As the book itself remains embargoed, my review of Walter Olson’s  Schools for Misrule remains locked away in the safe.  But since University of Illinois Lawprof  Larry Ribstein posted about some of the underlying concepts, I figured it’s fair game to deal with Ribstein, even if Walter will have to wait.

The central theme, as described in the editorial review and Ribstein’s post, is:

Walter describes law schools as essentially the hatcheries of bad ideas that have led to the sort of excessive litigation that Olson has chronicled in his long-running blog, Overlawyered.com.  These include the undue expansion of tort law, class actions, courts running schools, new and potentially open-ended rights, international jurisdiction over U.S.-based legal disputes, the growth of the “new property, and institutional reform litigation.

Ribstein then acknowledges, with no small amount of satisfaction, that Walter gives lawprofs great influence over the state of the law, a conclusion that warms the cockles of lawprofs hearts given that most of the legal profession considers their influence marginal at best.

It’s the combination of great influence, and politically-tinged pedagogy, that Walter sees as the core of the disconnection between what the lawprofs are teaching and the damage they are doing. 

Olson suggests that the source of the problem is law professors’ becoming disconnected from simply teaching existing doctrine and turning to the creation of social policy.  Olson traces this to an influential article, Harold D. Lasswell and Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203, 206 (1943), which argued that  

if legal education in the contemporary world is adequately to serve the needs of a  free and productive commonwealth, it must be conscious, efficient, and systematic training for policy-making. The proper function of our law schools is, in short, to contribute to the training of policy-makers for the ever more complete achievement of the democratic values that constitute the professed ends of American polity.

Having been a jurisprudence student of Myres McDougal at the end of his teaching career, his thrust was not to push a particular point of view, but rather to implore students to consider, as part of the whole of the law, the policy implications of the law and its interpretations.  In other words, think a bit harder than just what’s good for me at this moment, as one works to develop the law into a force that benefits society.  Still, each of us harbors our own ideas of what policy approach will prove more beneficial.

According to Olson, law schools “predictably churn out certain kinds of bad ideas:” expansion of law with little recognition of costs and limits, laws that increase the demand for lawyers, more power to international and federal lawmakers and less to state and local, positive rights rather than just the right to be left alone, more power to the courts, less to politicians.

Olson’s solution is more science, less advocacy, more emphasis on training in lawyers’ skills.  He concludes that “we neither need nor want more philosopher-monarchs. But we could use more good lawyers.”

This comes dreadfully close to reviewing Walter’s book, but since Ribstein started it, how can it be ignored?  Ribstein’s criticism conflates two independent notions, that training students to become good lawyers in what lawprofs dismissively call the “trade school” approach, is not merely inadequate, but an affront to the loftier goal of creating legal philosophers.  It’s never been my view that the two are in conflict, and students have to pick one of the other. 

Law students should leave school with the skills needed to practice law, or they’ve just wasted a whole lot of money and entered the employment world unequipped to do much beyond cash their paycheck (if they can get one) and screw up people’s lives. Sadly, this doesn’t seem to trouble many lawprofs.

On the other hand, having the capacity to think beyond the rote application of precedent, or the mechanics of statutory construction, enables lawyers to fulfill their responsibility of taking existing law and applying it in an ever-changing environment (think, what would Blackstone say about the internet?) in a way that both serves their clients and provides a societal benefit. Is this a bad thing?

Walter Olson says, well, yeah, it’s a bad thing.  It’s a terrible thing, because the policy concepts lawprofs are feeding these students reflect extreme and biased positions, giving rise to a generation of lawyers (and “legal thinkers”) who buy into the dangerous ideas taught them in school. 

Walter provides a laundry list of examples, mostly from law school clinics, demonstrating that they are inculcating a belief that one side on controversial legal issues is good while the opposition is evil.  For example, a law school clinic will represent tenants in eviction proceedings against landlord, with the clear message that tenants are poor and deserving and landlords are greedy and undeserving.  Should law students be taught to hate landlords?

Ribstein begs off responsibility.

I think it’s important to see law schools as only the supply side of the idea market.  Law professors manufacture ideas, but somebody has to buy.  There would be no problem if our ideas had power just because they were objectively persuasive.  The real problem is that those who control the legal system — lawyers, judges, professors — welcome a particular subset (pro-lawyer, pro-litigation) of the many good and bad ideas law schools manufacture. 

Both ideas have certain flaws. On Walter’s side, the ideas promoted are consistent with the needs filled.  There aren’t too many corporations looking to law school clinics to defend them against class actions, while there are plenty of individuals with worthy but financially trifling issues in need of help.  Open up a pro-corporation clinic and watch the tumbleweeds blow across the room. 

On Ribstein’s side, he gratuitously ignores the influence, both in suasion and grading, that lawprofs have over their eager students.  Students’ minds are empty vessels waiting to be filled, and lawprofs are only to happy to fill them up with their preferred scholarly notions. 

Blaming “those who control the legal system” is a cop out, as there’s a criminal defense lawyer for every prosecutor, a landlord’s lawyer for every tenant’s lawyer.  To paint lawyers as monolithic, pro-lawyer, pro-litigation, is to ignore the constant struggle within the profession to find betters ways to serve.  Clearly, Ribstein needs to stop reading only lawprof blawgs and spend some time with real lawyers to learn what they’re thinking.  We are hardly all litigation-happy, money-grubbing, irresponsible shysters.

Ribstein then contends that it’s Olson, not lawprofs, whose ideas will perpetuate the worst of the legal profession:

We need good ideas, including ideas that challenge the status quo, that are not going to be produced by those immersed in the day-to-day practice of law.  Olson’s solution could help perpetuate an increasingly outmoded system that relies on one-to-one legal advice, costly litigation, and excessively complex legal rules

This goes to Walter’s contention that law students should be taught more to practice law and less to advance “good” causes, which Ribstein contends will only perpetuate an “outmoded” system that promotes litigation and overly complicated rules. 

Ribstein’s point here is well taken, that breaking away from our litigation-loving ways requires more than teaching students how to do what lawyers have traditionally done.  But then, nobody raises factors like the excess of lawyers being churned out by law schools, the absurd expectations created by Biglaw, law schools and mommy as to the financial remuneration these students expect within a week after leaving law school, or lack of balance in the legal academy that gives rise to a viable legal system.

Both Walter and Ribstein operate under the assumption that there are good and evil sides in the law, when the truth is that none of us sits at the right hand of God.  Every case is different, every client is different and every cause is different, requiring us to consider the political propriety of our efforts as sui generis. 

But then, we’re lawyers, and charged with the responsibility of representing our client.  Unlike lawprofs and policy wonks, we only have the luxury of pontificating about our policy favors in our free time, such as when we blawg.  When we put on our lawyer hats, we have a job to do, and our client is always on the right side, even when he’s wrong.  That’s what I was taught in law school.