Over at Madisonian, a blog where the mere mortals of the practical blawgosphere are rarely invited, the best of academia are hard at work.  They are engaged in a “mobblog”, which is yet another new webword to me, on the subject of the future of legal education.

“Hey, I graduated law school. What do I care?”  That’s right.  There are no clients to be had, nor money to be made, by reading any further.  That leaves maybe three readers for the balance of this post, but I’m interested so I’m going to continue writing anyway.  Don’t say it, Gideon.

My knee-jerk assumption would be that the lawprofs would have a fine go at creating the law school of their dreams.  One that was long on luxurious days of pondering deep thoughts, where the only good use of law students was to take dictation and make pages of well-foot-noted brilliance appear on the computer screen. 

I would have been wrong.  Dead wrong, in fact.  Reading through some of the mobposts (I just made that word up, so feel free to add it to the blog lexicon at will), I was shocked to find some lawprofs and deans flying some fairly radical ideas up the academic flagpole.

There’s Mike Madison  floating the notion that we have too many law schools.  Of course, he immediately undercuts his own question by flipping to the “wrong kind of law schools” because the notion of fewer lawprof jobs is utter blasphemy.

There’s radical law Dean Erwin Chemerinsky coming out for experiential education, the sort of thing that Washington & Lee is trying which those of us not bound by the rigors of scholarly jargon might call “practical education,” but only because we are not licensed to use words like pedagogy.

Alfred Borphy is  big on the idea of making law schools into “mini-universities,” meaning that law schools would stop isolating themselves from the rest of the world and start incorporating other disciplines into their programs.  This is often discussed as the interdisciplinary approach, which used more letter and hence has greater academic panache.  The flip side, of course, is that law schools generally exist within universities already, and why not make universities “mini-law-schools?”  Instead of lawprofs allowing other profs in, they could always take a walk around the campus on their own, like common undergraduate professors. Ewwww.

One of the  most interesting proposals comes from Nate Oman, raising the time-honored concept of “indentured servitude.”  Nate questions whether the cost to law firms of training new lawyers how to be real lawyers should be shifted onto the backs of law students (notably not the law schools, but let’s not quibble) by requiring them to suffer the indignity of some form of practicing lawyer boot camp, like the military, and then repaying the debt by owing a period of employment to their benefactors.

Granted, Nate’s idea as presented presumes that all lawyers come out of law school and then find some law firm somewhere to get a job, where they hone their craft and then move on to higher paying work.  True for some, not for all.  But that doesn’t mean he’s not on to something.

Doctors go through internship and residency after they get their degree.  Law students graduate and, once they pass the bar, can hang out a shingle like they have a clue how to prepare a motion.  Sure, they will eventually learn, and may even get it sufficiently close that they don’t burn their first 27 clients, but is this the best approach.  Lawyer boot camp in the real world of lawyering hardly seems such a crazy idea, though why it doesn’t occur to Nate that the right place to erect the barracks might be the mini-university quad.  This is where a little input from the real world might make an idea fly.

And then, of course, there is the mob that wants law school to be all about luxurious days of pondering deep thoughts. 

It’s quite surprising to find that not everyone in the Ivory Tower is obsessed with reinventing law school in such a way as to eliminate teaching students altogether.  If you have any interest in the future of the profession (either of the two of you still reading this post), go check out  Madisonian and see what the finest minds can come up with.  But whatever you do, don’t post any comments or let them know you’re looking.  If they find out I sent you, I’ll never get a link from the lawprofs again.

Lat announced late afternoon yesterday that the MPRE results are out.  Had he not, I would have never know, despite my deep, abiding concern for legal ethics.  Oh yeah, in case you’re unaware, MPRE stands for the Multi-State Professional Responsibility Exam.  It’s the component of the bar exam that tests legal ethics.

I was in the first class that ever took the MPRE.  We had a required legal ethics course in law school that, if memory serves, went on for one semester.  The course of study consisted of one sentence, repeated over and over.  “When in doubt, screw the lawyer.”  This was the  Lester Brickman school of legal ethics.  The lawprof also said something about lawyers not being a bus, but no one paid any attention to this analogy.

