Category Archives: Law School

Raising the Next Generation of Suckers

P.T. Barnum is famously attributed  with the phrase, “there’s a sucker born every minute.”  The lesson for scoundrels is to get your tentacles into the young’uns as early as possible, preferably before they realize that you’re a scoundrel.  After all, once they’ve been sucked dry, who cares?

Due to an inadvertent twit by Norm Pattis yesterday, I stumbled onto another in the vast array of legal social media marketers, who now outnumber lawyers 17 to 1.  Those are tough odds, and as any decent bookie knows, tough odds demand tough ideas.  This marketer, Jay Pinkert, calling his blog Scatterbox, didn’t disappoint. 

Playing on the fear of every law student, that the last job has been taken and there’s no more left for you, he tacitly offers up the solution.  Can you guess what it is?  That’s right!  Social Media!  The answer to every law students dream, to blog or twitter your way to fame and success.  It’s bad enough that lawyers with silent telephones are willing to march into this fool’s paradise, but these are students who have yet to wet their whistle in the law.

Then comes the missing link of social media salesmanship, the big lie. 

Probably the most famous student blawgger [sic] exemplar is Rex Gradeless of  the Social Media Law Student blog, who built a large a loyal following through advocacy of technology innovation in the practice of law. I thought it might be interesting and useful to start looking for other student voices and other approaches that exhibit aptitude and passion for the medium.

And what about Rex commends social media?  He has a loyal following?  He’s techno loving?  He’s got more than 76,000 followers on twitter?  Very impressive.  He’s also unemployed, but you won’t see any mention of that in the post.  Rex graduated law school last year, and despite being asked to give talks to bar associations about how to amass twitter followers, it hasn’t served to start him on the road to being a lawyer. 

Before anyone yells at me for picking on Rex, it’s not his fault that he was chosen as the bearded lady for this post.  He’s just a pawn in the social media marketing game, though he’s certainly done everything in his power to make himself the biggest pawn in town.  There is a point to writing about this, and pointing fingers as needed.  For every dopey comment from a law student savant who knows all there is about the world and doesn’t need a dinosaur like me telling them what’s what, I get 100 emails from other law students who see themselves in these posts challenging their misconceptions, who realize that their pipedreams will go up in smoke if they follow the easy path to success. They want to believe the lies, especially when that’s all they hear.  But they appreciate the dose of reality that saves them from playing Barnum’s fool.  The only secret to success is hard work, two words you will never hear uttered by a social media marketer.

This isn’t to suggest that blogging, or twitting, or FBing, or whatever flavor of social media comes along tomorrow-ing, is a bad thing to do.  It’s not like Rex couldn’t find a job because of his twitter status, though he, along with some other new lawyers have likely elevated their profile for the wrong reasons and done themselves some significant damage in their prospects for gainful employment in the process.  Blog if you want.  Twit to your heart’s content.  Have fun, provided it doesn’t suck time away from more useful activities. 

But don’t listen to the social media snake oil salesmen.  Ignore the charlatans who lie by omission to hook you while you’re young and naive, wanting more than anything to believe that there’s a magic bullet that will bring you the success you were told would follow three years of law school and about $100,000 of debt. 

As for the scoundrels who aren’t satisfied with their efforts to scam lawyers into their clutches, but want to get law students hooked before they know better, let me offer another quote, this one from Pink Floyd:  Leave them kids alone.

Law School Lessons: The Teacup Rule

Over at PrawfsBlawg, Dave Fagundes posts another of the beloved lists of 10 that seem to permeate the blawgosphere, this one about things he wished he knew  before he stated teaching law.  Not being a lawprof, I defer to the Dave’s list, which strikes me as pretty good.  But two items stood out.

5.  It’s easy to lose sight of how fragile student egos can be.  It’s getting to the point where I can no longer say “I was a law student not too long ago,” but if I think back, I can still recall the anxiety of being called on in class, and the attendant embarrassment if it didn’t go well.  I try to constantly remind myself of this when teaching, because student anxiety/sensitivity is an inevitable factor in the classroom and one that requires delicate management.  In light of this, I make a big effort to stress when a student has hit the right answer to a question, and correlatively try to find the kernel of value in even off-base student contributions.  Related, on the rare occasions when a student is so visibly wracked with anxiety upon getting called on that they’re visibly struggling, I have no problem moving on and sparing them (though often informally arranging to call on them in the next class so they have a chance to redeem themselves).

This it the Teacup Rule.  If memory serves, it’s genesis is the reviews that law students write about their professors at the end of a course, where they get to say whether they loved or hated the lawprof.  These surveys have something to do with tenure, compensation and breast/penis size.  Lawprofs care deeply about their students liking them.

Unfortunately, it also involves one of the most important lessons a student can learn about being a lawyer.  We lose. We are often treated like dirt in court.  We are put on the spot constantly, and humiliated when we fail to perform.  And rightfully so.  People’s lives rest in our hands, and yet lawprofs coddle students for fear that their fragile egos might crack.  If they can’t handle a decent humiliation in a class with similarly fragile, yet empathetic, law students, however will they survive a vicious thrashing in court before their client?

Toughen up, teacup.  No matter how brilliant you think you (and your argument) may be, the day will come when you will be told in no uncertain terms that you are laughably wrong.  Will you cry?  Will you run out of the courtroom ashamed?  Will you write a bad review of the judge?  Will your mass of hurt feelings do anything to help your client?

