A somewhat interesting question arose when Denver lawprof Sam Kamin asked, in a post at PrawfsBlawg, whether law schools are doing the right thing by teaching criminal law theory rather than practice.  Coy Kamin opened up with this teaser:

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven’t asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn’t bear it because he didn’t feel like what was taught in criminal law bore any relationship to reality.

The issue grew legs when Orin Kerr and Doug Berman chimed in about their own social circles.  First Kerr, who is clearly better situated to make the rounds of really cool people in the law:

I was having dinner last week with Chief Justice Roberts, Learned Hand, and Moses, and the four of us agreed that studying the MPC is excellent training for a career in criminal law. Indeed, Learned Hand was particularly exercised about it — he kept saying that Herb Wechsler had made him serve on the MPC advisory committee because it was so impossible to teach the common law of criminal law. I thought that was a fair point: I have a bunch of pre-MPC criminal law casebooks, and it is quite hard to understand the law from them given the absence of a common statutory basis.

But Berman, as if to prove that Ohio isn’t the backwater of the legal nation, responds:

I am amazed to learn, Orin, that Hand was more vocal than Moses in this conversation. After all, Moses got to carry around the very first draft of the MPC (though, according to Mel Brooks, he dropped a big part of it).

In any event, when I was having coffee recently with Roger Clemens, Plaxico Buress and Michael Phelps, I was pleasantly surprised by how interested they all were in the MPC’s definition of “knowingly.”

While we were talking, Ted Stevens came over and asked who else was planning to visit Michael Vick once he was transferred to a halfway house. I used the question as an excuse to launch into a long lecture about how the MPC’s sentencing provisions are being revised by the ALI. Everyone seems to find the lecture very pertinent, but nobody offered to buy me a second cup of coffee.

Yeah, right Doug.  Like Plaxico doesn’t have travel restrictions. Actually, I can’t tell you how good it is to know what a bunch of cut-ups these lawprofs turn out to be.  I hope to go to the next AALS beer bash and watch them dance with lampshades on their heads.

But back to important matters, such as Sam’s initial inquiry.  Complete the first year criminal law curriculum, ace the final, and a law student is competent to do . . . another course in third year.  But as Larry Rosenthal argues,

Professor Kamin’s post assumes a dichotomy between “analytical rigor” and practical skills that I reject. Analytical rigor is required of lawyers who practice at the highest level, but that does not mean that law school should reject skills training. After all, law school is preprofessional education — students spend all that time and money in order to obtain a marketable skill. Being able to talk about what the law “ought to be,” or to navigate the Model Penal Code, turns out not to be an especially marketable skill, even though “analytical rigor” is, at least when accompanied by the other skills required to succeed in practice.

The failure to focus on skills training has had little effect to date on elite law firms. They often prefer to do their own skills training. For public interest and government law firms on tight budgets, however, this approach has been a disaster. These firms lack the resources to train new lawyers — who too often know little of the skills needed to survive in practice. As the economy deteriorates, the failure of most law schools to prepare their graduates for practice will, however, likely have ramifications throughout the legal profession, as the resources available to train new lawyers shrink everywhere. Perhaps the pendulum is about to swing.

The “analytical rigor” aspect is no different for crim law than any other area; We need to be able to dissect the statutory and case law just like any other lawyer.  Actually, better than other lawyers since the consequences of our incapacity to think tend to be more severe.  But this doesn’t require that it be grounded in the theoretical Model Penal Code for the convenience of textbook authors or fungibility of jurisdictions.

There’s a real world out there.  One can learn analytical rigor by beating the real ground just as well as a Code that no one anywhere uses.  If it so happens that you pick up some actual useful information, would that be a crime?

The whole “national law school” and “elite law firm” dichotomy is simply institutional arrogance.  Harvard is much too important to teach some snot-nosed law student Massachusetts law, since its “best and brightest” students will span out across the nation to be “thought leaders,” far above the mundane workings of night court in Boston.  Is this true?  Well, probably.  But what harm comes from teaching Massachusetts reality in lieu of Model Penal Code unreality? 

Since no jurisdiction uses the MPC, and since they can test their mettle with real law and practice in a real court that affects real people in their own neighborhood, why not?  That some smart aleck will end up in the Manhattan DAs office changes nothing, since she will have to learn New York criminal law either way.  That MPC nonsense isn’t going to help her one iota more than Massachusetts law.

As for the “elite law firms,” this discussion is just plain silly.  First, they don’t actually practice criminal law, white collar or otherwise.  Second, to the extent they claim to have a white collar criminal law practice, it’s on the shoulders of some recent emigre from the US Attorney’s office, whose never defended a case anyway.  They don’t hire first year associates to do criminal law when they can get them out of St. Andrews Plaza, with a brand new oil change and lube.  You guys are fooling yourselves.