The MPRE is not considered a particularly rigorous examination.  There really isn’t much of a need for it to be, since in theory ethics really shouldn’t require all that much to learn.  But as with all things legal, the devil is in the details. 

I can recall taking the MPRE with my law school chums.  At one point, I remember going to the restroom and finding a friend in their.  He was one of the smartest guys in my class.  He was smoking a little weed to kill time before he got to the test.  I asked him what he thought, and he responded, “good stuff.” [edited version of his comment].  We weren’t talking about the same thing.

Using the full gamut of my education in legal ethics, I completed the test promptly and did what all good law students do after completing any portion of a bar exam.  I got a beer.  Some of my classmates discussed the nuances of a particular fact pattern present by the test.  They struggled and argued to find a way that the lawyer’s conduct would be acceptable, testing the outer edges of ethics to see how close they could tread.  I drank my beer.

When I was finally asked what I thought, I told them that it was unethical and the lawyer was screwed.  This started the ruckus all over again.  Even then, I seemed to have an ability to provoke discussion.  I sat silently, nursing my beer as they explained to me, using numerous examples and analogies, why they were right and I was wrong.  If they had 8 by 10 glossies with circles and arrows, they would have used them too.

When they finally fell silent, having spent their last ounce of energy arguing their case, I just shook my head.  Nope, the lawyer is screwed.  Finally, one exasperated friend asked, “why?”  I answered, “because on the MPRE, the lawyer is always screwed.”

When I received my score for the test, I was shocked that it was ridiculously high.  I remember wondering whether I had received the highest score in the state, it was that good.

It was also that meaningless.  Sure, you can’t adhere to the various ethical proscriptions that apply to lawyers if you don’t know what they are.  It serves a purpose to learn the Code of Professional Responsibility.  But knowing ethics, and having ethics, are two entirely separate things.  The former takes study.  The latter takes integrity.  There is no class to teach integrity.

Skimming the comments over at Above the Law, it appears that most of the Biglaw wannabes received a passing score on the MPRE.  Whether they have ethics, and will engage in the practice of law with integrity, is another question.

Jim Chen at  MoneyLaw has a series of posts,  here and here, discussing how changes in the availability and use of financial aid have manipulated the landscape for poor students to attend the nation’s most prestigious universities.

One of the things that we can look at is how colleges and universities use their own financial resources either to broaden access or to serve other purposes. And what we’ve seen is a huge shift away from providing institutional financial aid to the financially neediest students and more towards giving larger financial rewards to students who could afford to go to college whether they got a financial award or not. But these public universities, in order to move up in the ratings and the rankings systems, are actually buying up students who have done better previously.

Schools are using financial aid, in the guise of merit scholarships, to buy perceived talent.  Where once we thought that financial aid was there to help the needy student who would be shut out of college because his family lacked the resources to pay the tab, the scenario has changed.  In order to play the U.S. News and World Reports ranking game, this money is used to entice students that the school wants and needs to up its numbers.

Luke Gilman’s assessment of this trend is extremely perceptive. I quote him in full:

There is a clear incentive to “buy” high performing students in order to increase the illusion of selectivity. This incentive in turn puts pressure on admissions offices to make choices based on numbers that it might otherwise make on less quantifiable grounds and also applies pressure to increase tuition to fund the arms race. In this context, the recent moves by wealthier universities to reach into their endowments looks less like philanthropy and more like the erection of barriers to entry.

When the rankings start to reflect not the value the institution can impart on a student by virtue of its education but rather the status the school can achieve by leveraging its endowment to pad its LSAT stats, then it’s time for a MoneyLaw revolution.

Having a daughter in her senior year of high school on her way to college, I’ve stared this beast in the eyes personally. In fact, during the myriad of lectures one sits through during campus visits, the admissions people have been fairly straight forward about it.  If they really want you child, they will pay for him or her. 

