Category Archives: Law School

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.

All Reasoning Is Not Created Equal

In a post about the irrationality of testing methodology, Jeffrey Harrison at MoneyLaw touches on a subject that sticks in the craw of first year law students and those who are deeply concerned with keeping them all warm and fuzzy.  Being that it’s the opening of another round of the game show, “So You Wanna Be A Lawyer,” unemployed edition, this seems a particularly good time to remind law students, and those who deign to teach them, that reasoning matters.

And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.
Ignore the grading aspect and focus instead on the reasoning aspect.  One of the most disturbing, yet recurring, themes amongst law students who comment around here is their inability to distinguish between emotion and reason, causation and correlation.  Up to now, 1Ls got away with winning arguments any way they could.  It was perfectly sufficient if they achieved their end by screaming louder or withholding sex.  Winning was winning, and the rest was simply finding the mechanism to accomplish the goal.

This doesn’t tend to work nearly as well before judges, and therefore isn’t an acceptable basis for becoming a lawyer.  Despite the touchy-feely approach to legal education, where the self-esteem needs and holistic concerns of personal morality and satisfaction transcend the nasty, ugly, demeaning approach of demanding that students be capable of both assessing a fact pattern for its relevant details and then crafting a rational argument that logically flows from the facts and law to the end to be achieved.

They don’t wanna.  They like their own emotional argument, and if it’s good enough for them, then it should be good enough for the rest of us.  It’s their right!  And what makes reason so much better than whatever it is they believe?

In Jeffrey’s post, he notes that it’s irrational to mark the student who gets the ultimate answer wrong the same whether it’s been well-reasoned, though marred by minor or single error, or wrong because it’s devoid of reason and understanding.  Sure, wrong is wrong ultimately, provided that there is a discrete right and wrong answer.  As lawyers, we come to realize that right answers are only right until some court somewhere decides otherwise, leaving us with quite a few fuzzy lines.  Over enough time, we even find that some black letter law is written in the sand, and is subject to change with the swipe of a hand.

But the ephemeral nature of law tends to get in the way in law school, and is best left for the lessons of misery as one matures in practice.  Law school is for the teaching of foundations upon which nasty experience can build, and foremost of our foundations is to think like a lawyer.  The rest can be learned in a diligent afternoon.

Logic isn’t personal.  It doesn’t care how you “feel” about something.  Your preferences are irrelevant.  And no, you’re not entitled to your own opinion.

This doesn’t mean that you can’t be creative in the crafting of an argument, or the understanding of why a court reached a particular holding.  Indeed, a deeper understanding, informed by experience, may often yield a different rationale for a holding than the one commonly accepted and taught to you.  Provided you understand the accepted rationale, taking the initiative to challenge the rationale by a logical, albeit different, line of reasoning is a higher order skill.  But it must still be based on sound reasoning.  Of course, your professor may not agree with your explanation and burn you for it on tests, but that’s the risk you take.

Jeffrey asks whether logic is still taught in schools.  It is in law school, even if not called logic anymore.  Or at least it should be if law school is to serve any purpose.  The ability to craft and convey a logical rationale for a position is fundamental to the practice of law.  It’s time to put away the child-like arguments that have worked well up to now, and may still work at beer blasts and sock hops.  But they won’t work with other lawyers and judges, none of whom care a whit about how you feel or whether your self-esteem is undermined when you’re told that your argument is rejected with a terse “denied”.

And as lawprofs decide whether the ease with which a scantron satisfies their grading is more important than the ability of a student to present a well-reasoned position, even if it falls short of perfect, consider whether motivating and incentivising your students to leave their childish notions of reason behind and strive to achieve logic is more important than remembering the case name or getting the holding right.  It’s not that holdings don’t matter, but any student who gets a good grade but can’t reason will fail as a lawyer.

From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools.  They can’t think worth a damn.  As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse.  If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers.  And yes, as Jeffrey suggests, their failure is a reflection of the failure of their legal education to teach them the difference.  

Welcome to law school.  I hope you know what you’ve gotten yourself into.  Now get to work.

Only A Matter of Time: Brooklyn Law Cheats Its Way to 61 (Update)

Via the National Law Journal, Brooklyn Law Schools needs a good criminal defense lawyer, because they got nabbed.  While this is no doubt a very serious matter within the Academy, it strikes me as picture perfect.  Law schools have given the high ground to the annual rankings of U.S. News and World Reports.  Their vitality depends on where they fall on the list.  How could seemingly intelligent people willingly give away their souls to a magazine?

U.S. News & World Report said that it is “investigating” Brooklyn Law School’s responses to the magazine’s annual survey used to rank the country’s top law schools, specifically with respect to part-time students.

The magazine said it would look into the matter after some rival law schools noted that Brooklyn Law wasn’t listed in the part-time ranking and questioned whether the school also excluded part-time students in its responses for the overall ranking in an effort to boost its ranking.

Looking beyond the fact that this is Brooklyn, a borough not known for playing by someone else’s set of rules (or phonics), does it come as a shock that a school(s), which claim to hate the rankings yet comply like Pavlovian dogs, isn’t going to put its reputation in the hands of Mort Zuckerman’s minions to decide whether it’s sufficiently worthy of respect?  Think about it.  I still can’t imagine that any law school dean was foolish enough to send back the first questionaire.  Now they live and die on the rankings.

Bear in mind, law schools are reporting to a magazine, not the court, or the church or their mother.  This isn’t perjury; there isn’t a duty to tell USN&WR anything simply because they ask.  No one can force law schools to participate in this goofy charade.  No one can tell students to apply or alumni to contribute or to hire new grads, because a magazine said so.  Yet the law schools dutifully fill out the forms, send them in and eagerly await the results. 

Brooklyn Law School dismisses their “error”.

“For many years, we have engaged U.S. News editors in debate over what we regard as flaws in its rankings methodology,” the school said in a statement. “An important aspect of this debate has been our position that it is inappropriate to consider the numerical credentials (LSAT and GPA) of part-time students on the same basis as full-time students.”

After the school received no response from the magazine to a letter it sent to editors arguing against including part-time students and having heard no announcement that the change was going forward, the school kept up its past practice of excluding part-time students in it responses, the school said. In answering some questions that asked for information based on combined full- and part-time students, the school said its erroneous response providing information for full-time students was “completely inadvertent.”

Wrong answer.  To suggest that it was an “inadvertent” mistake is laughable.  They pore over these forms, crunch the numbers, then crunch them again.  At least within the very small pond of law schools, these numbers are god.  They don’t make “inadvertent” mistakes when it comes to their rankings.  To the extent that Brooklyn had any credibility following its response to the rankings questionaire, it lost it when it proffered this explanation.  Now we know that it cheated.  It would be a “so what” proposition, but for the fact that these rankings were so important, so critical, that it was something worthy of cheating on.

The right answer is so much simpler, so much more honest.  The rankings are crap and we’ve not playing the game anymore. 

What would happen to any law school that chose not to play?  Would it explode?  Disappear off the face of the earth?  Never receive another penny in donations, another application, another job offer to its students?  Come on.  It would, of course, be easiest for all if it started at the top, the law schools who don’t need the USN&WR seal of approval to prove their worth, but I suspect that these are the schools that secretly love the ratings, since they do well and it inures to their benefit.

It’s the law schools down the line, the ones that will never make it into the top 20, who want to pull the plug.  But then, if they creep up a few notches, they send out a press release about how they’re now the ginchiest law school around, hoping to attract another hundred applicants (and their application fees).  You see, as much as they hate the rankings, it’s a self-serving hatred.  They are equally shameless about using them to their own advantage whenever possible.

It’s a testament to the integrity of law schools that they made it this far without a scandal.  If these rankings were about lawyers, people would be gaming the system from day 1.  There isn’t a chance in the world that lawyers would play fair, or even care if they were playing fair.  Getting an advantage wherever possible is sport for lawyers, and there is no shame in trying.  Law schools prefer to believe they are on a higher ethical plane.  For academia, it’s about honor.  At least until the cash flow starts to dry up, at which point it’s about survival on a playing field designed by some magazine editors.

So Brooklyn Law School tried to play the system.  It’s still there, teaching students how to succeed in the game of law.  What is most curious about this scandal isn’t that it happened, but that it was instigated by other law schools jealous of Brooklyn’s position in the rankings.  If Brooklyn Law School is pathetic for having tried to game this silly system, how sad are the ones who ratted Brooklyn out.

Update: In a related matter, Syracuse will only let law students go to the bathroom once during exams to stop cheating.  When asked why, the dean responded, “because we’re not Brooklyn, dammit!”  Only kidding.  From Turley :

The law school told students that “During this exam period, we have received a significant number of reports from (first-year) students alleging academic dishonesty.” Limiting bathroom runs was better and more efficient than cavity searches or catheters.

