Category Archives: Law School

Keeping The Cash Cow Happy

It’s as if the world inside the Academy was untouched by human hands.  At least the hands of a lawyer.  While practitioners complain that students emerge from law school unprepared to face the world as lawyers, and students complain that the fine time they have inside the Ivory Tower serves only to make the slap in the face as they step through the door into the real world more painful, law professors are busily trying to figure out ways to make the experience different.  Better. Fun.

Over at PrawfsBlawg, Howard Wasserman floated an idea about how to up the fun quotient on exams:



For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).


Could this work? And does anyone have ideas on cartoon(s) to use?

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.  A commenter suggested that his effort would come to naught.


I realize I am a stick in the mud, but as a 3L, I would ask you not to attempt to be fun or cute with your exams. No one likes taking or grading exams, but they are usually worse when a professor attempts to break out of the mold with something playful. Such exams often suggest that the professor does not take the process seriously, and that the grades themselves are arbitrary.

To be crass, think of an exam like a colonoscopy: it’s not a fun procedure whatever you do, and the doc’s only going to make it worse by performing it in a clown suit. Exams and grades have a major impact on your students’ futures, and they will appreciate you more if you treat the process with the seriousness it deserves.

Out of the mouths of babes.  But Wasserman was not so easily deterred.  While he might have overstepped on the clown suit idea, he still questioned, in a subsequent post, whether there was a better way to make law school exams more “fun”:


The idea is to try to break the tension of the exam a bit. As a student, I found it helpful if there was something unique or fun about the exam, even if only as a momentary distraction. There is a balance to be struck, of course. We as prawfs can try too hard. And there always is a risk that only a few students will “get” the humor or culture references–and perhaps that “getting it” will provide an unfair advantage on the exam itself. Several people raised this issue as to my cartoon idea and maybe it falls on the wrong side of the line.

But the broader question stands: Can students enjoy exams just a little bit and is there anything we can do to help? Or is an exam always an uncomfortable medical procedure and any effort to make it otherwise merely detracts from the seriousness of the exam itself?

One of the perpetual problems with intramural discussions amongst scholars is that they try to arrive at idea about how best to train lawyers without involving lawyers in their discussions.  Since so few real lawyers bother to read the lawprof blawgs, the lawprofs are left to their own devices.  Having stumbled upon Wasserman’s post, I decided to butt in and provide an outside perspective:


I hope I don’t ruin the fun by injecting the practitioner’s perspective, but one of the missing ingredients we see in the blossoming law student is tolerance for the reality that life as a lawyer is frequently not “fun”.

Judges can be decidedly unfun. Clients too. Perhaps the effort to make exams more fun is counterproductive at a time when practitioners complain that law students emerge from school largely unprepared to meet their professional responsibilities?

My comment was roundly ignored, which made me feel right at home.  Not their home, but mine, where I am roundly ignored by those who care most for me.  While this was occurring over at PrawfBlawg, the New York Times Room for Debate discussed a similar question, whether graduate students are “students” or “consumers”. 

There is a fundamental rift in how law schools perceive law students.  While one might suppose that they are all busy kissing up to their cash chow, that’s not quite the case.  Consider Richard Vedder, director of the Center of College Affordability and Productivity and teaches economics at Ohio University:


The “student as customer” philosophy has created an underworked and overindulged group of future national leaders, something that likely will prove costly in the long run.
But as others in the Debate Room argue, they can’t do the things that professors like to do without cash-paying students to fund them. 

The one thing that Wasserman’s question ignores is the efficacy of making law school more fun.  His concern with amusing his students, and himself, and making the law school “experience” more enjoyable, is fundamentally misfocused.  It not only perpetuates the fraud of trying to convince law students that law is fun, that they are entitled to fun, that they will have fun when they leave the ivy-covered buildings and take their folding chair in the boiler room, or if they are very lucky, the library. 

Law isn’t fun.  If you want fun, find something else to do.  And if you need fun to help get you through the rigors of law school, then get out now and save your pennies.  You’re headed for a miserable life.

I can understand why Howard Wasserman is trying to make the children in his charge enjoy their experience more.  He’s concerned for them, likes them and wants them to feel better about law school.  It’s a kind thing to do, from his point of view.  But these same students will not find such kindness or thoughtfulness when they strike out on their own.  They will find decidedly unkind judges.  They will find particularly unkind bosses.  They will find clients for whom kindness to them is like the plague.

Law schools are particularly against the idea of becoming trade schools, and I do not agree that theory and understanding of the law has no place in law school, though I do believe that students need to learn the mechanics of their chosen field as well as concepts.  But neither requires that they be coddled.  Indeed, teaching law students to overcome adversity is critical to their survival as lawyers. 

Rather than make law school a more pleasant, a “funner”, place, it should be as difficult and, even, miserable as the practice of law.  If they can’t hack it, then maybe they will be taught the most important lesson they can get from law school: They shouldn’t be lawyers.

Future Lawprofs: Moving Further Away From Lawyers?

While calls, or better yet make that screams, from the profession to make law school more relevant to the actual practice of law were recently heard across the blawgosphere, it appears that the latest trend in lawprof hiring may be one that dooms any possibility of bridging the gap.  Paul Lippe is not going to be happy about this.

Over at CoOp, Dave Hoffman (no relation to Marc Randazza, and any similarities in appearance are purely coincidental) asks whether PhD’s are going to become the norm for those seeking entry level positions in the legal academy.

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone?

In my view, it’s an easy choice (with a few qualifications): go PhD or go home.

