of Intellectualism? No. Could it be a whole lot better than it is today? You bet. Is the choice limited to philosophers or grease monkeys? No, and yet that's been the pervasive reaction by scholars to Segal's article.
And here's my metric, since I would hate to offer opinion without evidence. You lawprofs are a very smart bunch, far smarter than a trench lawyer like me. As smart guys, you know that an argument that satisfies you but fails to persuade your audience is worthless, and since your purpose is to counter the public perception created by Segal's horrible front page of the New York Times smear of scholars, there can be no rational point to killing all these words other than to persuade those outside the Academy.
And yet there hasn't been a response (aside from John Steele in the comments to Matt Bodie's Prawfs recipe for disaster) that's even recognized, no less accounted for, the possibility that it's not all black and white, scholar or mechanic, philosophy or trade school.
Times change, for better or worse, and usually in unpredictable (and sometimes undesirable) ways. We change with it, sometimes kicking and screaming, but we change. By "we," I include you. Think all the deep thoughts you want. I applaud you for them. I admire and respect many of them. I really do. But this isn't an excuse to explain why you've never held a well-drafted motion in your hands, or a contract for the sale of a residence. No law student should finish property law without having seen a quitclaim deed, or Estates without a Last Will and Testament.
Rather than argue unpersuasively for the status quo, consider the dawn of the Renaissance Lawprof, the scholar who can also change the oil. Be not merely the thinker, but the doer. Pass the bar in the state where you teach. Gain the experience so you have something to pass on to students. Talk philosophy while handing out the papers lawyers file in court.
The legal profession is in disarray, and there are many causes bearing no connection to the Age of intellectualism. But rather than circle the wagons and rub each other's back, recognize that the Academy has a role to play in training new lawyers both the think and to practice. The argument that the two are mutually exclusive is wrong. That you don't want to, my take-away from the thousand of murdered words, is where Dan Markel's attack on the "bile pile," is too damn bad.
So you want to teach law school? Then teach law school. Cover it all. That's my answer.
* Recherche - adj.
- Exquisite; lavishly elegant and refined.
- Exotic or obscure.
** Mouse-milking - adj.
A phrase used by the late Chief Judge Charles Brieant of the Southern District of New York to describe an argument grounded in trivial, and hence worthless, distinctions that would be unconvincing regardless of whether correct.