And besides, cavity searches and catheters are exclusively reserved for the post exam parties.  So where exactly on the USN&WR’s questionaire is the space for “number of times cheating law students are allowed to go to the bathroom?”

In Defense of the Socratic Method (Update)

I think back with fond memories at being called “mustache man” when my torts professor demanded that I rise and explain the holding in Palsgraff v. Long Island Railroad.  I hadn’t read the case the night before as I was supposed to, and Palsgraf wasn’t one of those cases you could fudge.  As I stumbled with my cursory knowledge of the decision, which clearly showed that I hadn’t a clue, the professor then called “blond woman” to stand and state whether I was correct or a blithering idiot.  Unlike me, she got the answer right.

One of the most recognizable rights of passage in law school is enduring the Socratic Method, being questioned in front of your law school classmates with the risk of public humiliation if you couldn’t muster a reasonable response on the spot.  It was popularized in The Paper Chase , first by movie and then television, in which Professor Kingsfield, the quintessential Harvard lawprof, emasculated students for their inability to reason on demand. 

Apparently, this right of passage has itself passed out of favor.  Reading Dave Hoffman’s post at Concurring Opinions, I learned this from two of my favorite blawging lawprofs, Dave and Orin Kerr of VC fame, both of whom were contemplating their Big Wheels while I was called to explain Palsgraf.  The post, about the difference between being smart and possessing wisdom as a qualification for the Supreme Court,

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest. 

Orin shot back:

I don’t see the connection to the Socratic Method. The Socratic Method does not reward intelligence; it rewards glibness. But as far as I know, no one claims to want a Supreme Court Justice who is exceedingly glib.

I began to get the impression that they didn’t care for the Socratic Method.  I took no issue with Dave’s primary point, that smart and wise were hardly the same, and that wisdom was by far the more important attribute.  But why blame it on the Socratic Method?

While there are many practice areas in the law, and niches within practice areas, where a lawyer enjoys the luxury of either speaking without anyone knowledgeable around to question his pedantic assertions, or the time to contemplate and reflect before providing an answer to a question, or the expectation that a twenty page memorandum, with footnotes and exhibits, will be forthcoming to respond to an inquiry, this isn’t the life of a trench lawyer.  For these others, the Socratic Method is like death by a thousand knives, jabbing and poking his inadequate psyche and intellect, demanding that he performs in ways he can’t and never will.  For these lawyers, it was humiliation and shame.

For the trench lawyer, this was preparation for life.  We work with a gun to our heads, given half a second to analyze the situation, the spectrum of possible responses, ascertain the correct response, put it into comprehensible words and utter those words in such a way that we have served our client’s interest.  And served it well.  We don’t have the luxury of telling the judge in the midst of trial, “can we get back to you in a week or two on that one?”  It’s now or never, do or die.  Either we act or the opportunity is lost.  Our argument either prevails or not, but we will never get another chance to object, question, argue, challenge, explain, justify, persuade. 

“Glib” is such an ugly word.  Whether meant as “superficial” or “insincere”, or just the ability to speak without forethought, the lack of substance notwithstanding, “glib” is not good.  Is that really all the Socratic Method teaches? 

Certainly, the Socratic Method is not a nurturing pedagogical tool.  It’s not intended to make the student feel worthy and comfortable, to enhance self-esteem.  Nurturing is the trend in law school today.  I wonder what lawprofs a generation from now will have to say about it.  I already know what I think of nurturing :

Law school is the time to learn how to beat them at their own game.  Learn this and the rest is a snap.  And if you go to one of those law schools where they are deeply concerned about how you feel about yourself and want to foster a nurturing environment, tell them you want your money back. 

No use of the pejorative “glib” is going to change the dynamic of the courtroom.  The judge will not say “denied” in a kindly, yet supportive, tone.  Your client will not be sympathetic to your need for “more time” to think about whether to object to inadmissible evidence.  There are good answers in a courtroom and bad answers in a courtroom, and the half second you have to distinguish between the two won’t get any longer because someone called the lawyer capable of addressing the question “glib”.  Good answers are both timely and persuasive.  Lack either one and it’s a bad answer, no matter how great an response you come up with a day or two later.

We work with a gun to our head, demanding that we analyze and react in a split second.  We risk public humiliation if our utterances are foolish or incomprehensible.  We face a room of people who are wholly unconcerned about whether we feel warm and fuzzy, and are by definition judgmental and critical.  So what pedagogical exercise best prepares a law student to survive in this environment?

Like hemlines, teaching methods go in and out of style.  After all, there would be nothing new to write about if the old methods weren’t deemed passé, and new methods lauded in their place.  But unlike hemlines, it’s not a fashion statement of no substantive purpose.  The Socratic Method forces law students to face the circumstances they will face in the courtroom, and to either figure out how to deal with it or figure out what else they should do with their lives.  If you can’t handle the pressure, then you don’t belong in the trenches.

Certainly the skillset required to survive the Socratic Method isn’t the same as that requires to be an excellent judge.  It’s not about wisdom, and no one ever said it was.  But it doesn’t preclude wisdom either.  Orin blames the Socratic Method for sucking the wisdom out of law students.  I fail to see any connection whatsoever; those lawyers and law students who are so one dimensional that they are incapable of thought, of understanding, beyond a single teaching method were never destined for wisdom to begin with.  If they have the capacity for wisdom, no lawprof is going to change that.  Sorry guys, but you don’t carry that much influence.

Years ago, I was asked to allow a college student to intern with me for a month because she was considering a career as a lawyer and her mother wanted her to experience it first.  It seemed like a smart move, and I agreed.  I asked the young woman on her first day why she wanted to be a lawyer, and she told me that everyone said she should be because she liked to argue.  And indeed, she did like to argue.  Unfortunately, her arguments were markedly unpersuasive and ill-conceived, more of the ilk of mindless disagreement rather than thoughtful contrariness.  She went on to a career teaching college psychology, where thought would never be involved.

Not everyone possesses wisdom.  And we are not the judge of our own wisdom.  We all think of ourselves as wise, and the vast majority of us are dead wrong.  It’s up to others to decide whether our very finest thoughts qualify as wisdom.  For the very few who possess this great gift, one essential to being a person entitled to sit in judgment of others, no teaching method will take it away.  For those who lack wisdom, no amount of nurturing will provide it.  

If your daily work involves putting nails into a piece of wood, it’s good to know how to use a hammer. It’s a poor craftsman who blames his tools, guys.  You don’t teach wisdom.  You can’t.  But you do teach people to be trench lawyers, and the Socratic Method is a darned good way to do so.

Update:  Ashby Jones found this sufficiently humerous to post about it at the WSJ Law Blog, evoking one comment that was just too funny not to share.  By Anonymous at 2:32 :

It’s clear that Greenfield went direct from undergrad to law school. When I think of a profession in which people “work with a gun to [their] head, demanding that we analyze and react in a split second” I think of a stock broker. Lawyers prep anywhere from a few weeks to a few years for each of these confrontations, what’s more, they already know what the other side is going to say via motions and discovery.
What’s really killing the profession is that it has an artificial, academic barrier to entry, which walls out most people who understand how work is done in the rest of the world. And your left with people like Greenfield who have no real understanding of anything outside of law.

Hey, what would a kid like me know?

Law School, Revealed

Having written of the ugly underbelly of legal academia, and leaving that nasty taste in one’s mouth, Louisville Law School Dean Jim Chen provides the MoneyLaw pepto bismol to sooth the burn.  His inspiration comes from the movie Breaking Away.

It’s the thirtieth anniversary of one of my all-time favorite movies, Breaking Away. As this musical tribute suggests, it’s an extremely sentimental movie about growing up, intergenerational conflict, class warfare, and an underdog who (in the parlance of European pop music) ultimately gets everything but the girl — and doesn’t crash and burn over that outcome. F. Scott Fitzgerald, eat your heart out. Even though I now run the asylum after having served several unhappy sentences in American higher education, and even though the pickup line par excellence has shifted from Posso ofrirti qualcosa da bere, signorina? to Σ’αγαπώ πολύ, κορίτσι μού, I still love Breaking Away. Always did, always will.

Jim confront’s the retort to Jeffrey Harrison’s challenge that was earlier posted by Co-Op’s own Dave Hoffman, itself in response to Jim’s post about Shane Battier :

The problem with the Moneylaw approach to faculty rewards is that it has failed to fully define what universities are designed to maximize. That’s not an easy question to answer, obviously, and I don’t think there’s just one approach. For a few law schools, like Florida-Coastal, that answer is obvious: to make money. For others, law school’s function as a profit center within a larger university umbrella. . . . But for most law schools, the ultimate criterion of faculty success is just unclear. Giving students a return on their investment is much of it, but it’s not the whole story, since tuition doesn’t pay nearly all the bills. We’ve responsibilities to alumni donors, to the State, to the Bar, etc. Shane Battier just needs to help his team win games. We don’t know what winning is. We don’t know what game we’re playing. And who’s our team again?