While some might see this as just the latest flavor in academic  hiring, soon to be replaced by applicants who wear turtlenecks or some other equally relevant criterion, Dave offers a reason for fear:

There are more PhDs in the legal academy every year.  They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles.  Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1-10 or thereabouts) will trend toward all of the top tier.  It’s those mid-level schools which are going to be increasingly tied into central universities as budgets crunch, with resulting Provostian pressures.

In other words, when little PhDs grow up, they will want new lawprofs to have little PhDs just like them.  It’s only human nature to want to replicate oneself, with the added benefit of justifying why you wasted all that time getting the degree rather than using a law school education to, oh, practice law.

The implications are serious for lawyers, as the nice folks who are supposed to be teaching youngsters to be lawyers have made the personal choice to put as much distance as possible between themselves and the nastiness of legal profession.  In the past, one might at least anticipate the most lawprofs spent a couple of years in the library of a large law firm or prosecutors office where they believed that they now knew everything there was to know about being a lawyer.  

If Dave Hoffman is right, the closest they will ever come to a courtroom is one that has the word “Moot” in its name.  Instead of gaining the benefit of learning about life in the trenches, their world view will be formed while running from one campus building to another, never realizing that there is a whole world outside the university to which they’ve never been exposed.  And these will be the men and women who train future lawyers.

Orin Kerr thinks that Hoffman’s valuation of a PhD may be overstated.


I’m not so sure. Such things are hard to measure, but my sense is that Ph.D.s are often overvalued in entry-level hiring right now. Hiring committees change every year, but some committees see them as a very big deal. Time will tell whether that perception is accurate. Right now that perception is based on a prediction about the kind of scholarship those with Ph.D. credentials are likely to produce — more serious and more important than those with just a J.D. But we don’t know if that prediction will pan out. Maybe it will. But maybe it won’t. And if it doesn’t, the preference for Ph.D.s. at some schools likely will soften.
But even Orin recognizes that the potential (likelihood?) that PhDs will prove to be less valuable in legal scholarship is subject to Dave’s replication theory.

For practicing lawyers who think that lawyers fresh out of school lack the skills needed to practice law now, the future may be far more dim.  A lawprof with a PhD is likely to be far more entrenched in the theoretical than the practical, and far more likely to have had no experience in the actual practice of lawyering.  If you think lawprofs today fall short of the qualifications to teach students to be lawyers, imagine what a future of teachers without any practical experience at all will mean.  Oh, the weather outside is frightful.

One shining hope seems like a possibility however.  As law schools continue to compete for students, perhaps this will present an opening for those schools that aren’t likely to be the top draw for the brainiest PhDs to counterprogram themselves as the practical law schools, “the law school where you actually learn how to be a lawyer.”  We can dream, can’t we?

The Final Final?

Over at PrawfsBlawg, Rick Bales raises an issue that has totally eluded me up to now, but that may serve to recreate law school in the same way that over-assessment has undermined the point of showing up in high school three days a week.  Testing.


An issue that’s hot right now in higher education generally, and becoming hot in legal education, is outcomes assessment.  How do we know that students are learning anything from our courses?  Single, end-of-semester examinations and bar examinations are poor determinants of student learning.  They both are summative rather than formative, meaning that students do not find out until it is too late whether they are learning the material at an adequate level (contrast weekly quizzes – if a student regularly performs poorly on quizzes, the student knows she needs to step up her game).  They both are snapshots: they demonstrate what a student knows at a single point of time rather than what is retained over time.  For both, there is very little correlation between what is tested, how it is tested, and real-life law practice.
Many things are mixed together in this paragraph, and have the potential to fundamentally alter the way law is taught.  Some may think this is good. Others not so much, but it’s a hot topic within the Academy and yet practicing lawyers, the consumers of law school products, know almost nothing about it. 

Paul Lippe recently started a debate over whether law school 4.0 should focus on the theoretical or practical, and it dealt with some critical issues for the future of lawyers.  Academics disagreed.  While that side of the issue remains unresolved, the testing side can sneak up on us and similarly do a whole lot of damage.  It’s hardly a benign problem for the consideration of lawprofs alone; When law school education is assessed on a regular basis rather than just a final exam, the mechanics of how law is taught will change.

My initial thought is that we already have lawprofs in the classroom.  Don’t they know, via Socratic Method, who has a clue and who doesn’t?  But then I remember that Socratic Method is no longer the favored form of pedagogy, and that it’s no longer acceptable for teachers to tell students that they’re wrong.  That would harm their fragile self-esteem, and subject the law schools to angry phone calls from the parents circling above.  Nobody wants to hear from the parents.

The demand for constant assessment, which for some strange reason has become accepted as the routine, may result in teaching to the test, or the death of inspirational lawprofs, or simply taking away the time that was earlier used to teach law.  Maybe this isn’t such a bad idea after all?  But if assessment became the rule, some of the most important things I learned in law school would never have survived.

Then there’s the question raised by Rick about the correlation of testing and the practice of law.  One final exam is, obviously, summative.  But then, so it a jury verdict.  It’s not like you get to go back and redo your cross after the jury foreman says “guilty”. 

But the aspect of this demand for assessment that strikes me as most troubling is the maturing-down of law school.  While perpetual adolescence is a widespread problem for the Slackoisie, and evidenced by the comments at Above The Law, which caters to the younger set, and Sweet Hot Justice, confronting such monumental concerns as associates having acne outbreaks, law students are supposed to be capable of counseling clients shortly after they leave the hallowed halls.  This demands a certain level of judgment and maturity.

