Battle of the Strawmen

Paul Lippe jumped in head first when he published his challenge to law schools to pull their collective heads out of their butts when it comes to their failure to turn out viable lawyers after three years of mush in the AmLaw Daily.  Comparing the education provided by law schools to that of medical and business schools, Lippe proclaimed that they have failed to adapt and grow.

Law professors didn’t like what Lippe had to say.

Lippe, borrowing from the currently popular lingo, proclaimed it’s time for Law School 4.0, offered some concrete suggestions:

–An accelerated curriculum, with no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school.

–More practice orientation in teaching, with far more adjunct faculty who are active practitioners (a random e-mail I received yesterday said, “One of the reasons I chose Northwestern for law school is I believe in the type of changes that Dean Van Zandt is trying to make. My favorite instructors were not academics but adjuncts who were successful practicing attorneys.”)

–Better use of technology (both connectivity, like video or Web conferencing, and Web 2.0 social networks) to connect schools and practitioners and clients. Faculty (rightly) hate the notion of students tweeting each other in the classroom, but they can easily rely on professional networking services to connect to actual practitioners who are dealing with the issues discussed in class. In a networked world, the ability to get someone who knows the answer to help you is a far more valuable skill than the ability to hypothesize your own answer.

-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting–e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?

–A move back to mission-centered management. In a recent meeting with law school deans, I asked, “If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?” The answer: “Nothing.” When my wife’s grandfather was a law school dean, it was understood that the law school was there to serve society, the profession, and students–not vice versa.

–A lifetime (or at least ten years) of orientation for skills development for students/alums. While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source (although realistically, today, not the most fully competent source) of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms’ appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.

You woulda thought Lippe told them they had to dress like they came from New Jersey, the way the lawprofs reacted.  But then Lippe challenges the sacred cow of scholarship, the very soul of academia and the reason why lawprofs reject the pin-striped suit in favor of the tweed jacket with leather elbow-patches.  Lippe would have them create a “trade school,” as the lawprofs denigratingly call it, at the expense of higher order thinking.

J.B. Ruhl, a former Biglaw hiring partner now teaching at FSU Law School (and who, like yours truly, sports a gray beard despite his otherwise youthful looking dark locks), rose to the challenge of ripping Lippe a new one with a post at Jurisdynamics, reposted at PrawfsBlawg.

Ruhl acknowledges that Lippe may not be entirely wrong about the need for some minor tweaking, “meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.”  I know, this may be the strongest smack across the face I’ve ever seen from a lawprof. 

Setting forth 6 reasons why Paul Lippe is “thoroughly off base,” here’s what Ruhl has to say:

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide “inferior training.” Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not.

I’m going to jump to an assumption, that Ruhl leads off with what he perceives as his strongest argument, since that’s the way lawyers are taught to present their contentions.  If that’s so, then Ruhl’s in trouble from the start.  Lippe speaks to the training regime, where docs aren’t let loose to hang out a shingle to perform their first appendectomy on the first patient who walks in the door.  Ruhl’s half-baked attempt to connect that to the cost structure issues of health insurance makes no sense at all.

Unfortunately, Ruhl neglects entirely the point that lawyers graduate from school with the ability to proclaim their shop open for business the day after they pass the bar exam, even though they may have never written a motion or walked through a courtroom door.  Is Lippe’s analogy perfect?  No, but not for the reasons asserted by Ruhl.  Score one for Lippe.

2. Lippe goes further, arguing that “law schools will have to produce fully functioning lawyers who can quickly become economically viable–not just proto appellate clerks.” Just like medical and business schools do, right? Wrong. Medical schools do not produce “fully functioning physicians” and business schools do not produce “fully functioning corporate executives.” Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools.

Weelllllll, not exactly.  Perhaps Lippe goes over the top by suggesting that law schools produce “fully functioning” lawyers.  Just functioning lawyers might be more realistic.  But then, law schools don’t even come close to that.  Of course, medical residencies are a requisite part of a medical education, whereas Ruhl contends that the failure is on the part of law firms and their lack of dedication to completing the legal educational process.  Of course, Ruhl assumes (as he claims Lippe does) that every law students goes to work in Biglaw.  What of the majority of law students who find employment outside of Biglaw, or, ahem, fly solo?  The vast majority of lawyers will not be sitting in the library at Cravath for the first five years, soaking up the education that law school neglected.  As for the clients who reasonably expect that lawyers are competent to represent them, Ruhl’s shifting of the burden of a legal education doesn’t provide much comfort.  Score two for Lippe.