For crying out loud, there is likely no lesson more critical to the practice of law, and weeding out those who have no business doing it, than the strength of character necessary to face humiliation and maintain the fight.  And yet, the lesson is just the opposite.  No wonder why young lawyers find the practice of law so miserable.  They are taught that it’s all about making them feel good about themselves, when the harsh reality is that no one, but no one, in the courthouse cares about their fragile ego.

A corollary to the Teacup Rule can be found in Dave’s seventh “thing”:

7.  Jokes have to be deployed with the utmost caution.  A well-timed, truly funny joke can be a great way to liven up a class.  But the danger is that a joke that doesn’t go over well—or, worse, offends someone—can have just the opposite effect.  The first time I taught copyright, for example, I made a snarky remark about the painting at issue in Lee v. A.R.T. (which is kinda depressing—see what you think here), and a student raised her hand and said icily, “Annie Lee is my favorite artist.  I think her painting is wonderful.”  Ouch.  That moment was tough to get past, and was a wake-up call that even  an innocuous remark can have unforeseen consequences (see #5, “Fragile student egos,” above). 

A joke might offend someone?  Nobody ever gets offended in a courtroom.  Or a law office, Or in real life on the street. 

What life exists within such a bubble, where tepid is elevated to an artform?  Some fairly raunchy jokes are told in the hallways, in the bar across the street.  At bench conferences.  Perhaps it would do the “Annie Lee law student” better to learn that nobody, anywhere, ever, cares whether she is her favorite artist, and if that makes her icy, then she should be prepared to be frozen.

It’s bad enough that the teacups think, feel and act as they do.  That the rules of the lawprof game are to encourage this teacup behavior is absurd.  If these law students are ever to be lawyer, then they will need to toughen up to the realities of the practice of law.  If they can’t handle it, then maybe they shouldn’t be lawyers. But under no circumstances should this be the lesson of law school, that the practice of law revolves around their fragile sensibilities.  While it may enhance the lawprof’s body part on the student surveys, you’re doing them no favors by enforcing their expectation that nobody is every going to hurt their feelings. 

A tougher lawprof might produce a tougher lawyer. 

Common Sense in the Hands of Dilettantes

Over at PrawfsBlawg, Howard Wasserman, forsaking the pedagogical oath to make everything sound more academic than it is, concludes that the law is dead.

Not that blogs need to have themes, but it occurs to me that the common link between Jonathan’s post on the call for a non-lawyer Supreme Court justice and Dave’s post on the movie about the Bonds baseball (which I must see) is the public’s lack of respect for lawyers, legal knowledge, and the legal system. There is a belief that they could do better–in making constitutional law or figuring out the best way to resolve a dispute over a baseball) simply by applying good-old common sense. Special legal training or knowledge not only is unnecessary, it is an actual impediment to the best outcomes. Lawyers, or those who resort to lawyers, are taking the wrong tack.

Not only is the law unhelpful to the resolution of legal stuff, but an impediment.  The public wants to replace it “simply by applying good-old common sense.”  Anyone who has read SJ for a while knows that those two words, “common sense,” are my least favorite.  Anyone who embraces those words will not be invited for dinner.

From this ignominious start, another lawprof, Jeff Lipshaw , connects the dots to Stanford Law School.  Before addressing the substance of Lipshaw’s post, however, I must quote this sentence/paragraph;

So was Larry Cunningham’s post yesterday at Concurring Opinions, discussing Louis Menand’s essay on the anxiety inherent in academic interdisciplinarity.

Interdisciplinarity?  Shoot me now.  Yet this word, more so than any other, captures the essence of what follows.  It seems that Larry Kramer, dean of SLS, will revolutionize law school.  That’s right, revolutionize (maybe resulting in revolutionality?).  Here’s Lipshaw’s summary of the revolution.

1.  The first year of law school largely works, and that will continue largely unchanged.
2.  The second and third years of law school largely don’t work.
3.  The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university’s graduate and professional programs.  This isn’t just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants.  The educational impetus is that it’s no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.
4.  All students will get an opportunity to spend at least one quarter in a full time clinical experience – with no competing classes or projects.

The first one seems okay.  The second, true.  The fourth, well, probably not enough and a bit short of revolutionary.  And then there’s the third.

Interdisciplinarity. Likely taught by interdisciplinarians.  Why?  Lipshaw explains.

I’ve gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a “meta” ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow).  Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.

Aaarrggghhh.  There are those two words again.  My eyes are burning.  Under the Stanford Revolution, law schools will now broaden the legal education to include all the other aspects of life that will enable them to be metadisciplinaritists, engaging the “interplay” between technical expertise and common sense.”  There’s a dilettante in the room, and he’s called “Professor”.

Here’s the deal, plain and simple.  That whole meta-inter-disciplarnialotomist thing you’re promoting?  We call that undergrad.  If you didn’t get enough of it there, then there’s always the school of hard knocks.  We call that life.  Are you eggheads kidding us?  You’re going to charge kids who couldn’t get into Med School $40 grand a year to take the electives they missed the first time around and call that law school?  Are you nutz?

The point of “common sense” is that it can’t be taught.  Not even at Stanford, or even a school without a men’s fencing team.  If you’ve got to teach, you don’t have it.  I can just smell the next step, the Stanford Law Review of Common Sense (Metadisciplinary Edition). 

But the other point of “common sense” is that it doesn’t exist.  It’s a mere fiction that we each create in the dark part of our brain to explain and justify those things we truly believe when we have no real basis.  It’s the phrase that allows us to skip over reason and get right to the outcome we desire. And it’s different in each of us, which is why we’re at each other’s throats all the time.