If law students can’t be trusted to exercise the level of maturity necessary to assess themselves, their work ethic, their knowledge, their understanding, and need the nanny to test them weekly to make sure they aren’t missing something or falling behind, then will they be capable of demonstrating the level of maturity necessary to fulfill their function as a practicing lawyer?  Bear in mind, not every law student will be warming a chair in the Biglaw library.  Some will actually have to go out and work for a living, and will be expected to be a lawyer from Day 1.

It’s difficult to say whether the calls for continued regular assessment reflect an extant failure of maturity on the part of law students, or whether it will be the cause of prolonged adolescence.  If the former, then it’s too late.  If the latter, then we’re putting another nail in the coffin of the profession.  But either way, it would be wise for the practicing bar to put in its two cents before another seismic shift in how law is taught happens without our knowing.

How To Succeed In Law School. Maybe

Paul Horowitz, with whom I rarely disagree, urges law students to be themselves rather than “package” themselves to appeal to individual professors, in this post at PrawfsBlawg.  In other words, don’t try to game the system.


A little of this advice is useful to some extent: if your professor says, for instance, that she wants you to cover all the issues on an exam rather than delve into a few at great detail, you’d do well to listen.  But students who think this approach is the best or most efficient way to yield good grades are, I think, quite mistaken.  This approach yields few long-term benefits and only uncertain short-term benefits.

These students are not trying to suit the preferences of Professor X or Professor Y; they are simply trying to be good lawyers (or at least good law students).  They develop a skill set that gets them far better results, and with less duplication of effort, than if they had tried to game the system by figuring out each individual professor’s pecadilloes.

While this advice would meet with Pollyanna’s approval, and the suggestion that students would do better to strive to learn how to be a “good lawyer,” it reflects one of the fundamental errors of legal pedagogy as opposed to practical efficacy.  Good lawyers win cases.  Good lawyers figure out what they have to do to win cases.  Good lawyers, amongst other things, learn about their judge, find out what arguments appeal to the specific individual who will be making decisions in their case, and hone their arguments to suit the person in the robe.

The difference in opinion here goes to the difference in function.  A scholar may view the law as he would want it to be, as he will argue it should be. regardless of whether it will produce the desired outcome or not.  It’s a conceptual approach rather than concrete.  Lawyers don’t have this luxury.  No matter how brilliant our analysis and argument, at least in our own minds, the bottom line is that we’ve either prevailed for our client or not.  No defendant goes happily to prison because we’ve taken the high intellectual road.

Gaming the system, while not the way I would explain it, is a skill that practicing lawyers must develop if they hope to serve their clients.  In a comment to Horwitz’s post, Orin Kerr (who, by the way, has added his name to the caboose of the LaFave, Israel, King, and Kerr Criminal Justice hornbook) makes this point:


Telling professors what they want to hear is not only of significant help in getting high grades, it also teaches an essential skill of lawyering: The student who learns how to tailor a message to Professor X to get an A becomes the lawyer who knows how to tailor a legal argument to Judge Y to win summary judgment.

Of course, the trick is actually knowing what the Professor wants to hear: With some professors that means matching their ideology, but with some professors it means something else. Therein lies the difficulty.
It would be wonderful if practicing lawyers could ignore the vicissitudes of judges and focus instead on the loftier purposes of the law, secure in the knowledge that the judge will ignore his perspective and prejudice, recognize a well-conceived and intellectually honest position and rule in its favor.  But for those lawyers who will practice on earth, serving the client in the face of bone-headed judge comes first.  Our job is not to be right, but to win.

What a great way to teach law students this very pragmatic, and very important, lesson.  Don’t pass it up.


All Reasoning Is Not Created Equal

In a post about the irrationality of testing methodology, Jeffrey Harrison at MoneyLaw touches on a subject that sticks in the craw of first year law students and those who are deeply concerned with keeping them all warm and fuzzy.  Being that it’s the opening of another round of the game show, “So You Wanna Be A Lawyer,” unemployed edition, this seems a particularly good time to remind law students, and those who deign to teach them, that reasoning matters.


And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.
Ignore the grading aspect and focus instead on the reasoning aspect.  One of the most disturbing, yet recurring, themes amongst law students who comment around here is their inability to distinguish between emotion and reason, causation and correlation.  Up to now, 1Ls got away with winning arguments any way they could.  It was perfectly sufficient if they achieved their end by screaming louder or withholding sex.  Winning was winning, and the rest was simply finding the mechanism to accomplish the goal.

This doesn’t tend to work nearly as well before judges, and therefore isn’t an acceptable basis for becoming a lawyer.  Despite the touchy-feely approach to legal education, where the self-esteem needs and holistic concerns of personal morality and satisfaction transcend the nasty, ugly, demeaning approach of demanding that students be capable of both assessing a fact pattern for its relevant details and then crafting a rational argument that logically flows from the facts and law to the end to be achieved.

They don’t wanna.  They like their own emotional argument, and if it’s good enough for them, then it should be good enough for the rest of us.  It’s their right!  And what makes reason so much better than whatever it is they believe?

In Jeffrey’s post, he notes that it’s irrational to mark the student who gets the ultimate answer wrong the same whether it’s been well-reasoned, though marred by minor or single error, or wrong because it’s devoid of reason and understanding.  Sure, wrong is wrong ultimately, provided that there is a discrete right and wrong answer.  As lawyers, we come to realize that right answers are only right until some court somewhere decides otherwise, leaving us with quite a few fuzzy lines.  Over enough time, we even find that some black letter law is written in the sand, and is subject to change with the swipe of a hand.

