Bernie Burk: Toxic Tone v. Vacuous Style (Update)

On the final day of 2012, Keith Lee at  An Associate’s Mind decided to fill the gap in UNC lawprof  Bernie Burk’s grasp of the definition of the “law school disaster.”  Burk, whose bio at the UNC law school’s website, graduated first in his class at Stanford Law School in 1983, should have been able to figure it out on his own. It’s been the subject of a great deal of discussion. But apparently, something stood in his way.

It seems that Kyle P. McEntee, Patrick J. Lynch, and Derek Michael Tokaz, the founders of Law School Transparency, released a paper entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.”  Burk, posting at The Faculty Lounge, an insular blog where lawprofs can chat amongst themselves without the intrusion of either the Philistines or Luddites, ripped them a new one.



So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director … What a disappointment.  Commentators with the public stature of Law School Transparency should not “dabble.”


I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history.  I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument.  Sadly, you won’t find much of either here….

Sadly, there is no linking to Burk’s post, as he has since removed it, as he explains here:



Some friends and colleagues who read my lengthy post on Law School Transparency’s recent article on law-school reform gently suggested that I should stop publicly haranguing myself on the bus before people began to worry about my stability (those who read the post will understand the reference).  Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization, for which I thank him. 


I remain uncomfortable with both the form and the substance of LST’s proposals, but I also recognize the merit of the friendly advice I’ve received that there are more constructive ways to contribute to this important discussion than the one I chose.  So I’ll work on it and try again in a few days.

Fortunately, Paul Carron posts some of Burk’s original harangue at Tax Prof Blog.  One line in Keith’s and Paul’s post from Burk’s facile rationalization struck me as the most significant impediment:


Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization…

Burk’s allowance for discussion requires LST to meet his expectations of civil discourse.  He applauds McEntee’s “measured and thoughtful” comment, which is lawprof-speak for this otherwise undistinguished kid spoke to me in a manner I deem to be sufficiently respectful to make him worthy of my approval, and hence my response.

This is a theme in Burk’s writing.
Q: Then why are you being so harsh with LST?  You’ve really been kind of a jerk, you know.

A: Well, I am being harsh.  Here’s why: LST has (in my opinion) distinguished itself since it came upon the scene by its mostly measured and thoughtful idiom, and its basic confidence in the power of information to influence rational behavior and level the playing field.  The article I just criticized is an abrupt and in my opinion unwelcome departure from a style of public discourse that I genuinely admire, not only because it is predominantly engaged and positive (though it is), but because it is—again, in my opinion—effective.   Tossing around the rhetoric of “disaster” and “crisis” without meaningful effort to define the threat, couched in empirically vacuous and occasionally self-contradictory pronouncements, reverts to the toxic style of discourse sadly prevalent in current affairs, and doesn’t advance anything other than perhaps LST’s public profile.  There are more wholesome and productive ways to achieve that end.  In my opinion, LST should hold itself to the same standards of data-driven rationality and full disclosure to which it rightly holds the institutions it criticizes.

Unlike McEntee, some punk kid who “never practiced or taught law,” I have done both, which leads me to wonder, who the hell does Burk think he is that he is entitled to sit high in his Ivory Tower and condescend to recognize the complaints of McEntee and the tens of thousand of former law students, now debtors, working the cash registers of big box stores? Keith provides your empirical definition:


First Job Outa Law School


first job law school


Not proven to your satisfaction?  Not conveyed with the niceties that the kid who graduated first in his class at Stanford demands of the groundlings?  Too fucking bad.*

Your friends were kind enough to “gently” suggest that you take down your Faculty Lounge post that marked you as douche.  Need an empirical definition of douche too? 

What these kids are experiencing is real.  How blind can you be not to notice that those same law students who undertook huge, and unjustifiable, debt to hear your sweet, dulcet tones in the classroom, are now facing personal ruin?  Sure, they bear fault, as do I and every other practicing lawyer who left academics to their own devices until the shit hit the fan in 2007, when we first came to the realization that greed and self-serving blindness in the legal academy had brought the future of the legal profession to the edge of the precipice.  And you don’t care for the way it’s being discussed?  You are only willing to engage if the discourse meets your expectations of civility?  Because you are so brilliant and genteel?

Half the time, I get a headache trying to figure out the underlying sentiment of scholarly discourse, the vacuous language designed to be so very subtle as to damn with faint praise.**  So much could have been achieved if the delicate sensibilities didn’t get in the way of substance.  But even those lawprofs who told you that you were a jerk couldn’t bring themselves to speak out in clear, unambiguous terms.

So let me explain something, from the perspective of a guy who spent 30 years in the trenches where real people (we call them clients (and they are the only reason we, and even you, though by a circuitous route, get paid) cry very real tears. Some things are real. Misery is real. And you should get down on your knees and thank your lucky stars that you were able to enjoy a remarkably well-paid life for someone so dismissive of the misery he is partially responsible for causing and perpetuating.