And yet they call it “common”? 

There will always be calls by those whose unexplainable sensibilities are offended by what they perceive as unfair or inappropriate law because it doesn’t comport with their knee-jerk vision of a correct outcome to do away with the law and leave it in the hands of normal folks, applying good-old common sense.  But the only use of the word “disciplinary” involves a good smack across the face.

Downfall Meets Law Review

Sorry.  Have no choice. Too funny,  This one is for all the lawprofs out there. You are not alone.

Best line: “It’s OK. He won’t really go back to private practice.” 
Second best line: “Or I could start my own blog.”

H/T Dan Markel at PrawfsBlawg

A Lawyer’s Misery For Sale on Craigslist

It’s not the first time. In 2008, David Wold offered his law degree from DePaul for sale on eBay.  Now, another degree, school unknown but for it being “elitist”, is offered on Craigslist for the price of outstanding student loans, $59,250.

The ad shows all the signs of an disgruntled buyer.

After several years of practicing law I have come to the conclusion that my law degree is useless and I don’t want to be a lawyer anymore. Though I spent over $100,000 on it I am willing to sell it for the bargain basement price of $59,250, which is the current value of my remaining student loan balance.

This priceless collectible will permit you to be surrounded by hobby-less assholes whose entire life is dictated by billing by the hour and being anal dickheads. Additionally, this piece of paper has the amazing ability to keep you from doing what you really want to do in life, all in the name of purported prestige and financial success. Finally, girls in the Marina will swoon with retarded thoughts of sugar daddy when they hear you went to XXX prestigious law school and are a lawyer.

Act now as supplies are limited and this crap takes three years to make. DISCLAIMER: this piece of shit isn’t even written in English. It’s in Latin or something, but I have the translation. It says “Haha. We took your tuition money bitch, now suck it. Sincerely, President of the University”

Added Bonus: It’s from one of those elitist BS institutions that accept people like George W. Bush cause their daddy donated $20 million i.e. Cornell, Penn, Harvard, Yale, Columbia, Georgetown, Duke, Tijuana Tech, etc. Instead of donating $20 million you can have it for the low low price of $59,250 or best offer.

This is actually a serious post. I will really sell this piece of shit.

No one, of course, will buy the diploma.  It’s just a piece of paper with someone else’s name on it.  It won’t impress the “girls in the Marina.”   Some will see this as another manifesto of a loser, which, of course, it is.  But it’s more a warning to the unwary, to the law schools and to the mommies and daddies who push their little darlings into the law in the hope that they will become more than they were.

The seller blames the law. His anger is understandable, but misdirected.  He should never have gone to law school, never have become a lawyer.  Being a lawyer is hard work.  Becoming a lawyer doesn’t guarantee anyone wealth and prestige.  He made a very expensive mistake, and now finds himself miserable. 

The seller blames the law schools.  He’s closer to the target now.  Law schools sell the dream, the image that fills their high priced seats with young men and women, that pays for over-priced law professors to indulge their fantasies of writing useless articles and treatises for their own self-aggrandizement.  The take in far more students than can possibly find a viable future in the law, knowing full well that society can’t absorb them all, and couldn’t care less.  They fudge the employment statistics to make the cost appear worth it.  They lie to students, and then to themselves to rationalize their deception.

The seller of this diploma, who I will call Max since he’s neglected to include his name in the Craigslist ad, wants to make a point that he was scammed.  Many will argue that if Max is anywhere near as bright and worthy as he thinks, he should have known what he was getting into.  He should have understood what it meant to be a lawyer.  He should have realized that he was being lied to. 

Whether he should have is one issue; that those entering law school, applying for huge loans, sitting eagerly in class hoping to suck in enough information to make law review and assure themselves of a wonderful life, rarely see their future clearly is a truism.  Even with the stories, the posts, the complaints, the hatred that spews from disaffected young lawyers, they believe that their life will be different, wonderful.  Right or wrong, we know this is how they think.  And if they didn’t, half the seats in the ever-increasing number of law schools would be empty. 

Max is wrong.  His anger is misdirected.  The law is a wonderful profession for those who desire to be lawyers.  For those who enter the law because they want wealth, prestige and work/life balance, it will be a misery. 

Even as Max’s ad runs its course, the American Association of Law Schools is preparing for its 2011 conference by seeking ways to deal with the problem.  It’s put out a call for proposals:


A Joint Program of the Sections on Balance in Legal Education and Academic Support>>

Co-Sponsored by the Section on Student Services>>


Theme:    “Beyond Humanizing:  Can – and Should – Law Schools Strive to Graduate Happy Students?”>>


Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place.  By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations.  Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education.  Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness.  In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.

Nothing shows more clearly how law schools and academics are trying to hide from their massive failings, their deliberate lies, than this charade.  All those very smart people denying that the problem is their sucking in young people who have no business in the law, wholly lacking an understanding of what lawyers do, and selling a sham future at an absurdly inflated price.  Instead, they pretend that it’s all about changing the profession to make students who have no business being in law school “happy”.  Throw them a party.  Give them a trophy.  As long as we keep the seats filled and the tuition checks flowing, so we can spend our time writing articles that will enhance our personal prestige.

Nothing here reflects the slightest recognition of the responsibility of law schools to vet those who apply for people who want to be lawyers.  The fictional paradigm, about those entering with lofty goals and leaving with cynicism, allows them to keep milking the cash cow while shifting the blame elsewhere.