But the ephemeral nature of law tends to get in the way in law school, and is best left for the lessons of misery as one matures in practice.  Law school is for the teaching of foundations upon which nasty experience can build, and foremost of our foundations is to think like a lawyer.  The rest can be learned in a diligent afternoon.

Logic isn’t personal.  It doesn’t care how you “feel” about something.  Your preferences are irrelevant.  And no, you’re not entitled to your own opinion.

This doesn’t mean that you can’t be creative in the crafting of an argument, or the understanding of why a court reached a particular holding.  Indeed, a deeper understanding, informed by experience, may often yield a different rationale for a holding than the one commonly accepted and taught to you.  Provided you understand the accepted rationale, taking the initiative to challenge the rationale by a logical, albeit different, line of reasoning is a higher order skill.  But it must still be based on sound reasoning.  Of course, your professor may not agree with your explanation and burn you for it on tests, but that’s the risk you take.

Jeffrey asks whether logic is still taught in schools.  It is in law school, even if not called logic anymore.  Or at least it should be if law school is to serve any purpose.  The ability to craft and convey a logical rationale for a position is fundamental to the practice of law.  It’s time to put away the child-like arguments that have worked well up to now, and may still work at beer blasts and sock hops.  But they won’t work with other lawyers and judges, none of whom care a whit about how you feel or whether your self-esteem is undermined when you’re told that your argument is rejected with a terse “denied”.

And as lawprofs decide whether the ease with which a scantron satisfies their grading is more important than the ability of a student to present a well-reasoned position, even if it falls short of perfect, consider whether motivating and incentivising your students to leave their childish notions of reason behind and strive to achieve logic is more important than remembering the case name or getting the holding right.  It’s not that holdings don’t matter, but any student who gets a good grade but can’t reason will fail as a lawyer.

From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools.  They can’t think worth a damn.  As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse.  If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers.  And yes, as Jeffrey suggests, their failure is a reflection of the failure of their legal education to teach them the difference.  

Welcome to law school.  I hope you know what you’ve gotten yourself into.  Now get to work.

Only A Matter of Time: Brooklyn Law Cheats Its Way to 61 (Update)

Via the National Law Journal, Brooklyn Law Schools needs a good criminal defense lawyer, because they got nabbed.  While this is no doubt a very serious matter within the Academy, it strikes me as picture perfect.  Law schools have given the high ground to the annual rankings of U.S. News and World Reports.  Their vitality depends on where they fall on the list.  How could seemingly intelligent people willingly give away their souls to a magazine?


U.S. News & World Report said that it is “investigating” Brooklyn Law School’s responses to the magazine’s annual survey used to rank the country’s top law schools, specifically with respect to part-time students.

The magazine said it would look into the matter after some rival law schools noted that Brooklyn Law wasn’t listed in the part-time ranking and questioned whether the school also excluded part-time students in its responses for the overall ranking in an effort to boost its ranking.

Looking beyond the fact that this is Brooklyn, a borough not known for playing by someone else’s set of rules (or phonics), does it come as a shock that a school(s), which claim to hate the rankings yet comply like Pavlovian dogs, isn’t going to put its reputation in the hands of Mort Zuckerman’s minions to decide whether it’s sufficiently worthy of respect?  Think about it.  I still can’t imagine that any law school dean was foolish enough to send back the first questionaire.  Now they live and die on the rankings.

Bear in mind, law schools are reporting to a magazine, not the court, or the church or their mother.  This isn’t perjury; there isn’t a duty to tell USN&WR anything simply because they ask.  No one can force law schools to participate in this goofy charade.  No one can tell students to apply or alumni to contribute or to hire new grads, because a magazine said so.  Yet the law schools dutifully fill out the forms, send them in and eagerly await the results. 

Brooklyn Law School dismisses their “error”.


“For many years, we have engaged U.S. News editors in debate over what we regard as flaws in its rankings methodology,” the school said in a statement. “An important aspect of this debate has been our position that it is inappropriate to consider the numerical credentials (LSAT and GPA) of part-time students on the same basis as full-time students.”

After the school received no response from the magazine to a letter it sent to editors arguing against including part-time students and having heard no announcement that the change was going forward, the school kept up its past practice of excluding part-time students in it responses, the school said. In answering some questions that asked for information based on combined full- and part-time students, the school said its erroneous response providing information for full-time students was “completely inadvertent.”

Wrong answer.  To suggest that it was an “inadvertent” mistake is laughable.  They pore over these forms, crunch the numbers, then crunch them again.  At least within the very small pond of law schools, these numbers are god.  They don’t make “inadvertent” mistakes when it comes to their rankings.  To the extent that Brooklyn had any credibility following its response to the rankings questionaire, it lost it when it proffered this explanation.  Now we know that it cheated.  It would be a “so what” proposition, but for the fact that these rankings were so important, so critical, that it was something worthy of cheating on.

The right answer is so much simpler, so much more honest.  The rankings are crap and we’ve not playing the game anymore. 

What would happen to any law school that chose not to play?  Would it explode?  Disappear off the face of the earth?  Never receive another penny in donations, another application, another job offer to its students?  Come on.  It would, of course, be easiest for all if it started at the top, the law schools who don’t need the USN&WR seal of approval to prove their worth, but I suspect that these are the schools that secretly love the ratings, since they do well and it inures to their benefit.