A comment by a recent Suffolk law school grad, George, injects a dose of reality into the academy:

Further, don’t law schools as institutions have obligations to (1) “the legal profession” and (2) the “public” that the profession allegedly serves? Are not the profession and the public best served when law students are given a fair shake? And if not, would it not be in the interest of honesty and good conscience to let prospective students know that when they graduate they will have little marketable skill.

Between the post, the comments, and my own experience, I can only conclude that law schools, and their professors are a part of a system that takes advantage of people for a lot of money knowing full well they are not giving their clients, students, or customers the “benefit of the bargain”. I went to law school to become a lawyer. I paid 112k directly to a group of attorneys to be trained as a lawyer. I am not a lawyer. Great system.

I can hear that smack all the way in New York. Ouch.

I discussed George’s comment during dinner last night with Clarence Darrow, William O. Douglas and Thurgood Marshall.  We all agreed that the rarified world of the Supreme Court really isn’t all that different from the dirty, smelly world in the trenches of a criminal court in any city in America, where Justices with law clerks who are smarter than they are try to remember how exactly things play out in courtrooms and on streets, where theory is discussed at the end of a gun and hungry babies cry while waiting for their daddies to be brought out in leg irons. 

We all agreed that the lust for theory in the quest for analytical rigor was better taught in a bar around the corner from the law school, since the real work of lawyers, save the handful who ever get the chance to argue at the Big Show, happens in the dirty, smelly trenches.  And Wild Bill and Thurgood then guffawed, agreeing that even at the Supreme Court, the justices are just trying to figure out the real life implications of a case while the litigants are arguing pie-in-the-sky theory.  “If it wasn’t for law clerks from Harvard,” Thurgood said, “I wouldn’t have a clue what half of them are talking about.”

Subject law students to analytical rigor, but do it by way of real law.  If the lawprof lacks the background to know anything about real law, relying instead on whatever textbook is most popular at the moment, find a new lawprof.  Do it, just in case they don’t get that first year associate job at Biglaw.  Maybe then, come graduation day, you will have trained someone to be a lawyer.

As my experience inside the academy is limited to the occasional guest lecture and the Cardozo ITAP program, neither of which involve any degree of scholarship whatsoever and, I assume, the impression left upon students is limited to stifling a yawn,  Thus, Jay Wexler’s piece of advice at PrawsfBlawg shook me to the core.

If your school is one of those where the students put on a musical every year to poke fun at law school life, including the professors, it is in your best interest to take affirmative steps to avoid being portrayed in a negative light during the show.  Believe me, you do not want to be tagged as the “sweaty” professor, or the “smarmy” professor, or the professor who loves to hear himself talk (like a prawf I’ve heard about who was portrayed singing, to the tune of the Divinyls hit song, “When I think about law, I cite myself”).  To avoid this unfortunate fate, I recommend that you early on adopt a very obvious and hopefully charming (or at least harmless) affectation that the students will have no choice but to seize upon when depicting you in their musicals. 

Law schools put on plays?  Mine never put on a play.  At least one that I was told about.  Of course, my classmates may have engaged in a secret pact to keep this information from me, but I don’t think they cared enough to go to such lengths. 

[Editorial note: I am about to embark on a discussion of Jay Wexler.  Since I don’t know Jay, and the name could be masculine or feminine, and I don’t have a photograph to go by, I am constrained to make an editorial choice as to pronoun.  I pick the feminine, giving myself a 70-30 chance of being wrong and insulting Jay and her entire family.  I assume that someone will eventually correct me, at which time I will point to this note and exclaim, “Ha!”]

Jay later explains the she has adopted the affectation of constantly popping candy.

Now I never go anywhere without a roll of Smarties, the delicious sweet-tarty candy to which I am completely addicted.  I have to say that, although no students really know who I am and so never portray me in their musicals at all, I am quite confident that if they ever do put me in one of their plays, they will totally overlook all my negative characteristics and simply show me as a guy popping Smarties. 

Law students, you got that, right?  It’s not that she doesn’t like Smarties.  She does.  It’s that she has an addictive personality and blood sugar issues.  You might want to also inquire about her dental records.  She might have some holes worth looking into there.

As for me, I decided to check out Jay Wexler’s CV at Boston University School of Law.  I note that I am particularly fond of BU as that is where Mrs. SJ got her doctorate (I know, that would make her Dr. SJ, but that sounds so pretentious).  But back to Jay, I immediately noticed that she doesn’t pass the shoe test (mine, not the Iraqi version).  This means that she hasn’t been a lawprof longer than any pair of shoes I own (except my very chic crocks, but they don’t count).

However, Jay’s resume is incredible.  She clerked for Ruth Bader Ginsburg.  I didn’t even go down there to get admitted, assuming that there was a good chance that the FBI would bar me from the building.  She’s written a ton of scholarly works and sat on enough panels to have a seriously flattened derrière.  This is a very impressive person.

So let’s say she drones a bit when teaching.  She’s entitled.  When you’ve accomplished what she’s accomplished, in such a remarkably short time, you get to be a bit pedantic.  So all you law students, who have yet to accomplish more than making it to last call at the local pub, should hang on her every word.  There’s a reason why she’s standing in front of the class and you’re not.  I mean, serious, she graduated Stanford with a 4.08 cum.  She not only bought all the hornbooks, but probably read some of them. 