Stop lying to yourselves.  Stop lying to potential law students.  The law is not an easy life, nor clear path to a happy future.  It’s hard work, and not everybody is cut out for it.  The law cannot be reinvented for the benefit of lawyer happiness; We have a job to do and if the purpose of that job ceases to be service to the client so that we can focus on our own happiness, the law ceases to have a reason to exist. 

If you want Max to be happy, don’t throw him an ice cream party or give him a red balloon.  Give him his money back and let him find an occupation for which he is better suited.  Change your law porn to show hard working, financially struggling young lawyers, who can’t get a date with the girls at the Marina, but won’t have time for it even if they could.  Show them fighting for people whose own miserable lives depend on the lawyer doing his job well in a system that satisfies ego and blood lust better than reason, where every once in a while the right result happens.  And if they still want to go to law school, then you’ve got the right person.

Unfortunately, Max is typical of his generation, only brilliant after the fact, and then only when it comes to pointing the finger of blame away from himself.  But narcissism and entitlement are the hallmarks of today’s law students, and that’s not going to change for a while.  At least the Slackoisie can console themselves by knowing that they aren’t totally at fault for being blind pigeons in this scam.  They have good reason to blame law schools and professors. 

Breaking Even

Via Above The Law and, cleaned up some, Volokh Conspiracy, Northwestern Law School Dean David Van Zandt,at the PLI Law Firm Leadership and Management Institute, offered his thoughts on the future of legal education.  Included in his speech was this:

One of his most interesting tidbits was the starting salary that would constitute a “break-even point” for going to law school. In other words, what salary would you have to earn upon graduation in order to make going to law school an economically rational decision?

Van Zandt and some of his Northwestern colleagues did a study to determine the added value of a J.D. degree. They concluded that the break-even starting salary for a law school graduate is $65,000. Put another way, going to a law school with a median salary upon graduation that’s below $65,000 is not a wise investment.

Schools with median starting salaries under $65,000, which generally land somewhere in the 70s in the U.S. News & World Report rankings, are not good values. They need to either lower their cost to students and/or improve job opportunities for their graduates, according to Van Zandt.

Over at ATL, where most of the readers are, or more likely, want to be, Biglaw bench warmers, there was much quacking about the details.  David Lat questioned whether Van Zandt’s $65k was high enough, while others nipped at the edges of the number by noting that some schools charged more, others less. 

(A break-even point of $65K seems low to us, given high law school tuition, the borrowing costs associated with student loans, and the opportunity cost of going to law school when you could be earning a salary in some other industry. We’ve reached out to Dean Van Zandt to ask for more detail about the data he utilized and the assumptions he made in reaching his conclusion. Another academic, Herwig Schlunk of Vanderbilt Law, believes that the break-even point is much higher.)
While accuracy matters, it obscures the more important point, one that we seldom think much about if at all.  I can’t remember a would-be law student, asking my advice on entering the law, considered it from a cost-benefit standpoint.  It was assumed that becoming a lawyer meant that one would enjoy a financially comfortable life.  It was a given.

Dean Van Zandt’s raising the point, even if we quibble about the details, is important in that it puts the question squarely in issue.  If you are not going to come out of law school and fall into a job/practice where you earn somewhere in the neighborhood of $65,000, you’ve made a poor financial decision.

Of course, at ATL, no one considers the application of this issue to criminal law, the nasty niche far under the radar of students aspiring to engage in the practice of important areas law, like M&A.  Are there any prosecutorial or public defender offices that pay new hires $65,000 or more?  Not that I’m aware of, making lawyers who want to enter into criminal law financial failures.

When it comes to criminal defense, I suspect that most lawyers come to it with a desire to spend their days doing it.  It’s not a money issue, as opportunities for vast wealth are remarkably limited.  In that way, it can be considered more pure than more lucrative practice areas, attracting young lawyers for the right reasons rather than the money.  There’s not much money to be had, and nobody thinks otherwise.

On the other hand, if young lawyers gave much thought to the cost of their education versus the income they would anticipate deriving from it, one might suspect that they would think long and hard about whether their desire to practice criminal law was so strong that they would be willing to make a substantial financial sacrifice to do it.  I mean, it’s fun, but is it that much fun?

What’s notable about the break even point is that the job market for young lawyers tends to divide into the Biglaw jobs paying substantially more, and all other jobs paying substantially less.  There aren’t many jobs out there for new lawyers offering $65,000 a year.  Most of the jobs, obviously, fall well under the break even point.

So what to do about it.  One solution is to reduce the cost of a law school education, but that would result in lowering the barrier to entry and more people wanting to go to law school.  New law schools are opening as we speak, demonstrating that the ABA is of the view that we don’t have enough lawyers, as opposed to too many.  Perhaps everybody will be a lawyer someday.  The more lawyers, the greater the supply and lower the salaries.  And the all the other problems that come along with idle lawyer hands.

Another solution is to increase salaries, as if legal costs aren’t high enough already.  No doubt the public is saying, “darn, I should sue/defend more often since it’s such a good financial deal and will help that nice young lawyer earn a decent living.”

Dean Van Zandt suggests that changing the way law schools train lawyers, by turning the third year experiential, or even eliminating it altogether.  He notes that law schools are resistant to this change, although his school, Northwestern, has made some fundamental changes in its program.  To the extent that law schools fail to produce people capable of practicing law upon admission, Van Zandt leaves it up to law firms to provide the practical education young lawyers need to turn their law school experience into something remotely useful.