3. Nowhere, for that matter, does Lippe define what a “fully functional lawyer” is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not.

I see this as a subargument of Ruhl’s second point, but one crafted entirely of straw.  Of course a young lawyer on day 1 isn’t equipped to argue before the Supremes.  But what about arguing before the local yokel magistrate?  He can’t do that either.  What about negotiating the terms of a house closing?  Nope.  At least the deposition of an accounts payable secretary?  Not even that.  But no points for Lippe, since this was already covered by Ruhl’s second argument.

4. Part of the problem with Lippe’s pitch in this respect is that he talks about law schools preparing graduates for the “legal profession” as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant.

Oh no you do-on’t.  Lippe didn’t say the theory and policy of the law are irrelevant, so Ruhl’s again creating the strawman to knock down.  The problem here is that for lawprofs, it only about the “theory and policy of law,” which is the stuff that scholars get excited about.  It’s not that lawyers couldn’t care less about it, or don’t need to know it, but that it’s merely a part of a legal education and, in the scheme of things, a smaller part than the nuts and bolts.  It’s unclear why Ruhl seems to scold Lippe about his focus on law firms and corp counsel offices, since the same holds true for solos and public agencies.  Perhaps this is too deep for a trench lawyer like me to fathom.

Ruhl ends this point by asking, “What happened to thinking about what the law should be, rather than just what it is?”  I’ve got my hand raised!  Pick me! Pick me!  Initially, lawprofs confuse their indoctrinating their students as to what they believe the law should be with as opposed to generating an open marketplace of ideas.  Of course, they think they’re brilliant and scholarly, so this would be a good thing and just in case one of their students winds up on the Supreme Court one day, they can change the course of the law to suit the lawprof’s views. But what makes Ruhl think that thinking and practicing are mutually exclusive?  Few law students are prepared to understand what the “law should be” because they have no experience in it or with real people who suffer for their theories.  Score three for Lippe, by default since Ruhl’s point here is just awful.  I’m almost inclined to take a point away from Ruhl for this one, except he hasn’t won any yet.

5. Lippe’s central objection with law school faculties is that they “have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business.” But if one believes there is any value to ensuring that law students learn to think about the “ought” and not just the “is” of law, there has to be an emphasis on the part of the faculty to exploring the “ought” in order to be able competently to teach their students how to do so.

This is just really bad math if any value to thinking, then emphasis on scholarship.  Come on now, the fact that lawprofs eschew the practical in favor of the scholarly isn’t something to be ashamed of, and certainly not denied.  Lippe’s point is that profession of academic comes at the expense of practitioner, putting scholars in charge of creating practitioners.  Lippe doesn’t argue that lawprofs should eschew scholarship, but that they can’t ignore practice either.  Yet again, Ruhl’s vision of the world as a zero-sum game renders his argument another strawman.  Lippe stand at four.  Ruhl zero.

6. Along with his claim that law schools have “have grown more distant from the profession,” Lippe goes so far as to claim that law professors hold law firms “in low regard.”

This is another subargument, and hence no points are at stake for this one.  Yet, who is Ruhl kidding?  I’ve addressed this at greater length here, but to suggest that academia doesn’t harbor disdain for practitioners is just plain disingenuous.  The support for this position, that FSU has “a plethora of practical and skills oriented courses” that are “taught by adjuncts who are leading practitioners” is just plain vanilla hyperbole. 

Indeed, it gets worse when Ruhl asserts that “[m]any of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations–writing for their journals, speaking at conferences, and chairing committees.”  I hate to be the one to break this to Ruhl, but sitting on committees isn’t practicing law.  Law is something that happens in courtrooms and with these people called “clients”.  Committees are something that confound collegial folks, inclined to that believe that a satisfying discussion is a substitute for doing something.

Having reached the end of Ruhl’s arguments, the score is still Lippe 4, Ruhl 0.  But then Ruhl reaches the part where he credits Paul Lippe’s position.