So if the students at BU are putting on a play, it’s time you took a hard look at Jay Wexler.  And forget about some Smarties joke about her, as if she’s going to get away with the Smarties thing.  If you can’t find something better to use, then you don’t deserve Jay Wexler as your lawprof.  Now go study.

Those of us who went to law school back in the days before computers, cellphones, light bulbs, carry one very similar memory with us when we step into the well of the court.  No professor ever called us by name.  I was routine called “mustache man.”  I believe this had something to do with having a mustache, though another guy was called “blue shirt” and we both had blue shirts.

Back then, it was viewed as one of those quirky oddities that distinguished law school from, oh, kindergarten.  We are being toughened up so that when we stepped into the real arena, the one where real people’s lives were on the line, we didn’t expect to be coddled.  We suspected profs knew our real names, and occasionally one would slip and utter a syllable before correcting himself.  Others just pointed and called us “you”.  These were heady times.

The ABA thinks this is just horrible, and has developed “Best Practices” to “Foster a Supportive Environment.”  No doubt, that’s to simulate the supportive environment students will find when they enter a real courtroom someday as lawyers.  The ABA has promulgated rules :

Learn students’ names. This is perhaps the single most important thing a teacher can do to create a positive climate in the classroom. Call students by name in and out of the classroom. Do not allow them to be anonymous, to feel they can fade out without anyone’s knowing or caring.

Learn about students’ experiences and use them in class. Ask students to provide you with information about themselves: where they are from, undergraduate school and major, graduate degrees, work experience, other experience related to the course, hobbies, and anything else they want you to know. Ask students to share their experiences at relevant times in the course.

Let students get to know you. Introduce yourself at the beginning of the course, letting students know about your professional and personal interests. Fill out the same informational survey you ask the students to complete. Go to lunch with students and attend student events.

“Wipe their noses” and “Serve them milk and cookies” failed to capture a majority vote of the committee. Go figure.

This has caused a raging debate to break out in the academy.  Randazza wants to treat them like human beings. Jay Wexler called his students by their last names when he started professoring, but then his “Doofus Prevention System” kicked in and he’s opted for first names.  The Rickster Esenberg at Co-Op mixes it up, possibly as a result of early onset dementia, while Nate Olman, wannabe curmudgeon, defaults to the formality of last names, but admits his reasoning:

Of course, the sad truth is that I am really bad at remembering names of all kinds, and I regularly screw-up even my own students’ last names. I had been married for several years before I was able to sort out all of the names in my wife’s extended family. I am still working on all of the names in my own. Given that some sizable proportion of the male law student population is named “Matt” I might be better off simply dispensing with last names entirely. Still, I keep last names because I actually think that there is some pedagogical and social value to formality.

Curious how none of these scholars, sufficiently concerned about their choice to mention it, have asked themselves the primary question:  What is the ABA talking about?  Supportive environment?  Why?

Deep within the bowels of the academy, professors, while sipping sherry and adjusting the elbow patches on their tweed jackets, complain about the whininess of their students.  Putting an end to this whining is high on their priority list, yet they thoughtlessly enable this “supportive environment” nonsense because the phrase involves two words currently in vogue. 

So let’s clear this up now.  There is no “supportive environment” in the law.  Our job is done under constant siege, with everyone else in the courtroom out to get us.  That’s why they call it an “adversary system” instead of a “happy friendly system.”  When everybody is being nice to you, it’s either because you have a brain tumor and won’t last the trial or they are setting you up for the fall. 

Do you think this is helping your students, by lulling them into a false sense of warmth and caring?  Turn up the heat.  Turn up the pressure.  If they can’t perform when they’re feeling alone and vulnerable, then this isn’t the job for them.  Or maybe they can take the abbreviated law school curriculum calculated to perfect their skills at document review and leave the rest to the students who can tough it out. 

Gideon just provided a list of the 10 things he didn’t learn in law school.  Let me add to the list, perhaps as number 8(a), that judges may smile warmly at you when you give your appearance, but they don’t really like you.  They don’t feel much of anything at all.  And if you open your mouth and the wrong thing comes out, they will rip your throat out in a flash, some of them still smiling as they do it.  Have you prepared Mr. Jones or Ashley for that?

I realize that pedagogical approaches, like skirt hems, move around all the time so that new lawprofs can write stories about how last year’s approach was wrong.  But in the trenches, things rarely change.  If your students care too much about what you call them, there’s a strong chance that they aren’t going to be able to stand up to the rigors of abuse of a system designed to constantly test their mettle.

Do your students a favor.  Forget their names.  The judge will.

And while you’re at it, make them call you “professor”.  They have to learn not to choke on that, just as they will when the call judges “your honor.”  Consider it a learning experience.