Admissions was once about whether your kid had the intelligence and drive to successfully complete the program.  Later, it was about whether you could pay the freight, so the school could use its cash on the needy while others shouldered the financial burden on their own.  But as Jim and Luke make clear, those days are gone.

Today, it’s a bidding war for the kid with good numbers, the one who will help the school to up its ranking.  If a lesser school can buy the kid, then it won’t be a lesser school for long.  This is the skewed nature of the rankings, based not upon their output but their input.  If smart kids with high scores go there, it must be good.

In the second part of the series, Jim notes that the benefit of the Ivy League education diminishes with the amount of effort the student puts in.  While those who didn’t go Ivy think that it’s a free pass to success, Jim accurately notes that a kid in the middle (or bottom) at an Ivy is viewed as an also-ran by potential employers and graduate schools.  It’s not a substitute for academic achievement, despite common belief to the contrary. 

The central finding of the Dale-Krueger study is that the academic prestige of the college attended by a student, generally speaking, has no bearing on future earnings. Greater selectivity in the admissions office simply sinks a student, ceteris paribus, deeper in the class by graduation. Employers are not wholly irrational: they discount class rank by the academic reputation of a job applicant’s alma mater, and they discount the reputation of an alma mater by the applicant’s class rank. And just as smart, motivated students can find suitable study partners at a less selective school, lazy students at an elite school can find plenty of counterparts with whom to loaf.

So this tends to show that the smart, motivated student who excels will achieve greater success at a lesser school than the lazy wealthy kid at the elite school.   So an Ivy diploma alone is no guarantee.

I’m troubled, however, by basing the definition of “success” on future earnings rather than the quality of education.  One thing that remains true is that the depth of education depends upon the level of thinking and discussion developed during classes, and that depends on the intelligence and thoughtfulness of the other kids in the room, as well as other factors.  Future earnings, on the other hand, don’t necessarily depend upon brilliance, which is often more of an inhibiting factor in a future career than an aid.

Jim goes on to note that:

Of course, to the extent elite education does make a difference, there is one class that appears to benefit most: “students from more disadvantaged family backgrounds.” Poor students seem to benefit because elite schools give them connections they would otherwise never acquire. These are the very students being iced out of elite universities by emerging trends in admissions and financial aid.

Ironic, isn’t it?  This trend is not only a danger to the fabric of higher education, particularly in light of the efforts over the past 50 years to provide opportunity for the disadvantaged, but it reflects how one magazine’s list, one ranking, has so badly screwed up the model for American education.  You’ve got to give U.S. News and World Reports credit.  Our institutions of higher education may hate the rankings, but they still play the game. 

The  Washington & Lee Law School experiment into a third year practicum has drawn some heavy  negative reactions from the lawprofs.  This comes as little surprise, as these are people deeply vested in doing things the way they always have.

The criticisms have been a bit, well, facile if you ask me, particularly since I have some serious doubts that many lawprofs have a clue what most lawyers actually do for a living when they get out of law school.  (Hint: not to many will get a chance to argue before the Supreme Court in their first year).

Sam Bagenstos, in a comment to  Leitner’s post on the experiment, offered this critique:

The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I’m quite sure that a student who goes through that program will, to coin a phrase, be “ready on day one” for the kinds of tasks that new lawyers do on day one. But I’m far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.

So many slurs packed into such a short comment.  Who will stand up to this?  Who will challenge it?  As a lawyer, my views don’t count in the world of lawprofs (we’re just the hillbillies of the law).  Anyone?

Yes, a champion has appeared to challenge all the naysayers.  Bruce Boyden over at  Concurring Opinions has taken on his colleagues, an act of some bravery when faced with the academic establishment’s disdain for all things practical.

I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.

But he doesn’t stop there.

Nor is it the case, as these commenters suggest, that such lessons are easily duplicated in the initial years of practice. No practicing lawyer has the time to supervise subordinates closely enough, or impart their wisdom in a direct fashion while working through an issue. Lessons in practice come haphazardly and through trial and error. It is key that the students start learning those lessons as soon as possible, and ideally in a structured environment, with detailed and knowledgeable feedback, and in a setting where mistakes are not catastrophic. If that can happen anywhere, it’s law school, not practice.

