At Volokh Conspiracy, Orin Kerr raises an old question, first raised by Richard Posner 16 years ago.
Back in 2007, Richard Posner published a very interesting reflection on the state of the legal academy in the form of a memorial essay to his colleague Bernard Meltzer. It’s a very brief essay, only 3 pages long. But Posner’s essay laments the loss of the former generation of lawyer-scholars that used to populate law schools. In the old days, Posner says, there were lots of law professors who were superb lawyers steeped in lawyering. These days, Posner says, that model is largely gone. Today’s professors see themselves as academics first and lawyers second. Posner suggests that the best education and the best scholarship is a mix of the two. Both the lawyer-model and the academic-model are useful in their own ways. A student should get a healthy mix of the two, and scholarship of both kinds is very useful.
Orin notes that having a Ph.D. has since become the norm for entry-level prawfs,
It’s certainly not required. But a majority of entry-level hires have one.
Doctorates, or their absence, isn’t a perfect proxy for the dynamic Posner describes. But it’s in the ballpark. And the trend toward even more Ph.Ds suggests that, on the whole, the trend Posner noted has accelerated.
He goes on to note that other developments run counter to this trend. While unmentioned, this grew following the “lost generation” of lawyers following the severe 2008 downturn in jobs for new lawyers, where law schools came up with the idea of producing “practice ready” baby lawyers to fill the gap between law grad and lawyers who were worth what law firms were paying.
Many schools have expanded clinics, hiring new faculty to teach clinics who are outstanding practitioners as well as academics. They have expanded legal writing programs, bringing in excellent lawyers as professors of legal writing. Some schools have added “professors from practice”, leading senior practitioners who join the faculty to teach classes and participate in the life of the law school but are not on the tenure track.
Whether these programs were either as useful as academics wanted to believe they were, or taught by “excellent lawyers” or lawyers who preferred a paycheck to practice is another matter. One of the great failings of clinic programs was that they tended to be extremely doctrinaire in their focus. For example, there would be a clinic to help tenants, but there would never be a clinic to help landlords. Did they produce lawyers competent to practice landlord/tenant law or passionate tenant activists?
Many experienced lawyers saw a shift over this period away from baby lawyers who sought to become excellent lawyers, or to hone their skills, or who had any appreciation of experience, to baby lawyers who knew everything and could be taught nothing. They were certain they not only knew better than experienced lawyers, but were morally superior. This meant it was imperative that they informed lawyers and judges what they were doing wrong, and it was their duty to join arms to fight against the evils of their elders.
An old buddy of mine who was the head of training for a large public defender organization told me after he retired that his work was no longer viable. They won’t learn. They reject the idea that they have anything to learn. And they are terrible lawyers, even though they believe they’re brilliant. He could no longer take the defendants lost to their childish hubris and left.
Is there a connection? Has the legal academy raised a generation of baby lawyers who consider the nuts and bolts of lawyers beneath them, or at least lacking in the doctrinaire compulsion of reinventing the legal universe in the way their Ph.D. law professors taught them it should be? Can it change? Will it?
*This is like Tuesday Talk, only on Thursday. Wild, right?
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Ironically I had this similar thought while doing holiday shopping, and recalled reading in high school, Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court. I was deeply inspired by the intellect of the Supremes that Woodward covered, and I often think about the impression Hugo Black left on me.
As an immigrant raised by loving parents who never finished grade school, my parents encouraged their children to read as much as possible, study with purpose, and be what they could never be. Now that I am older and survey the land, I view my parents as my heroes and also wise way beyond their lack of academic pedigrees. I am startled, perplexed and saddened that the young today are dopamine addicts, opt to embrace “talking points” and non-scholarly “arguments” and otherwise demonstrate a disregard for excellence. President John F. Kennedy would be shocked at what the US educational system has become. It isnt just the legal academy that houses students who reject learning. To paraphrase Sen Daniel Moynihan, “defining deviancy down” is de rigueur.
At home my husband and I shun social media apps, television in any fashion (e.g. cable, satellite, streaming) and prefer to sit together after dinner and read our preferred books. It brings to mind Allan Bloom, who may have been prescient:
“The failure to read good books both enfeebles the vision and strengthens our most fatal tendency — the belief that the here and now is all there is.”
― Allan Bloom, The Closing of the American Mind
Thank you @ScottGreenfield for being an inspiration.
At the risk of being slightly off-topic, I’ll venture an analogy from my field of aerospace engineering:
All engineers get the same basic education – math and physics – their first three semesters of a typical eight-semester undergraduate course; the last five semesters are the discipline-specific stuff. In those last five semesters, and on into grad school if one goes beyond the bachelor’s degree, some schools are educating with a weather eye toward “what does the student need to have a successful career in the industry corresponding to this specialty”, and some are educating more from the “what does the student need to continue on an academic career” perspective.
The problem here is that the “academic career” focus, especially at a university focused on research, is, well, mostly irrelevant to the working engineer. Many of the approaches to certain important problems as taught by an “academic career” focused professor will be worse than useless to the working engineer, taking time and money away from a non-optimal but “good enough” approach. An education at an institution staffed largely by professors who have actually spend time in the Real World produces engineers who can actually get things done, which is the whole point of having engineers in the first place.
I see this as similar to the question raised here: lawyers taught largely by disconnected ivory tower professors likely won’t have the mix of analytical and practical skills needed to succeed for their clients in the Real World. And this is the danger in an insular academy: if the academy is disconnected from the real world, with no external feedback, there is significant risk it will develop pathologies of thought and diverge from reality. From reading this blog, it seems to this outsider that divergence from reality is already happening in the world of legal education.