Nobody suggests, of course, that we stop producing more lawyers than society needs or can absorb.  And certainly nobody feels any qualms about the fact that our prosecutorial and public defender functions rely on overworked and underpaid young lawyers who, if they had an ounce of fiscal intelligence, would have put their money into gold and opened a shoe store.  Everybody needs shoes.

One thing is painfully clear.  If you’re looking for a decent investment, don’t go to law school.  And if you’ve already blown that choice, definitely don’t become a criminal lawyer.  It’s like flushing your money down the toilet.  Unless you happen to really want to do this for the rest of your life.

The Slackoisie Take The Lectern

That the seats in our law schools are filled with the Slackoisie is nothing new.  But do they own the lectern as well?  From Jeffrey Harrison’s description at MoneyLaw, so it would seem.

I analogized it to regulatory capture in the sense that faculty who were supposed to govern law schools for the benefit of shareholders — students, taxpayers, donors — actually governed to benefit themselves. The range of questionable activities ran from teaching specialized low enrollment courses because the topic was of interest to the teacher (but not to very many students) to foreign boondoggles, pushing ideology in the classroom, and hiring and tenure decisions based on social and political considerations rather than the merits of the candidates.

Harrison called lawprofs as “shirkers”, putting their responsibilities to others second, and making sure that they were taking care of number one.  He attributes it to an unbearable sense of entitlement.

After all, law faculties are largely populated by children of privilege. (I wonder what the record is for the most expensive education. I think we have it.) Many times their sense of entitlement is over the top. They deserve, therefore, to teach what they want to teach at the time they want to teach it, they deserve that new furniture or to vote yes on tenure for a pal because they have been told, since birth, that they are special. Some have a virtually infinite capacity to explain why they are deserving and why they are on the moral high road whether or not they are.

Does any of this sound familiar?  While Harrison’s focus is limited to his colleagues in academia, and hence his attribution of their ways to their “elite” educations, there’s little to distinguish these entitled lawprofs from the young Slackoisie lawyers that sat next to them in class and are now taking up office space in law firms around the country. 

Well, maybe two differences.  First, they may be a bit smarter than most, and thus more capable of manufacturing arguments to explain why their entitlement is more worthy than others.  Second, they exist in an environment where they can get away with putting self-interest ahead of all else.  The “shareholders” in law school aren’t in a position to be quite as demanding as clients.  Or quite as unforgiving.

Harrison struggles to clean up some loose ends about his belief that entitlement stems from attendance at our “elite” institutions of learning, noting that not every lawprof is a shirker, and that some who attended the less-elite schools seem even more entitled than those who went to the Big Time law schools. 

More importantly, not all those with an elite education seem to feel entitled. Far from it. Plus, some of those who do not have an elite education seem to feel an extreme sense of entitlement. Maybe all that can be said is those with the elite educations are more likely to have a sense of entitlement and more likely to justify their anti stakeholder activities than those without the same background.

With a few steps backward, I suspect Harrison will recognize that it’s not an elite law school issue at all, but the pervasive narcissism of the Slackoisie that has invaded his ivory tower.  The elites are simply better able to rationalize their narcissism, while the back-benchers have learned a lesson or two from getting kicked in the teeth on their way to work. 

None of this need be tolerated.  Lawprofs have a job to do, just like everyone else.  But it requires someone to cut them down to size, burst their bubble and give them a good smack in the face.  Teach the darn students, and forget about twirling around in your ermine stole.  Lawprofs exist to teach law students.  Law students don’t exist to fund lawprofs’ flights of fancy.

Worse still, if the lawprofs are so self-absorbed that they can’t see their own sense of entitlement undermining the very purpose of their existence, how will they be able to grow law students beyond their own Slackoisie narcissism?  Who will teach them that being a lawyer is about serving clients rather than feeling good about yourself or making happy hour at the tavern?  As we criticize the young lawyers coming out for their lack of dedication to clients, their inability to comprehend the notion of hard or disagreeable work, their entitlement, we can’t forget about the group of men and women, the last vanguard, who stand between the students and the lawyers.  They are supposed to teach them how to be lawyers, provided they aren’t too busy indulging their own self-important fantasies to notice the room full of students in front of them.

Not every law student will get a trophy.  Yet, every lawprof thinks they deserve one, and their fellow lawprofs are only too happy to oblige.  After all, they’re entitled.  They’re the Slackoisie.

Don’t Quote Me

The past two days were spent on the faculty of Cardozo Law School’s Intensive Trial Advocacy Program (ITAP).  If your law school doesn’t have a similar program, ask why.  If they aren’t interested, transfer. Forget law review or whatever tier your school claims.  This is what lawyers do, and if your school isn’t doing it, then you lose.

This program, taught primarily by practicing lawyers and judges, including some of the best around who fly in across the country to be a part of the gang and offer their experience, provides an experience to law students that has the potential to actually enable them to walk into a courtroom and act like a lawyer.  Professors Ellen Yaroshefsky and Barry Scheck (who is phasing himself out of running the program) have a great thing going.

For the lawyers and judges, the most fun is the opportunity to hang out, listen to the war stories and see friends that we haven’t run across in the past year.  We tend to spend some intense time with other lawyers when we work with them on a case, and then lose track as we move on to other cases with other lawyers.  They become part of the coterie of old friends, people we like, respect and wish we could speak with more often.  Of course, life makes that difficult.

The most curious aspect of this year’s ITAP experience was how many people had stories to tell me, about their cases, lawyers, experience, whatever, and at the end of the conversation, would say to me, “that’s off the record, right?”  It appears that my blawging precedes me, and it makes even old, trusted friends a little wary about what they say to me.

