Why Law Schools Suck At Experiential Learning

It’s the buzz word that goes hand in hand with the marketing ploy of producing “practice-ready” lawyers: experiential learning.  What it means is to teach by experience, which has conceptual merit like many ideas, even if it’s become trite before it’s even been implemented.  The problem, like most concepts, is that it’s easy to print the words on law school porn in bold-faced, gold-colored letters to entice and confuse young people, but a lot harder to execute in any worthwhile way.

Paul Campos at Lawyers, Guns and Money, raises the point:

Next week Washington’s Wardman Park hotel will be invaded by 800 or so people looking for jobs as law professors, at the annual hiring conference put on by the Association of American Law Schools. “Experiential learning” is the buzz phrase of the moment in legal academia, as law schools deal with the latest wave of criticism that claims legal education doesn’t do enough to prepare graduates to actually practice law.  (Such complaints from the profession are perennial: about every 15 years or so some commission or task force issues a call to make legal education more practical, which occasions a brief interlude of chin-scratching, and then is promptly forgotten).

Now the crisis of the American law school has almost nothing to do with the fact that law schools don’t produce “practice-ready” graduates, whatever that phrase is taken to mean.

Let’s get something straight up front. No amount of “experiential learning” is going to make law grads “practice ready.” It may make them more ready than they would be otherwise, but hardly practice ready. It’s a gross exaggeration perpetuated by a cadre of academics who wouldn’t know practice ready if it bit them in the butt. Why? Because they are no more practice ready than their students, having never actually practiced law. Instead, they exist in an academic cocoon where they pretend among themselves that they would all be famous wealthy biglaw partners if only they weren’t lawprofs. Ah, the sacrifices they make for scholarship.

It is, of course, a wholesale lie. Some might. Most have no chance. And some, if exposed to the real world, would be revealed as frauds for their inability to argue their way out of a paper bag. That’s why they avoid lawyers and surround themselves with sycophants and academic allies, where no one ever tells them (whether because they’re afraid, too polite or similarly myopic*) they just don’t have the chops to be a lawyer.

As Campos points out, this is who law schools hire to provide experiential learning.

Despite the fact that almost every law school this side of New Haven is now slathering its web site and other promotional materials with claims that it provides an impeccably “practical” (as well as, of course, a sophisticated theoretical) legal education to its charges, the vast majority of schools continue to put no value — or indeed place what sometimes appears to be an actively negative value — on hiring faculty who have actually practiced law.

That makes two independent problems with this trendy foray into experiential learning, that they grossly overstate its value and, simultaneously, persist in hiring the least qualified people to teach experiential learning since they have no experience.

The by-product of this was readily seen in the post about Mary Anne Franks, who subsequently took comfort in a sham interview surrounded by only those who wouldn’t mention her failings or lies. And yet, I fully anticipate that her vendetta against the First Amendment will produce the convictions of actual human beings, even if not the ones she wants, because of her woeful ignorance of the real world. And they let her near impressionable students, because they fear her screaming “misogynist” if anyone openly says she’s wearing no clothes.

After running the numbers, Campos says:

If we define an experienced lawyer as someone with more than six years in the practice of law, then American law schools hired far more people this year with advanced degrees in the humanities and social sciences than experienced lawyers.

In sum, leaving aside whether it makes sense for law schools to dedicate more resources to attempting to produce “practice-ready” lawyers, it’s clear that the current tenure-track hiring practices of law schools provide no evidence that law schools are in fact doing so.

Regardless of the silly hype about experiential learning producing practice ready lawyers, the warm bodies at the lectern remain as far away from the reality of law practice as law schools can get. It’s long been my view that every class should incorporate a mix of practical and theoretical learning, but to do so, the prawf must have some footing in the reality of practice or he’s just making crap up.

