Teaching The Bottom Of The Lawyer Barrel

For a brief and shining moment following the crash of 2008, there was talk of reform of legal education. There were some efforts made, such as the opportunity to complete school in two rather than three years. There were claims aplenty of law school turning out “practice-ready lawyers.” And there were academics decrying the dumbing down of law schools to trade schools.

It was all a big steaming pile of crap.

Nobody wanted the two-year grads. Even with clinical programs, externships and whatever pedagogical-sounding programs they dreamed up at faculty teas, new grads were hardly “practice-ready.” And as the prestige, and more importantly, the job opportunities and salaries for new lawyers outside of the smattering of biglaw jobs that remain following the retrenchment, dwindled, schools couldn’t even turn out graduates capable of passing the bar.

Then there were the Access to Justice fantasists, for whom an iPad would inexplicably make new lawyers capable of providing legal services at dirt-cheap rates while earning enough to eat that night. It was all so very social justice-y, and absurdly insane. 

As we close in on ten years later, Paul Caron at Taxprof Blog restarts the discussion, perhaps this time with less vested in the status quo on one side and ridiculous flights of irrational fantasy on the other, by offering Philip Merkel’s “rethinking” who should be teaching law outside of the top-tier schools.

[M]any fourth-tier law schools have lost their way. Rather than embracing their responsibility to educate practitioners, they are trying to look, act, and spend like elite schools. They operate as if they are research centers whose purpose is to produce academic scholarship, not places where future lawyers learn their trade. The research center model creates costs for fourth-tier law schools that ultimately fall on the students. Because most fourth-tier schools rely on tuition for operating expenses and capital budgets, students are paying more tuition and taking on more debt to support their professors’ scholarship. Students subsidize these activities but receive little benefit. They are further short-changed when they graduate and discover their professors taught them little about the actual practice of law.

There are glowing, flowery explanations for the benefits of scholarship, and they’re not necessarily false. Someone needs to think hard about law, though that only reflects a portion of legal scholarship. The balance ranges from advocacy to irrelevance, though if you tell a prawf that, they will viciously attack you for being mean.

But is law school a trade school? Isn’t law a “learned profession,” where we sit and ponder ethereal doctrines while people throw money at us?

The obsession with the production of scholarship has affected the hiring of entry-level tenure-track professors. Most law schools, including those in the fourth tier, are filling tenure-track slots with scholars. There is a presumption in today’s law school world that scholars make the best professors. Likewise, there is a strong bias against hiring practitioners to teach doctrinal courses. Law faculties view a substantial practice record as a taint on a candidate’s resume and strongly suspect a practitioner will not be productive when it comes to publishing. This emphasis on hiring scholars has led fourth-tier schools to narrow the job applicant pool from which they hire and to devote substantial resources for scholarly activity, including research grants, paid leaves, conference expenses, and reduced teaching loads. Law faculties wary of hiring practitioners who they fear will retire into teaching are choosing scholars whose main interest is academic writing. Courses that focus on the practical side of the law—those most relevant to the work students will do when they graduate—are taught by instructors who are not on the tenure track and adjuncts.

To limit the distinction to “scholars” and practitioners is fine, provided we not forget that the job is teaching. Those who can, do, right? That doesn’t mean those who can do can also teach. And this is doubly problematic at a time when the delicacy of teaching is in issue. For many practitioners, the ability to do provides one level of skill, while the ability to convey what we do may not be quite so well-developed.

Add to it the ability to convey what we do in a manner that students will find acceptable and we’ve severely limited the potential pool of pedagogues. I still have nightmares about teaching students a trick for refreshing a witness’ recollection that some “felt” was “cheating,” as if their job was to assure their client was convicted to soothe their existential sense of justice. The students didn’t take well to the notion that, upon becoming a lawyer, they had to put their client first. Not well at all. I failed to respect their agency and opinion.

The steaming pile remains unresolved, though talk of it has quieted down. The short answer to Merkel’s question is that bottom-tier schools want to create the appearance of not sucking, so they pretend to be top tier as if that’s going to confuse students, who can’t tell they aren’t going to Harvard. They’ve got seats to fill, very expensive seats, that no one in their right mind would sit in and pay for if they were better at math.

The business of law isn’t what it once was. The gravy days are gone as the market was flooded with new graduates whose reasons for attending law school spanned their desire to prolong their adolescence to their inability to remain conscious at the sight of blood. To be less snarky about it, some hoped to serve those less privileged, a wonderful purpose provided they could, after three years of tuition and opportunity costs, pass the bar, find someone who suited their sense of justice, and didn’t get all hung up on eating every day.

Maybe now, after the hysteria and antagonism of the Academy has died down a bit, we can reassess the situation. Maybe we can take stock of what law schools should be doing and try to right the ship before it’s completely underwater. We certainly need more lawyers than the T14 can produce, and more than will take that mergers and acquisitions job for huge, undeserved money.

We need criminal defense lawyers, because there will always be people who need to be defended. They need to be taught despite the fact that they may never get rich, or even earn enough money to justify turning down the job at Dairy Queen. Are practitioners the ones to teach them? Probably, provided they have the chops to teach and the students have the chops to learn. There’s nothing wrong with trade schools, if what you need is someone skilled at a trade. When you’re a criminal defendant, an effective tradesperson beats the hell out of nobody.

10 thoughts on “Teaching The Bottom Of The Lawyer Barrel

  1. B. McLeod

    As a person who learned to weld in trade school, I also approached law school as trade school (signed up for one of the practice clinics, which existed even in that day), and I found that approach served me well. I still wasn’t safely “practice ready” when I left, but was lucky enough to get a job in a firm where I could pick up some helpful tips.

    1. SHG Post author

      I worked as a law clerk through law school, mostly because I would get hungry every evening. But I learned from lawyers who didn’t give a damn how I felt about anything.

      1. B. McLeod

        Also important. I clerked for a professor and two firms at different times during school. One of the first things I learned from the firms was that the forms of citation our litigators and courts use is not the “bluebook” form. Not for the statutes, and not for cases. That five minutes of useful information displaced a semester of useless crap taught in one of the formal law school classes.

  2. Mark M.

    If you have guts and really grok the rules of evidence, it doesn’t matter if your skin is from West BF School of Law and Horticulture, you can fight from my table. Learning from lawyers who don’t give a damn just preps you for what your ex-prosecutor judge is going to think about your motion to suppress. Now , what is this “trick” if I may?

  3. Mark M.

    Thought I was falling for the ole “okie doke” by googling it–or maybe something along the women/cup lineage; so it took awhile to get to it. I gotst nuttin…

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