I’ve got my doubts about this lawyer/journalist concept, about whether what I do here qualifies me to claim amateur reporter status.  While I have, on occasion, “broken” news, and I do pass stories of interest around from time to time, most of my effort is better defined as commentary than reporting.  The ABA Journal calls my posts “rants”, but that’s only because they hate me.

However, my sense was that blawging has changed things.  Not to the extent that old friends aren’t still friends, but that they want to be sure that they are talking to Greenfield the lawyer, not Greenfield the blawger.  Their words, thoughts, complaints, interests aren’t for publication, but for talk amongst their own. 

Let there be no doubt that I’m lawyer first and blawger second.  These men and women are not my “sources”, but my friends and peers.  I’m not a mole, taking notes on every nasty word spoken or beef between the brothers.  I’m just another lawyer hanging out with my own.

Don’t worry guys. I won’t quote you. 

But I will tell one funny story.  Fifth Circuit Judge Ed Prado was in my group, along with Arizona lawprof Zelda Harris, who was our team leader.  Judge Prado (yes, I still call judges judge, even in this friendly, informal setting) was having some fun during downtime telling the law students stories about life as a federal circuit judge, and he’s quite the raconteur.  Zelda kept trying to shut him down, as his stories were more interesting than hers, and he would feign being a scolded child whenever Zelda gave him the evil eye. 

During a break, Judge Prado was talking about cowboy boots, being from San Antoine, and explained how he admired his Luccheses.  This stopped the students cold, and they stared at him in wonderment.  The judge had no idea what happened, why the students were suddenly looking at him like he was nuts.

I chimed in at that moment (cautiously, as I didn’t want to be scolded by Zelda), and said, “Judge, in New York, the name Luchese has a different meaning than it does in San Antoine.  Everybody broke up, except Zelda who admonished us to get back to work.

If you get a chance to attend ITAP, whether as student or faculty, I urge you to go for it.  It’s a great experience.

Keeping The Cash Cow Happy

It’s as if the world inside the Academy was untouched by human hands.  At least the hands of a lawyer.  While practitioners complain that students emerge from law school unprepared to face the world as lawyers, and students complain that the fine time they have inside the Ivory Tower serves only to make the slap in the face as they step through the door into the real world more painful, law professors are busily trying to figure out ways to make the experience different.  Better. Fun.

Over at PrawfsBlawg, Howard Wasserman floated an idea about how to up the fun quotient on exams:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Could this work? And does anyone have ideas on cartoon(s) to use?

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.  A commenter suggested that his effort would come to naught.

I realize I am a stick in the mud, but as a 3L, I would ask you not to attempt to be fun or cute with your exams. No one likes taking or grading exams, but they are usually worse when a professor attempts to break out of the mold with something playful. Such exams often suggest that the professor does not take the process seriously, and that the grades themselves are arbitrary.

To be crass, think of an exam like a colonoscopy: it’s not a fun procedure whatever you do, and the doc’s only going to make it worse by performing it in a clown suit. Exams and grades have a major impact on your students’ futures, and they will appreciate you more if you treat the process with the seriousness it deserves.

Out of the mouths of babes.  But Wasserman was not so easily deterred.  While he might have overstepped on the clown suit idea, he still questioned, in a subsequent post, whether there was a better way to make law school exams more “fun”:

The idea is to try to break the tension of the exam a bit. As a student, I found it helpful if there was something unique or fun about the exam, even if only as a momentary distraction. There is a balance to be struck, of course. We as prawfs can try too hard. And there always is a risk that only a few students will “get” the humor or culture references–and perhaps that “getting it” will provide an unfair advantage on the exam itself. Several people raised this issue as to my cartoon idea and maybe it falls on the wrong side of the line.

But the broader question stands: Can students enjoy exams just a little bit and is there anything we can do to help? Or is an exam always an uncomfortable medical procedure and any effort to make it otherwise merely detracts from the seriousness of the exam itself?

One of the perpetual problems with intramural discussions amongst scholars is that they try to arrive at idea about how best to train lawyers without involving lawyers in their discussions.  Since so few real lawyers bother to read the lawprof blawgs, the lawprofs are left to their own devices.  Having stumbled upon Wasserman’s post, I decided to butt in and provide an outside perspective:

I hope I don’t ruin the fun by injecting the practitioner’s perspective, but one of the missing ingredients we see in the blossoming law student is tolerance for the reality that life as a lawyer is frequently not “fun”.

Judges can be decidedly unfun. Clients too. Perhaps the effort to make exams more fun is counterproductive at a time when practitioners complain that law students emerge from school largely unprepared to meet their professional responsibilities?

My comment was roundly ignored, which made me feel right at home.  Not their home, but mine, where I am roundly ignored by those who care most for me.  While this was occurring over at PrawfBlawg, the New York Times Room for Debate discussed a similar question, whether graduate students are “students” or “consumers”. 

There is a fundamental rift in how law schools perceive law students.  While one might suppose that they are all busy kissing up to their cash chow, that’s not quite the case.  Consider Richard Vedder, director of the Center of College Affordability and Productivity and teaches economics at Ohio University:

The “student as customer” philosophy has created an underworked and overindulged group of future national leaders, something that likely will prove costly in the long run.
But as others in the Debate Room argue, they can’t do the things that professors like to do without cash-paying students to fund them. 

The one thing that Wasserman’s question ignores is the efficacy of making law school more fun.  His concern with amusing his students, and himself, and making the law school “experience” more enjoyable, is fundamentally misfocused.  It not only perpetuates the fraud of trying to convince law students that law is fun, that they are entitled to fun, that they will have fun when they leave the ivy-covered buildings and take their folding chair in the boiler room, or if they are very lucky, the library. 