Yes!  Law school is a darn good place to learn how to be a lawyer, not just read appellate decisions and “discuss”.

Let me add my own two cents.  It’s true that most lawyers, eventually, will learn about life in the well of a court, what the various papers are, what they mean, how to put the nuts on the bolts.  We all had to do it, though the poor clients we were charged with representing in the beginning got a lot less than they deserved, because we didn’t know any better.

But the discussion of a third year of practical experience by the critics unduly trivializes the practical skills that can, and should be taught.  There’s no need for a class in how to sit on your butt in a library and cite check a memo for a Biglaw senior associate.  There is a real need for learning what lawyers actually do, how they practice, how to argue, when to shut up and when to sit down. 

My good friend  Susan Cartier Leibel has argued zealously that there’s no good reason why some kid fresh out of law school can’t hang out a shingle and open up shop.  I’ve disagreed with her, because no one comes out of law school knowing how to be a lawyer.  Look at  what happened to Daniel Hynes (okay, he may be a bad example), but lawyers know better than anyone how little law school prepares you to be a lawyer.

The only aspect of this experiment that I suspect will face some very significant problems is whether law schools will have practical lawyers in charge or leave the practicum to lawprofs.  Even though most lawprofs spent a few hours practicing law before joining the faculty, it was usually for some US Attorney, judge or Biglaw shop.  These aren’t exactly the typical things that lawyers do, and the lessons learned really don’t lend themselves to the work-a-day world where most lawyers live. 

And one last thought.  Even if this experiment fails, at least Washington & Lee tried something different with an eye toward producing real lawyers.  It’s a step in the right direction no matter what.

Ken Lammers of  CrimLaw broke the news.  His alma mater, Washington & Lee Law School, is going radical, and he wishes they had done so many years ago when he was cutting his teeth.  This is a big break in chain of law school tradition, worthy of the attention of the  Wall Street Journal blog’s attention.  What’s the shocking news?

Breaking News: Law School to Teach Practice of Law

The Washington and Lee School of Law is poised to turn the world of legal education on its head. The deans are announcing a plan to overhaul its 3L curriculum by replacing all academic classes — that’s right, all academic classes — with “experiential” learning.

Imagine, students coming out of law school capable of . . . being a lawyer.  It’s a whole new world.

As the  law school describes its new program:

Students will not study law from books or sit in classrooms engaging in dialogue with a professor at a podium. The demanding intellectual content of the third year will instead be presented in realistic settings that simulate actual client experiences, requiring students to exercise professional judgment, work in teams, solve problems, counsel clients, negotiate solutions, serve as advocates and counselors—the full complement of professional activity that engages practicing lawyers as they apply legal theory and legal doctrines to the real-world issues of serving clients ethically and honorably within the highest traditions of the profession.

This differs from Ken’s memory of law school, which he describes as “cramming 2 years of education into three years.”  But breaks from tradition will naturally be met with skepticism, if not open ridicule.

Carolyn Elefant describes the reactions over at WSJ:

On the other hand, the commenters at WSJ Law Blog don’t like the program at all. A number of commenters don’t like the compulsory nature of the program, arguing that they should have a choice over the courses they take. Others say that law schools should simply dispense with the third year entirely, and let students acquire training on the job rather than in the classroom. Another commenter hopes that other law schools will follow suit, but fears that in the short run, a skills-based program could harm job-seekers’ prospects, particularly if they choose to work out of state. 

Carolyn isn’t a fan of practical training either.

But my greatest problem with skills training is that there’s simply no one-size-fits-all approach and ultimately, students may have to re-learn much of what was taught. What works for lawyers at a large firm in a metropolitan area might not play in Peoria. And once certain habits are entrenched, students may be reluctant to deviate from them in practice, which can stymie change in the profession.