Kid lawyers with five years or less experience are sure they know all there is to know about the practice of law. Lawyers with more than five years experience know they don’t, and they didn’t when they were a kid lawyers who suffered the delusion that they knew it all. The people attending the annual AALS hiring conference are like stunted adolescents, never reaching that point in their career where they come to the realization that their fantasy brilliance is an illusion, and the support system within the Academy is comprised of other, similarly deluded stunted adolescents.

And these are the lawprofs who will argue to their death that they know more than enough to produce practice ready lawyers through experiential learning.  Disagree and expect to have them run back to the bosom of their tribe, where they will be stroked by their own kind.

In the disagreement with Mary Anne Franks, many lawyers pointed out that although she taught criminal law, she had never practiced a day in her life. How, they challenged, could she teach something she knows nothing about? How could she argue about how the law she was promoting would impact real people when she squirreled herself away in the Ivory Tower? She no more responded to the challenge than she responded to the failings of her ideas.**

I raise this here because she reflects an extreme of the problem Campos writes about, the hype of experiential learning while law schools have faculty who are too intellectually vapid to face real world criticism.  She couldn’t produce a practice ready lawyer because she lacks the two features required to do so: experience and integrity.  And yet, she remains a law professor, hyping her special brand of experiential learning to anyone who won’t call her out.

* Having heard from academics following the dust up with Franks and her attempt at rehabilitation afterward, who insisted that I keep their thoughts private, about how she is perceived within the Academy, I could relate what they wrote without attribution. However, I won’t do so because her detractors refuse to put their names to their assertions and express themselves publicly.

It’s not my place to beat up on Franks with the words of others who aren’t tough enough to express them publicly. I understand their reasons, fear of being crucified by her and her ilk as misogynists, the name they call anyone who disputes their cause, but that’s the burden that lets people like Franks get away with it.  If you have something to say about her, then toughen up and say it. Don’t hide and expect me to do your dirty work for you.

And not to let a learning opportunity pass unnoted, this is what integrity looks like, Mary Anne. You can be forgiven for being wrong, absurdly myopic, disingenuous and incapable of framing a cogent argument. You cannot be forgiven for your lack of integrity. And while others lack the guts to come out and say so, it hasn’t gone unnoticed.

** As has been subsequently point out, a link to my post put into a comment to Franks’ faux interview was manually altered to switch the dot US in the URL to a dot COM, thus breaking the link. Cool trick, right? Subsequent comments about this were never posted. Thanks for the heads up, AP.

 

21 comments on “Why Law Schools Suck At Experiential Learning

  1. AP

    I left a comment the other day at concurring opinions and Mary Anne Franks told me to come back here and claim my cookie. My subsequent comments are still being moderated as I assume she wasn’t interested in my response to her “zinger”.

    I’ve been practicing criminal law now for over 11 years. I’ve been both a prosecutor and a defence lawyer. Looking back now I can say that I wasn’t “practice ready” when I graduated from law school. Nothing will get you practice ready except practicing law.

    As far as being a criminal defence lawyer goes, you need to actually run trials, make submissions, speak to your clients and their family and friends and you need to learn how to lose. No amount of law school will prepare you for the clang of the door as your client is led away to serve a 10 year sentence. I still toss and turn at night about some of the cases I had where I believed my client was factually innocent but was still found guilty. Was it me? What of he had another lawyer? Each of those experiences has given me insight into the criminal justice system and myself. It is only now that I feel comfortable talking to junior lawyers about criminal practice and procedure. I’m sorry but the idea of a person who graduated in 2007, who never practiced a day of law in her life now teaching the criminal lawyers of tomorrow criminal procedure makes my head ache.

    Just one brief story here. When I first started practicing I represented a woman who was a drug addict and who would prostitute herself $5 or $10 at a time. She didn’t care what law school I went to or what my marks were. She only cared that I gave a shit and I had her back because nobody else in this world did. My experience with her slapped me into the reality that a lot of our criminal laws have real consequences to real people. That’s what Mary Anne Franks doesn’t get. Her draft bill will have real consequences to real people. For her to ignore what the lawyers who represent those people have to say is just dumb.

