The Whiteboard Chronicles

When Mrs. Miller told the 5th grade class to invent a time machine and take the whole period if necessary, it was great fun and a wonderful exercise.  The kids really enjoyed it and learned a lot. Of course, they didn’t invent a time machine, but that was obviously not the point.

— Principal John Friske

A couple of lawprofs,  Bill Henderson and Andy Morriss, started a blog called the Legal Whiteboard, it’s purpose being to fix us.
According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

*  *  * 

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

The snarky reaction to “better, faster and cheaper law” is pick two.  But he’s right, this is what people want of us, whether it’s attainable or not, and pursuing this, ardently or otherwise, is a worthy goal, particularly in conjunction with making a decent living, wiggly though the concept may be. 

But two lawprofs?

Rather then leap to the obvious problem, it seemed responsible to see what they would do.  After a round of backslapping and mutual admiration, the purpose of which could be the establishment of ascribed credibility or just the usual academic kiss blowing, a  substantive post finally appeared.

Brent E. Newton, an adjunct professor at Georgetown University Law Center, has posted a legal education reform piece on SSRN, entitled The Ninety-Five Theses: Systemic Reforms in the American Legal Education and Licensure   [Hat-tip TaxProf].  Judging by his title, Newton is hoping to spur a Reformation of legal education, akin to what Martin Luther did for Christianity in the 16th century.  If that is his agenda, I will not stand in his way.  

According to his GULC web bio, Newton’s is Deputy Staff Director of the U.S. Sentencing Commission; prior to that, he had a distinguished career as a public defender.  Newton is not the only adjunct-practitioner who has forcefully challenged U.S. legal education.  In 2008, Jason Dolin (solo practitioner, adjunct at Capital), published  Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession.   In 2010, Steve Bennett (partner at Jones Day, adjunct at Fordham) published a law review article entitled,  When Will Law Schools Change?

Where does one look for cutting edge thinking to reform legal education and the profession?  Before answering, bear in mind that the Academy has a hierarchy of scholars, the very bottom of which is manned by ugly animal called “adjuncts.”  They are not invited to sit on committees deciding serious matters. They may be invited to faculty teas, but aren’t expected to come and, if they do, nobody talks to them.

Law reviews.  That’s the answer to the question above.  And law review articles written by adjuncts have two things going for them. First, because they’re adjuncts, lawprofs view them as the voice of practicing lawyers, so as to be able to later claim that they are fully inclusive of all “stakeholders.”  But more importantly, by referring to law review articles written by these adjuncts, they sufficiently “serious” to be worthy of a scholar’s attention.

Law professors rarely engage with these critiques; to acknowledge these critiques, some might argue, is to give them oxygen and legitimacy.  I think this approach is a huge mistake.  Any enterprise interested in long-term success cares about the perceptions held by its stakeholders — and adjuncts are definitely in that group.  In times of crisis, we need friends, not enemies.  

Further, Newton, Dolin and Bennett are serious people and very capable lawyers.  If you leaf through these articles, you’ll see that they read like Brandeis Briefs against the legal education establishment.  The authors present thoughtful, fact-based, and (albeit occasionally) trenchant arguments on why we, speaking as a legal education insider, should change. 

My suspicion is that Henderson and Morriss are trying to acknowledge the various problems facing law schools, and to a lesser extent, the profession, but without the rancor surrounding Paul Campos and his provocative  Inside the Law School Scam blog.  No one flees harsh words as fast as scholars, who can’t understand why their priorities of civility and respect aren’t universally shared. 

It seems that Henderson and Morriss are trying to push the envelope as far as they think they can without offending their colleagues, even going so far as to include a funny comic from the New Yorker at the bottom of a post.  Ironically, they mean it as a subtle nudge to their fellow lawprofs, but don’t appear to recognize it’s relevance to them.

Having a discussion about achieving the goal of better, faster and cheaper law is certainly worthy.  Not that it’s easy, or even possible, but that we don’t move forward by ignoring or denying problems.  Yet, it rankles me that the intellectual elite think they can figure this out within their paradigm while ignoring the fact that there is a large group of folks out there who share their interest and concern, but who failed to get their thoughts published in a law review.  Tossing crumbs to adjuncts isn’t exactly the same as bringing all the stakeholders into the same room.  With or without oxygen.

Will Henderson and Morriss reach out beyond the walls of the Academy to trench lawyers to find out how things really work?  Will their sensibilities be offended should trench lawyers use vulgar, even disrespectful, language to express themselves?  Will Henderson and Morriss think trench lawyers are sufficiently serious to be recognized as stakeholders in their discussion?

Time will tell.  Or, perhaps they are just having some fun pretending to build a time machine, something we know from the outset they will never be able to do. Take the whole period if necessary.