We must get control of the cost of legal education–it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a “fully functional lawyer,” a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty.

Here, he does a much better job at offering something constructive to the argument, although where Lippe offers solutions, Ruhl just offers outcomes.  It’s easy to say that law schools need to reduce the cost of a legal education, but Ruhl doesn’t offer to take a salary cut.  similarly, ensuring the law school is about the student sounds great, but belies his “emphasis” throughout his argument it’s in the students’ best interests to do all the stuff that’s most appealing to the faculty.  Well, that works our pretty well for Ruhl.

Having given Paul Lippe the slightest tip of the hat, J.B. Ruhl then tries to get in one final dig:

My problem isn’t with those ideals, it’s with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe’s vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession.
See, I told you that the lawprofs denigrate the practice of law by calling it a trade school.  But then, what’s a strawman argument without the occasional ad hominem.  It’s not that Paul Lippe’s points, or solutions, are perfect, or perhaps slightly more extreme than would best serve the future of the profession.  Lawyers shouldn’t be mere mechanics, and the ability to construct novel arguments and theories must be part of the mix.  But then, what good is an air conditioning repairman, fully versed in the debate over freon recycling, who has never laid hands on an air conditioner?  Given the current state of legal education, unversally viewed as pathetic by those who are charged with the task of actually representing human beings, J.B. Ruhl’s defensive and illogical arguments fall flat on their face and, ironically, fail the test of intellectual rigor that one would expect of a scholar.

Game, set, match.  Lippe.

7 thoughts on “Battle of the Strawmen

  1. John R.

    Scott! Man! Take it easy on those bozos, would ya?

    First, I don’t mean to boot-lick but that was a great post on a pretty important and not often discussed matter.

    Parenthetically, let me throw in a possibly thought provoking anecdote. Both my grandfathers were lawyers. One went to Temple Law School after high school, became a practicing lawyer, then took a few years to go to the University of Pennsylvania to get a Bachelor’s degree in chemistry.

    The other never went to college or law school. He clerked in a law firm for five years and then passed the bar exam.

    In Ontario, before you are admitted to practice you have to “article” for a year under the supervision of a practicing attorney. It’s a little bit like residency for a physician.

    The “law”, as an academic discipline, does offer a few intellectual twists here and there, like the rule against perpetuities, but for the most part it is an intellectually pedestrian pursuit. There is nothing about it that even compares with, say, quantum physics or philosophy.

    The fact is, a trade school approach is a far better fit if you’re trying to train lawyers.


    Great points Scott, the first year of law school is really outstanding in my opinion at teaching the theory. The 2nd and 3rd years are really just a waste of time under the current model.

    Under the current model law students graduate with:

    1. No practical legal experience
    2. No practical business experience
    3. No practical sales/marketing experience.

    There need to be drastic changes, and thanks Scott for calling out J.B. Ruhl. Who is that guy trying to protect? He comes across as a hired gun.

    [Ed. Note:  Not even my good bud Adrian gets to sneak a plug for his own post into his comments.  Sorry pal, but rules is rules.]

  3. SHG

    Nice how you slid that sales/marketing piece in at number 3, where I almost didn’t notice it.

  4. Jeff Kramer

    Excellent post, Scott. I haven’t been out of law school that long, but I can only think of a few occasions where something I learned in law school has helped me as a practicing lawyer. The best piece of advice I ever got was from an adjunct who told us “always get the money up front.” Sound words to live by.

    After graduation, I learned more about being a lawyer in one year of working for another lawyer than I did in three years of law school. A medical school-like approach to law school would be the best possible thing for new attorneys.

  5. SHG

    I think it would be fair to say that the problem isn’t what you learned in law school, but what you didn’t.  The lawprofs seem to forget that the day after you pass the bar, you can hold yourself out ot the world as a practicing lawyer and ruin lives with the best of them if you don’t know what to do.  How they can be party to this, and yet deny it’s a problem, is beyond me.

  6. Hull

    Fine, fine post. I do wish you could draw more comments from those who have more of a vested interest in, and really care about, the issue, including employers who getting shortchanged by the law schools. And I am surprised that law students (or their parents) haven’t considered lawsuits against the institutions which have prepared them so poorly for the ardors and realities of clients, private practice, and work generally.

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