The Law Professors’ New Clothes

While we’re sitting on hard benches waiting for cases to be called, the legal academy is hard at work reinventing our profession without us.   Massive drops in applications has made their attention imperative, even though there are still enough to fill the seats needed to pay the cost of scholarship. So what if law schools are cold-calling qualified applicants to entice them with Ginsu knives and financing packages? If you spell your name right on the LSAT, there’s a law school for you.

This is pretty embarrassing for law schools, forced to reduce the quality of new admits because the smart kids no longer want to lose three years and a bundle of debt to an education that will enable them to get a part-time barrista position. The more upstanding schools are cutting their class sizes, while the less upstanding ones are happily taking their rejects so they can afford the dean’s salary.

And they’re coming up with schemes to cure their ills.  You probably weren’t paying attention, because you were busy thinking about how to make your phone ring again, but what they come up with is going to affect you whether you care or not.

All these hungry little buggers they’re sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they’re smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They’re doing what they’ve got to do to survive, and niceties like integrity are for old guys. They’re fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they’ll tell you), they see no net harm from a bit of puffery.

Just this week, here’s what the scholars came up with:

NYU wants to make a systemic change to law schools that would allow students to do law school in two years and take the bar.  The point is that it would cut the cost by a third, create a two-tier profession since some will stay for the full three years, and force law schools to make the third year more relevant.

While this could save some law students money, although at the cost of being second-class lawyers, it does nothing to make them more competent or to reduce the numbers of lawyers being spewed into a market that can’t absorb them and has no use for them.  Cool plan, bro.

Yale Law School announced that for its first-ever class of law Ph.D.’s, it has received 82 applications for five spots, thus disproving naysayers that nobody in their right mind would waste their time on a law Ph.D.  While it proves nothing of the sort, the thrust toward a scholarly doctorate is happening while one of the core failings of law school is its inability to produce lawyers with the capacity to do anything remotely associates with what lawyers do.  What are the chances that creating a new cadre of scholars, even more detached from the practice of law, is going to produce better qualified lawyers?

It’s not surprising that there are 82 people interested in the program. Lots of people, myself included, are interested in scholarly pursuits, and feel themselves better suited to churning out law review articles than showing kids the tricks of the trade or how to schmooze the clerk to get your papers filed.  But if we assume that the only place these doctors can get jobs is law schools, then this seems to be heading in the opposite direction of producing functional lawyers. While I’ve got nothing against law docs (that’s doctors, not documents), they’re the last thing we need in law schools.

Lawprof Steve Diamond, who is recovering from involuntary proctology exam by the scambloggers for his market oriented “let them eat cake” approach to solving the problem, has come up with a new initiative, which he modestly calls “Lawyers for America.”


It would offer young unemployed or underemployed lawyers the chance to practice law serving an underserved community under the supervision of existing lawyers. One example: there are many thousands of small businesses in our poor and immigrant communities, including cleaning, housekeeping, gardening, construction and other services.  Many of these could be organized as LLCs thus shielding their owners from personal liability. This requires legal help.  These entities could use other legal advice as well. A legal service organization would be established in major urban areas that could provide these services.

The supervising lawyers could earn CLE or pro bono credit for their time. The law students would be provided a stipend for living expenses and more importantly would earn credits for debt relief. Every year of full time service would earn them 20% cancellation [sic] of their outstanding debt.

There will be a sign-up sheet passed around for you supervising lawyers, and we’re trying to negotiate with Costco to accept your pro bono credit for food.  The law students, of course, don’t have to eat, so no worries on that end.  And the karma gained from helping businesses in poor and immigrant communities will obviously form the basis for a thriving and successful law practice going forward, provided your career is limited to representing businesses in poor and immigrant communities, and when you have kids, they don’t want to eat either.

Then Bill Henderson, at the Legal Whiteboard, has finally published his Part II to his book review of Brian Tamanaha’s Failing Law Schools (a mere eight months after Part I), except instead of a blog post, it’s now a law review article. How cool is that? It’s called A Blueprint for Change, which starts with embracing futurist crackpot Richard Susskind, that all law outside the courtroom will be commoditized and either shipped overseas or done by nonlawyers.

Despite this, Bill doesn’t call for the closing of law schools or the death of self-serving scholarship, because that would piss off the professoriate and nobody would be willing to join his consortium of law schools where 12% of scholars would create a paradigm shift, which he equates with the “Apollo Project,” of “competency-based curriculum.”  No, that doesn’t mean practice-ready:



“Practice-Ready” is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on “practice-ready” skills will be insufficient to cope with the structural changes occurring within the legal industry. Granted, it is true that better skills training will enable law school graduates to better compete for the finite number of traditional legal service jobs that will be available in the years to come. But, to be blunt, in a world that is getting pulled in Susskind’s continuum from bespoke to commoditized, practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the “practice ready” solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.