Hard questions?  Indeed.  But true to his beliefs and inspiration, Jim provides an answer:

In a MoneyLaw world, law schools win if their students — at graduation, five years out, whenever — don’t ask for a refund. Here’s the thought experiment that explains what I mean: Imagine that every law student, upon matriculation, gets a magic button. At any moment, before and after graduation, if a student wishes that she or he had done anything but go to law school, that student can mash the magic button and thereby get a refund. Of course, the legal education and everything it confers — the degree, the subsequent bar passage (if any), the eventual career (again, if any) — will vaporize in that instance.

For every student who would elect this option, MoneyLaw regards this choice as a devastating loss for the school in question. This is what it means to “win” in higher education: running your school so that your students and graduates never regret having set foot on your campus.

This is not merely a matter of remembering why they erected all those ivy covered buildings, but revolutionary.  It’s all about the students.  That’s what law schools, deans and lawprofs need to worry about.  You make them lawyers and we’ll take it from there.

But I offer a few caveats to put some flesh on those bones.  Stop taking on students because they mean another tuition payment, and start admitting only those kids who truly want to be lawyers, who have a clue what being a lawyer means and what a lawyer does.  You sow the seeds of your own discontent by allowing the law to become the profession of last resort, merely to glom up the student loan loot.

Cut your numbers.  By half.  One factor that brings enormous disrepute, and disappointment, is that we have far more lawyers coming out of law schools than our society can absorb.  When law students emerge from your halls into ours, they will be smacked in the face with this reality and demand that refund.  There won’t be enough high-paying jobs for them.  The jobs won’t be fun.  Their future won’t be secure.  Their loan debt won’t be easily paid off.  They won’t be happy with their choice. You know it.  We know it. They need to know it too.

End the stranglehold of “publish or perish.”  Let’s talk honestly here.  Can anyone really justify law review articles on due process at the Ministry of Magic?  But force lawprofs to write for their meal ticket, and write they will.  It’s not merely embarrassing, but diverts attention and the perks of performance from their now-forgotten purpose, teaching students to be lawyers.  Law schools have long since eschewed the Socratic Method (it hurts students’ feelings) and law taught by lawyers with experience (they aren’t sufficiently scholarly), because they don’t play well at US News and World Reports. 

It’s been made painfully plain to me by a number of my lawprof “pals” in the blawgosphere that you don’t appreciate hearing from real lawyers, telling you how to run your shop or what’s wrong with the Academy.  Tough.  We live with the results of your mess, and the fact that you would prefer to hide in the Ivory Tower than confront the criticism doesn’t mean that the dissatisfaction isn’t happening and isn’t real. 

Instead of sending me “private” emails asking me to tone down the criticism, and that I don’t get it because I can’t possibly understand the pressures of academia, make your case in the comments and see if it can withstand “peer” scrutiny.   If you’ve got the guts.

Law School, Exposed

Jeffrey Harrison has written a scathing exposé at MoneyLaw on what really drives law professors, and the institutions for which they labor, in the age of U.S. News and World Reports rankings.  If you thought it was bad before, read Jeffrey’s post and learn that it’s likely worse than you thought, where the show has become so driven by the applause that they’ve perhaps forgotten why they put on a show at all.

For those of us not fortunate receive a lawprofs’ paycheck at the end of the week, this post may come as a bit of a surprise.  After all, jaded and cynical as lawyers tend to become, most of us harbor a hope that things aren’t as ugly as we think.  But Jeffrey didn’t write this post for our benefit as an expose, but as a challenge to the Academy to remember why they bothered to open law schools and become lawprofs in the first place.  In do so, he held no punches.

Teaching evaluations have result in altering teaching styles not in the direction of ensuring that today’s student is even better prepared than their predecessors but so the teacher can score a higher number. Some faculty obsess over a tenth of a point here and there. I’ve had colleagues freely admit that they decided to be funnier to raise evaluations.

Foreign programs have gone from opportunities for students to products that are sold to them oft times in hopes that the professor will get to go and not because there is some gaping hole in educational opportunities for students.

The writing requirement which I suppose at one time was instituted in hopes that people with freedom to study law would “discover” things much like a scientist has largely been diluted to a hurdle, almost a form of hazing, in order receive tenure. 7000 plus articles a year, few of which are read and even fewer of which are written because of inspiration. Instead there is a great deal of casting about — what can I write about now? Does this edited book of reading count? If is refereed if someone asked me to do it for a symposium?

Grades are inflated in part because, as it has been expressed at my school, 1) We have to give high grades so our students can compete. 2) It hurts the students’ feelings to get a C (and increasingly a . Student ask why not raise grades even more so we can be even more competitive.

All of this is driven by the demand to increase a school’s USNWR ranking, the primary driver of all things law school these days.  Would anyone have imagined that so many smart people, so many respected schools, would drop their trousers on demand to please the USNWR gods?  As Jeffrey analogizes this to the tail that wags the dog:

If you peel away all of the tails, would we find a dog? I assume this means 1) teachers who do their best to produce students to whom they would entrust the fates of future clients — even their parents- regardless of the impact on evaluations, 2) writing only when you feel a pressing need to express something that may actually make a difference, 3) honestly evaluating every program to determine what it produces for the students and other stakeholders, 4) admitting students (at least to a state school) so the subsidization is fairly given to those with promise regardless of the USN&WR-affecting LSAT.

My sense is that we would find a dog. My fear is that it may be a chihuahua.

The deepest shame of this academic disaster is that the deans, the lawprofs, all know this to be true, but lack the guts to take a stand and say “enough”.  While each may individually profess to hate it, none will be the first to stand up and reject rankings as their law school’s driving force.   And apparently, academic collegiality ends at the door to the admissions office, where the first checks start rolling in. 

And if law schools, deans and professors, lack the balls to say “no”, then why not the Biglaw hiring partners who are the intended victims of grade inflation and rankings scams.  Real lawyers in the trenches know that no jury ever reached a verdict based on the school a lawyer attended or the number of law review articles written by his torts prof.  Oh, I forgot.  Your prestigious Biglaw associates don’t try cases, do they.  They write memos that no one needs.  Or at least they did when you could afford to keep them.

Maybe chihuahua overstates the case, for law schools and Biglaw.  Huge props to Jeffrey for showing the guts to speak out. 

The Value of a Good Education

Amongst the many tenets of our American dream, a foundational principle is that every child deserves a good education, and with that education, anyone can grow up to be President.  While it is no doubt true today that anyone can, the corollary is that everyone can’t.  Nobody mentions this part.  It would be bad for business.

From Sarah Waldeck at Concurring Opinions, we learn that:

The National Center for Public Policy and Higher Education recently reported that college tuition and fees rose 439 percent between 1982 – 2007, while median family income rose only 147 percent. The Center’s president commented, “If we go on this way for another 25 years, we won’t have an affordable system of higher education.”

Yet the dream pushes student and parent to reach for the stars.  The reality is that they might do better to invest in lottery tickets.  Sarah suggests that distance learning, as yet a quasi-acceptable method of gaining a higher education, may be a solution, as it eliminates the need for physical plant, an obviously expensive proposition.  She notes that a student of Concord Law School, an online school authorized to grant J.D.’s, was recently admitted to the Massachusetts bar.  Mind you, he had to sue to do so.

Interestingly, Sarah doesn’t consider the salaries paid to lawprofs within the realm of possible solutions, particularly since they are putatively paid to teach when their true purpose is to publish to advance their personal standing as a scholar on the backs of law students’ tuition payments.  Perhaps if tuition wasn’t subsidizing their vanity, costs would be lower, particularly since so many ivy-covered buildings were long since bought and paid for.

The cries of new attorneys about the crippling burden of law school loans have been a source of dismay for a long time.  Coupled with the death of Biglaw as the pot of gold at the end of the rainbow, this might be an excellent opportunity to re-evaluate the entire approach of higher education and the law.  It costs too much.  It produces more lawyers than our society needs or can absorb.  It serves an ulterior purpose of dubious merit.  Law schools are another suck-hole burdening society while doing little to advance its purported cause. 

Internally, all those very smart boys and girls who want to be lawprofs refuse to see, or more likely acknowledge, that they are parasites.  They aren’t doing this to teach students to become lawyers, but to advance their own interests on the students’ dime.  Aside from Jim Chen and Jeffrey Harrison at MoneyLaw, few will even acknowledge the truth, no less engage in a serious discussion about it.  Some, like dear Marquette lawprof David Papke, are so enamored with their pseudo-intellectualism that they openly disdain the time wasted on such dirty, worthless efforts as teaching students to be lawyers. 

We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

The “we” that Papke refers to is the lawprofs.  I suspect that some of those students footing the bill for his having some place to go during the day might disagree.  Indeed, they might actually expect to be taught to be lawyers.  They might actually think that those escalating tuition payments are in exchange for that training.  Fools.