    So can I have my cookie now?

    1. SHG Post author

      I only give donuts. no cookies. Well, maybe cookies, but not the good kind. I dunno.

      I saw Mary Anne’s snarky cookie comment to you, as well as her changing the link so it appeared as if she allowed while making sure no one could use it to read the post she didn’t want read. Crafty, isn’t she? But the irony of her calling names while offering you the cookie comment won’t escape anyone but her fans. That’s the beauty of it, that it’s there for everyone to take away what they will.

      In fact, I found her “explanation” to Joe about the Anthony Weiner nude image remarkably revealing, even if she doesn’t grasp its significance. She tacitly, but readily, concedes that the First Amendment gives way when it protects here enemies, and that is willing to sacrifice the innocent on her alter. Not that they did anything wrong, but that she is happy to inflict collateral damage to the innocent to get the guilty.

      So now we know her truth, no matter how mean-spirited she may be in trying to deny it. And still they let her near children.

  2. Soie Enflammé

    IANAL so I may be wholly off base, but I always thought that a newly minted law school graduate is no more ready to deal with clients, than a newly minted medical school graduate is ready to treat patients. Would be lawyers need to be interns and residents just as much as would be doctors.

    1. SHG Post author

      People often compare the two, but it’s not a particularly good analogy. No, neither is prepared to “be” what they are training to be, but the road to get there has both similarities and differences, both of which need to be respected. Neither, however, is capable of being a viable practitioner based on classroom alone and without the depth that comes with significant time and experience.

  3. the other rob

    In England newly graduated lawyers serve a one year “apprenticeship” style of thing (pupilage, if a barrister, articles if a solicitor) before being permitted to practice on their own. Is there some equivalent in the USA or any pressure to institute one?

    1. SHG Post author

      There has been talk about instituting a similar concept, but it’s not an easy fix given that it would need to be instituted after there being no such program (imagine a solo practitioner forced to take on and pay an apprentice when he can barely afford to keep the lights on) and there being twice as many new lawyers put out by law schools than firms can absorb. Had it been the way all along, it probably would have been a far better way to introduce new lawyers into the practice, but to institute it now, and under current conditions, would be a nightmare for the practicing bar.

  4. Kaimi

    So the claim is that unless someone has practiced criminal law, they “know nothing about” it.

    By that standard, a list of people who know nothing about criminal law would include William O. Douglas, Ruth Bader Ginsburg, John Paul Stevens, and a variety of other luminaries.

    Interesting theory.

    1. SHG Post author

      This is the kind of foolish response that one might expect from someone defensive about a job while ignoring logical fallacies. First, let’s take your strawman: The issue isn’t “knowing nothing” about criminal law, but teaching how to practice criminal law. Strike One. Second, tell me how well William O. Douglas, Ruth Bader Ginsburg, John Paul Stevens can try a case? See, your law students aren’t likely to get their first job on the big bench, and may have to work for a living. Strike Two.

      Third, what in the world makes you think William O. Douglas, Ruth Bader Ginsburg or John Paul Stevens are the paradigms of knowledge about criminal law? Douglas, who wrote Brady, one of the most disastrous jokes in criminal law ever? Ironically, for most practicing lawyers (you wouldn’t know this, I gather), the Supremes are rarely impressive in how their theory translates into change in the trenches. Interesting, right?

      1. Kaimi

        “In the disagreement with Mary Anne Franks, many lawyers pointed out that although she taught criminal law, she had never practiced a day in her life. How, they challenged, could she teach something she knows nothing about?”

        That’s pretty straightforward. Your theory is that, if someone has not practiced, they “know nothing about” the topic. And that claim is silly and overstated.

        “Ironically, for most practicing lawyers (you wouldn’t know this, I gather), the Supremes are rarely impressive in how their theory translates into change in the trenches. Interesting, right?”