I think Carolyn’s points probably are the most significant in terms of developing a program that meaningful in terms of breadth and scope, and I can see many problems stemming from the fact that law schools lack a bench of practical instructors to fulfill this newfound mission.

But the criticisms, aside from the one that suggests that job prospects may be stymied by anyone doing anything outside the norm (always a truism in the law), are really more a matter of program development, fine-tuning the details, then of the concept itself. 

It’s to be expected that any law school that tries to buck the system is going to get slammed.  Lawyers are, if nothing else, sticklers for tradition, no matter how poorly it serves the profession.  Stare decisis is our mantra, beloved no matter how bad the decision might be.

But if one views the W&L decision to break away as a throwback to the old days, when aspiring lawyers clerked their way into the profession, perhaps the stodgier mandarins will find it more palatable.  Practical training is new to us, but old to the law. 

I sincerely hope that the folks who have chosen this experiment listen to the critics, forge a program that addresses these concerns, because I sincerely believe that this is a ground-breaking positive change for legal education.  If done right.  And if not, then there is little loss since we all know that the third year of law school is a waste of time anyway.  Go Washington & Lee!

A fact is a fact.  It is because if it was anything else, it wouldn’t be a fact.  Pretty basic, right?   This comment at  MoneyLaw got me thinking.  My fifth cup of coffee didn’t hurt, either.  Do law students understand “facts” in the law?

Without any scientific proof, I have always contended that law schools were remiss in their approach to what lawyers do. My students, before taking clinic courses, think that “facts” are something that comes after “statement of.” I do not have any insight into the best methodology, but I do think that we should devote some of our resources as educators of future lawyers to teaching fact development and fact advocacy.

It’s sufficient in the world at large to adopt a belief in a set of facts and stick with it, having no need to search deeper or harder since no one will likely demand that you prove you facts to their satisfaction.  Indeed, there are few professions or occupations where mere belief in facts isn’t good enough.  They can afford to disagree, since no one expects their view of the facts to have any consequence beyond their personal conduct. 

Except in the law, where different sides have different facts relating to the same matter, characterized as allegations because they are in dispute.  One of the fundamental purposes of a legal system is to determine whose facts are facts.  Ultimately, allegations of fact have to be accepted or rejected, so that there emerges a set of facts upon which a decision can be made. 

In law school, students read decision after decision that include a statement of facts.  They become the basis for discussion of legal concepts because the decision says so.  The decisions are selected by professors because they serve as good factual examples to teach legal concepts. 

Lost in the mix, however, is the conundrum of facts, as most normal people conceive of them, and facts are the law finds them.  If a jury finds that the moon is made of green cheese, then that is fact for the purposes of the law.  Students are given the misimpression that facts as recited by an appellate court are what they purport to be, facts.  As if there was a TV show at the end of the trial to provide the “real facts” (one of my favorite phrases) so that the court now knows the facts from the allegations.

An answer to the lawprof commenters question comes readily to my mind.  A jaded lawyer (not that I know any) might suggest to students that courts have a nasty habit of cleaning up the facts for the purposes of applying the law and reaching a decision, when in reality they have no clue what really happened.  There is a large, deep hole into which appellate judges can stick their collective heads in order to arrive at a set of facts that they are willing to adopt and apply. 

Judges have no magic way of knowing the truth.  Watch some of the court TV shows, and see how these actors playing judges jump to grossly unwarranted conclusions of truth and falsity about “testimony” from people about whom they know nothing.  Without a word coming out of a mouth, these judges will assume a party to be lying, and engage them as purveyors of perjury from the start.  It makes for fun TV.  Are they really capable of knowing who is telling the truth and who is lying?

In the real world, most judges and juries do their best to distinguish “truth”, but at best it’s a very risky proposition.  My hypothetical jaded lawyer would challenge law students to find key “facts” and query how anyone could know that for sure.  The “he said, she said” scenario is played out day after day in courtrooms across the nation.  There are a variety of reasons why one person is deemed more credible than another, primarily based on the psychology of credibility, but it has nothing whatsoever to do with who is telling the truth. 