But it’s not just the failure of law schools to serve their purported purpose.  It’s their ever-increasing hunger for more warm bodies with cash or access to student loans to provide an adequate financial base to fund this lawprof vanity.  No one in academia asks whether we need more lawyers.  No one in academia has the balls to stand up and say, we are producing far more lawyers than this nation can use, can absorb, can support.  We are selling these students false hope.  There is no place for them to go.

Society, on the other hand, has been learning over the past few decades what a surplus of lawyers means.  Wild and crazy lawsuits filed by half-baked lawyers desperate to earn a fee has reduced the respect of what was once a profession to slightly below used-car salesman.  And lawyers have indeed become used-car salesman, spending far more effort on learning the art of huckstering than lawyering.  Young lawyers in particular have come to believe that success as a lawyer has nothing (not little, but nothing) to do with quality of service but with learning the tricks of marketing and search engine optimization.  It’s all about tricking people into hiring you. 

This is the new legal paradigm: Clients are the scarce resource the requires allocation, and allocation requires marketing.  Marketing, therefore, is king.  Today’s successful lawyer is not the one who demonstrates any competency in the practice of law, but excels in the practice of marketing.  The internet is permeated by lying lawyers, scamming the public about their qualifications and indulging in ethical violations up the wazoo, with neither shame nor concern.  They care only about getting the next case, and they will say and do anything necessary to get it.  A bit hyperbolic, but it’s intended to make a point. 

Couching lies in marketing lingo doesn’t make them less deceptive.  The apologists and rationalizers who explain why lawyers have to market and why everything we do is marketing will never restore honor and integrity.  They seek merely to excuse their own indulgence, and no one is fooled who doesn’t want to be fooled.

If Sarah Waldeck was truly focused on reducing the cost of law school, and was honest about what young lawyers needed in order to survive, she might consider reducing it to a six month course of study in deceptive marketing, the only admission requirement being a willingness to disclaim any interest in integrity, taught entirely by lawprofs sitting in boiler rooms in low-rent locations.  Should any student experience difficulty with the curriculum, there is always phone-a-friend.

Or, we can start a movement to revitalize the law as an honorable profession.  Lawprofs, at significantly reduced salaries, can spend their days teaching law students to be lawyers.  Law schools can cut their student populations in half.  The three year curriculum can be cut to two, maybe even one and a half, with the balance by apprenticeship where students can actually learn what lawyers do all day long.  And admission to practice, a privilege not a right, can be conditioned upon a waiver of the right to commercial free speech and the end of lawyer marketing.  

Or students can take those loans, to the extent that there will be any available under the current economic climate, and buy some lottery tickets.  There’s no shame in winning the lottery, and your chances of success at achieving great wealth are substantially better.

Lawprof Mud Wrestling: Why Teach Crimlaw Via the Model Penal Code?

A somewhat interesting question arose when Denver lawprof Sam Kamin asked, in a post at PrawfsBlawg, whether law schools are doing the right thing by teaching criminal law theory rather than practice.  Coy Kamin opened up with this teaser:

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn’t bear it because he didn’t feel like what was taught in criminal law bore any relationship to reality.

The issue grew legs when Orin Kerr and Doug Berman chimed in about their own social circles.  First Kerr, who is clearly better situated to make the rounds of really cool people in the law:

I was having dinner last week with Chief Justice Roberts, Learned Hand, and Moses, and the four of us agreed that studying the MPC is excellent training for a career in criminal law. Indeed, Learned Hand was particularly exercised about it — he kept saying that Herb Wechsler had made him serve on the MPC advisory committee because it was so impossible to teach the common law of criminal law. I thought that was a fair point: I have a bunch of pre-MPC criminal law casebooks, and it is quite hard to understand the law from them given the absence of a common statutory basis.

But Berman, as if to prove that Ohio isn’t the backwater of the legal nation, responds:

I am amazed to learn, Orin, that Hand was more vocal than Moses in this conversation. After all, Moses got to carry around the very first draft of the MPC (though, according to Mel Brooks, he dropped a big part of it).

In any event, when I was having coffee recently with Roger Clemens, Plaxico Buress and Michael Phelps, I was pleasantly surprised by how interested they all were in the MPC’s definition of “knowingly.”

While we were talking, Ted Stevens came over and asked who else was planning to visit Michael Vick once he was transferred to a halfway house. I used the question as an excuse to launch into a long lecture about how the MPC’s sentencing provisions are being revised by the ALI. Everyone seems to find the lecture very pertinent, but nobody offered to buy me a second cup of coffee.

Yeah, right Doug.  Like Plaxico doesn’t have travel restrictions. Actually, I can’t tell you how good it is to know what a bunch of cut-ups these lawprofs turn out to be.  I hope to go to the next AALS beer bash and watch them dance with lampshades on their heads.

But back to important matters, such as Sam’s initial inquiry.  Complete the first year criminal law curriculum, ace the final, and a law student is competent to do . . . another course in third year.  But as Larry Rosenthal argues,

Professor Kamin’s post assumes a dichotomy between “analytical rigor” and practical skills that I reject. Analytical rigor is required of lawyers who practice at the highest level, but that does not mean that law school should reject skills training. After all, law school is preprofessional education — students spend all that time and money in order to obtain a marketable skill. Being able to talk about what the law “ought to be,” or to navigate the Model Penal Code, turns out not to be an especially marketable skill, even though “analytical rigor” is, at least when accompanied by the other skills required to succeed in practice.

The failure to focus on skills training has had little effect to date on elite law firms. They often prefer to do their own skills training. For public interest and government law firms on tight budgets, however, this approach has been a disaster. These firms lack the resources to train new lawyers — who too often know little of the skills needed to survive in practice. As the economy deteriorates, the failure of most law schools to prepare their graduates for practice will, however, likely have ramifications throughout the legal profession, as the resources available to train new lawyers shrink everywhere. Perhaps the pendulum is about to swing.

The “analytical rigor” aspect is no different for crim law than any other area; We need to be able to dissect the statutory and case law just like any other lawyer.  Actually, better than other lawyers since the consequences of our incapacity to think tend to be more severe.  But this doesn’t require that it be grounded in the theoretical Model Penal Code for the convenience of textbook authors or fungibility of jurisdictions.

There’s a real world out there.  One can learn analytical rigor by beating the real ground just as well as a Code that no one anywhere uses.  If it so happens that you pick up some actual useful information, would that be a crime?

The whole “national law school” and “elite law firm” dichotomy is simply institutional arrogance.  Harvard is much too important to teach some snot-nosed law student Massachusetts law, since its “best and brightest” students will span out across the nation to be “thought leaders,” far above the mundane workings of night court in Boston.  Is this true?  Well, probably.  But what harm comes from teaching Massachusetts reality in lieu of Model Penal Code unreality? 

Since no jurisdiction uses the MPC, and since they can test their mettle with real law and practice in a real court that affects real people in their own neighborhood, why not?  That some smart aleck will end up in the Manhattan DAs office changes nothing, since she will have to learn New York criminal law either way.  That MPC nonsense isn’t going to help her one iota more than Massachusetts law.

As for the “elite law firms,” this discussion is just plain silly.  First, they don’t actually practice criminal law, white collar or otherwise.  Second, to the extent they claim to have a white collar criminal law practice, it’s on the shoulders of some recent emigre from the US Attorney’s office, whose never defended a case anyway.  They don’t hire first year associates to do criminal law when they can get them out of St. Andrews Plaza, with a brand new oil change and lube.  You guys are fooling yourselves.

A comment by a recent Suffolk law school grad, George, injects a dose of reality into the academy:

Further, don’t law schools as institutions have obligations to (1) “the legal profession” and (2) the “public” that the profession allegedly serves? Are not the profession and the public best served when law students are given a fair shake? And if not, would it not be in the interest of honesty and good conscience to let prospective students know that when they graduate they will have little marketable skill.

Between the post, the comments, and my own experience, I can only conclude that law schools, and their professors are a part of a system that takes advantage of people for a lot of money knowing full well they are not giving their clients, students, or customers the “benefit of the bargain”. I went to law school to become a lawyer. I paid 112k directly to a group of attorneys to be trained as a lawyer. I am not a lawyer. Great system.

I can hear that smack all the way in New York. Ouch.

I discussed George’s comment during dinner last night with Clarence Darrow, William O. Douglas and Thurgood Marshall.  We all agreed that the rarified world of the Supreme Court really isn’t all that different from the dirty, smelly world in the trenches of a criminal court in any city in America, where Justices with law clerks who are smarter than they are try to remember how exactly things play out in courtrooms and on streets, where theory is discussed at the end of a gun and hungry babies cry while waiting for their daddies to be brought out in leg irons. 

