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.