It’s the law schools down the line, the ones that will never make it into the top 20, who want to pull the plug.  But then, if they creep up a few notches, they send out a press release about how they’re now the ginchiest law school around, hoping to attract another hundred applicants (and their application fees).  You see, as much as they hate the rankings, it’s a self-serving hatred.  They are equally shameless about using them to their own advantage whenever possible.

It’s a testament to the integrity of law schools that they made it this far without a scandal.  If these rankings were about lawyers, people would be gaming the system from day 1.  There isn’t a chance in the world that lawyers would play fair, or even care if they were playing fair.  Getting an advantage wherever possible is sport for lawyers, and there is no shame in trying.  Law schools prefer to believe they are on a higher ethical plane.  For academia, it’s about honor.  At least until the cash flow starts to dry up, at which point it’s about survival on a playing field designed by some magazine editors.

So Brooklyn Law School tried to play the system.  It’s still there, teaching students how to succeed in the game of law.  What is most curious about this scandal isn’t that it happened, but that it was instigated by other law schools jealous of Brooklyn’s position in the rankings.  If Brooklyn Law School is pathetic for having tried to game this silly system, how sad are the ones who ratted Brooklyn out.

Update: In a related matter, Syracuse will only let law students go to the bathroom once during exams to stop cheating.  When asked why, the dean responded, “because we’re not Brooklyn, dammit!”  Only kidding.  From Turley :


The law school told students that “During this exam period, we have received a significant number of reports from (first-year) students alleging academic dishonesty.” Limiting bathroom runs was better and more efficient than cavity searches or catheters.

And besides, cavity searches and catheters are exclusively reserved for the post exam parties.  So where exactly on the USN&WR’s questionaire is the space for “number of times cheating law students are allowed to go to the bathroom?”

In Defense of the Socratic Method (Update)

I think back with fond memories at being called “mustache man” when my torts professor demanded that I rise and explain the holding in Palsgraff v. Long Island Railroad.  I hadn’t read the case the night before as I was supposed to, and Palsgraf wasn’t one of those cases you could fudge.  As I stumbled with my cursory knowledge of the decision, which clearly showed that I hadn’t a clue, the professor then called “blond woman” to stand and state whether I was correct or a blithering idiot.  Unlike me, she got the answer right.

One of the most recognizable rights of passage in law school is enduring the Socratic Method, being questioned in front of your law school classmates with the risk of public humiliation if you couldn’t muster a reasonable response on the spot.  It was popularized in The Paper Chase , first by movie and then television, in which Professor Kingsfield, the quintessential Harvard lawprof, emasculated students for their inability to reason on demand. 

Apparently, this right of passage has itself passed out of favor.  Reading Dave Hoffman’s post at Concurring Opinions, I learned this from two of my favorite blawging lawprofs, Dave and Orin Kerr of VC fame, both of whom were contemplating their Big Wheels while I was called to explain Palsgraf.  The post, about the difference between being smart and possessing wisdom as a qualification for the Supreme Court,


As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest. 

Orin shot back:


I don’t see the connection to the Socratic Method. The Socratic Method does not reward intelligence; it rewards glibness. But as far as I know, no one claims to want a Supreme Court Justice who is exceedingly glib.

I began to get the impression that they didn’t care for the Socratic Method.  I took no issue with Dave’s primary point, that smart and wise were hardly the same, and that wisdom was by far the more important attribute.  But why blame it on the Socratic Method?

While there are many practice areas in the law, and niches within practice areas, where a lawyer enjoys the luxury of either speaking without anyone knowledgeable around to question his pedantic assertions, or the time to contemplate and reflect before providing an answer to a question, or the expectation that a twenty page memorandum, with footnotes and exhibits, will be forthcoming to respond to an inquiry, this isn’t the life of a trench lawyer.  For these others, the Socratic Method is like death by a thousand knives, jabbing and poking his inadequate psyche and intellect, demanding that he performs in ways he can’t and never will.  For these lawyers, it was humiliation and shame.

For the trench lawyer, this was preparation for life.  We work with a gun to our heads, given half a second to analyze the situation, the spectrum of possible responses, ascertain the correct response, put it into comprehensible words and utter those words in such a way that we have served our client’s interest.  And served it well.  We don’t have the luxury of telling the judge in the midst of trial, “can we get back to you in a week or two on that one?”  It’s now or never, do or die.  Either we act or the opportunity is lost.  Our argument either prevails or not, but we will never get another chance to object, question, argue, challenge, explain, justify, persuade. 

“Glib” is such an ugly word.  Whether meant as “superficial” or “insincere”, or just the ability to speak without forethought, the lack of substance notwithstanding, “glib” is not good.  Is that really all the Socratic Method teaches? 

Certainly, the Socratic Method is not a nurturing pedagogical tool.  It’s not intended to make the student feel worthy and comfortable, to enhance self-esteem.  Nurturing is the trend in law school today.  I wonder what lawprofs a generation from now will have to say about it.  I already know what I think of nurturing :


Law school is the time to learn how to beat them at their own game.  Learn this and the rest is a snap.  And if you go to one of those law schools where they are deeply concerned about how you feel about yourself and want to foster a nurturing environment, tell them you want your money back. 

No use of the pejorative “glib” is going to change the dynamic of the courtroom.  The judge will not say “denied” in a kindly, yet supportive, tone.  Your client will not be sympathetic to your need for “more time” to think about whether to object to inadmissible evidence.  There are good answers in a courtroom and bad answers in a courtroom, and the half second you have to distinguish between the two won’t get any longer because someone called the lawyer capable of addressing the question “glib”.  Good answers are both timely and persuasive.  Lack either one and it’s a bad answer, no matter how great an response you come up with a day or two later.