What does it mean? I can’t tell, except that they can spend the next decade writing law review articles on their empirical experience with it. So what if Bill’s prescription solves nothing now. It’s all going to change anyway, according to Susskind, we’re just spinning wheels as everybody becomes a lawyer for 15 minutes. 

Notably, the Blueprint for Change assumes that all lawyers will work for big law firms, government or corporations, because, you know, it’s not like the vast majority of lawyers are solo or small firm now.  But then, that’s what would be expected of a Susskind apostle, since in his future, there will be no need for toilet lawyers do the banal work that will be taken over by computers and LegalZoom.

If I recall correctly, the problems facing law schools involve excessive expense, declining enrollment, declining standards, producing many times more lawyers than there are jobs or society can absorb, producing lawyers who are wholly unprepared to practice, producing lawyers who adore situational ethics, serving the population that needs but can’t afford legal representation, and flushing their problems into our profession to deal with.

So while we’re sitting on hard benches wondering whether a new logo will bring us wealth and prestige, the professoriate is vying for the new paradigm without us, hoping that whoever wins the game will get a statue of himself built outside Harvard Law School. 

Are any of these schemes going to make a better legal profession? For a bunch of smart people, these schemes strike me as pretty darned inadequate, both for law students, for the profession or, most importantly, for clients.  But then, if we leave it up to the lawprofs, what should we expect?

11 thoughts on “The Law Professors’ New Clothes

  1. Keith Lee

    “Though I may not, like them, be able to quote other authors, I shall rely on that which is much greater and more worthy— on experience, the mistress of their Masters. They go about puffed up and pompous, dressed and decorated with [the fruits], not of their own labours, but of those of others. And they will not allow me my own. They will scorn me as an inventor; but how much more might they— who are not inventors but vaunters and declaimers of the works of others— be blamed.” – da Vinci

    I think the solution lays outside of law schools. It’s up to the segment of practicing lawyers who care about the future of the profession to become inventors. Find complex, messy, and new solutions to the scores of new lawyers coming into the practice in the next ten years. Traditional mentoring, digital solutions, support groups in bar associations, incubators, and things that haven’t been thought of yet.

    It will not go smoothly. There will be failures. But no group is better suited to actively take on risk and embrace change than practicing lawyers. By the time law schools are willing to change, the damage will have been done to an entire generation of lawyers.

  2. SHG

    I’m pretty sure I’ve been arguing that practicing lawyers need to be involved, and that this isn’t a “law school problem” as much as a problem for the legal profession as a whole, for quite a while now. See how many other practicing lawyers have picked up the ball and ran with it? See how many lawprofs have willingly engaged with lawyers to consider whether their “solutions” mesh with the greater responsibilities of the profession?  See how all the “official people” at the bar associations have taken the lead in a profession wide discussion of our future?

    Law schools will make change, because their numbers will require it, but it will be the change that works best for them, not for the legal profession. And until it dawns on lawyers, and clients, that they’ve got a horse in the race, they won’t care.  For now, everybody is in it for themselves, at the expense of the rest of the profession.  With that approach, there are going to be a lot of losers. And most of the losers don’t realize it yet.

  3. David Sugerman

    Through our state trial lawyers association, we have organized and run small-group programs. We gave it a name–the New Trial Lawyer Academy. The first level is eight weeks of very basic coaching. (“This is a trust account…” No, you should not advertise for brain injury cases if you have never tried an injury case…..). There is now a second level (“This is how you take a deposition.”) and a third (“This is jury bias….”). My sense is that it is making a difference, thought the total numbers are trivial compared to the incoming. It was developed organically by gristled, gray lawyers and is staffed pro bono. One modest effort.

  4. SHG

    While it’s always better to help a few than no one, it’s a stop-gap. We need an overaching approach that starts on day 1 of law school and ends on the day of retirement. And once lawprofs “fix” law school, the chances of any meaningful and comprehensive reform are dead.

  5. David Sugerman

    It is all that and arguably worse, as programs like this potentially give an out to the academy. But until law schools come to The Lord, I am not content to let it sit. I am curious whether you have had any meaningful discussions with law deans about these issues?

  6. SHG

    Lawprofs mostly, but only two deans. To the extent they want to engage with practicing lawyers, they are far more comfortable with ABA macher-types, Biglaw name partners and Corp Counsels. I’m just a no-account solo, barely worthy of being allowed to breath the same rarified air.