We all agreed that the lust for theory in the quest for analytical rigor was better taught in a bar around the corner from the law school, since the real work of lawyers, save the handful who ever get the chance to argue at the Big Show, happens in the dirty, smelly trenches.  And Wild Bill and Thurgood then guffawed, agreeing that even at the Supreme Court, the justices are just trying to figure out the real life implications of a case while the litigants are arguing pie-in-the-sky theory.  “If it wasn’t for law clerks from Harvard,” Thurgood said, “I wouldn’t have a clue what half of them are talking about.”

Subject law students to analytical rigor, but do it by way of real law.  If the lawprof lacks the background to know anything about real law, relying instead on whatever textbook is most popular at the moment, find a new lawprof.  Do it, just in case they don’t get that first year associate job at Biglaw.  Maybe then, come graduation day, you will have trained someone to be a lawyer.

Law Students, Do Not Be Misled

As my experience inside the academy is limited to the occasional guest lecture and the Cardozo ITAP program, neither of which involve any degree of scholarship whatsoever and, I assume, the impression left upon students is limited to stifling a yawn,  Thus, Jay Wexler’s piece of advice at PrawsfBlawg shook me to the core.

If your school is one of those where the students put on a musical every year to poke fun at law school life, including the professors, it is in your best interest to take affirmative steps to avoid being portrayed in a negative light during the show.  Believe me, you do not want to be tagged as the “sweaty” professor, or the “smarmy” professor, or the professor who loves to hear himself talk (like a prawf I’ve heard about who was portrayed singing, to the tune of the Divinyls hit song, “When I think about law, I cite myself”).  To avoid this unfortunate fate, I recommend that you early on adopt a very obvious and hopefully charming (or at least harmless) affectation that the students will have no choice but to seize upon when depicting you in their musicals. 

Law schools put on plays?  Mine never put on a play.  At least one that I was told about.  Of course, my classmates may have engaged in a secret pact to keep this information from me, but I don’t think they cared enough to go to such lengths. 

[Editorial note: I am about to embark on a discussion of Jay Wexler.  Since I don't know Jay, and the name could be masculine or feminine, and I don't have a photograph to go by, I am constrained to make an editorial choice as to pronoun.  I pick the feminine, giving myself a 70-30 chance of being wrong and insulting Jay and her entire family.  I assume that someone will eventually correct me, at which time I will point to this note and exclaim, "Ha!"]

Jay later explains the she has adopted the affectation of constantly popping candy.

Now I never go anywhere without a roll of Smarties, the delicious sweet-tarty candy to which I am completely addicted.  I have to say that, although no students really know who I am and so never portray me in their musicals at all, I am quite confident that if they ever do put me in one of their plays, they will totally overlook all my negative characteristics and simply show me as a guy popping Smarties. 

Law students, you got that, right?  It’s not that she doesn’t like Smarties.  She does.  It’s that she has an addictive personality and blood sugar issues.  You might want to also inquire about her dental records.  She might have some holes worth looking into there.

As for me, I decided to check out Jay Wexler’s CV at Boston University School of Law.  I note that I am particularly fond of BU as that is where Mrs. SJ got her doctorate (I know, that would make her Dr. SJ, but that sounds so pretentious).  But back to Jay, I immediately noticed that she doesn’t pass the shoe test (mine, not the Iraqi version).  This means that she hasn’t been a lawprof longer than any pair of shoes I own (except my very chic crocks, but they don’t count).

However, Jay’s resume is incredible.  She clerked for Ruth Bader Ginsburg.  I didn’t even go down there to get admitted, assuming that there was a good chance that the FBI would bar me from the building.  She’s written a ton of scholarly works and sat on enough panels to have a seriously flattened derrière.  This is a very impressive person.

So let’s say she drones a bit when teaching.  She’s entitled.  When you’ve accomplished what she’s accomplished, in such a remarkably short time, you get to be a bit pedantic.  So all you law students, who have yet to accomplish more than making it to last call at the local pub, should hang on her every word.  There’s a reason why she’s standing in front of the class and you’re not.  I mean, serious, she graduated Stanford with a 4.08 cum.  She not only bought all the hornbooks, but probably read some of them. 

So if the students at BU are putting on a play, it’s time you took a hard look at Jay Wexler.  And forget about some Smarties joke about her, as if she’s going to get away with the Smarties thing.  If you can’t find something better to use, then you don’t deserve Jay Wexler as your lawprof.  Now go study.

A Student By Any Other Name

Those of us who went to law school back in the days before computers, cellphones, light bulbs, carry one very similar memory with us when we step into the well of the court.  No professor ever called us by name.  I was routine called “mustache man.”  I believe this had something to do with having a mustache, though another guy was called “blue shirt” and we both had blue shirts.

Back then, it was viewed as one of those quirky oddities that distinguished law school from, oh, kindergarten.  We are being toughened up so that when we stepped into the real arena, the one where real people’s lives were on the line, we didn’t expect to be coddled.  We suspected profs knew our real names, and occasionally one would slip and utter a syllable before correcting himself.  Others just pointed and called us “you”.  These were heady times.

The ABA thinks this is just horrible, and has developed “Best Practices” to “Foster a Supportive Environment.”  No doubt, that’s to simulate the supportive environment students will find when they enter a real courtroom someday as lawyers.  The ABA has promulgated rules :

Learn students’ names. This is perhaps the single most important thing a teacher can do to create a positive climate in the classroom. Call students by name in and out of the classroom. Do not allow them to be anonymous, to feel they can fade out without anyone’s knowing or caring.

Learn about students’ experiences and use them in class. Ask students to provide you with information about themselves: where they are from, undergraduate school and major, graduate degrees, work experience, other experience related to the course, hobbies, and anything else they want you to know. Ask students to share their experiences at relevant times in the course.

Let students get to know you. Introduce yourself at the beginning of the course, letting students know about your professional and personal interests. Fill out the same informational survey you ask the students to complete. Go to lunch with students and attend student events.

“Wipe their noses” and “Serve them milk and cookies” failed to capture a majority vote of the committee. Go figure.

This has caused a raging debate to break out in the academy.  Randazza wants to treat them like human beings. Jay Wexler called his students by their last names when he started professoring, but then his “Doofus Prevention System” kicked in and he’s opted for first names.  The Rickster Esenberg at Co-Op mixes it up, possibly as a result of early onset dementia, while Nate Olman, wannabe curmudgeon, defaults to the formality of last names, but admits his reasoning:

Of course, the sad truth is that I am really bad at remembering names of all kinds, and I regularly screw-up even my own students’ last names. I had been married for several years before I was able to sort out all of the names in my wife’s extended family. I am still working on all of the names in my own. Given that some sizable proportion of the male law student population is named “Matt” I might be better off simply dispensing with last names entirely. Still, I keep last names because I actually think that there is some pedagogical and social value to formality.

Curious how none of these scholars, sufficiently concerned about their choice to mention it, have asked themselves the primary question:  What is the ABA talking about?  Supportive environment?  Why?

Deep within the bowels of the academy, professors, while sipping sherry and adjusting the elbow patches on their tweed jackets, complain about the whininess of their students.  Putting an end to this whining is high on their priority list, yet they thoughtlessly enable this “supportive environment” nonsense because the phrase involves two words currently in vogue. 

So let’s clear this up now.  There is no “supportive environment” in the law.  Our job is done under constant siege, with everyone else in the courtroom out to get us.  That’s why they call it an “adversary system” instead of a “happy friendly system.”  When everybody is being nice to you, it’s either because you have a brain tumor and won’t last the trial or they are setting you up for the fall. 

Do you think this is helping your students, by lulling them into a false sense of warmth and caring?  Turn up the heat.  Turn up the pressure.  If they can’t perform when they’re feeling alone and vulnerable, then this isn’t the job for them.  Or maybe they can take the abbreviated law school curriculum calculated to perfect their skills at document review and leave the rest to the students who can tough it out. 

Gideon just provided a list of the 10 things he didn’t learn in law school.  Let me add to the list, perhaps as number 8(a), that judges may smile warmly at you when you give your appearance, but they don’t really like you.  They don’t feel much of anything at all.  And if you open your mouth and the wrong thing comes out, they will rip your throat out in a flash, some of them still smiling as they do it.  Have you prepared Mr. Jones or Ashley for that?

I realize that pedagogical approaches, like skirt hems, move around all the time so that new lawprofs can write stories about how last year’s approach was wrong.  But in the trenches, things rarely change.  If your students care too much about what you call them, there’s a strong chance that they aren’t going to be able to stand up to the rigors of abuse of a system designed to constantly test their mettle.

Do your students a favor.  Forget their names.  The judge will.

And while you’re at it, make them call you “professor”.  They have to learn not to choke on that, just as they will when the call judges “your honor.”  Consider it a learning experience.

Why Eli Can’t Write (Like a Lawyer)

For those of you who attended the elite law schools or read Above the Law regularly, you probably already know this.  For me, this came as a shock.  Did you know that students at Yale and Penn law schools are taught legal writing by third year law students?