You don’t care for the uncivil tone of the complaints?  Who cares. You’re lucky they didn’t storm your scholarly office and string you up by your tongue. Now that would have been uncivil, and well deserved.

* While I generally avoid the use of curses, it struck me as appropriate to use them in this post. Screw the effete tone that pleases the professoriate. It’s time to deal with the misery caused by law schools, regardless of how it’s expressed or whether it meets with the approval of academics like Bernie Burk.

** Subsequent to posting this, a clinical lawprof suggested that I note, for the sake of those unaware of the distinction, that they remain firmly planted in the real world of lawyering rather than the theoretical (and are frowned upon by the “real” lawprofs for it).  Unlike those lawprofs who refuse to engage except on their terms, the clinical profs aren’t afraid of less-than-civil discourse and are just as happy to confront the substance of real-life problems in academia as they are to address the real-life problems of their clients in the trenches.

Update:  North Carolina lawyer  Damon Chetson ponders whether this Bernie Burk could be the same Bernie Burk crowing in Carolina Law magazine about how UNC Law is so fabulous that every graduate gets a job?



But back to Burk, who does a little dabbling of his own in Carolina Law, a glossy magazine designed primarily for UNC alumni and donors to the law school:



“Many more prestigious schools, including Carolina, still see nearly all their graduates employed within nine months after graduation.”


Is Burk correct?


No. Law School Transparency reports that only 68 percent of UNC’s class of 2011 was employed in full-time, long term legal jobs. About 1 in 5 graduates did not have a full-time, long term job of any sort nine months after graduating from UNC.


Chestons concludes:



Apparently if you use stark language to describe the nature of what is a real, lived crisis for tens of thousands of law school grads, you’re not contributing to the public discourse in a manner that meets Bernie Burk’s high standards.


But if you overstate the employment results for recent grads of UNC Law School… you’re Bernie Burk.


It seems that shilling for one’s employer in law porn has its problems as well. If forced to chose between civil discourse and honesty, the latter would win for me.  If you picked the former, well…you’re Bernie Burk.

6 comments on “Bernie Burk: Toxic Tone v. Vacuous Style (Update)

  1. fyi

    Hi Scott,

    Just fyi:

    Bernie Burk used to be just “the kid who graduated first in his class at Stanford,” but he then went on to practice law for 25 years and left his job as a highly successful partner at Howard Rice and took a gigantic pay cut to become a law professor. He is somebody who spends countless hours with students (his students as well as others) and even more time tailoring the substance and structure of his courses to reflect the types of challenges young lawyers will face in practice. I watched him mesmerize a large room of North Carolina lawyers, judges and law students this year at a professionalism dinner. He is representing (pro bono) the Legal Services Corporation in the DC circuit this fall. And, more than almost anyone else I know in the academy, he is the person that reads every article and grills the author on all of the practical implications (or, where there are no practical implications, on why there aren’t any). So, whatever else Bernie might be, he is no ivory tower amateur.

  2. SHG

    First, if you want to have credibility, than don’t hide. Without a name, you’re a nobody and a coward. Are you that afraid of speaking out in favor of Bernie that you fear your identity being known? Is he that bad? Or are you just that much of a wimp? Or are you Bernie?

    Ironically, the best that could be said of Bernie is that he was an academic. I checked his website and saw nothing about him every practicing. Maybe he was embarrassed by it and left it out. I asked friends at UNC and nobody was impressed by him. You think differently? That’s nice.

    But if he was a practicing lawyer for 25 years, and still comes off as a total pompous, pedantic tool, then he has no excuse. You just burned his one excuse for being such a total ass. Now he has none. Way to go.

  3. BL1Y

    It’s the first thing on his faculty bio: “Bernie Burk came to UNC in 2011 after a year as an Academic Fellow at the Arthur and Toni Rembe Rock Center for Corporate Governance at Stanford University and over 25 years in private practice at Howard Rice Nemerovski Canady Falk & Rabkin, A Professional Corporation (now Arnold & Porter LLP) in San Francisco.”

    No clue why his personal website wouldn’t have it though.

  4. BL1Y

    You might want to go back and read the comments on this post. It’s becoming quite a side-show, and this Steve Diamond guy is about to hit escape velocity.

  5. SHG

    Can you imagine any practicing lawyer saying to a judge,


    Well, yes, your Honor. I realize my adversary has offered strong substantive arguments in favor of his position, but I don’t think his tone was appropriate, and I refuse to reduce myself to responding to such a toxic argument. It is beneath my dignity and only encourages such ruffians to persist in their vacuous ways. 

    Thus, your Honor, I shall not engage with that person and ask that the Court rule for my client because, well, we share the same sensibilities, unlike my uncouth adversary.

    Utterly incomprehensible coming from someone who purported to practice law.

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