If the witness is a drug dealing, 6 time loser, with the shakes, incapable of looking anyone in the eye and with a poor command of language, always lying?  This is the nightmare witness, because no one is ever going to accept this witnesses testimony when compared with a well-spoken, well-groomed, well-prepared police officer.  But sometimes the mutt is telling the truth and the officer is lying through his teeth. 

Somebody has to make law students aware of this reality.  A healthy skepticism of legal facts is crucial to their developing understanding of the law, and their personal development into lawyers.  I suspect that most lawprofs will not be sufficiently skeptical, or cynical as my hypothetical jaded lawyer might be called, to skewer appellate court statements of fact with the harsh examples of an unjust system that pats itself on the back for resolving fact disputes by tying everything up with a tidy bow.

In the trenches, we get smacked in the face with “facts” regularly.  We see big lies and small lies.  We see tiny but critical gaps cleaned up by tailored testimony from professional witnesses.  We see witnesses who will never be viewed as worthy of belief, even though they alone speak the truth.  And we see judges finding the high percentage facts, knowing full well that they have no real basis to distinguish the truthfulness of one side from the other.  But facts must be found, and so the law does its job.

Scott Dodson at  LawPrawfs writes about whether there are too many law reviews.  Like there’s a question?  But Scott offers a justification for the proliferation of nuclear weapons law reviews that caught my eye.  He asks, “does law review experience actually make better law students and lawyers . . . ?”

His answer?  Yes!  Yes, yes, yes.  Of course, Scott inserts that “I was on two journals at Duke (yes, I was not very bright back then).”   Notice the deft self-deprecation while simultaneously smacking those of you who weren’t invited to be on even one law journal?  Sweet.

His reasoning for elevating his own experience into a rationale for more law reviews, and hence more law review articles, than anyone could possibly read or want goes like this:

I think journal experience is beneficial.  Journal members learn at least two skills: how to Bluebook and how to edit.  Granted, journal Bluebooking is different than brief Bluebooking, and scholarly editing is different than brief editing, but there are also similarities, and I think those similarities end up enhancing lawyerly skills . . . A third skill that many journal members develop is writing, if they have the opportunity to publish a student note or comment.  Not every journal member does that, but those that do usually gain valuable writing experience.

That’s it?  That’s the best he can say about students on law review?  And Biglaw pays big bucks for this?  Anyone want to consider the impact of in-breeding?

The learn to use the Bluebook (kinda).  Doesn’t every student?  And Scott, it’s really not that hard to learn citation form, nor all that critical.  You can always look it up if you’ve got a question.

They learn to edit (kinda).  I’ve always found it curious that students edit lawprofs’ work.  What does this tell you about the lawprofs?  Proofread, I understand, but edit?  If they removed every use of the words “normative pedagogy,” I would be behind you 100%.  Otherwise, so what.

They learn to write a note or comment (maybe).  I completely agree that too many students leave law school unable to write a cogent sentence.  But I fail to see the connection between writing a law review comment and writing a cogent sentence that a lawyer might ever need. 

The best reason that I can think of appears nowhere in Scott Dodson’s post.  The reason for so many law reviews is that it allows that many more students to be on them, thus assuring them jobs with Biglaw and starting salaries equivalent with Supreme Court Justices.  Cut the number of law reviews and how would Biglaw know who to invite to the picnic? 

As for lawprofs, what would you do without a bunch of law journals begging for articles?  You would have all this extra time to spend preparing for class, conceiving of brilliant discussion topics for your students, enlightening young minds to the mystery of the law.  God forbid.

From Jim Chen at MoneyLaw, one of the few, the proud, the brave, who admit that the grand, ivory tower could use the occasional scrubbing, brings us this video of Jesse, the Utah Law student. 



Which one will be the lawprof?  Remember, that means the other one will have to work for a living. 

There are two remarkable things about young Jesse here.  First, that he’s managed to maintain his sense of humor and irony about law school.  Second, that he’s from Utah, land of the preaching lawyers and taser-happy cops. 