For those of you who attended the elite law schools or read Above the Law regularly, you probably already know this.  For me, this came as a shock.  Did you know that students at Yale and Penn law schools are taught legal writing by third year law students?

Rick Garnett at PrawfsBlawg let the cat out of the bag in his effort to dispute Jason Solomon’s point that this is a major failing for those schools in the USN&WR rankings.  Since I don’t give a hoot about the rankings, I didn’t pay attention.  Here’s the deal:

Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L’s “prevents Penn from having an ‘outstanding’ JD program”.  Why should this be true?  He elaborates:

So Penn, it’s time to spend some money on real legal writing professors. The people who head Penn and Yale’s programs may be terrific, but there’s only so much one person can do. The law student instructors may be doing a good job given what they know, but… they’re law students.

1. Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have . . . .
   
   
2. Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. . . .
   
   
3. It is extremely unlikely that someone who cannot write well will be [a] successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. . . .
   
   
4. The typical 3L has very little writing experience — the 1L [legal research and writing] curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good.
   
   
5. A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.



That last point, it bears remembering, goes to the heart of why law students burn a thousand days and often incur more than $100,000 in undischargeable debt: to get jobs.

For crying out loud, teach the students how to write.  Give them something useful for their money.  And put the rest of us out of our misery trying to clean up the crap they produce.

And let me add one thing to Jim’s list.  Maybe law schools ought to be awfully careful even when they have lawprofs teach legal writing.  Maybe, just maybe, some of them lack the “substantial experience” in the trenches that distinguishes a “successful” teacher of legal writing from a teacher of what an academic thinks is good legal writing?  There can be a difference.  Just think about it. 

I have long been of the view that the United States produces far too many lawyers for society to absorb.  Law, being the profession of last resort, takes in the strays that couldn’t hack organic chemistry, or can’t bear the sight of blood.  Law schools, which exist to support the scholarly endeavors of its professorate, needs as many warm bodies with cash as they can squeeze though the door to support its addiction.

The bottom line is miserable Biglaw associates, frivolous lawsuits brought by lawyers whose hands would otherwise be idle, a cause of action for every wrong, no matter who was at fault, and a society with no respect for the law or its practitioners.  Familiarity breeds contempt, and we all know a lawyer.

Since we, the stewards of the legal profession, have neglected to take responsibility for thinning the herd to manageable levels, enough that there is “food” for everyone, nature will do it for us.  Enter my old buddy,  Thomas Robert Malthus. 

According to David Bernstein at Volokh, who cites to Al Brophy at The Faculty Lounge, the current economic situation is having its impact on law schools, resulting in a hiring freeze at William & Mary, with more to come:

I’m expecting freezes on hiring at many universities. I asked a friend at a major law school a few weeks back what he thought the effect of the economy would be on law school hiring. … First, fewer people are going to be retiring; second, schools will be reluctant to fill vacancies. A handful of elite schools will be insulated from the downturn, I suppose. For all the rest of us, get ready for some more belt-tightening…. Maybe the real crunch will be felt next year; that’s hard to know.

Bernstein wonders whether this means that newer (or lesser?) lawprofs should start considering their options.  Polish up that resume, guys.

The implication is that this is a bad thing for legal scholarship, and indeed it is likely to mean that the next class of lawprofs is going to be much thinner and more competitive.  But this is the tacit product of the next class of law students, likely to be smaller and far more select. 

Not necessarily select from the law schools’ point of view, as my bet is that they will take anybody able to pay the freight since student loans may be impossible to find (or afford), but select from the students’ perspective.  Erstwhile law students will think long and hard before saddling themselves with the cost of three years of quasi-education to gain entrée to a declining market for legal talent.

As Malthus, whose harsh theory of population decline applies to so many other things, recognized, nature will not be kind when forced to do the job that we have neglected.  It will cut with a large, blunt blade, keeping the less privileged out of the law while the aristocracy with cash to spend will find law a safe haven.  Law schools could avert this problem, but will they put their supposed purpose ahead of their need to fund their beloved scholarship? 

Jonathon Swift, who thought less highly of Malthus than I do, satirically suggested the solution of eating the babies of the poor to feed Malthus’ wealthy hungry masses.  Who will the law schools eat to work their way out of this situation? 

This might be a good time to help your kid study for organic chemistry.

Perhaps our law school deans will spend less time agonizing over the U.S. News & World Reports rankings and more time considering the monster of too many lawyers they’ve created.  If they do, they will enjoy the deeply-felt appreciation of a grateful nation.

For years, I’ve suspected it, but now there’s finally confirmation.  There’s a reason why law review articles written by professors of law are both painful and almost invariably useless:  that’s how they are taught to write them.

Dan Markel at Prawfsblawg offers Advice for Beginning Scholars.  If you respect and admire the intellect and scholarship of lawprofs, as I do, you may not want to read any further.  It’s like watching sausage being made.  It isn’t pretty.