Law isn’t fun.  If you want fun, find something else to do.  And if you need fun to help get you through the rigors of law school, then get out now and save your pennies.  You’re headed for a miserable life.

I can understand why Howard Wasserman is trying to make the children in his charge enjoy their experience more.  He’s concerned for them, likes them and wants them to feel better about law school.  It’s a kind thing to do, from his point of view.  But these same students will not find such kindness or thoughtfulness when they strike out on their own.  They will find decidedly unkind judges.  They will find particularly unkind bosses.  They will find clients for whom kindness to them is like the plague.

Law schools are particularly against the idea of becoming trade schools, and I do not agree that theory and understanding of the law has no place in law school, though I do believe that students need to learn the mechanics of their chosen field as well as concepts.  But neither requires that they be coddled.  Indeed, teaching law students to overcome adversity is critical to their survival as lawyers. 

Rather than make law school a more pleasant, a “funner”, place, it should be as difficult and, even, miserable as the practice of law.  If they can’t hack it, then maybe they will be taught the most important lesson they can get from law school: They shouldn’t be lawyers.

Future Lawprofs: Moving Further Away From Lawyers?

While calls, or better yet make that screams, from the profession to make law school more relevant to the actual practice of law were recently heard across the blawgosphere, it appears that the latest trend in lawprof hiring may be one that dooms any possibility of bridging the gap.  Paul Lippe is not going to be happy about this.

Over at CoOp, Dave Hoffman (no relation to Marc Randazza, and any similarities in appearance are purely coincidental) asks whether PhD’s are going to become the norm for those seeking entry level positions in the legal academy.

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone?

In my view, it’s an easy choice (with a few qualifications): go PhD or go home.

While some might see this as just the latest flavor in academic  hiring, soon to be replaced by applicants who wear turtlenecks or some other equally relevant criterion, Dave offers a reason for fear:

There are more PhDs in the legal academy every year.  They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles.  Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1-10 or thereabouts) will trend toward all of the top tier.  It’s those mid-level schools which are going to be increasingly tied into central universities as budgets crunch, with resulting Provostian pressures.

In other words, when little PhDs grow up, they will want new lawprofs to have little PhDs just like them.  It’s only human nature to want to replicate oneself, with the added benefit of justifying why you wasted all that time getting the degree rather than using a law school education to, oh, practice law.

The implications are serious for lawyers, as the nice folks who are supposed to be teaching youngsters to be lawyers have made the personal choice to put as much distance as possible between themselves and the nastiness of legal profession.  In the past, one might at least anticipate the most lawprofs spent a couple of years in the library of a large law firm or prosecutors office where they believed that they now knew everything there was to know about being a lawyer.  

If Dave Hoffman is right, the closest they will ever come to a courtroom is one that has the word “Moot” in its name.  Instead of gaining the benefit of learning about life in the trenches, their world view will be formed while running from one campus building to another, never realizing that there is a whole world outside the university to which they’ve never been exposed.  And these will be the men and women who train future lawyers.

Orin Kerr thinks that Hoffman’s valuation of a PhD may be overstated.

I’m not so sure. Such things are hard to measure, but my sense is that Ph.D.s are often overvalued in entry-level hiring right now. Hiring committees change every year, but some committees see them as a very big deal. Time will tell whether that perception is accurate. Right now that perception is based on a prediction about the kind of scholarship those with Ph.D. credentials are likely to produce — more serious and more important than those with just a J.D. But we don’t know if that prediction will pan out. Maybe it will. But maybe it won’t. And if it doesn’t, the preference for Ph.D.s. at some schools likely will soften.
But even Orin recognizes that the potential (likelihood?) that PhDs will prove to be less valuable in legal scholarship is subject to Dave’s replication theory.

For practicing lawyers who think that lawyers fresh out of school lack the skills needed to practice law now, the future may be far more dim.  A lawprof with a PhD is likely to be far more entrenched in the theoretical than the practical, and far more likely to have had no experience in the actual practice of lawyering.  If you think lawprofs today fall short of the qualifications to teach students to be lawyers, imagine what a future of teachers without any practical experience at all will mean.  Oh, the weather outside is frightful.

One shining hope seems like a possibility however.  As law schools continue to compete for students, perhaps this will present an opening for those schools that aren’t likely to be the top draw for the brainiest PhDs to counterprogram themselves as the practical law schools, “the law school where you actually learn how to be a lawyer.”  We can dream, can’t we?

The Final Final?

Over at PrawfsBlawg, Rick Bales raises an issue that has totally eluded me up to now, but that may serve to recreate law school in the same way that over-assessment has undermined the point of showing up in high school three days a week.  Testing.

An issue that’s hot right now in higher education generally, and becoming hot in legal education, is outcomes assessment.  How do we know that students are learning anything from our courses?  Single, end-of-semester examinations and bar examinations are poor determinants of student learning.  They both are summative rather than formative, meaning that students do not find out until it is too late whether they are learning the material at an adequate level (contrast weekly quizzes – if a student regularly performs poorly on quizzes, the student knows she needs to step up her game).  They both are snapshots: they demonstrate what a student knows at a single point of time rather than what is retained over time.  For both, there is very little correlation between what is tested, how it is tested, and real-life law practice.
Many things are mixed together in this paragraph, and have the potential to fundamentally alter the way law is taught.  Some may think this is good. Others not so much, but it’s a hot topic within the Academy and yet practicing lawyers, the consumers of law school products, know almost nothing about it. 