        I didn’t make any claims that they were masters of the topic. However, it seems pretty clear that it would be incorrect to say that they “know nothing about” it. Right?

        1. SHG Post author

          Try reading it again. Slowly. First, you will note that I’m referring to what “many lawyer pointed out.” See those words? I put them in there for a reason.

          Second, to lawyers, teaching criminal law involves actually teaching criminal law, as in the practice of criminal law. To someone who doesn’t practice, perhaps that means assign cases from the hornbook and that’s all there is to it. You know how everybody keeps talking about “practice ready?” That’s the same “practice” we’re talking about, except we actually know it and do it.

          But then, criminal law doesn’t happen the way the Supreme Court says it does. I bet you never knew that, right?

          1. Kaimi

            You’re replying to arguments that I’m not making. (See: Straw man.)

            Your post either claims or implies (using weasel words) that unless someone has practiced in X-area of law, they know nothing about that field.

            That claim is so overstated as to be stupid.

            That’s the extent of what I’m saying.

            1. SHG Post author

              Except (for the second time), nobody except you said “they know nothing about that field.” No sale, Kaimi, and I’m disinclined to repeat myself.

              Edit: It just occurred to me that I might be grossly misunderstanding your point. So your argument is that the qualification for being a law professor is to know more than “nothing”? Well, that could explain a lot.

            2. Kaimi

              “So your argument is that the qualification for being a law professor is to know more than “nothing”? Well, that could explain a lot.”

              Fantastic rebuttal to a claim I never made. You sure showed whoever-you’re-arguing-with a thing or two. Bravo!

              You’ve got him on the ropes now. Don’t stop! Hit him again and knock out some more straw!

            3. SHG Post author

              Sorry, but I’m stuck with what you say. Would you like to rephrase your argument? Don’t blame me for reading what you wrote.

            4. Anon Prawf

              Kaimi, while I’m sure that’s not what you meant to say, it is indeed what you said. And the hyperbole doesn’t add to your persuasiveness. You argued yourself into a hole and should consider whether it’s wise to continue digging.

            5. Kaimi

              This is a positively bizarre discussion. Where did I say anything like this? Cite, please. You’re reading things that I’m not saying.

            6. Kaimi

              So to recap, in a very short series of comments in which I never once mentioned or used the words “law professor” or “qualification” in any claim of mine — and in which I very clearly stated that I was making one claim, and only one claims — I apparently also set out an entire theory of law hiring. Whee!

              This has been an enlightening exchange. It seems to me that you’re choosing to deliberately misread my comments, for some purpose of your own (amusement?). As amusing as that may be for you, I’m not particularly interested in continuing.

              Good day.

            7. SHG Post author

              Kaimi,

              Your comments are here for anyone to read. The readers can draw their own conclusions about whether you’ve been unfairly treated or not. If you feel confident in what you’ve written, then whoever reads it will say, “wow, look how horrible Greenfield was to Kaimi, how he tried to manipulate his words, how he deliberately misread his comments.”

              If not, then they won’t. I’ve posted every comment you made, which is more than you’ve done for others. I’ve posted them without alteration. So, whatever you’ve said is here for all to see. Your words speak for themselves. If you’ve been wronged, then the proof is here. This is how truth works, Kaimi. Welcome to the real world.

  5. Jaime Hamilton

    I am a barrister in the UK. I did a law degree followed by a year at Bar School studying on the Bar Vocational Course. Thereafter I undertook a Pupillage, six months following a senior barrister watching him work, being set tasks by him and generally being taught. Thereafter six months of Pupillage where I undertook court work under his supervision. After all that I was just about ready to be allowed out on my own and start to learn about being on my feet.

    The academic side gave me a foundation, the vocational course built on that but the real work of turning me from a learned lawyer to an advocate was in Pupillage and beyond.

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