Dan offers three suggestions for those practitioners hoping to break into the Academy.  The first is benign enough: use footnotes rather than endnotes.  This hardly seems worth saying, since footnotes are easy enough to do these days, unlike the days when I went to law school and papers were typed on typewriters.  Back then, footnotes were a major pain to produce, and endnotes were so much easier.  With a computer, that problem has been totally eliminated.

The second suggestion is a preview of what’s to come:

The overwhelming burden is to demonstrate to law professors that you think and write like a law professor, not a practitioner.  Be careful, therefore, about not falling into a practitioner’s trap of using case cites to support empirical assertions.  If you are making an empirical assertion, one needs empirical data, or one needs to weaken the point, like “courts are still struggling with the issue.” 

I like that, the “practitioner’s trap.”  But he is, of course, quite correct.  Practitioners are constrained by precedent, and its mere existence is reason enough to rely on a decision for an empirical assertion.  If the court says so, then so it is.  From a scholar’s perspective, however, this is lazy and inadequate.  The fact that a court ruled that the sun rises in the west doesn’t make it so, and no self-respecting scholar is going to rely on such an decision.

But it’s Dan’s third point that is most telling. 

Remember your audience.  It’s not judges or practitioners.  It’s other law professors.  Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say “whoa, now there’s a practitioner who really gets it.”

First of all, every suggestion that begins with the words “Remember the . . . ” is bound for greatness.  It may not be original, but it works every time.  You may not have a clue what happened to the “Maine”, but you remember the battle cry, right?

Seriously, this is where the rubber hits the road.  We practitioners have suffered from our own self-absorption in thinking that law review articles were written to serve some purpose relative to the law.  Whether to inform lawyers, or persuade judges, to impact and improve the way in which the law served society.  How selfish we are.  How egocentric to think that scholars were talking to us. 

Law review articles are a conversation amongst themselves.  Colloquially, perhaps they are best thought of as a circle-jerk, where neither judge nor practitioner is allowed to rub up against any tweed-covered elbow.  Dan’s suggestions are meant for those practitioners, and I use that word in the broadest possible sense because most have about 12 minutes of practical experience under their belt, who find life in the well of the court distasteful and are looking for a different environment.  Dan’s trying to teach wannabe lawprofs how to shift gears.

For so many of us, Dan’s words come as an epiphany.  Who knew that this was all a big set-up?  Who knew that law review was never meant for the working stiffs, whether in blue pinstripe or black robes, but to curry favor with a secret society of scholars for whom the internal debate was the sole and exclusive end?  I didn’t.  I always thought that these articles were intended to have some application to the law.  I thought that they were meant to actually do something for real people.  I am such a maroon.

And as an aside to all those law students who were deluded by the glossy law porn into believing that their tuition was tendered in exchange for their being taught how to be lawyers, pay careful attention.  The first thing the Academy demands of your “teachers” is that they disconnect themselves from anything having any connection to the law and prove their mettle by devolving into theoreticians of some extra-legal, multi-disciplinary voodoo designed to never serve any purpose for humanity.  No wonder you come out of law school lacking any marketable skills.

I can’t help but wonder whether Jim Chen subscribes to this as well.  Is it really true that entry into the Academy requires the shedding of all semblance of social or legal utility?  Is that the price of scholar-hood?  Is this the best we can do for those students who will some day be expected to actually practice law, an idea so filthy as to bring to a screeching halt any practitioner’s hope of passing along his knowledge and experience to those who will follow in his footsteps?

Update:  Heard from Dan Markel, who informs me that the three points were from Jeff Lipshaw, about whom Dan says:

FWIW, Jeff is someone who was in practice for 25 years as a partner and GC at a major company b/f he became a professor and wrote those comments.

Now that’s really weird.

Update 2:  Heard from Jeff Lipshaw who, with tongue partially fixed in cheek (I think), mentioned something about people in glass houses.  He reminded me that lawyer writing is similarly viewed by the public as a tad, oh, incomprehensible.  So is it the same?

I don’t think we’re living in the same glass house.  For one thing, many of us in the blawgosphere are constantly advocating for better lawyer writing, less legalese and painfully outmoded language, and just better, clearer writing in general.  Second, when we write briefs or motions, it’s done for the purpose of persuading judges because people pay us to do so.  In other words, the brief isn’t the end in itself, but a means to an end.  We write for a greater purpose.

If lawprofs are writing solely for the benefit of acceptance by other lawprofs, then that’s where the game ends for them.  What bothers me most about this is not its insularity, but the waste of so many good minds and so much effort without any greater purpose.  Practitioners try to help one client, and in the process may help many.  Lawprofs could offer so much more, by changing the course of the law.  Why not try to do so?  Wouldn’t they feel pretty good if people were still talking about the “[insert lawprof surname] Rule” one hundred years from now?

While the world is in turmoil over the financial crisis, Harvard Law School has quietly adopted the Yale law grading method.  According to Eugene at VC, who let the cat out of the bag,

According to the e-mail that I had forwarded to me (and whose authenticity I have no reason to question), Harvard would technically have four grades — Honors, Pass, Low Pass, and Fail. My guess, though, is that Low Pass and Fail would be extremely rare, and 98%+ of all grades would be Honors or Pass, as they are at Yale. The shift then is basically from at least five commonly used grades (A, A-, B+, B, and B-, unless I’m mistaken) to two.