We work with a gun to our head, demanding that we analyze and react in a split second.  We risk public humiliation if our utterances are foolish or incomprehensible.  We face a room of people who are wholly unconcerned about whether we feel warm and fuzzy, and are by definition judgmental and critical.  So what pedagogical exercise best prepares a law student to survive in this environment?

Like hemlines, teaching methods go in and out of style.  After all, there would be nothing new to write about if the old methods weren’t deemed passé, and new methods lauded in their place.  But unlike hemlines, it’s not a fashion statement of no substantive purpose.  The Socratic Method forces law students to face the circumstances they will face in the courtroom, and to either figure out how to deal with it or figure out what else they should do with their lives.  If you can’t handle the pressure, then you don’t belong in the trenches.

Certainly the skillset required to survive the Socratic Method isn’t the same as that requires to be an excellent judge.  It’s not about wisdom, and no one ever said it was.  But it doesn’t preclude wisdom either.  Orin blames the Socratic Method for sucking the wisdom out of law students.  I fail to see any connection whatsoever; those lawyers and law students who are so one dimensional that they are incapable of thought, of understanding, beyond a single teaching method were never destined for wisdom to begin with.  If they have the capacity for wisdom, no lawprof is going to change that.  Sorry guys, but you don’t carry that much influence.

Years ago, I was asked to allow a college student to intern with me for a month because she was considering a career as a lawyer and her mother wanted her to experience it first.  It seemed like a smart move, and I agreed.  I asked the young woman on her first day why she wanted to be a lawyer, and she told me that everyone said she should be because she liked to argue.  And indeed, she did like to argue.  Unfortunately, her arguments were markedly unpersuasive and ill-conceived, more of the ilk of mindless disagreement rather than thoughtful contrariness.  She went on to a career teaching college psychology, where thought would never be involved.

Not everyone possesses wisdom.  And we are not the judge of our own wisdom.  We all think of ourselves as wise, and the vast majority of us are dead wrong.  It’s up to others to decide whether our very finest thoughts qualify as wisdom.  For the very few who possess this great gift, one essential to being a person entitled to sit in judgment of others, no teaching method will take it away.  For those who lack wisdom, no amount of nurturing will provide it.  

If your daily work involves putting nails into a piece of wood, it’s good to know how to use a hammer. It’s a poor craftsman who blames his tools, guys.  You don’t teach wisdom.  You can’t.  But you do teach people to be trench lawyers, and the Socratic Method is a darned good way to do so.

Update:  Ashby Jones found this sufficiently humerous to post about it at the WSJ Law Blog, evoking one comment that was just too funny not to share.  By Anonymous at 2:32 :


It’s clear that Greenfield went direct from undergrad to law school. When I think of a profession in which people “work with a gun to [their] head, demanding that we analyze and react in a split second” I think of a stock broker. Lawyers prep anywhere from a few weeks to a few years for each of these confrontations, what’s more, they already know what the other side is going to say via motions and discovery.
.
What’s really killing the profession is that it has an artificial, academic barrier to entry, which walls out most people who understand how work is done in the rest of the world. And your left with people like Greenfield who have no real understanding of anything outside of law.

Hey, what would a kid like me know?

Law School, Revealed

Having written of the ugly underbelly of legal academia, and leaving that nasty taste in one’s mouth, Louisville Law School Dean Jim Chen provides the MoneyLaw pepto bismol to sooth the burn.  His inspiration comes from the movie Breaking Away.


It’s the thirtieth anniversary of one of my all-time favorite movies, Breaking Away. As this musical tribute suggests, it’s an extremely sentimental movie about growing up, intergenerational conflict, class warfare, and an underdog who (in the parlance of European pop music) ultimately gets everything but the girl — and doesn’t crash and burn over that outcome. F. Scott Fitzgerald, eat your heart out. Even though I now run the asylum after having served several unhappy sentences in American higher education, and even though the pickup line par excellence has shifted from Posso ofrirti qualcosa da bere, signorina? to Σ’αγαπώ πολύ, κορίτσι μού, I still love Breaking Away. Always did, always will.

Jim confront’s the retort to Jeffrey Harrison’s challenge that was earlier posted by Co-Op’s own Dave Hoffman, itself in response to Jim’s post about Shane Battier :


The problem with the Moneylaw approach to faculty rewards is that it has failed to fully define what universities are designed to maximize. That’s not an easy question to answer, obviously, and I don’t think there’s just one approach. For a few law schools, like Florida-Coastal, that answer is obvious: to make money. For others, law school’s function as a profit center within a larger university umbrella. . . . But for most law schools, the ultimate criterion of faculty success is just unclear. Giving students a return on their investment is much of it, but it’s not the whole story, since tuition doesn’t pay nearly all the bills. We’ve responsibilities to alumni donors, to the State, to the Bar, etc. Shane Battier just needs to help his team win games. We don’t know what winning is. We don’t know what game we’re playing. And who’s our team again?

Hard questions?  Indeed.  But true to his beliefs and inspiration, Jim provides an answer:



In a MoneyLaw world, law schools win if their students — at graduation, five years out, whenever — don’t ask for a refund. Here’s the thought experiment that explains what I mean: Imagine that every law student, upon matriculation, gets a magic button. At any moment, before and after graduation, if a student wishes that she or he had done anything but go to law school, that student can mash the magic button and thereby get a refund. Of course, the legal education and everything it confers — the degree, the subsequent bar passage (if any), the eventual career (again, if any) — will vaporize in that instance.