Rick Garnett at PrawfsBlawg let the cat out of the bag in his effort to dispute Jason Solomon’s point that this is a major failing for those schools in the USN&WR rankings.  Since I don’t give a hoot about the rankings, I didn’t pay attention.  Here’s the deal:

Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L’s “prevents Penn from having an ‘outstanding’ JD program”.  Why should this be true?  He elaborates:

So Penn, it’s time to spend some money on real legal writing professors. The people who head Penn and Yale’s programs may be terrific, but there’s only so much one person can do. The law student instructors may be doing a good job given what they know, but… they’re law students.

So the one thing, the single thing, we think law students should be able to do on Day 1, write like a lawyer, is the one thing that these Ivy League law schools believe to be beneath their doctrinal dignity.

They will have a tenured professor, sitting in a chair with somebody’s name on it, teaching Law and Post-Impressionist Painting, but they can’t be bothered having someone with any actual experience, any hands-on capability, teaching law students how to write?  Are they nuts?

Rick questions whether this is really a big deal, big enough to be worthy of a ranking problem for these schools.  Bear in mind that lawprofs and law schools live and die on these rankings, as if the education obtained is affected rather than just cash-flow.  Rick asks a litany of questions to challenge the assumptions that 3L students can’t be as good teaching legal writing as “real professors.”   The phrase “the blind leading the blind” comes to mind. 

As with all attempts to justify bad concepts via absolutism, there are probably some 3L students who can do a minimally acceptable job passing along whatever they learned to be legal writing to the next generation.  But this completely misses the point of both legal writing and law school.  The best they could hope for is an accurate mechanical transmission of what these kids are told is legal writing.  They don’t know legal writing because they’ve never done legal writing. 

If Rick thinks that it’s that mechanical to write successfully as a lawyer, then he needs to get back to the trenches.  Good legal writing is hard.  Successful legal writing is very hard.  Most lawyers can’t do it well.  Why would one take the huge risk that a third year law student who has zero experience with bad legal writing can teach others to be competent at it?

But the bigger picture is that legal writing is one of the few skills that budding lawyers need.  The ability to write for legal purposes is basic; it’s what lawyers are expected to do.   Whether it’s a Biglaw partner or a client, the day that kid becomes a lawyer and has to write something, he’s expected to be able to do it.  This is one of, if not the, primary skills one needs to practice law.   And you’re sending him away from law school without it? 

Jim Chen at MoneyLaw (edit: via Larry Rosenthal) has recapped the points:

  1. Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have . . . .

  2. Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. . . .

  3. It is extremely unlikely that someone who cannot write well will be [a] successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. . . .

  4. The typical 3L has very little writing experience — the 1L [legal research and writing] curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good.

  5. A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.

  6. That last point, it bears remembering, goes to the heart of why law students burn a thousand days and often incur more than $100,000 in undischargeable debt: to get jobs.

For crying out loud, teach the students how to write.  Give them something useful for their money.  And put the rest of us out of our misery trying to clean up the crap they produce.

And let me add one thing to Jim’s list.  Maybe law schools ought to be awfully careful even when they have lawprofs teach legal writing.  Maybe, just maybe, some of them lack the “substantial experience” in the trenches that distinguishes a “successful” teacher of legal writing from a teacher of what an academic thinks is good legal writing?  There can be a difference.  Just think about it. 

Malthus Goes to Law School

I have long been of the view that the United States produces far too many lawyers for society to absorb.  Law, being the profession of last resort, takes in the strays that couldn’t hack organic chemistry, or can’t bear the sight of blood.  Law schools, which exist to support the scholarly endeavors of its professorate, needs as many warm bodies with cash as they can squeeze though the door to support its addiction.

The bottom line is miserable Biglaw associates, frivolous lawsuits brought by lawyers whose hands would otherwise be idle, a cause of action for every wrong, no matter who was at fault, and a society with no respect for the law or its practitioners.  Familiarity breeds contempt, and we all know a lawyer.

Since we, the stewards of the legal profession, have neglected to take responsibility for thinning the herd to manageable levels, enough that there is “food” for everyone, nature will do it for us.  Enter my old buddy,  Thomas Robert Malthus

According to David Bernstein at Volokh, who cites to Al Brophy at The Faculty Lounge, the current economic situation is having its impact on law schools, resulting in a hiring freeze at William & Mary, with more to come:

I’m expecting freezes on hiring at many universities. I asked a friend at a major law school a few weeks back what he thought the effect of the economy would be on law school hiring. … First, fewer people are going to be retiring; second, schools will be reluctant to fill vacancies. A handful of elite schools will be insulated from the downturn, I suppose. For all the rest of us, get ready for some more belt-tightening…. Maybe the real crunch will be felt next year; that’s hard to know.

Bernstein wonders whether this means that newer (or lesser?) lawprofs should start considering their options.  Polish up that resume, guys.

The implication is that this is a bad thing for legal scholarship, and indeed it is likely to mean that the next class of lawprofs is going to be much thinner and more competitive.  But this is the tacit product of the next class of law students, likely to be smaller and far more select. 

Not necessarily select from the law schools’ point of view, as my bet is that they will take anybody able to pay the freight since student loans may be impossible to find (or afford), but select from the students’ perspective.  Erstwhile law students will think long and hard before saddling themselves with the cost of three years of quasi-education to gain entrée to a declining market for legal talent.

As Malthus, whose harsh theory of population decline applies to so many other things, recognized, nature will not be kind when forced to do the job that we have neglected.  It will cut with a large, blunt blade, keeping the less privileged out of the law while the aristocracy with cash to spend will find law a safe haven.  Law schools could avert this problem, but will they put their supposed purpose ahead of their need to fund their beloved scholarship? 

Jonathon Swift, who thought less highly of Malthus than I do, satirically suggested the solution of eating the babies of the poor to feed Malthus’ wealthy hungry masses.  Who will the law schools eat to work their way out of this situation? 

This might be a good time to help your kid study for organic chemistry.

Perhaps our law school deans will spend less time agonizing over the U.S. News & World Reports rankings and more time considering the monster of too many lawyers they’ve created.  If they do, they will enjoy the deeply-felt appreciation of a grateful nation.

Why Law Review Articles Were Never Meant for Us (Update)

For years, I’ve suspected it, but now there’s finally confirmation.  There’s a reason why law review articles written by professors of law are both painful and almost invariably useless:  that’s how they are taught to write them.

Dan Markel at Prawfsblawg offers Advice for Beginning Scholars.  If you respect and admire the intellect and scholarship of lawprofs, as I do, you may not want to read any further.  It’s like watching sausage being made.  It isn’t pretty.

Dan offers three suggestions for those practitioners hoping to break into the Academy.  The first is benign enough: use footnotes rather than endnotes.  This hardly seems worth saying, since footnotes are easy enough to do these days, unlike the days when I went to law school and papers were typed on typewriters.  Back then, footnotes were a major pain to produce, and endnotes were so much easier.  With a computer, that problem has been totally eliminated.

The second suggestion is a preview of what’s to come:

The overwhelming burden is to demonstrate to law professors that you think and write like a law professor, not a practitioner.  Be careful, therefore, about not falling into a practitioner’s trap of using case cites to support empirical assertions.  If you are making an empirical assertion, one needs empirical data, or one needs to weaken the point, like “courts are still struggling with the issue.” 

I like that, the “practitioner’s trap.”  But he is, of course, quite correct.  Practitioners are constrained by precedent, and its mere existence is reason enough to rely on a decision for an empirical assertion.  If the court says so, then so it is.  From a scholar’s perspective, however, this is lazy and inadequate.  The fact that a court ruled that the sun rises in the west doesn’t make it so, and no self-respecting scholar is going to rely on such an decision.

But it’s Dan’s third point that is most telling. 

Remember your audience.  It’s not judges or practitioners.  It’s other law professors.  Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say “whoa, now there’s a practitioner who really gets it.”

First of all, every suggestion that begins with the words “Remember the . . . ” is bound for greatness.  It may not be original, but it works every time.  You may not have a clue what happened to the “Maine”, but you remember the battle cry, right?

Seriously, this is where the rubber hits the road.  We practitioners have suffered from our own self-absorption in thinking that law review articles were written to serve some purpose relative to the law.  Whether to inform lawyers, or persuade judges, to impact and improve the way in which the law served society.  How selfish we are.  How egocentric to think that scholars were talking to us. 

Law review articles are a conversation amongst themselves.  Colloquially, perhaps they are best thought of as a circle-jerk, where neither judge nor practitioner is allowed to rub up against any tweed-covered elbow.  Dan’s suggestions are meant for those practitioners, and I use that word in the broadest possible sense because most have about 12 minutes of practical experience under their belt, who find life in the well of the court distasteful and are looking for a different environment.  Dan’s trying to teach wannabe lawprofs how to shift gears.