Apparently, Standford already went this route.  Now I was unaware of Yale’s grading system, or Stanford’s change, but now that it’s hit Harvard, another law school a neglected to attend, enough is enough.   Is nothing sacred?

Notice how Eugene described the “five commonly used grades” as involving only two letters of the alphabet, “A” and “B”.  Did the academy have to sell off the other letters to afford lawprof condominiums?  What happened to my good old friends, “C”, “D” and “F”?  Were they excessed?

This exercise in grade inflation happened when the rest of us were busy working, I guess, as my memory of law school was that some students did poorly.  Some flunked out.  Many got a bad grade in one course or another, usually the one involving the professor who insisted on long lectures in barely cognizable English.  That was always a pleasure, and a great opportunity to hone your Times crossword puzzle or Scrabble skills.

This is over, apparently.  All those resumes with astronomical GPAs meant nothing.  You had to be near brain-dead not to look like a star.  To do otherwise would have meant low self-esteem, and we certainly can’t have lawyers with low self-esteem.

This didn’t make sense to me until Orin Kerr stepped in and explained things for a dope like me:

So here’s a puzzle about the psychology of grading. Harvard and Stanford Law schools have recently announced moving from a letter grade system with pluses and minuses to a High/Pass/Low-Pass/Fail system. My sense is that most students like the change: Students perceive that it takes pressure off them.

But imagine a slight change. Imagine that instead of adopting the High/Pass/Low-Pass/Fail system, the schools kept the letter system and simply dropped pluses and minuses and the “D” grade. In other words, the possible grades became just A, B, C, and F.

My sense is that students would object strongly to such a system. They would object that it was too arbitrary and unfair, because a student who earned a very high B or a very high A would get no credit for it: They would just get the flat grade that didn’t reflect their achievement. Indeed, I suspect some students would say that removing pluses and minuses would increase the pressure on students by giving students a single bar to hit rather than more of a sliding scale.

Why is this a puzzle?

Because the two systems are exactly the same.  Only the names have been changed to protect the innocent.  So why are these fine institutions of higher legal learning bothering with a shell game?  And are the brilliant students who attend these find institutions that stupid that they can’t tell it’s a shell game? 

But more importantly, are these same brilliant students, who will one day walk out in the world of lawyering so unbearably fragile that they can’t handle the standard grades that have, for better or worse, managed to characterize academic success and failure all these years? 

There is one thing that the academy has done a particularly poor job teaching, and appears still determined to screw up.  Once these young men and women embark on a career in the law, they will all lose at one time or another.  They need to learn to lose.  They need to learn to fight.  They need to learn to handle adversity and rise up to continue the fight.  As I wrote here :

A well-conceived law school education serves one purpose only:  to prepare you to confront the abuse of being a lawyer and prevail.  How to prevail comes later.  You’re not ready for that now.  For now, you need to learn how to toughen up and take abuse without crying and whining.  How to keep a smile on your face and deflect the humiliation that is designed to make even the most macho man shrivel.  If your lawprof doesn’t abuse you, she hasn’t done her job.  If your lawprof doesn’t toughen you up, then you’ve gained nothing.

If a law student has not done well in a course, then flunk him.  If he’s only done mediocre, then give him a “C”, or even a “C-“.  A client will thank you one day if you do.  Practicing law is not about feeling good about yourself, but learning how it feels to lose, and then still be able to fight again.  Don’t steal this from law students, even though they don’t know that they need it yet.

Jeffrey Harrison at MoneyLaw has been gathering data on law student tendencies, reaching the conclusion that the Slackoisie have brought about the New Age of Disability.  Of course, since use of the word “disability” is viewed by many as pejorative, we shall reform his language to “differently abled,” having rejected the characterization of “bunch of total losers” as being unduly lengthy.

Following the best of scientific protocols, Jeffrey’s research has produced the following examples:

1. A student asked to have a 2 year old grade changed in order to improve his class rank.
2. A mother called to complain about her son’s grade in a class.
3. A student was devastated by a comment on a paper because it was followed by an explanation point.
4. Two attorneys and one judge have asked “What is going on.” They say they have never encountered students who required as much “hand holding.”
5. Employers visiting to interview complain about student attitudes as signified by wearing shorts and ipods to an interview, being aggressive about what they will and won’t do, lateness, etc.

Of course, we’ve accumulated the same sort of data anecdotally here at Simple Justice.  And where we can’t find an anecdote, we just make it up, which is why it’s important that our machinations are verified by properly conducted research.

Jeffrey goes on to note:

If ability means being prepared to contend with the ups and downs of life, being able to shake things off, being determined, to learn from criticism, and to take the initiative to solve difficult problems, it seems like we are well into an new age of disability.