Paul Lippe recently started a debate over whether law school 4.0 should focus on the theoretical or practical, and it dealt with some critical issues for the future of lawyers.  Academics disagreed.  While that side of the issue remains unresolved, the testing side can sneak up on us and similarly do a whole lot of damage.  It’s hardly a benign problem for the consideration of lawprofs alone; When law school education is assessed on a regular basis rather than just a final exam, the mechanics of how law is taught will change.

My initial thought is that we already have lawprofs in the classroom.  Don’t they know, via Socratic Method, who has a clue and who doesn’t?  But then I remember that Socratic Method is no longer the favored form of pedagogy, and that it’s no longer acceptable for teachers to tell students that they’re wrong.  That would harm their fragile self-esteem, and subject the law schools to angry phone calls from the parents circling above.  Nobody wants to hear from the parents.

The demand for constant assessment, which for some strange reason has become accepted as the routine, may result in teaching to the test, or the death of inspirational lawprofs, or simply taking away the time that was earlier used to teach law.  Maybe this isn’t such a bad idea after all?  But if assessment became the rule, some of the most important things I learned in law school would never have survived.

Then there’s the question raised by Rick about the correlation of testing and the practice of law.  One final exam is, obviously, summative.  But then, so it a jury verdict.  It’s not like you get to go back and redo your cross after the jury foreman says “guilty”. 

But the aspect of this demand for assessment that strikes me as most troubling is the maturing-down of law school.  While perpetual adolescence is a widespread problem for the Slackoisie, and evidenced by the comments at Above The Law, which caters to the younger set, and Sweet Hot Justice, confronting such monumental concerns as associates having acne outbreaks, law students are supposed to be capable of counseling clients shortly after they leave the hallowed halls.  This demands a certain level of judgment and maturity.

If law students can’t be trusted to exercise the level of maturity necessary to assess themselves, their work ethic, their knowledge, their understanding, and need the nanny to test them weekly to make sure they aren’t missing something or falling behind, then will they be capable of demonstrating the level of maturity necessary to fulfill their function as a practicing lawyer?  Bear in mind, not every law student will be warming a chair in the Biglaw library.  Some will actually have to go out and work for a living, and will be expected to be a lawyer from Day 1.

It’s difficult to say whether the calls for continued regular assessment reflect an extant failure of maturity on the part of law students, or whether it will be the cause of prolonged adolescence.  If the former, then it’s too late.  If the latter, then we’re putting another nail in the coffin of the profession.  But either way, it would be wise for the practicing bar to put in its two cents before another seismic shift in how law is taught happens without our knowing.

How To Succeed In Law School. Maybe

Paul Horowitz, with whom I rarely disagree, urges law students to be themselves rather than “package” themselves to appeal to individual professors, in this post at PrawfsBlawg.  In other words, don’t try to game the system.

A little of this advice is useful to some extent: if your professor says, for instance, that she wants you to cover all the issues on an exam rather than delve into a few at great detail, you’d do well to listen.  But students who think this approach is the best or most efficient way to yield good grades are, I think, quite mistaken.  This approach yields few long-term benefits and only uncertain short-term benefits.

These students are not trying to suit the preferences of Professor X or Professor Y; they are simply trying to be good lawyers (or at least good law students).  They develop a skill set that gets them far better results, and with less duplication of effort, than if they had tried to game the system by figuring out each individual professor’s pecadilloes.

While this advice would meet with Pollyanna’s approval, and the suggestion that students would do better to strive to learn how to be a “good lawyer,” it reflects one of the fundamental errors of legal pedagogy as opposed to practical efficacy.  Good lawyers win cases.  Good lawyers figure out what they have to do to win cases.  Good lawyers, amongst other things, learn about their judge, find out what arguments appeal to the specific individual who will be making decisions in their case, and hone their arguments to suit the person in the robe.

The difference in opinion here goes to the difference in function.  A scholar may view the law as he would want it to be, as he will argue it should be. regardless of whether it will produce the desired outcome or not.  It’s a conceptual approach rather than concrete.  Lawyers don’t have this luxury.  No matter how brilliant our analysis and argument, at least in our own minds, the bottom line is that we’ve either prevailed for our client or not.  No defendant goes happily to prison because we’ve taken the high intellectual road.

Gaming the system, while not the way I would explain it, is a skill that practicing lawyers must develop if they hope to serve their clients.  In a comment to Horwitz’s post, Orin Kerr (who, by the way, has added his name to the caboose of the LaFave, Israel, King, and Kerr Criminal Justice hornbook) makes this point:

Telling professors what they want to hear is not only of significant help in getting high grades, it also teaches an essential skill of lawyering: The student who learns how to tailor a message to Professor X to get an A becomes the lawyer who knows how to tailor a legal argument to Judge Y to win summary judgment.

Of course, the trick is actually knowing what the Professor wants to hear: With some professors that means matching their ideology, but with some professors it means something else. Therein lies the difficulty.
It would be wonderful if practicing lawyers could ignore the vicissitudes of judges and focus instead on the loftier purposes of the law, secure in the knowledge that the judge will ignore his perspective and prejudice, recognize a well-conceived and intellectually honest position and rule in its favor.  But for those lawyers who will practice on earth, serving the client in the face of bone-headed judge comes first.  Our job is not to be right, but to win.

What a great way to teach law students this very pragmatic, and very important, lesson.  Don’t pass it up.