Then this probably won’t help much.  Paul Caron posting at MoneyLaw posts Senate Asks Why Colleges Earn 17.6% on Endowments But Spend Only 4.6% on Students.   What?  With college presidents paid like rock stars, and even law school professors getting multi-million dollar pads, the money had to come from somewhere.

The Senate is asking 136 schools (out of 4300 nationwide) to explain why they are soaking students (my words) with the annual barrage of tuition increases when they are sitting on endowments of $500 Million or more.  Harvard, the mother load of endowments, tops the charts at $34.6 Billion.

So what are they doing with these vast riches?  Well, they aren’t holding the line on tuition, that’s for sure.  And why not?  According to Inside Higher Education,

Asking colleges how the endowment payout “meets the needs of the current student body,” for instance, fails to recognize that endowments exist primarily not to get an institution through the next year or even five, but to support its long-term financial health,  Sarah Flanagan, [vice president for government relations and policy development at the National Association of Independent Colleges and Universities] said.

It strikes me that  colleges and universities must certainly watch out for their “long-term financial health.”  But doesn’t $34.6 Billion seem to be enough of a cushion?  And at what point do they show concern, any concern at all, for the long-term financial health of their students?

I can’t quite articulate a reason for this, but I somehow doubt that Harvard is in imminent fear of no new applications for the coming school year, such that it will have to dig deeply into its endowment.  So for all you law students worried about that lack of job prospects and repayment demand from your friendly student loan provider, at least you can take comfort in knowing that no harm will come to Harvard on your watch, no matter how much the application rate drops.

It’s not like I look for things to post about that involve lawprof Michael O’Hear, but he keeps coming up with stuff that pique my interest.  This time he posts about giving law school exams orally rather than in writing over at PrawfsBlawg.  Plus, how could I resist a post title like this?

O’Hear’s basic question is a matter of fundamental fairness:

I’ve never seen a good principled reason why the former students should be systematically disadvantaged relative to the latter at exam time. Ideally, I think that students whose strengths lie in oral expression should have an equal opportunity to demonstrate their mastery of course content in a medium in which they are comfortable.

By former, he refers to those who are more orally adept, while latter are the writers.  He then launches into a variety of issues to address, such as anonymity (remember “they’ve given you a number and taken ‘way your name” from Secret Agent Man?) and reaction to non-verbal cues during oral examinations.  The written exam would deny the student the ability to watch his lawprofs’ smile or frown as he answers questions, thus allowing him to shimmy and shake in accordance with the feedback.

But, as a practical fellow, I have an issue with O’Hear’s issue.  Lawyers must be skilled in writing and oral argument.  These are both practical skills that we use daily, and often without knowing which will be commanded by a court at any given moment.  It’s not like we can tell the judge who says, “get me a brief by tomorrow morning,” that we reluctantly decline because we favor arguing the point orally.  The same is true when the judge asks, “Why?”  She wants an answer now, and is not likely to respond well when we say, “But I’d much rather write you a memo on the issue, your Honor.”

It’s this kind of coddling by lawprofs to the wants and desires of law students that is giving rise to their confusion when they finally get down to the work of being a lawyer.  If lawprofs send the message that they have a choice as to what skillset they will be required to use when put to the test as a lawyer, they are going to be sorely disappointed by judges who are less accommodating.  Worse yet, their clients are going to be downright miserable when they fail to fulfill their purpose in court because they lack the facility to produce.  Nobody wants to hear that the former students, now lawyers, can’t write and argue orally because law school let them slip through without developing both skills.

I completely understand that law students may think it unfair that they are forced to be tested on substantive law via their weaker skill.  Law students think everything is unfair.  They wear whining like a fashion accessory.  But the practice of law demands the ability to make a point and persuade, whether it be in writing or by oral argument.  We all know this, right?  So let’s stop playing with students’ heads by giving them the impression that they have a choice in the matter and make them develop all the skills needed to practice law.  Their future clients will thank you for it.  Eventually, so will they.