Pondering both the source of this ugly turn for the worst, as well as its implications for law schools, he accepts his share of the blame.

I am pretty sure we play a role in the disabling. In talking to some law professor friends, none could not remember more than a time or two when he or she said in response to an classroom answer “No, actually that is wrong.” Instead, the answer is something that leaves the student feeling good but likely hearing an inaccurate message.

Having offered his mea culpa, because God knows it couldn’t possibly be the fault of the Slackoisie themselves as they cannot, by definition, be responsible for anything in their lives that negatively affects their self-esteem, it seems appropriate that our brethren in the theoretical lanes of the legal superhighway receive the full support of those of us in the far left lane, weaving in and out as suits our disposition.

Shortly after that glorious day when your students toss their mortar boards high in the air, without the slightest care for the return of the deposit on the regalia that was charged to mommy’s credit card, your former law student who has likely never been told by any professor that his response to a question in class was “wrong” or that he was a “blithering idiot” who should consider an alternative career path, will stand up before a judge.

Now judges have changed somewhat since the old days.  But not that much.  After your former student expresses his most thoughtful and well-prepared argument on behalf of an actual, living client, forcefully and with a passion that can only be mustered by the young and inappropriately healthy, beaming with the glow of knowing that he has crafted a position that fills him with pride as his finest work, he will hear the magic word:

DENIED

No “and”, no pat on the head, no hug.  Just denied. 

The former law student blinks a few times.  His eyes begin to glaze, then water.  His face is red, flush with emotion.  His head spins.  “What could this be,” he thinks, as his mind races to make sense of this new experience.  At first, he thinks he must have heard wrong, as he knows how much he loved his argument and that it was the best argument he could possibly make.  But as the uniformed court officer grabs him by the shoulder to push him out of the well, he realizes that something is wrong.  Very wrong.

In a dream-like state, he walked toward the bench, staggering until he drops to the hard, cold surface.  He feels the firm, no harsh, grip on his upper arm, the sense of wet droplets striking his cheek and ear.  He realizes his client is next to him, so close that he can smell the odor of his warm, moist breath.  Then he hears the assault of sounds, pounding and pounding his head. 

“You moron, you idiot, you fool . . . you told me you had this under control…you’ve ruined me…you’ve ruined my life…you suck…you stink… you idiot…”

The problem, you see, is that this former law student is unprepared for this eventuality.  He’s never been told before that he can be wrong.  His world has never included outright rejection of his thoughts and ideas.  He has never experienced the moment when someone says “no” to him, without equivocation or explanation.  Throughout his education, he’s been told that if he tries his best, if he believes that he has produced the best work he is capable of, then he has succeeded.

No one ever prepared him for the judgment day.  No one ever told him that someday, it will not matter what he thinks, as there will be another person who will judge him.  His entire life has been guided by “I think” up to now, and the very notion that what he thinks no longer rules the day will rock the foundation of his existence.

Jeffrey concludes by asking the question, “Is disabling people really a way to be kind or show your respect?”

I guess it’s easier than fielding that call from the vicious helicopter mom.  But no, shielding junior from judgment day is not a sign of respect.  It’s just the path of least resistance.

So how exactly are the Slackoisie differently abled?  Well, actually they’re not.  They’re just a bunch of self-absorbed whiners  who hides behind their mother’s skirt rather than face the reality that sometimes you win and sometimes you lose, and nobody cares if it makes you feel badly about yourself.  And it doesn’t really matter whose fault it is, because eventually everybody has to take responsibility for themselves and stop blaming others for their failings.

The subculture of legal academia turns out to be a dirty little place, with goateed lawprofs skulking about the dark back hallways of the Ivory Tower trying to figure out ways to cheat their way to prominence.  Who knew?

According to this New York Lawyer report, it’s forcing the hand of U.S. News and World Reports, that paragon of public integrity, to change the way it does business.  You see, one of the factors that’s used to calculate how wonderful a law school is (and hence its ranking) is the LSAT scores of its admits.  But there’s a little secret.

U.S. News currently uses only the grades and test scores of full-time students. The magazine is considering pooling the scores of part-time students after hearing allegations that some schools move students with lower grades and test scores into part-time programs so they can report better data, said Robert Morse, director of data research for the magazine.

“One way to prevent gaming of the system is to count [grade and test data of] all students,” Morse said.

As I sat, quietly laughing to myself at the notion of law schools “gaming the system,” the question “why” kept running through my mind.  If the schools get a higher ranking, do the Deans get a performance bonus?  If the schools get a higher ranking, do their graduates get a favorable first jury verdict?  Maybe they get an affirmance/reversal (as the case may be) on their first appeal?  Why?

There is no doubt that this is very serious business for law schools.

The proposal is strongly opposed by deans at schools with part-time programs designed for students who are years past college graduation and often well into careers outside the law. They warn that a school’s place on the U.S. News list is so important that some schools would drop the part-time programs rather than slip lower in the national rankings.