For every student who would elect this option, MoneyLaw regards this choice as a devastating loss for the school in question. This is what it means to “win” in higher education: running your school so that your students and graduates never regret having set foot on your campus.

This is not merely a matter of remembering why they erected all those ivy covered buildings, but revolutionary.  It’s all about the students.  That’s what law schools, deans and lawprofs need to worry about.  You make them lawyers and we’ll take it from there.

But I offer a few caveats to put some flesh on those bones.  Stop taking on students because they mean another tuition payment, and start admitting only those kids who truly want to be lawyers, who have a clue what being a lawyer means and what a lawyer does.  You sow the seeds of your own discontent by allowing the law to become the profession of last resort, merely to glom up the student loan loot.

Cut your numbers.  By half.  One factor that brings enormous disrepute, and disappointment, is that we have far more lawyers coming out of law schools than our society can absorb.  When law students emerge from your halls into ours, they will be smacked in the face with this reality and demand that refund.  There won’t be enough high-paying jobs for them.  The jobs won’t be fun.  Their future won’t be secure.  Their loan debt won’t be easily paid off.  They won’t be happy with their choice. You know it.  We know it. They need to know it too.

End the stranglehold of “publish or perish.”  Let’s talk honestly here.  Can anyone really justify law review articles on due process at the Ministry of Magic?  But force lawprofs to write for their meal ticket, and write they will.  It’s not merely embarrassing, but diverts attention and the perks of performance from their now-forgotten purpose, teaching students to be lawyers.  Law schools have long since eschewed the Socratic Method (it hurts students’ feelings) and law taught by lawyers with experience (they aren’t sufficiently scholarly), because they don’t play well at US News and World Reports. 

It’s been made painfully plain to me by a number of my lawprof “pals” in the blawgosphere that you don’t appreciate hearing from real lawyers, telling you how to run your shop or what’s wrong with the Academy.  Tough.  We live with the results of your mess, and the fact that you would prefer to hide in the Ivory Tower than confront the criticism doesn’t mean that the dissatisfaction isn’t happening and isn’t real. 

Instead of sending me “private” emails asking me to tone down the criticism, and that I don’t get it because I can’t possibly understand the pressures of academia, make your case in the comments and see if it can withstand “peer” scrutiny.   If you’ve got the guts.

Law School, Exposed

Jeffrey Harrison has written a scathing exposé at MoneyLaw on what really drives law professors, and the institutions for which they labor, in the age of U.S. News and World Reports rankings.  If you thought it was bad before, read Jeffrey’s post and learn that it’s likely worse than you thought, where the show has become so driven by the applause that they’ve perhaps forgotten why they put on a show at all.

For those of us not fortunate receive a lawprofs’ paycheck at the end of the week, this post may come as a bit of a surprise.  After all, jaded and cynical as lawyers tend to become, most of us harbor a hope that things aren’t as ugly as we think.  But Jeffrey didn’t write this post for our benefit as an expose, but as a challenge to the Academy to remember why they bothered to open law schools and become lawprofs in the first place.  In do so, he held no punches.


Teaching evaluations have result in altering teaching styles not in the direction of ensuring that today’s student is even better prepared than their predecessors but so the teacher can score a higher number. Some faculty obsess over a tenth of a point here and there. I’ve had colleagues freely admit that they decided to be funnier to raise evaluations.

Foreign programs have gone from opportunities for students to products that are sold to them oft times in hopes that the professor will get to go and not because there is some gaping hole in educational opportunities for students.

The writing requirement which I suppose at one time was instituted in hopes that people with freedom to study law would “discover” things much like a scientist has largely been diluted to a hurdle, almost a form of hazing, in order receive tenure. 7000 plus articles a year, few of which are read and even fewer of which are written because of inspiration. Instead there is a great deal of casting about — what can I write about now? Does this edited book of reading count? If is refereed if someone asked me to do it for a symposium?

Grades are inflated in part because, as it has been expressed at my school, 1) We have to give high grades so our students can compete. 2) It hurts the students’ feelings to get a C (and increasingly a . Student ask why not raise grades even more so we can be even more competitive.

All of this is driven by the demand to increase a school’s USNWR ranking, the primary driver of all things law school these days.  Would anyone have imagined that so many smart people, so many respected schools, would drop their trousers on demand to please the USNWR gods?  As Jeffrey analogizes this to the tail that wags the dog:


If you peel away all of the tails, would we find a dog? I assume this means 1) teachers who do their best to produce students to whom they would entrust the fates of future clients — even their parents- regardless of the impact on evaluations, 2) writing only when you feel a pressing need to express something that may actually make a difference, 3) honestly evaluating every program to determine what it produces for the students and other stakeholders, 4) admitting students (at least to a state school) so the subsidization is fairly given to those with promise regardless of the USN&WR-affecting LSAT.

My sense is that we would find a dog. My fear is that it may be a chihuahua.

The deepest shame of this academic disaster is that the deans, the lawprofs, all know this to be true, but lack the guts to take a stand and say “enough”.  While each may individually profess to hate it, none will be the first to stand up and reject rankings as their law school’s driving force.   And apparently, academic collegiality ends at the door to the admissions office, where the first checks start rolling in. 

And if law schools, deans and professors, lack the balls to say “no”, then why not the Biglaw hiring partners who are the intended victims of grade inflation and rankings scams.  Real lawyers in the trenches know that no jury ever reached a verdict based on the school a lawyer attended or the number of law review articles written by his torts prof.  Oh, I forgot.  Your prestigious Biglaw associates don’t try cases, do they.  They write memos that no one needs.  Or at least they did when you could afford to keep them.