For so many of us, Dan’s words come as an epiphany.  Who knew that this was all a big set-up?  Who knew that law review was never meant for the working stiffs, whether in blue pinstripe or black robes, but to curry favor with a secret society of scholars for whom the internal debate was the sole and exclusive end?  I didn’t.  I always thought that these articles were intended to have some application to the law.  I thought that they were meant to actually do something for real people.  I am such a maroon.

And as an aside to all those law students who were deluded by the glossy law porn into believing that their tuition was tendered in exchange for their being taught how to be lawyers, pay careful attention.  The first thing the Academy demands of your “teachers” is that they disconnect themselves from anything having any connection to the law and prove their mettle by devolving into theoreticians of some extra-legal, multi-disciplinary voodoo designed to never serve any purpose for humanity.  No wonder you come out of law school lacking any marketable skills.

I can’t help but wonder whether Jim Chen subscribes to this as well.  Is it really true that entry into the Academy requires the shedding of all semblance of social or legal utility?  Is that the price of scholar-hood?  Is this the best we can do for those students who will some day be expected to actually practice law, an idea so filthy as to bring to a screeching halt any practitioner’s hope of passing along his knowledge and experience to those who will follow in his footsteps?

Update:  Heard from Dan Markel, who informs me that the three points were from Jeff Lipshaw, about whom Dan says:

FWIW, Jeff is someone who was in practice for 25 years as a partner and GC at a major company b/f he became a professor and wrote those comments.

Now that’s really weird.

Update 2:  Heard from Jeff Lipshaw who, with tongue partially fixed in cheek (I think), mentioned something about people in glass houses.  He reminded me that lawyer writing is similarly viewed by the public as a tad, oh, incomprehensible.  So is it the same?

I don’t think we’re living in the same glass house.  For one thing, many of us in the blawgosphere are constantly advocating for better lawyer writing, less legalese and painfully outmoded language, and just better, clearer writing in general.  Second, when we write briefs or motions, it’s done for the purpose of persuading judges because people pay us to do so.  In other words, the brief isn’t the end in itself, but a means to an end.  We write for a greater purpose.

If lawprofs are writing solely for the benefit of acceptance by other lawprofs, then that’s where the game ends for them.  What bothers me most about this is not its insularity, but the waste of so many good minds and so much effort without any greater purpose.  Practitioners try to help one client, and in the process may help many.  Lawprofs could offer so much more, by changing the course of the law.  Why not try to do so?  Wouldn’t they feel pretty good if people were still talking about the “[insert lawprof surname] Rule” one hundred years from now?

Grades Make Them Feel Bad

While the world is in turmoil over the financial crisis, Harvard Law School has quietly adopted the Yale law grading method.  According to Eugene at VC, who let the cat out of the bag,

According to the e-mail that I had forwarded to me (and whose authenticity I have no reason to question), Harvard would technically have four grades — Honors, Pass, Low Pass, and Fail. My guess, though, is that Low Pass and Fail would be extremely rare, and 98%+ of all grades would be Honors or Pass, as they are at Yale. The shift then is basically from at least five commonly used grades (A, A-, B+, B, and B-, unless I’m mistaken) to two.

Apparently, Standford already went this route.  Now I was unaware of Yale’s grading system, or Stanford’s change, but now that it’s hit Harvard, another law school a neglected to attend, enough is enough.   Is nothing sacred?

Notice how Eugene described the “five commonly used grades” as involving only two letters of the alphabet, “A” and “B”.  Did the academy have to sell off the other letters to afford lawprof condominiums?  What happened to my good old friends, “C”, “D” and “F”?  Were they excessed?

This exercise in grade inflation happened when the rest of us were busy working, I guess, as my memory of law school was that some students did poorly.  Some flunked out.  Many got a bad grade in one course or another, usually the one involving the professor who insisted on long lectures in barely cognizable English.  That was always a pleasure, and a great opportunity to hone your Times crossword puzzle or Scrabble skills.

This is over, apparently.  All those resumes with astronomical GPAs meant nothing.  You had to be near brain-dead not to look like a star.  To do otherwise would have meant low self-esteem, and we certainly can’t have lawyers with low self-esteem.

This didn’t make sense to me until Orin Kerr stepped in and explained things for a dope like me:

So here’s a puzzle about the psychology of grading. Harvard and Stanford Law schools have recently announced moving from a letter grade system with pluses and minuses to a High/Pass/Low-Pass/Fail system. My sense is that most students like the change: Students perceive that it takes pressure off them.

But imagine a slight change. Imagine that instead of adopting the High/Pass/Low-Pass/Fail system, the schools kept the letter system and simply dropped pluses and minuses and the “D” grade. In other words, the possible grades became just A, B, C, and F.

My sense is that students would object strongly to such a system. They would object that it was too arbitrary and unfair, because a student who earned a very high B or a very high A would get no credit for it: They would just get the flat grade that didn’t reflect their achievement. Indeed, I suspect some students would say that removing pluses and minuses would increase the pressure on students by giving students a single bar to hit rather than more of a sliding scale.

Why is this a puzzle?

Because the two systems are exactly the same.  Only the names have been changed to protect the innocent.  So why are these fine institutions of higher legal learning bothering with a shell game?  And are the brilliant students who attend these find institutions that stupid that they can’t tell it’s a shell game? 

But more importantly, are these same brilliant students, who will one day walk out in the world of lawyering so unbearably fragile that they can’t handle the standard grades that have, for better or worse, managed to characterize academic success and failure all these years? 

There is one thing that the academy has done a particularly poor job teaching, and appears still determined to screw up.  Once these young men and women embark on a career in the law, they will all lose at one time or another.  They need to learn to lose.  They need to learn to fight.  They need to learn to handle adversity and rise up to continue the fight.  As I wrote here :

A well-conceived law school education serves one purpose only:  to prepare you to confront the abuse of being a lawyer and prevail.  How to prevail comes later.  You’re not ready for that now.  For now, you need to learn how to toughen up and take abuse without crying and whining.  How to keep a smile on your face and deflect the humiliation that is designed to make even the most macho man shrivel.  If your lawprof doesn’t abuse you, she hasn’t done her job.  If your lawprof doesn’t toughen you up, then you’ve gained nothing.

If a law student has not done well in a course, then flunk him.  If he’s only done mediocre, then give him a “C”, or even a “C-”.  A client will thank you one day if you do.  Practicing law is not about feeling good about yourself, but learning how it feels to lose, and then still be able to fight again.  Don’t steal this from law students, even though they don’t know that they need it yet.

The Lawprofs Respond: The Slackoisie are Differently Abled

Jeffrey Harrison at MoneyLaw has been gathering data on law student tendencies, reaching the conclusion that the Slackoisie have brought about the New Age of Disability.  Of course, since use of the word “disability” is viewed by many as pejorative, we shall reform his language to “differently abled,” having rejected the characterization of “bunch of total losers” as being unduly lengthy.

Following the best of scientific protocols, Jeffrey’s research has produced the following examples:

1. A student asked to have a 2 year old grade changed in order to improve his class rank.
2. A mother called to complain about her son’s grade in a class.
3. A student was devastated by a comment on a paper because it was followed by an explanation point.
4. Two attorneys and one judge have asked “What is going on.” They say they have never encountered students who required as much “hand holding.”
5. Employers visiting to interview complain about student attitudes as signified by wearing shorts and ipods to an interview, being aggressive about what they will and won’t do, lateness, etc.

Of course, we’ve accumulated the same sort of data anecdotally here at Simple Justice.  And where we can’t find an anecdote, we just make it up, which is why it’s important that our machinations are verified by properly conducted research.

Jeffrey goes on to note:

If ability means being prepared to contend with the ups and downs of life, being able to shake things off, being determined, to learn from criticism, and to take the initiative to solve difficult problems, it seems like we are well into an new age of disability.

Pondering both the source of this ugly turn for the worst, as well as its implications for law schools, he accepts his share of the blame.

I am pretty sure we play a role in the disabling. In talking to some law professor friends, none could not remember more than a time or two when he or she said in response to an classroom answer “No, actually that is wrong.” Instead, the answer is something that leaves the student feeling good but likely hearing an inaccurate message.

Having offered his mea culpa, because God knows it couldn’t possibly be the fault of the Slackoisie themselves as they cannot, by definition, be responsible for anything in their lives that negatively affects their self-esteem, it seems appropriate that our brethren in the theoretical lanes of the legal superhighway receive the full support of those of us in the far left lane, weaving in and out as suits our disposition.

Shortly after that glorious day when your students toss their mortar boards high in the air, without the slightest care for the return of the deposit on the regalia that was charged to mommy’s credit card, your former law student who has likely never been told by any professor that his response to a question in class was “wrong” or that he was a “blithering idiot” who should consider an alternative career path, will stand up before a judge.