They would rather shut out an entire class of students, those who are older, employed and minority, than drop a position in the rankings?  That sounds crazy.  Worse yet, it sounds vicious.  Would they really sacrifice their part-time program, and all the individuals who would otherwise be unable to attend law school, just for a rank?

While the article makes clear that this is very serious business, it fails to explain why this matters so much.  Would potential Biglaw employers confuse Harvard Law School with Ave Maria if they didn’t have rankings?  Would lawprofs be unable to get their law review articles published because they taught in a T-25 rather than a T-14 school?  Would alumni donations slow to a trickle?  I don’t know what ill would befall these schools, but it must be huge for them to be willing to sacrifice any sense of mission to hold onto their rank. 

I’m quite sure that I’m naive, but I suspect that this may be more an internally driven competition, where the impact is more psychological than anything else.  Potential law students may obsess over rankings, but I can’t recall any client caring what your law school rank was.  Yet very smart people have become slaves to Mort Zuckerman.  Think about how crazy that sounds.  Mort Zuckerman, for God’s sake!

What if a bunch of top law schools refused to provide data to U.S. News & World Reports next year?  What if they decided that their mission was to teach people to become lawyers, and they were going to do it the best they could?  What if they decided that putting a bunch of promising, but older, less LSAT-savvy, students in seats to fulfill the demand for public service lawyering was more important to society than putting a feather in their well-endowed cap?

The sky would fall, right?  So it’s worth it for law schools to cheat for a rank?  Not in my book.

Update:  It looks like I have company in my disgust at the fact that law schools would game the system, or do away with their part-time program to keep their death-grip on their rank.  See Jim Chen at MoneyLaw (check out his great Sir Thomas More quote and video from “A Man for All Seasons”) and Nancy Rappaport at MoneyLaw as well as her personal blawg.

It’s gratifying to know that I’m in such good company, and that there are some important people in the Academy who have survived with their integrity intact.

Ilya Somin at Volokh renews his calls for the death of the Bluebook.  For those who never enjoyed the rigors of law school, the Bluebook is what lawyers call a book entitled “A Uniform System of Citation.”  When I went to law school, it was a little book with a blue cover.  From what I read, it’s gotten larger.  I assume it’s still got a blue cover, though I couldn’t swear to it.

Law students are expected to learn every rule and nuance of the Bluebook.  Law reviews slavishly pour over it, vetting the articles of lawprofs to make sure that they conform to the rules in every respect.  A capital letter here, a period there, makes all the difference.  These are life and death matters for law review editors, and millions of pencil points have been sacrificed to the Bluebook gods.  What a waste of good red  pencils.

But what of the Bluebook to those of us laboring in the trenches?  Here’s the scoop.  We must be able to accurately and adequately communicate our citations to the courts if they are to be able to follow our arguments.  Doing so largely requires us to use relatively standard citation form, which really isn’t a very big deal.  Whether we include a space between “Fed. R. Crim. P.” or not doesn’t tend to create mass confusion.  The judges get the message. 

Once law school fades into distant memory, about 6 hours into our first post-law-school work day, the Bluebook is left in its place of honor on the shelf, never to be looked at again.  Eventually, it is consumed by dust, such that its distinctive blue cover turns a lovely shade of gray.  And there it sits until we die (or worse, retire). 

The Bluebook is probably the biggest non-starter in the law.  Has anybody ever read a Supreme Court decision that included the language:

We might be persuaded that the appellant was correct in his analysis of the caselaw, but because he failed to use a period in his citation form of an obscure law review article, we affirm.

Not me.  In fact, I can’t recall a judge ever mentioning citation form in my papers.  Ever.  This may be because I am a natural Bluebook prodigy, and somehow comply with even the most ridiculously obscure rule without realizing it.  But I don’t think so.  I may be good, but not that good.

No, my sense is that the judges feel pretty much the same as me about the Bluebook.  They don’t care.  As long as the citations can be found, they take no issue.  And you can bet your bottom dollar that they aren’t sweating the Bluebook when the write their opinions.  As if their decision doesn’t count if they mis-cited a case.

So while Ilya, and others like Dan Solove, fight the chains of Bluebook slavery, I’ve got to laugh.  This is what comes of being a lawprof, with that myopia that can come only from dependency on law reviews as proof of existence.  As a right of passage for law students, I find it quaint.  There’s no harm in learning to do things the “right way,” even if nobody really cares.  As a shackle on the bigger ideas of lawprofs, it’s just an arcane yoke that comes with owning specialized territory.

For the rest of us, it’s really pretty funny to hear the lawprofs complain about such nonsense.  Don’t blame the Bluebook (or Yale law review) for being what it is.  If you want to lay blame, how about your fellow lawprofs and deans who have yet to send the memo to the kids on law review that

“Henceforth, Harvard Law Review will no longer use Bluebook citation form. If you can understand the citation, regardless of form, then that’s perfectly acceptable.”

But the truth is, you guys love holding the secret key to getting published in law reviews, and if it was only about good ideas, then anybody could do it.