Maybe chihuahua overstates the case, for law schools and Biglaw.  Huge props to Jeffrey for showing the guts to speak out. 

The Value of a Good Education

Amongst the many tenets of our American dream, a foundational principle is that every child deserves a good education, and with that education, anyone can grow up to be President.  While it is no doubt true today that anyone can, the corollary is that everyone can’t.  Nobody mentions this part.  It would be bad for business.

From Sarah Waldeck at Concurring Opinions, we learn that:


The National Center for Public Policy and Higher Education recently reported that college tuition and fees rose 439 percent between 1982 – 2007, while median family income rose only 147 percent. The Center’s president commented, “If we go on this way for another 25 years, we won’t have an affordable system of higher education.”

Yet the dream pushes student and parent to reach for the stars.  The reality is that they might do better to invest in lottery tickets.  Sarah suggests that distance learning, as yet a quasi-acceptable method of gaining a higher education, may be a solution, as it eliminates the need for physical plant, an obviously expensive proposition.  She notes that a student of Concord Law School, an online school authorized to grant J.D.’s, was recently admitted to the Massachusetts bar.  Mind you, he had to sue to do so.

Interestingly, Sarah doesn’t consider the salaries paid to lawprofs within the realm of possible solutions, particularly since they are putatively paid to teach when their true purpose is to publish to advance their personal standing as a scholar on the backs of law students’ tuition payments.  Perhaps if tuition wasn’t subsidizing their vanity, costs would be lower, particularly since so many ivy-covered buildings were long since bought and paid for.

The cries of new attorneys about the crippling burden of law school loans have been a source of dismay for a long time.  Coupled with the death of Biglaw as the pot of gold at the end of the rainbow, this might be an excellent opportunity to re-evaluate the entire approach of higher education and the law.  It costs too much.  It produces more lawyers than our society needs or can absorb.  It serves an ulterior purpose of dubious merit.  Law schools are another suck-hole burdening society while doing little to advance its purported cause. 

Internally, all those very smart boys and girls who want to be lawprofs refuse to see, or more likely acknowledge, that they are parasites.  They aren’t doing this to teach students to become lawyers, but to advance their own interests on the students’ dime.  Aside from Jim Chen and Jeffrey Harrison at MoneyLaw, few will even acknowledge the truth, no less engage in a serious discussion about it.  Some, like dear Marquette lawprof David Papke, are so enamored with their pseudo-intellectualism that they openly disdain the time wasted on such dirty, worthless efforts as teaching students to be lawyers. 


We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

The “we” that Papke refers to is the lawprofs.  I suspect that some of those students footing the bill for his having some place to go during the day might disagree.  Indeed, they might actually expect to be taught to be lawyers.  They might actually think that those escalating tuition payments are in exchange for that training.  Fools.

But it’s not just the failure of law schools to serve their purported purpose.  It’s their ever-increasing hunger for more warm bodies with cash or access to student loans to provide an adequate financial base to fund this lawprof vanity.  No one in academia asks whether we need more lawyers.  No one in academia has the balls to stand up and say, we are producing far more lawyers than this nation can use, can absorb, can support.  We are selling these students false hope.  There is no place for them to go.

Society, on the other hand, has been learning over the past few decades what a surplus of lawyers means.  Wild and crazy lawsuits filed by half-baked lawyers desperate to earn a fee has reduced the respect of what was once a profession to slightly below used-car salesman.  And lawyers have indeed become used-car salesman, spending far more effort on learning the art of huckstering than lawyering.  Young lawyers in particular have come to believe that success as a lawyer has nothing (not little, but nothing) to do with quality of service but with learning the tricks of marketing and search engine optimization.  It’s all about tricking people into hiring you. 

This is the new legal paradigm: Clients are the scarce resource the requires allocation, and allocation requires marketing.  Marketing, therefore, is king.  Today’s successful lawyer is not the one who demonstrates any competency in the practice of law, but excels in the practice of marketing.  The internet is permeated by lying lawyers, scamming the public about their qualifications and indulging in ethical violations up the wazoo, with neither shame nor concern.  They care only about getting the next case, and they will say and do anything necessary to get it.  A bit hyperbolic, but it’s intended to make a point. 

Couching lies in marketing lingo doesn’t make them less deceptive.  The apologists and rationalizers who explain why lawyers have to market and why everything we do is marketing will never restore honor and integrity.  They seek merely to excuse their own indulgence, and no one is fooled who doesn’t want to be fooled.

If Sarah Waldeck was truly focused on reducing the cost of law school, and was honest about what young lawyers needed in order to survive, she might consider reducing it to a six month course of study in deceptive marketing, the only admission requirement being a willingness to disclaim any interest in integrity, taught entirely by lawprofs sitting in boiler rooms in low-rent locations.  Should any student experience difficulty with the curriculum, there is always phone-a-friend.

Or, we can start a movement to revitalize the law as an honorable profession.  Lawprofs, at significantly reduced salaries, can spend their days teaching law students to be lawyers.  Law schools can cut their student populations in half.  The three year curriculum can be cut to two, maybe even one and a half, with the balance by apprenticeship where students can actually learn what lawyers do all day long.  And admission to practice, a privilege not a right, can be conditioned upon a waiver of the right to commercial free speech and the end of lawyer marketing.  

Or students can take those loans, to the extent that there will be any available under the current economic climate, and buy some lottery tickets.  There’s no shame in winning the lottery, and your chances of success at achieving great wealth are substantially better.