Now judges have changed somewhat since the old days.  But not that much.  After your former student expresses his most thoughtful and well-prepared argument on behalf of an actual, living client, forcefully and with a passion that can only be mustered by the young and inappropriately healthy, beaming with the glow of knowing that he has crafted a position that fills him with pride as his finest work, he will hear the magic word:


No “and”, no pat on the head, no hug.  Just denied. 

The former law student blinks a few times.  His eyes begin to glaze, then water.  His face is red, flush with emotion.  His head spins.  “What could this be,” he thinks, as his mind races to make sense of this new experience.  At first, he thinks he must have heard wrong, as he knows how much he loved his argument and that it was the best argument he could possibly make.  But as the uniformed court officer grabs him by the shoulder to push him out of the well, he realizes that something is wrong.  Very wrong.

In a dream-like state, he walked toward the bench, staggering until he drops to the hard, cold surface.  He feels the firm, no harsh, grip on his upper arm, the sense of wet droplets striking his cheek and ear.  He realizes his client is next to him, so close that he can smell the odor of his warm, moist breath.  Then he hears the assault of sounds, pounding and pounding his head. 

“You moron, you idiot, you fool . . . you told me you had this under control…you’ve ruined me…you’ve ruined my life…you suck…you stink… you idiot…”

The problem, you see, is that this former law student is unprepared for this eventuality.  He’s never been told before that he can be wrong.  His world has never included outright rejection of his thoughts and ideas.  He has never experienced the moment when someone says “no” to him, without equivocation or explanation.  Throughout his education, he’s been told that if he tries his best, if he believes that he has produced the best work he is capable of, then he has succeeded.

No one ever prepared him for the judgment day.  No one ever told him that someday, it will not matter what he thinks, as there will be another person who will judge him.  His entire life has been guided by “I think” up to now, and the very notion that what he thinks no longer rules the day will rock the foundation of his existence.

Jeffrey concludes by asking the question, “Is disabling people really a way to be kind or show your respect?”

I guess it’s easier than fielding that call from the vicious helicopter mom.  But no, shielding junior from judgment day is not a sign of respect.  It’s just the path of least resistance.

So how exactly are the Slackoisie differently abled?  Well, actually they’re not.  They’re just a bunch of self-absorbed whiners  who hides behind their mother’s skirt rather than face the reality that sometimes you win and sometimes you lose, and nobody cares if it makes you feel badly about yourself.  And it doesn’t really matter whose fault it is, because eventually everybody has to take responsibility for themselves and stop blaming others for their failings.

When Law Schools Cheat (Update)

The subculture of legal academia turns out to be a dirty little place, with goateed lawprofs skulking about the dark back hallways of the Ivory Tower trying to figure out ways to cheat their way to prominence.  Who knew?

According to this New York Lawyer report, it’s forcing the hand of U.S. News and World Reports, that paragon of public integrity, to change the way it does business.  You see, one of the factors that’s used to calculate how wonderful a law school is (and hence its ranking) is the LSAT scores of its admits.  But there’s a little secret.

U.S. News currently uses only the grades and test scores of full-time students. The magazine is considering pooling the scores of part-time students after hearing allegations that some schools move students with lower grades and test scores into part-time programs so they can report better data, said Robert Morse, director of data research for the magazine.

“One way to prevent gaming of the system is to count [grade and test data of] all students,” Morse said.

As I sat, quietly laughing to myself at the notion of law schools “gaming the system,” the question “why” kept running through my mind.  If the schools get a higher ranking, do the Deans get a performance bonus?  If the schools get a higher ranking, do their graduates get a favorable first jury verdict?  Maybe they get an affirmance/reversal (as the case may be) on their first appeal?  Why?

There is no doubt that this is very serious business for law schools.

The proposal is strongly opposed by deans at schools with part-time programs designed for students who are years past college graduation and often well into careers outside the law. They warn that a school’s place on the U.S. News list is so important that some schools would drop the part-time programs rather than slip lower in the national rankings.

They would rather shut out an entire class of students, those who are older, employed and minority, than drop a position in the rankings?  That sounds crazy.  Worse yet, it sounds vicious.  Would they really sacrifice their part-time program, and all the individuals who would otherwise be unable to attend law school, just for a rank?

While the article makes clear that this is very serious business, it fails to explain why this matters so much.  Would potential Biglaw employers confuse Harvard Law School with Ave Maria if they didn’t have rankings?  Would lawprofs be unable to get their law review articles published because they taught in a T-25 rather than a T-14 school?  Would alumni donations slow to a trickle?  I don’t know what ill would befall these schools, but it must be huge for them to be willing to sacrifice any sense of mission to hold onto their rank. 

I’m quite sure that I’m naive, but I suspect that this may be more an internally driven competition, where the impact is more psychological than anything else.  Potential law students may obsess over rankings, but I can’t recall any client caring what your law school rank was.  Yet very smart people have become slaves to Mort Zuckerman.  Think about how crazy that sounds.  Mort Zuckerman, for God’s sake!

What if a bunch of top law schools refused to provide data to U.S. News & World Reports next year?  What if they decided that their mission was to teach people to become lawyers, and they were going to do it the best they could?  What if they decided that putting a bunch of promising, but older, less LSAT-savvy, students in seats to fulfill the demand for public service lawyering was more important to society than putting a feather in their well-endowed cap?

The sky would fall, right?  So it’s worth it for law schools to cheat for a rank?  Not in my book.

Update:  It looks like I have company in my disgust at the fact that law schools would game the system, or do away with their part-time program to keep their death-grip on their rank.  See Jim Chen at MoneyLaw (check out his great Sir Thomas More quote and video from “A Man for All Seasons”) and Nancy Rappaport at MoneyLaw as well as her personal blawg.

It’s gratifying to know that I’m in such good company, and that there are some important people in the Academy who have survived with their integrity intact.

Once There Was a Bluebook

Ilya Somin at Volokh renews his calls for the death of the Bluebook.  For those who never enjoyed the rigors of law school, the Bluebook is what lawyers call a book entitled “A Uniform System of Citation.”  When I went to law school, it was a little book with a blue cover.  From what I read, it’s gotten larger.  I assume it’s still got a blue cover, though I couldn’t swear to it.

Law students are expected to learn every rule and nuance of the Bluebook.  Law reviews slavishly pour over it, vetting the articles of lawprofs to make sure that they conform to the rules in every respect.  A capital letter here, a period there, makes all the difference.  These are life and death matters for law review editors, and millions of pencil points have been sacrificed to the Bluebook gods.  What a waste of good red  pencils.

But what of the Bluebook to those of us laboring in the trenches?  Here’s the scoop.  We must be able to accurately and adequately communicate our citations to the courts if they are to be able to follow our arguments.  Doing so largely requires us to use relatively standard citation form, which really isn’t a very big deal.  Whether we include a space between “Fed. R. Crim. P.” or not doesn’t tend to create mass confusion.  The judges get the message. 

Once law school fades into distant memory, about 6 hours into our first post-law-school work day, the Bluebook is left in its place of honor on the shelf, never to be looked at again.  Eventually, it is consumed by dust, such that its distinctive blue cover turns a lovely shade of gray.  And there it sits until we die (or worse, retire). 

The Bluebook is probably the biggest non-starter in the law.  Has anybody ever read a Supreme Court decision that included the language:

We might be persuaded that the appellant was correct in his analysis of the caselaw, but because he failed to use a period in his citation form of an obscure law review article, we affirm.

Not me.  In fact, I can’t recall a judge ever mentioning citation form in my papers.  Ever.  This may be because I am a natural Bluebook prodigy, and somehow comply with even the most ridiculously obscure rule without realizing it.  But I don’t think so.  I may be good, but not that good.

No, my sense is that the judges feel pretty much the same as me about the Bluebook.  They don’t care.  As long as the citations can be found, they take no issue.  And you can bet your bottom dollar that they aren’t sweating the Bluebook when the write their opinions.  As if their decision doesn’t count if they mis-cited a case.

So while Ilya, and others like Dan Solove, fight the chains of Bluebook slavery, I’ve got to laugh.  This is what comes of being a lawprof, with that myopia that can come only from dependency on law reviews as proof of existence.  As a right of passage for law students, I find it quaint.  There’s no harm in learning to do things the “right way,” even if nobody really cares.  As a shackle on the bigger ideas of lawprofs, it’s just an arcane yoke that comes with owning specialized territory.

For the rest of us, it’s really pretty funny to hear the lawprofs complain about such nonsense.  Don’t blame the Bluebook (or Yale law review) for being what it is.  If you want to lay blame, how about your fellow lawprofs and deans who have yet to send the memo to the kids on law review that

“Henceforth, Harvard Law Review will no longer use Bluebook citation form. If you can understand the citation, regardless of form, then that’s perfectly acceptable.”

But the truth is, you guys love holding the secret key to getting published in law reviews, and if it was only about good ideas, then anybody could do it.