  7. Jim Milles

    “Futurist crackpot Richard Susskind”? I find Susskind’s analysis, and those like Ribstein and Henderson who are influenced by him, pretty convincing. Don’t you think you might be just as tainted by status quo bias with respect to the way law practice should work as the law professors are by their own biases?

  8. SHG

    Of course my view is tainted by my personal bias. Who else’s bias should my views be tainted by? But then, I’m hardly a cheerleader for the status quo.

  9. Carolyn Elefant

    Scott is on the money about Susskind. Don’t get me wrong – I do like Susskind and he has a proven track record of being right – about email adoption by lawyers, about how technology will reduce number of lawyers needed for ediscovery and case management and about the role of social media in connecting with clients. But – Susskind, I believe has an agenda which is to reduce legal costs for large companies and corporations, and which does not include expanding meaningful access to law to individuals. In Susskind’s view, the “masses” can be readily served by form wills, legal assistants and how to guides. And I don’t disagree that these resources are important. But sometimes, just having a lawyer make a call or explain these materials or stand by a litigant in court instead of the person going it alone makes an enormous difference. If we follow Susskind’s theories to the letter, we will have another type of two tier system where big companies have access to technology-enabled bespoke services while individuals have access to forms. Maybe crackpot is not the right adjective, but Susskind worries me, and blind fealty to his ideas by a profession that is supposed to be comprised of critical thinkers worries me also.

  10. SHG

    You’re far kinder to Susskind than I am. Susskind was right about email becoming the norm. Beyond that, the jury is still out. As for non-lawyer forms sufficing for the poor, ignorant groundlings, he’s a menace. Worse yet, what happens when the 20% (my rough calculation) of the users of off-the-shelf forms find out they did it wrong and suffer disaster? And when that happens, which of the 80% will be happy to roll the dice and find out whether their heirs get their estate or they blew the will? 

    There is a belief system that given the availability of information and papers, people can manage it on their own that belies Susskind’s future. I call bullshit. They can’t. Lawyers can barely navigate the legal system, and laypeople don’t stand a chance, no matter how much incomprehensible information is available to them.

    Edit: And while we’re at it, why adopt Susskind’s use of “bespoke,” which smacks of elitism, when what he really means is minimally competent, legal services. The alternative isn’t legal representation at all, but a one-size-fits-all crapshoot. It may be fine with Susskind that the vast majority of people are systemically denied minimally competent legal services, but I don’t think it will be fine with them once they realize that they’ve gotten screwed.

  11. RP

    You know, Professor Diamond’s “pro bono” idea illustrates how ridiculous and out-of-touch some of the ivory-tower people are about how the world works. He gives an example of someone having a “small business” and needing pro bono help to “form an LLC” to as to shield the owner from “personal liability.”

    But this is precisely the type of “optional” task for a business that, if the business owner truly wants it, he should have to pay for it (and forego something else that he doesn’t need as much). Maybe the owner doesn’t really need LLC protection (I have a solo practice and don’t have an LLC – I’ve concluded it’s not worth the paperwork because one-person LLCs don’t give a lot of protection from lawsuits anyway) or maybe its the type of luxury that society shouldn’t have to just give him for free (won’t LLC protection frustrate a plaintiff from getting paid if there is a claim against the business)? So Professor Diamond wants me to spend time (which I might otherwise spend with my family) pro bono drawing up the papers for the LLC; and then another lawyer to spend time pro bono representing the customer with the civil rights claim against the business owner, to get around the LLC and pierce the corporate veil? So we can have lawyers working at cross-purposes, all free of charge of course. Meanwhile, what is ignored is the fact that people (individuals, small businesses) make economic decisions all the time, and that foregoing legal services is just another type of economic decision, like choosing not to go to the doctor if you have the flu but it is mild. So maybe if I make minimum wage and just got that speeding ticket I’ll make the decision to go to court alone; but if I’m accused of murder I’ll come up with the money somehow (my relatives will put up their house); but according to Professor Diamond we do-good lawyers have to rush in and represent people with speeding tickets, because, after all, it it an abomination if a lower middle-class person chooses to proceed without a lawyer…

    The phony, self-contratulatory push for more “pro bono,” among the very people who don’t do it themselves, has to stop. It’s like the scoundrel’s last refuge. Can’t think of any solution for what’s currently ailing the legal system? Call for more “pro bono”! or for better “access to justice” (what does that mean, anyway?), and no one will dare to oppose you.

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